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Allahabad High Court · body

2009 DIGILAW 222 (ALL)

ABHAY SINGH v. STATE OF U P

2009-01-22

BARKAT ALI ZAIDI

body2009
( 1 ) THE question to be determined in this petition under Section 482 Cr. P. C. is whether the accused should be compelled to undergo Narco Analysis and Brain mapping test against his wishes ? ( 2 ) THE accused is on bail and he is facing charge (in Criminal Case No. 10439 of 2008)under Sections 302, 120-B Indian Penal code. ( 3 ) THE Magistrate rejected the application of the investigating agency seeking permission to conduct Narco Analysis and Brain mapping Test on the accused. ( 4 ) THE prosecution filed a revision (No. 414 of 2008) before the Sessions Judge, which was allowed by order dated 24-12-2008 and permission for conducting Narco analysis and Brain Mapping test was granted. ( 5 ) I have heard Sri Satyendra Kumar singh and Sri I. B. Singh, counsels for the applicant and Sri D. K. Misra, Additional government Advocate for the State. ( 6 ) THE learned Sessions Judge has written a very exhaustive and elaborate judgment. He has referred to two cases, one of the Gujarat High Court, Santokben sharmanbhai Ladeja v. State of Gujarat 2007 Cri L. J 4566 and the other of Chennai high Court, Dinesh Dalmia v. State 2006 cri L. J 2401, where permission for Narco analysis and Brain Mapping Test was granted despite opposition by the accused. ( 7 ) THE counsel for the parties say that there is no decision of the Supreme Court on the point. The Chennai High Court as well as the Gujarat High Court have considered the matter thoroughly and all relevant aspects have been taken into account and it has been held that conducting of Narco analysis and Brain Mapping test against the wishes of the accused does not violate the principle of testimonial compulsion as embodied under Article 20 (3) of the constitution of India. ( 8 ) THERE is no report of any other High court in support of the contention of the petitioner. ( 9 ) COUNSEL for the petitioner has argued that both the High Courts in the aforenoted cases have considered the question in the light of Article 20 (3) of the Constitution of india and have not visualized the same in the perspective of Article 21 of the constitution and the impugned act will amount violative of Article 21 also. ( 9 ) COUNSEL for the petitioner has argued that both the High Courts in the aforenoted cases have considered the question in the light of Article 20 (3) of the Constitution of india and have not visualized the same in the perspective of Article 21 of the constitution and the impugned act will amount violative of Article 21 also. Both the High courts of Gujarat and Chennai have considered the question in great detail, and they did not refer specifically to Article 21 of the constitution of India, because, the matter fell within the ambit of Article 20 (3) of the constitution of India and was not a matter to be considered in the light of Article 21 of the Constitution. Since Article 20 (3)specifically deals with the question of testimonial compulsion, there was no occasion to bring the matter within the purview of Article 21 of the Constitution of India, because when there is a specific clause about a particular matter, another omnibus provision which may encompass the issue need not be considered. ( 10 ) THAT is why no argument was advanced to the Court either in Gujarat or chennai, on basis of Article 21 of the constitution of India. ( 11 ) IT is now settled law that, hair and nails of the accused can be taken for utilization during investigation even if the accused does not agree to the same. If that invasion of the person of the accused is permissible, the, principle should be applicable to Narco Analysis and Brain Mapping test also. ( 12 ) THE counsel for the petitioner further argued that Narco Analysis Test stands on the different footing because it can prove, fatal. As mentioned by the Gujarat High court judgment (2007 Cri LJ 4566) (supra), the Narco Analysis Test is conducted under supervision of doctors and proper care is taken and there is constant surveillance of the state of the accused and, as such, the element of risk is minimal. Risk is in fact part of life and pervades in most of human activities and on this ground alone, therefore, the impugned test cannot be condemned. ( 13 ) THE discovery of the truth is the desideratum of investigation, and, all efforts have to be made to find out the real culprit, because, one guilty person, who escapes, is the hope of one million. ( 13 ) THE discovery of the truth is the desideratum of investigation, and, all efforts have to be made to find out the real culprit, because, one guilty person, who escapes, is the hope of one million. Courts have, therefore, to adopt a helpful attitude in all efforts, made by the prosecution for discovery of the truth. If the Narco Analysis and Brain mapping test can be helpful in finding out the facts relating to the offence, it should be used and utilized and the courts should not obstruct the conduct of the exercise. ( 14 ) PETITION dismissed. .