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Murugesan alias Abdullah v. The State represented by - Crl.R.C.(MD).No.380 of 2007  RD-TN 2141 (2 July 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 02/07/2007
THE HONOURABLE MR.JUSTICE G.RAJASURIA
Crl.R.C.(MD).No.380 of 2007
M.P(MD).No.1 of 2007
1.Murugesan alias Abdullah
2.Nagoor Hanifa ... Petitioners Vs
The State represented by
The Inspector of Police,
Tenkasi Police Station,
Tirunelveli District. ... Respondent Prayer
Petition filed under Sections 397 and 401 of the Code of Criminal Procedure, to call for the records in Cr.M.P.No.3273 of 2007 dated 15.05.2007 on the file of the learned Judicial Magistrate, Tenkasi in Cr.No.727 of 2006 on the file of the respondent police and set aside the same. For Petitioners ... Mr.T.Lajapathy Roy For Respondent ... Mr.Siva Ayyappan Government Advocate (Criminal Side)
This petition has been filed to call for the records in Cr.M.P.No.3273 of 2007 dated 15.05.2007 on the file of the learned Judicial Magistrate, Tenkasi in Cr.No.727 of 2006 on the file of the respondent police and set aside the same.
2. Heard both sides.
3. A re'sume' of facts absolutely necessary for the disposal of this Criminal Revision Case would run thus:
The police registered a case in Cr.No.727 of 2006 for the offences punishable under Sections 302 and 324 I.P.C as against the petitioners viz., Murugesan @ Abdullah and Hanifa and one Juvenile, based on the complaint given by one Subramanian, relating to the murder of one Hindu leader Kumar Pandian on 17.12.2006 on 19.45 hours in Tenkasi area. The motive for the crime is alleged to be a communal one, so to say, Muslims murdered a Hindu. The petitioners were arrested along with a juvenile and taken into custody. The police sent the juvenile to the Child Welfare Board under the Juvenile Justice Act. The petitioners were remanded to judicial custody. While so, the Investigating Agency had thought fit to subject the accused persons to Polygraph Test, Brain Mapping Test and Narco Analysis Test. The police approached the learned Magistrate and the learned Magistrate also passed orders enabling them to subject the petitioners to such Tests.
4. Being aggrieved by and dissatisfied with, the order passed by the learned Magistrate, this Criminal Revision Case is focussed.
5. The bone of contention of the revision petitioners is that such tests are violative of Article 21 of the Indian Constitution and it would amount to testimonial compulsion.
6. The learned Counsel for the petitioners would cite the following decisions of the Honourable Apex Court:
(i) Nandini Satpathy vs. P.L.Dhani reported in (1978) 2 Supreme Court Cases 424.
(ii) D.K.Basu Vs. State of West Bengal reported in AIR (1997) SC 610.
7. Whereas the learned Government Advocate (Criminal Side) would submit that such Tests are not against Article 21 of the Indian Constitution. The present case is having wide ranging ramifications as the murder led to chain of communal clashes between Hindus and Muslims in Tenkasi area. The police suspected that there might be some big power or big mind behind the murder and with that object in mind, they approached the learned Magistrate and got the order so as to subject the petitioners to such Tests.
8. The learned Government Advocate (Criminal Side) would cite the following decisions:
(i) Dinesh Dalmia v. State reported in 2006 Crl.L.J.2401. (ii) Arun Gulab Gavali v. State of Maharastra and others.
9. At the outset, I would like to refer to the decision in Dinesh Dalmia v. State reported in 2006 Crl.L.J.2401, which is squarely on this point, so to say, Brain Mapping and Narco Analysis Test are not prohibited under the law and this Court arrived at the categorical conclusion that such Tests would not amount to violative of Article 21 of the Indian Constitution. I am respectfully in agreement with the first decision cited supra. The Honourable Apex Court, while laying down the law relating to the D.N.A Test, and other scientific Tests, mandated that the Court should be averse towards modern technologies in finding out the truth in the course of the investigation.
