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2015 DIGILAW 1247 (PAT)

Veena Devi v. State of Bihar

2015-09-22

ASHWANI KUMAR SINGH

body2015
JUDGMENT By the present writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner, Veena Devi seeks quashing of the order dated 6.6.2014, passed by the learned Judicial Magistrate, 1st Class, Begusarai, in Bhagwanpur P. S. Case No. 49 of 2014, whereby a warrant of arrest has been issued against the petitioner. 2. The relevant facts of case are as under:- (a) One Narendra Thakur lodged a report with Bhagwanpur Police Station on 7.3.2014 that on 6.3.2014 at about 6 p.m., his niece Rani Kumari, aged about 8 years, had gone outside the house to play but did not return. (b) On the basis of the aforesaid information, a missing person report was entered in the station diary of the Police Station on 7.3.2014. As the victim could not be located, the informant suspected that some unknown criminal might have kidnapped her. (c ) Accordingly, on the basis of a written report, dated 8.3.2014, submitted by Narendra Thakur, Bhagwanpur P. S. Case No. 49 of 2014, was registered under Sections 364 and 372/34 of the Indian Penal Code (for short IPC) against unknown and investigation was taken up. (d) In course of investigation, the petitioner was detained by the police on 10th March 2014, and was forwarded to the Court on 12th March, 2014. On the same day, the Jurisdictional Magistrate remanded her to judicial custody. The petitioner challenged the remand order dated 12th March, 2014, in revision, before the District & Sessions Judge, Begusarai on the ground that her detention by the police beyond 24 hours was violative of Section 57 of the Criminal Procedure Code (For short Cr.P.C.‘). The said revision application was ultimately heard by the learned 3rd Additional Sessions Judge, Begusarai, who allowed the same vide order, dated 26.5.2014, by declaring the remand of the petitioner to be illegal and setting aside the same. (e) Consequent to the order, dated 26.5.2014, passed by the revisional Court, the petitioner was set at liberty by the Jurisdictional Magistrate, vide order dated 27.5.2014. (f) While the petitioner was still in custody, the Investigating Officer of the case, completed the investigation in so far as it related to the petitioner and two of the co-accused, namely, Basanti Devi and Gayatri Devi and finding the case to be true, submitted charge-sheet on 10th May, 2014, against them for the offences under Sections 364, 372/34 IPC. (f) While the petitioner was still in custody, the Investigating Officer of the case, completed the investigation in so far as it related to the petitioner and two of the co-accused, namely, Basanti Devi and Gayatri Devi and finding the case to be true, submitted charge-sheet on 10th May, 2014, against them for the offences under Sections 364, 372/34 IPC. (g) After perusal of the charge-sheet and the materials available in the case-diary, the Jurisdictional Magistrate took cognizance of the offences under Sections 364, 372/34 IPC against the petitioner and two others vide order dated 28.5.2014. After taking cognizance of the offence, the Investigating Officer of the case filed an application before the Jurisdictional Magistrate, on 6.6.2014, praying therein for issuance of a warrant of arrest against the petitioner for the reason that a lie detection test of the petitioner is essential in order to recover the missing girl. It was further stated that as the petitioner was not found at her house and was absconding, the notice in this regard could not be served upon her. (h) Taking into consideration the application of the Investigating Officer, the Jurisdictional Magistrate vide impugned order dated 6.6.2014, issued warrant of arrest against the petitioner. 3. Assailing the impugned order dated 6.6.2014, learned counsel for the petitioner submits that an accused of a case cannot be compelled to become a witness against himself. He submits that a forcible lie detection test amounts to disproportionate intrusion into personal liberty. The same would also to be contrary to the rights guaranteed to a citizen under Clause (3) of Article 20 and Article 21 of the Constitution of India. He submits that compulsory administration of such scientific test violates the right against self-incrimination. In support of his submissions, he has placed reliance on the decision of the Supreme Court in Smt. Selvi & Ors. vs. State of Karnataka [ (2010) 7 SCC 263 : AIR 2010 SC 1974 ]. 