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2017 DIGILAW 556 (JHR)

Sabra Khatoon v. State of Jharkhand

2017-03-22

RONGON MUKHOPADHYAY

body2017
ORDER : I.A. No. 7442 of 2016 : This interlocutory application has been preferred by the petitioner for addition of parties by impleading the Director, Central Bureau of Investigation and Superintendent of Police, CBI, Ranchi with a further direction to hand-over the investigation to CBI. 2. It has been stated by the learned counsel for the petitioner that the petitioner being the mother of the deceased had taken every steps so as to bring the perpetrators of the crime to face prosecution, but on account of the perfunctory investigation having been carried out by the general police as well as by the CID, the main culprits are roaming around freely. It has been stated that allegations have been levelled also against the Officer In-charge, Laxman Prasad that he was in constant touch with Bipin Sharma and his associates at the time of commission of the murder of Rashid Khan. Learned counsel submits that in view of the lack-luster nature of investigation having been carried out, the investigation into the offence be handed over to CBI and the amendment prayed for by the petitioner be allowed. 3. In order to appreciate the contentions made by the learned counsel for the petitioner, the case diaries were called for and a perusal of which reveals that CID had properly conducted the investigation leading to Bipin Sharma being charge-sheeted. In course of investigation, the Investigating Officer as would appear had several times contacted the petitioner and whatever lead has been provided by her, the same has been acted upon. In fact the CID after making a thorough investigation would come to learn about the involvement of Bipin Sharma which the petitioner also does not deny. So far as the supplementary investigation which is being carried out, in absence of any fact which would show that the investigation is not being properly done, the same cannot be handed over to CBI, merely at the whims of the petitioner. 4. In view of the fact that the amendment which has been sought for does not have any leg to stand in view of the proper manner in which investigation was/is being carried out by the CID, the amendment application preferred by the petitioner is rejected. 5. I.A. No. 7442 of 2016 is rejected. 6. However, it is expected that the CID shall conclude the supplementary investigation speedily. W.P. (Cr.) No. 71 of 2016 : 7. 5. I.A. No. 7442 of 2016 is rejected. 6. However, it is expected that the CID shall conclude the supplementary investigation speedily. W.P. (Cr.) No. 71 of 2016 : 7. Heard Mr. A.N. Deo, learned counsel for the petitioner and Mr. Vikash Kumar, learned J.C. to A.A.G. for the respondents. 8. In this application, the petitioner has prayed for quashing of the order dated 15.3.2016 passed by learned Additional Sessions Judge VIII, Jamshedpur in S.T. No. 265 of 2015 whereby and whereunder the applications preferred by the Investigating Officer on 3.2.2016 and 2.3.2016 seeking permission for Narco Analysis Test and Brain Mapping Test of the accused Bipin Sharma and one witness Javed Khan has been rejected. A further prayer has been made in this writ application, directing the respondent No.3 to conduct Narco test and Brain mapping test of the aforesaid persons. 9. An FIR was instituted on the self statement of the Officer In-charge of Mango Police Station against unknown accused persons under Section 302 of IPC and Section 27 of the Arms Act for committing the murder of the deceased Rashid Khan. Subsequently, the investigation was conducted by the CID and the Investigating Officer of the CID has submitted charge-sheet against accused Bipin Sharma and supplementary investigation remained pending. During the course of supplementary investigation, an application was submitted by the petitioner before the respondent No.2 for conducting the Narco test and Brain mapping test of accused Bipin Sharma. The Investigating Officer of CID had filed separate applications on 3.2.2016 and 2.3.2016 through the learned A.P.P. for permission from the Court for Narco Analysis Test and Brain Mapping Test of the accused Bipin Sharma and one witness Javed Khan. A rejoinder was filed on the said applications and ultimately vide order dated 15.3.2016, such applications were rejected by the learned trial Court. 10. Mr. A.N. Deo, learned counsel for the petitioner has submitted that the petitioner is the mother of the deceased Rashid Khan and in fact the petitioner had submitted various proofs with respect to the involvement of the other accused persons, but perfunctory investigation on the part of the investigating agencies has led the other accused persons to escape from clutches of the law. Learned counsel submits that the petitioner had obtained the call details report of the mobile phone belonging to the accused Bipin Sharma which would reveal that prior to the commission of murder, Bipin Sharma was in touch with his associates as well as a police officer. It has been submitted that 2 of the eye-witnesses namely, Javed Khan and Wasim Sheikh was terrorised by the Officer Incharge-Laxman Prasad so as to not to disclose the actual incidence. Learned counsel further submits that Bipin Sharma being the main perpetrator which he committed in league with other accused persons, it would be imperative for the prosecution to conduct Narco Analysis Test and Brain Mapping Test upon Bipin Sharma so that the other culprits be brought to book. 11. Although a counter-affidavit has been filed on behalf of the State, but much reliance cannot be placed on the same in view of the fact that the order under challenge relates to the application preferred by the prosecution before the learned trial Court. 12. In order to appreciate the contentions advanced by the learned counsel for the petitioner who is the mother of the deceased Rashid Khan and is a victim and has been constrained to move this Court in its writ jurisdiction since the prosecuting agency did not choose to challenge the impugned order dated 15.3.2016, the case diary was called for and which has been received. Perusal of the case diary reveals that whatever lead has been given by the petitioner has been worked at by the CID and ultimately charge-sheet was submitted against Bipin Sharma keeping the investigation pending. The prayer which has been made by the Investigating Officer is with respect to conducting Narco Analysis Test and Brain Mapping Test upon the accused Bipin Sharma and upon one witness Javed Khan. The extent of admissibility of the Narco Analysis Test, Brain Mapping Test and Polygraph Test and their admissibility had come up for consideration before the Hon'ble Supreme Court in the case of "Selvi and Ors. v. State of Karnataka and Anr." reported in (2010) 7 SCC 263 . 13. The Hon'ble Supreme Court concluded thus : "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. 13. The Hon'ble Supreme Court concluded thus : "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. 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 categorised 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. 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. 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 "narco analysis 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. (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." 14. The principle which can culled out from the judgment under reference for the purposes of deciding this issue is that, no individual could be forcibly subjected to any of such techniques whether in the context of investigation in criminal cases or otherwise. Even the guidelines published by the National Human Rights Commission, prevents carrying out lie detector test without the consent of the accused. Thus if the accused refuses to undergo Narco Analysis Test and Brain Mapping Test he cannot be forced to undergo such tests. In the impugned order dated 15.3.2016, a rejoinder was filed by the defence as also a petition wherein the accused Bipin Sharma had specifically stated that he does not consent to undergo Narco Analysis Test and Brain Mapping Test. The learned Court below after considering the judgment in the case of "Selvi & Ors. v. State of Karnataka and Anr." (supra) and the refusal on the part of the accused Bipin Sharma to subject himself to such tests had rightly rejected the applications vide order dated 15.3.2016 and there being no reason to conclude otherwise, this application fails and the same is also dismissed. I.A. No. 1116 of 2017 also stands disposed of.