10. The learned Counsel for the petitioners by placing reliance on the aforesaid decision in Nandini Satpathy vs. P.L.Dhani reported in (1978) 2 Supreme Court Cases 424 would expatiate and demonstrate that the police cannot compel a man to speak against himself. Certain excerpts from it, would run thus:
"61. ... We hold that Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Article 20(3) goes back to the stage of police interrogation not, as contended, commencing the Court only. In our judgement the provisions of Article 20(3) and Section 161(1) substantially cover the same area, so far as police investigations are concerned. The ban on self-accusation and the right to silence, while one investigation or trial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read 'compelled testimony' as evidence procured not merely by physical threats or violence but by psychic torture atmospheric pressure, environmental coercion, tiring interrogative polixity, overbearing and intimidatory methods and the like not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilt, it becomes 'compelled testimony', violative of Article 20(3). ....
63. We have explained elaborately and summed up, in substance, what is self-incrimination or tendency to expose oneself to a criminal charge. It is less than 'relevant' and more than 'confessional'. Irrelevance is impermissible but relevance is licit but when relevant questions are loaded with guilty inference in the event of an answer being supplied, the tendency to incriminate springs into existence. We hold further that the accused person can not be forced to answer questions merely because the answers thereto are not implicative when viewed in isolation and confined to that particular case. He is entitled to keep his mouth shut if the answer sought has a reasonable prospect of exposing him to guilt in some other accusation actual or imminent, even though the investigation underway is not with reference to that. We have already explained that in determining the incriminatory character of an answer the accused is entitled to consider and the Court while adjusting will take note of the setting, the totality of circumstances, the equation, personal and social, which have a bearing on making an answer substantially innocent but in effect guilty in import. However, fanciful claims, unreasonable apprehensions and vague possibilities cannot be the hiding ground for an accused person. He is bound to answer where there is no clear tendency to criminate."
11. In my considered opinion, the law laid down by the Honourable Apex Court in Nandini Satpathy vs. P.L.Dhani reported in (1978) 2 Supreme Court Cases 424. as well as in D.K.Basu Vs. State of West Bengal reported in AIR (1997) SC 610, would not in any way, enure to the benefit of the petitioners to contend that Polygraph Test, Brain Mapping Test and Narco Analysis Test are prohibited. A man should not be tortured to give evidence consciously as against himself. But, here, by using modern scientific method, the police is trying to cull out what is there in the sub-conscious mind of the petitioners. On the one hand, the law prohibits third degree methods being perpetrated on the accused in extorting confessions and information and the same law should not shut out the modern technology being adopted by the Investigating Officer which would amount to completely putting an embargo in making head way in the investigation.
12. The ratiocination adopted by the Honourable Apex Court in catena of decisions, would support the view that such tests are not violative of Article 21 of the Indian Constitution and those decisions would squarely applicable in holding that other tests can rightly be done including Polygraph Test, Brain Mapping Test and Narco Analysis Test also.
13. The decision in Mr.'X' v. Hospital 'Z' reported in (1998) 8 S.C.C 296 laid down the following propositions:
"26. As one of the basic Human Rights, the right of privacy is not treated as absolute and is subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedoms of others.
27. Right of privacy may, apart from contract, also arise out of a particular specific relationship which may be commercial, matrimonial, or even political. As already discussed above, doctor-patient relationship, though basically commercial, is professionally, a matter of confidence and, therefore, doctors are morally and ethically bound to maintain confidentiality. In such at situation, public disclosure of even true private facts may amount to an invasion of the right of privacy which may sometimes lead to the clash of one person's "right to be let alone" with another person's right to be informed.
28. Disclosure of even true private facts has the tendency to disturb a person's tranquility. It may generate many complexes in him and may even lead to psychological problems. He may, thereafter, have disturbed life all through. In the face of these potentialities, and as already held by this Court in its various decisions referred to above, the right of privacy is an essential component of the right to life envisaged by Art.21. The right, however, is not absolute and may be lawfully restricted for the prevention of crime, disorder or protection of health or morals or protection of rights and freedom of others."
