* HONOURABLE SRI JUSTICE A.GOPAL REDDY and HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRL.P.NOS.5454, 5569 and 5564 of 2009 % 23-04-2010 Crl.P.No.5454/2009: # Byrraju Ramalinga Raju ..Petitioner Vs. $The State, CBI represented by Chief Investigating Officer, Hyderabad. ..Respondent ! Counsel for the petitioner : Sri C. Padmanabha Reddy in Crl.P.No.5454/2009 : Senior Advocate for Sri S. Bharat Kumar Counsel for petitioner in : Sri D. Prakash Reddy Crl.P.No.5564/2009 Senior Advocate for Sri K. Ravinder Reddy Counsel for petitioner in : Sri B. Nalini Kumar Crl.P.No.5569/2009 ^ Counsel for the respondent in : Sri M.Ravindran, Addl. all the criminal petitions Solicitor General of India & Sri T.Niranjan Reddy, Special P.P. for CBI < Gist: >Head Note ? [1] AIR 1961 SC 1808 2 2004 All MR (Cri) 1704 = 2004-BCR (Cri)-1-657 = 2004 (TLS) 1315767 3 2006 CRI. L.J. 2615 4 2005 CRI.L.J. 2868 5 2006 CRI.L.J. 2401 6 KANTLJ 2004 (7) 501 7 2008 CRI. L. J. 68 8 2008 CRI. L.J. 3992 9 2006 TLKER 106=2006 KERLT (2) 197 10 2009 DRJ – Volume 107 page 499 11AIR 2008 AP 98 121978(2) SCC 424 13( 1978) 4 SCC 224 14(1986) 3 SCC 615 15(2008) 4 SCC 54 16(1994) 6 SCC 632 17 1977 Crl.L.J. 1797 18 1981 Crl.L.J.125 19 1971 AN.W.R.(2) 94 20(2003) 4 SCC 493 21 (2005) 5 SCC 194 22AIR 1954 SC 300 23 (1966) 384 US 436 24 1978(1) SCC 248 25 2001(5) ALD 522 (LB) 26(1988)2 SCC 602 27(1991) 3 SCC 655 28(1994) 5 SCC 410 291995 (Supp-2) SCC 187 30AIR 2002 SC 2225=(2002) 5 SCC 521 31(1994) 3 SCC 569 HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.P.NOS.5454,5569 and 5564 of 2009 DT. 23-4-2010 Crl.P.No.5454/2009 Byrraju Ramalinga Raju …Petitioner V. The State, CBI represented by Chief Investigating Officer, Hyderabad. ..Respondent The Court made the following: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.P.NOS.5454,5569 and 5564 of 2009 COMMON ORDER: (Per the Hon’ble Sri Justice A. Gopal Reddy) These criminal petitions filed under Section 482 of the Code of Criminal Procedure (for short “the Cr.P.C.,”) are placed before us for hearing in view of the reference order dt. 25-8-2009 passed by the learned single Judge of this Court to have an authoritative pronouncement on the issue “whether the accused can be compelled to undergo Brain Mapping and Lie-Detector (polygraph) tests pursuant to the order passed by the XIV Additional Chief Metropolitan Magistrate, Hyderabad dt. 9-7-2009 in Crl.M.P.No.1827/2009 in RC No.4(S)/2009/ CBI/HYD (later numbered as CC No.187/2009). 2. On the basis of a complaint lodged by Mrs. Leena Mangat W/o Nahar Singh against A-1, other directors, Auditors and others, to the Additional Director General of Police, CID, Hyderabad on 9-1-2009 stating that on seeing the performance of the company represented in and reflected through the balance sheet and with the belief that the representations made by the Chairman, the Managing Director and other Directors of M/s. Satyam Computer Services Limited (Ms.SCSL) to be true, she purchased 100 shares with her retirement benefits four years back for a total sum of Rs.19000/-; the value of the share of the company was at Rs.500/- in the market; on account of fudging of company accounts and manipulation of records showing incorrect and inflated figures in the balance sheet, the value of the shares of the company suddenly dropped causing financial loss to her and other shareholders, the CID, Andhra Pradesh, Hyderabad registered it as Cr.No.2/2009 on 9-1-2009 against A-1, Chairman of M/s. SCSL, Directors, Auditors and others under Sections 120-B, 420, 467, 471 and 477-A IPC. During the Course of Investigation, CID while deleting Section 406 IPC added Sections 409, 468 IPC in addition to Sec. 467 IPC. 3. On a request made by the Government of Andhra Pradesh by issuing a notification Dt.13-2-2009 under Section 6 of Delhi Special Police Establish Act, 1946 (for short “DSPE Act”) entrusting the investigation of the case to Central Bureau of Investigation (CBI), the Government of India issued notification dt. 16-2-2009 under Section 5 of DSPE Act, extending powers and jurisdiction of CBI to whole State of Andhra Pradesh and thereby accorded consent to the CBI for investigation of Cr.No.2/2009 registered by the CID Police Station, Hyderabad. Pursuant to the same, a crime vide RC No.4(S)/2009/CBI/HYD was registered on 20-2-2009. On registering the case, CBI got the police custody of the accused and interrogated them. 4. After completing investigation, CBI laid the charge sheet against the accused for commission of offences punishable under Sections 120-B r/w 420,419, 467, 468, 471, 477A