4. Per contra, learned counsel for the State has submitted that putting an accused to a lie detection test may be necessary in certain cases in order to find out the truth of the case. vs. State of Karnataka [ (2010) 7 SCC 263 : AIR 2010 SC 1974 ]. 4. Per contra, learned counsel for the State has submitted that putting an accused to a lie detection test may be necessary in certain cases in order to find out the truth of the case. He submits that it is true that an accused cannot be subjected to a polygraph test in all the cases, but such test was felt necessary in the present case, as even though investigation against the petitioner is complete, the victim of the crime, an eight years old girl, is still traceless and therefore the investigating officer has thought it prudent to subject the petitioner to a lie detection test. Since the petitioner is evading to receive the notice given by the Investigating Officer of the case, he filed an application before the Court and the learned Magistrate, after taking into consideration the seriousness of the matter, has directed for issuance of warrant of arrest against the petitioner. He further submits that there is no error in the order passed by the learned Magistrate. 5. I have heard respective counsel for the parties and perused the materials available on record. 6. The Right to Silence is a principle of Common law and it means that normally Courts or Tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by the police or by the Court. It has several facets. One is that the burden is on the State or rather the prosecution to prove that the accused is guilty. Another is that an accused is presumed to be innocent till he is proved to be guilty. A third is the right of the accused against self-incrimination, namely, the right to be silent and that he cannot be compelled to incriminate himself. 7. It would be apparent from the facts of the present case that though the police case was registered against unknown accused, in course of investigation, the police suspected the petitioner to be involved in the crime. 7. It would be apparent from the facts of the present case that though the police case was registered against unknown accused, in course of investigation, the police suspected the petitioner to be involved in the crime. They took her into custody in connection with Bhagwanpur P. S. Case No. 49 of 2014 on 10th March, 2014 and forwarded her to the Court on 12th March, 2014, whereafter the learned Magistrate remanded her to judicial custody. The remand order, dated 12.3.2014, was challenged before the Sessions Court in revision and the revisional Court declared the remand of the petitioner to be violative of Section 57 Cr.P.C. and set aside the order of remand, vide order dated 26.5.2014, pursuant to which the petitioner was set at liberty by the learned Jurisdictional Magistrate, vide order dated 27.5.2014. While the petitioner was in custody, the police completed the investigation against the petitioner on 3.5.2014 and finding the case to be true against her, submitted charge-sheet in the case on 10.5.2014 in the Court, whereafter cognizance was taken by the Court of Magistrate on 28.5.2014. 8. The facts stated above would mean that investigation so far as the petitioner is concerned concluded on 28th May, 2014. The Investigating Officer of the case has not intimated the Court about any ongoing further investigation against the petitioner. It would appear from the record that only after eight days of submission of charge-sheet against the petitioner the Investigating Officer of the case filed an application on 6.6.2014 before the Magistrate that the polygraph test of the petitioner is essential for recovery of the victim. In the petition, it has been mentioned that notice for lie detection test could not be served upon the petitioner, as after being released from jail, she was not found at her residence and is absconding. In the aforesaid background, the prayer for issuance of warrant of arrest, against the petitioner, was entertained by the learned Judicial Magistrate and on the date of filing of the application itself, the prayer was allowed and a warrant of arrest was ordered to be issued against the petitioner. In the aforesaid background, the prayer for issuance of warrant of arrest, against the petitioner, was entertained by the learned Judicial Magistrate and on the date of filing of the application itself, the prayer was allowed and a warrant of arrest was ordered to be issued against the petitioner. The order passed by the learned Judicial Magistrate, dated 6.6.2014, reads as under:- ^^vuqla/kkudÙkkZ Hkxokuiqj Fkkuk }kjk ,d vkosnu nkf[ky fd;k x;k vkosnu dh dkWih lgk;d vfHk;kstu inkf/kdkjh ls