14. The Honourable Apex Court in Goutam Kundu v. State of West Bengal reported in A.I.R 1993 S.C 2295, has held as under: "1) Courts in India cannot order blood test as a matter of course; 2) Whenever applications are made for such prayers in order to have roving inquiry the prayer for blood test cannot be entertained. 3) There must be a strong prima facie case in that the husband must establish non-access in order to dispel the presumption arising under Section 112 of the Indian Evidence Act.
4) The Court must carefully examine as to what would be the consequence of ordering the blood test. Whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman.
5) No one can be compelled to give sample of blood for analysis."
15. I may also refer to Sections 53 and 53(A) Cr.P.C which have been brought about by the Code of Criminal Procedure, (Amendment Act, 2005), which are extracted hereunder for ready reference. Now, the question arises as to whether such other tests under Section 53 Cr.P.C., would include the Narco Analysis Test and other Tests also. One can take a cue from those words, actually what was there in the mind of the legislators. The legislators, in their wisdom, thought that apart from the tests specifically contemplated in express words, the tests which have not expressly specified also, could be resorted to for culling out the truth and arriving at a proper conclusion. No doubt, the application of ejusdem genesis rule, may not permit one to take that Narco Analysis Test and such other Tests are contemplated by the words 'such other tests' used in Section 53 Cr.P.C. Still the Court could grasp and infer that law is not averse to scientific tests.
16. The learned Counsel for the petitioners would argue that the right of an Advocate to be present with the accused cannot be denied in view of the aforesaid decisions, viz., Nandini Satpathy vs. P.L.Dhani reported in (1978) 2 Supreme Court Cases 424 and D.K.Basu Vs. State of West Bengal reported in AIR (1997) SC 610. In those decisions, the Honourable Apex Court permitted the presence of Advocate to the limited extent duration. If the Advocate is present, then the accused will be able to convey his grievance and the Advocate's presence itself would prevent any abuse by the police. So, the same formula can be applied here.
17. The learned Government Advocate (Criminal Side) would submit that the Advocate cannot be inside the Laboratory when the Narco Analysis Test is going on. But, he could be near that room, so that if the accused wants, he could go to his rescue. The Advocate can also have a visit into that Laboratory Test room, but he cannot be there throughout such Tests. Pithily and precisely, concisely and briefly, it could be laid down that mutatis-mutandis, the mandates as laid down in Nandini Satpathy vs. P.L.Dhani reported in (1978) 2 Supreme Court Cases 424 as well as in D.K.Basu Vs. State of West Bengal reported in AIR (1997) SC 610, shall be applicable even while Polygraph Test, Brain Mapping Test and Narco Analysis Test are going on.
18. The learned Government Advocate (Criminal Side) would try to raise a point that this petition itself is not maintainable, because on behalf of the accused, a memo was filed to the effect that they were having no objection for such Tests if the Advocate would be permitted to be present. The principle "Cuilibet licet juri pro se introducto renunciare" would mean that any one may waive or renounce the benefit of a principle or rule of law that exists only for his protection. The said maxim is subject to the embargo/rider that such renunciation of right is not against the public policy. It is therefore crystal clear that the accused cannot renounce his constitutional right or right which is conferred on him. I do not want to rely on technical plea that there was admission before the learned Magistrate.
19. In the result, I would like to hold that Polygraph Test, Brain Mapping Test and Narco Analysis Test are not violative of Article 21 of the Indian Constitution for the reasons cited supra. While holding so, I want to add a rider to it that the police should not misuse or abuse it. In this present day context, if Carte Blanche is given to the Police, then such Tests might be misused for wrecking personal vendetta and in such eventualities, the judiciary should interfere and thwart such attempts and save the innocent.
20. Here, having heard both sides, prima facie and ex facie, I could see no reason to countenance that such tests are intended for the purpose of wrecking personal vendetta or harassing the accused at the basket of any illegal power segment, but these tests are only for the purpose of culling out the truth in a genuine manner. Accordingly, this Criminal Revision Case is ordered. Consequently, connected M.P.(MD)No.1 of 2007 is closed. rsb
1.The Inspector of Police,
Tenkasi Police Station,
2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
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