vxzlkfjr djk;h x;hA vuqla/kkudÙkkZ izkFkZuk djrs gSa fd bl dkaM dh vizkFkfedh vfHk;qDrk oh.kk nsoh isŒ&;qxs’oj pkS/kjh lk0&cxjl] Fkkuk&Hkxokuiqj] ftyk&csxqljk dks fxjrkj dj fnukad 12-03-14 dks Jheku~ dks U;k;ky; esa Hkstk x;k Fkk tgk¡ ls fjekaM dj bls eaMy dkjk] csxw0 Hkst fn;k x;kA ckn esa ekuuh; vij ftyk ,oa l= U;k0 &3 csxw0 }kjk fjekaM dks ¼bfYyxy½ djrs gq, NksM+ fn;k x;k gSA dkaM esa vig`rk jkuh dqekjh ds cjkenxh gsrq oh.kk nsoh dk ykbZ fMVsDVj ls tk¡p djkuk vko’;d gSA oh.kk nsoh ds fo:) vuqla/kku esa dkQh lk{; ik;k x;k gSA oh.kk nsoh tsy ls NqVus ds ckn Qjkj gS rFkk ykbZ fMVsDVj ls tk¡p gsrq uksfVl Hkstk x;k] exj ?kj ij dksbZ ugha ik;k x;kA vr% vfHk;qDrk oh.kk nsoh ds fo:) okjaV fuxZr djus dh d`ik dh tk;A lqukA vfHkys[k dk voyksdu fd;kA voyksdu ls Li”V gksrk gS fd bl dkaM dh vizkFkfedh vfHk;qDrk oh.kk nsoh ds fo:) dkaM esa lafyIr gksus ds lk{; gSA vuqla/kkudÙkkZ }kjk ykbZ fMVsDVj VsLV ds fy, mldks uksfVl fd;k x;kA vfHk;qDrk dh mifLFkfr vko’;d gS rkfd mldk ykbZ fMVsDVj VsLV gks ldsA vr% vfHk;qDrk oh.kk nsoh ds fo:) okjaV fuxZr djus dk vkns’k fn;k tkrk gSA dk;kZŒ fyŒ okjaV vf/ki= fuxZr djsaA^^ 9. The questions to be adjudicated in the present writ petition are as under:- (a) Whether or not the direction for issuance of warrant of arrest for undergoing polygraph test is in violation of fundamental rights as guaranteed under Article 20(3) of the Constitution of India? (b) Whether or not compelling an accused in a case to undergo polygraph test violates the fundamental right of said person as guaranteed under Article 21 of the Constitution of India? (c) Whether or not the result of a polygraph test amounts to testimonial compulsion and, therefore, barred under Article 20(3) of the Constitution of India? (d) Whether or not an accused in a case can be compelled to undergo polygraph test against his/her will? (c) Whether or not the result of a polygraph test amounts to testimonial compulsion and, therefore, barred under Article 20(3) of the Constitution of India? (d) Whether or not an accused in a case can be compelled to undergo polygraph test against his/her will? 10. Cr.P.C. contains several protections against self-incrimination. Sub-section (2) of Section 161 Cr.P.C. guarantees a right to silence‘ during interrogation by police. It reads as under:- “161. Examination of witnesses by police - (1) xxxx xxxx xxxx (2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. 11. Sub-section (3) of Section 313 Cr.P.C. again protects this right of silence at the trial, which reads as follows:- “313. Power to examine the accused. (1) xxxx xxxx xxxx (2) xxxx xxxx xxxx (3) The accused shall not render himself liable to punishment by refusing to answer such question, or by giving false answers to them. 12. Sub-section 1 of Section 315 contains a proviso and Clause (b) of the said proviso precludes any comment by any of the parties or the Court in regard to violation of the acts to give evidence, which reads as follows;- “315. Accused person to be competent witness. (1) xxxx xxxx xxxx Provided that— (a) xxxx xxxx xxxx ; (b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial. 13. The above provisions also create a presumption against guilt. In other words, Sections 161, 313 and 315 Cr.P.C. raises a presumption against guilt and in favour of innocence, guarantees a right of silence both at the stage of investigation and at the trial and also preclude any party or Court from commenting upon the silence. The above provisions of Cr.P.C. are consistent with Clause (3) of Article 20 and Article 21 of the Constitution of India. 14. Article 20 (3) of the Constitution of India reads as under:- “(3) No person accused of any offence shall be compelled to be a witness against himself. 15. The above provisions of Cr.P.C. are consistent with Clause (3) of Article 20 and Article 21 of the Constitution of India. 14. Article 20 (3) of the Constitution of India reads as under:- “(3) No person accused of any offence shall be compelled to be a witness against himself. 15. Article 21 of the Constitution of Indian reads as under:- “21. Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law. 16. In Indian Context, Clause (3) of Article 20 of the Constitution of India guarantees fundamental right against self-incrimination, whereas Article 21 guarantees fundamental right to life and liberty and states that liberty of a person cannot be taken away except by a procedure laid down by law. 17. The expression accused person under Article 20(3) connotes a person against whom the evidence is sought to be led in a criminal proceeding. The expression accused person in Section 24 of the Indian Evidence Act excludes a person who subsequently becomes an accused. The protection of Article 20(3) of the Constitution becomes available to a person as soon as he is named as an accused either in an FIR instituted under Section 154 Cr.P.C. or in a complaint instituted against him in Court. The protection is also available to a person who becomes an accused, subsequently in course of investigation or in inquiry in connection with a criminal case. In other words, the protection given under Article 20(3) of the Constitution is in the nature of privilege to be exercised by a person or accused of any offence. Accused includes a suspect or a person against whom there are some oral or circumstantial evidence pointing towards his involvement in the crime. Thus, as per Constitutional mandates, when a person is interrogated and during investigation he perceives that he is being subjected for commission of some offence or when he is treated as an accused or suspect by the interrogating agency, he can claim the privilege granted to him under Article 20(3) of the Constitution. 18. In Maneka Gandhi vs. Union of India [ 1978 (1) SCC 248 ], it was further observed that procedure envisaged by Article 21 is a procedure which must be just, fair and equitable. 19. 18. In Maneka Gandhi vs. Union of India [ 1978 (1) SCC 248 ], it was further observed that procedure envisaged by Article 21 is a procedure which must be just, fair and equitable. 19. The expression self-incrimination‘ has been extensively discussed in the case of Nandini Satpathy vs. P. L. Dani & Anr. [ (1978) 2 SCC 424 ]. In that case, the appellant, a former Chief Minister of Orissa, was directed to appear at Vigilance Police Station, for being examined in connection to a case registered against her under the Prevention of Corruption Act, 1947 and under Sections 161/165, 120 B and 109 IPC. Based on this an investigation was started against her and she was interrogated with long list of questions given to her in writing. She denied to answer and claimed protection under Article 20(3) of the Constitution. In that case the Supreme Court observed that object of Article 20(3) is to protect accused from unnecessary police harassment and hence it extends to the stage of police investigation apart from the trial procedure. Further, it was held by the Supreme Court that the right or privilege under Article 20(3) extends to witness and an accused alike. 20. The protection contained in Article 20(3) is against compulsion to be a witness against oneself. In M. P. Sharma & Ors. vs. Satish Chandra & Ors. [ AIR 1954 S.C. 300 ], the Supreme Court gave a wide interpretation of the expression to be a witness‘ which was inclusive of oral, documentary and testimonial evidence. The question in that case was whether a search and seizure under Sections 94 and 96 of 1898 Cr.P.C. violated Article 20(3) of the Constitution. At the outset, the Court clarified that ?The fundamental guarantee in Article 20(3) comprehends within its scope not merely oral testimony given by an accused in a criminal case pending against him, but also evidence of whatever character compelled out of a person who is or is likely to become incriminated thereby as an accused. It, therefore, not only to compelled production of documents by an accused from his possession, but also to such compelled production of oral or documentary evidence from any other person who may become incriminated thereby as an accused in future proceedings. It, therefore, not only to compelled production of documents by an accused from his possession, but also to such compelled production of oral or documentary evidence from any other person who may become incriminated thereby as an accused in future proceedings. It was therefore argued that a forcible search and seizure was simply an indirect way of accomplishing what Article 20(3) forbade– obtaining self-incriminating testimony from an accused. 21. The Court looked to Wigmore on Evidence, citing justifications grounded in the crime-control model: that it prevented ?extorted confessions (but then why would it extend to document?) and afforded witnesses ?a free atmosphere in which they can be persuaded to come forward to furnish evidence in courts and be of substantial help in elucidating truth in a case. It then clarified that ?To be a witness is nothing more than ?to furnish evidence, and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes… every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the, negative attitude of silence or submission on his part… [the guarantee under Article 20(3) therefore] would extend to any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against [an accused individual]. 22. In M. P. Sharma (supra), while expanding the reach of Article 20(3), the Court declined to find that a search and seizure violated it. It held that Article 20(3) was directed against self-incrimination by the accused person. Self-incrimination must mean giving the information based upon the personal knowledge of the person giving the information and can not include merely the mechanical process of producing documents in the Court. It follows that giving thumb impressions or impression of foot or palm or finger or specimens of writings or exposing body for the purpose of identification are not covered by the expression ?to be a witness under Article 20(3) of the Constitution. 23. Let it be noted that from the very first year of our Constitution, a certain ambiguity on the question of what evidence was accorded protection, and apparent conflicts between Article 20(3) and provisions of Indian Evidence Act, 1872 have prevailed. 23. Let it be noted that from the very first year of our Constitution, a certain ambiguity on the question of what evidence was accorded protection, and apparent conflicts between Article 20(3) and provisions of Indian Evidence Act, 1872 have prevailed. This resulted in judgments with apparent imbalance between the right against self-incrimination in Article 20(3) and the necessity to facilitate collection of evidence by investigating agencies. These judgments were referred to the Supreme Court, which clubbed them and referred them to an eleven Judge Bench. The resultant judgment is land mark judgment of State of Bombay vs. Kathi Kalu Oghad [ AIR 1961 SC 1808 ], which has made a defining contribution to the case law on the matter as it stands today. A murder accused was identified by the Trial Court and convicted based upon hand-writing samples taken at three different times, under police custody. The convict appealed to the High Court which held that the evidence of specimen hand-writing was tantamount to compulsion, as it was obtained under police custody, thereby making evidence inadmissible. Holding that the identity of the accused was not established beyond a reasonable doubt under other available evidence, the accused was acquitted. The State of Bombay then appealed to the Supreme Court. The two issues contended were that of the admissibility of the handwriting specimen as evidence in the light of Article 20(3) of the Constitution and whether compulsion was imputed in taking of such specimen in police custody. After hearing the parties, the Supreme Court held that hand-writing specimens, finger prints, thumb prints, palm prints, foot prints or signatures were considered to be outside the scope of Article 20(3). It was also held that giving of a statement by an accused in police custody gave the Court no reason to believe that coercion had been used in the procurement of the same. 24. The judgment in State of Bombay vs. Kathi Kalu Oghad (supra) approached the matter by examining the definition of the expression ?to be a witness in Article 20(3) of the Constitution. It made a distinction from testimonial and physical evidence, and held that the act of providing the testimonial evidence alone constitutes ?to be a witness in Article 20(3). 24. The judgment in State of Bombay vs. Kathi Kalu Oghad (supra) approached the matter by examining the definition of the expression ?to be a witness in Article 20(3) of the Constitution. It made a distinction from testimonial and physical evidence, and held that the act of providing the testimonial evidence alone constitutes ?to be a witness in Article 20(3). It opined that the phrase ?to be a witness must be restricted to mean imparting knowledge in respect of relevant facts by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a Court or a person holding an inquiry or investigation on matters relevant to the subject under inquiry. Self-incrimination was declared as the conveying information that was based upon the personal knowledge of a person giving that information. It was ruled that personal testimony‘ was to depend upon volition as an accused had choice of making the statement or refusing to make the same. The provisions laid down in M. P. Sharma & Ors. vs. Satish Chandra & Ors. (supra) were reinterpreted with more clarity in Kathi Kalu Oghad’s case (supra). It essentially examined the compatibility between Article 20(3) of the Constitution of India, Section 73 of the Indian Evidence Act, and Sections 5 and 6 of the Identification of Prisoners Act. 25. In Kathi Kalu Oghad’s case (supra), the Supreme Court has laid down the line between the evidence as protected under Article 20(3) and that which is not. It kept purely forensic evidence which is not in itself incriminatory, beyond the scope of protection. Only oral or written testimony based on personal knowledge and communicated to a Court or a person holding an inquiry or investigation on matters relevant to the subject under inquiry was accorded protection from compulsion. An accused had the choice of making the statement or refusing the same. It was ruled that personal testimony was to depend upon volition. 26. The Judgment in Kathi Kalu Oghad (supra), helped resolve conflicts among Judgments with its interpretation. However, the constitutionality of use of advanced scientific methods like narco-analysis, lie detector test and analysis of brain waves for collection of evidence for criminal investigations was not considered in that case. Narco-analysis was first used in 2002 in India in the Godhara carnage case. The Judgment in Kathi Kalu Oghad (supra), helped resolve conflicts among Judgments with its interpretation. However, the constitutionality of use of advanced scientific methods like narco-analysis, lie detector test and analysis of brain waves for collection of evidence for criminal investigations was not considered in that case. Narco-analysis was first used in 2002 in India in the Godhara carnage case. The Bombay High Court in the case of Ramchandra Ram Reddy and Others vs. State of Maharastra [2004 All M R (Cri) 1704], posed with question whether P-300, the lie detector and narco-analysis tests is violative of Article 20(3), observed ?the question which falls for consideration therefore, is whether such statement can be forcibly taken from the accused by requiring him to undergo the Truth Serum Test against his will. It will be seen that such statement will attract the bar of Article 20(3) only if it is inculpating or incriminating the person making it. Whether it is so or not can be ascertained only after the test is administered and not before. In our opinion therefore, there is no reason to prevent administration of these tests also because there are enough protections available under the Indian Evidence Act, no Criminal Procedure Code and under the Constitution [Article 20(3)], to prevent inclusion of any incriminating statements to be one come out after administration of test …. In so far as the third test (Narco-Analysis) is concerned enough protection exists, recourse to which can be taken if and when the Investigating Agency seeks to introduce such statement as evidence. The Court dismissed the petition filed against these tests and held that these tests do not compel the accused or witness to incriminate himself and there is therefore no question of violation of Article 20(3) of the Constitution. 27. In Dinesh Dalamia vs. State [2006 CRI. L. J. 2401], the Court observed that where the accused had not allegedly come forward with the truth the scientific tests are resorted to by the investigating agency. Such a course does not amount to testimonial compulsion. 28. However, controversy in respect of aforesaid advanced scientific methods was set at rest by the Supreme Court in Smt. Selvi & Ors. vs. State of Karnataka (supra). It heavily drew upon State of Bombay vs. Kathi Kalu Oghad (supra), adding another new dimension to its interpretation. Such a course does not amount to testimonial compulsion. 28. However, controversy in respect of aforesaid advanced scientific methods was set at rest by the Supreme Court in Smt. Selvi & Ors. vs. State of Karnataka (supra). It heavily drew upon State of Bombay vs. Kathi Kalu Oghad (supra), adding another new dimension to its interpretation. A three Judge Bench ruled that compulsory administration of such tests should be banned as forcible intrusion into the mind of the accused not only violated Article 20(3) but also intruded on the privacy and liberty of an individual, thus violating Article 21 of the Constitution. The Supreme Court declared as illegal‘ use of narco-analysis, brain mapping and polygraph tests on suspects. It observed ?we are of the considered opinion that no individual can be forced and subjected to such techniques involuntarily, and by doing so it amounts to unwarranted intrusion of personal liberty. It further held that forcing individual to such methods of investigation violates the scheme of legal process. It further held that even if a person is subjected the mode of investigation of consent, the result of test cannot be an admissible piece of evidence. However, the Court said if anything obtained by the investigators from such techniques in which a person had volunteered, the agencies can use them for further pro. It further observed that in conducting the Polygraph tests the investigating agencies have to follow strictly the guidelines laid down by the National Human Rights Commission (NHRC). 29. In Smt. Selvi & Ors vs. State of Karnataka (supra), the Supreme Court ruled in para 262 to 265 as under:- “262. In our considered opinion, the compulsory administration of the impugned techniques violates the right against self incrimination. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. This Court has recognised that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual’s choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible conveyance of personal knowledge that is relevant to the facts in issue. The results obtained from each of the impugned tests bear a testimonial character and they cannot be categorized as material evidence. 263. We are also of the view that forcing an individual to undergo any of the impugned techniques violates the standard of substantive due process which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, i.e. the Explanation to Sections 53, 53-A and 54 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not feasible in light of the rule of ejusdem generis and the considerations which govern the interpretation of statutes in relation to scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to cruel, inhuman or degrading treatment with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the right to fair trial. Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the right against self-incrimination. 264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with Section 27 of the Evidence Act, 1872. 265. The National Human Rights Commission had published Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused in 2000. These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the Narcoanalysis technique and the Brain Electrical Activation Profile test. The text of these guidelines has been reproduced below: (i) No Lie Detector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test. (ii) If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer. (iii) The consent should be recorded before a Judicial Magistrate. (iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer. (v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a confessional statement to the Magistrate but will have the status of a statement made to the police. (vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation. (vii) The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer. (viii) A full medical and factual narration of the manner of the information received must be taken on record.” 30. (vii) The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer. (viii) A full medical and factual narration of the manner of the information received must be taken on record.” 30. Coming back to the facts of the present case, it is reiterated that the petitioner was arrested by the police in Bhagwanpur P. S. Case No. 49 of 2014, on 10th March, 2014. She was forwarded to the Court on 12th March, 2014, whereafter the Jurisdictional Magistrate remanded her to judicial custody. The remand order dated 12.03.2014, passed by the Jurisdictional Magistrate, was challenged by the petitioner in revision before the Sessions Court. On completion of investigation, the police submitted charge-sheet against the petitioner, on 10th May, 2014, under Sections 364 and 372/34 of the Indian Penal Code. By an order dated 26.05.2014, the revisional Court declared the remand of the petitioner to the judicial custody as illegal and set aside the same. In view of the order dated 26.05.2014, passed by the revisional Court, the petitioner was set at liberty by the Jurisdictional Magistrate vide order dated 27.05.2014. Only 9 days after release of the petitioner from custody, the Investigating Officer of the case filed an application before the Jurisdictional Magistrate on 06.06.2014 seeking warrant of arrest against her for compelling her to undergo polygraph test and on the same day, i.e. 06.06.2014 the Jurisdictional Magistrate issued warrant of arrest against the petitioner. 31. The term warrant is not defined in Cr.P.C.. Chapter VI of Cr.P.C. deals with the process to compel appearance. In Cr.P.C. there is no description of types of warrant. As per Section 71, any Court issuing warrant of arrest of any person may in its discretion direct by an endorsement on the warrant that if such person executes a bond with sufficient sureties for his attendance before the Court at a specific time and thereafter until otherwise directed by the Court, an officer to whom the warrant is directed shall take such security or shall release such person from custody. Whenever security is taken under this Section, the officer to whom warrant is directed shall forward the bond to the Court. Such warrant is called bailable-warrant. Non-bailable warrant is other than the bailable-warrant. 32. Whenever security is taken under this Section, the officer to whom warrant is directed shall forward the bond to the Court. Such warrant is called bailable-warrant. Non-bailable warrant is other than the bailable-warrant. 32. Section 73 of Cr.P.C. which appears in Chapter VI, deals with issuing of warrants against persons. Sub-section (1) of Section 73 provides that the Chief Judicial Magistrate or Magistrate of 1st Class may direct a warrant to any person within his local jurisdiction for the arrest of any escaped convict, proclaimed offender or of any person which is accused of a non-bailable offence and is evading arrest. (underlining for emphasis) 33. Sub-section (3) of Section 73 provides that when the person against whom such warrant is issued is arrested, he shall be made over with warrant to nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under Section 71. 34. Thus, it would be evident that Section 73 Cr.P.C. is of general application, and in course of investigation, a Court can issue warrant in exercise of power thereunder to apprehend a person, who is either an escaped convict, or a proclaimed offender, or who is an accused of non-bailable offence and is evading his arrest. In the present case, the petitioner does not come either within the category of an escaped convict, or a proclaimed offender, or an accused of a non-bailable offence evading arrest. 35. As noted above, during investigation she was apprehended and was remanded to judicial custody. While she was in judicial custody, the investigation of the case, as against her, was completed and the Jurisdictional Magistrate took cognizance of the offence. It is only thereafter the revisional Court declared order of remand to be illegal pursuant to which by an order of Jurisdictional Magistrate she was released from custody and only after 9 days of her release from judicial custody, the Investigating Officer, filed an application seeking warrant of arrest on the ground that she was evading receipt of a notice issued by him and was absconding. The application filed by the Investigating Officer was highly objectionable and mischievous in the facts of the present case. I further find that Jurisdictional Magistrate has mechanically exercised his power in acceding to the prayer made on behalf of the prosecution. 36. In Inder Mohan Goswami and Anr. The application filed by the Investigating Officer was highly objectionable and mischievous in the facts of the present case. I further find that Jurisdictional Magistrate has mechanically exercised his power in acceding to the prayer made on behalf of the prosecution. 36. In Inder Mohan Goswami and Anr. vs. State of Uttaranchal & Ors. [ (2007) 12 SCC 1 ], the Supreme Court has held that non-bailable warrant normally ought not to be issued if presence of accused could be secured. It further held that the Courts have to be extremely careful before issuing non-bailable warrants. It also held that non-bailable warrants should be issued to bring home the person to Court when summons and bailable-warrant would be unlikely to have desired result. However, while saying so, it further held that sometimes in larger interest of public and State if it becomes absolutely imperative to curtail the freedom of an individual for certain period only then non-bailable warrant should be issued. 37. In the present case, in my opinion, on the application filed on behalf of the prosecution, the Court ought to have issued summons to the petitioner at the first instance, in order to inquire, as to whether the petitioner was willing to undergo Polygraph test. Since even when a lie detection test without consent of an accused is not permissible in law, the Court could not have issued warrant of arrest against the petitioner for administering polygraph test. 36. Keeping in view the ratio laid down by the Supreme Court in the cases discussed, hereinabove, and the facts of the present case, the impugned order dated 06.06.2014, passed by the learned Judicial Magistrate, 1st Class, Begusarai in Bhagwanpur P. S. Case No. 49 of 2014 cannot be sustained. Accordingly, the writ petition is allowed and the aforesaid order dated 06.06.2014 is set aside.