and 201 IPC during the period 2001 to 2008. It was alleged that during the period 2001- 2008, the accused lured the innocent investors under deception into buying shares of M/s. SCSL by publishing false and inflated balance sheets projecting a healthy picture about M/s. SCSL, thereby caused wrongful loss to the investors and they sold their shares at opportune times in the open market and received wrongful gain for themselves. Some of the public sector banks suffered a wrongful loss for a total amount of Rs.10.13 crores, and Life Insurance Corporation of India alone has suffered a loss of Rs.950 crores. The whole fraud was designed and orchestrated by A-1 to A-3 and got the same implemented with the active connivance of A-7, A-8 and A-9. A-4 and A-5 have actively participated in the conspiracy by auditing the fudged balance sheets and certified the same and thereby connived with the other accused. A-6 has actively participated in the conspiracy by assisting A-1 and A-2 in reaping maximum benefit from this fraud and in rotating the funds amongst the companies. During the said period, the accused have manipulated the results of the company and have shown heavy profits and growth rate on par with the market conditions and thereby kept the share price artificially high. They intelligently off- loaded the shares of their family members and made a sum of Rs.715 crores and brought down their stake in the company from 18.78% to 8.59%. By doing so, they have cheated investors and made for maximum gain for themselves. 5. Before filing charge sheet, CBreI filed the present petition, Crl.M.P.No.1727/2009, stating that A-1, who is the Chairman of M/s. SCSL sent his letter of resignation through an E-mail dt. 7-1-2009 to the Board of Directors. In the said E-mail, it has been stated that the balance sheet of September 30, 2009 carries: 1. Inflated (non-existent) cash and bank balance of Rs.5040 crores as against Rs.5361 crores reflected in the books. 2. An accrued interest of Rs.376 crores which is non- existent. 3. An understated liability of Rs.1230 crores on account of funds arranged by him. 4. An overstated debtors position of Rs.490 crores as against Rs.2561/- crores reflected in the books. For the September Quarter (Q2) a revenue of Rs.2700 crores was reported and an operating margin of Rs.690/- crores as against the actual revenue of Rs.2112/- crores and an actual operating margin of Rs.61 crores. This has resulted in artificial cash and bank balances going up by Rs.588 crores in Q2 alone. It is further mentioned in the letter that the gap in the balance sheet has arisen purely on account of inflated profits over a period of several years and that what started as a marginal gap between actual operating profit and the one reflected in books of accounts continue to grow over the years and finally it has attained unmanageable proportions as the size of the company operations grew significantly. 6. During the course of interrogation several documents were seized from the possession of the accused. However, they have not disclosed certain crucial information with regard to the modus operandi used in commission of this fraud. Unless those crucial information, which are in the exclusive knowledge of A-1 to A-3 are brought out, the actual manner in which the fraud was committed and the over all implications of the scam will not come out and the same will remain buried under the carpet. Therefore, CBI filed the present petition praying the court to pass necessary orders for conducting scientific tests, namely, (1) Polygraph test or Lie Detector Test; and (2) Brain Mapping Test or F-300 Test at A.P. State Forensic Science Laboratory, Hyderabad stating that these tests would not amount to any testimonial compulsion and do not amount to violation of Article 20(3) of the Indian Constitution Act. 7. The accused filed objections to the above petition stating as follows: 1. The object for which the CBI sought to subject the accused to Polygraph test (Lie Detector test) and Brain Mapping Test or F-300 Test is not within the scope of those test. 2. The object for which the CBI sought to subject the accused to Polygraph Test (Lie Detector Test) and Brain Mapping Test or F-300 Test is violative of Art. 19 of the Constitution of India. 3. The object for which the CBI sought to subject the accused to Polygraph Test (Lie Detector Test) and Brain Mapping Test or F-300 Test is violative of Art. 20(3) of the Constitution of India. 4. Granting any further police custody for the purpose of conducting the said two tests ie., Polygraph Test (Lie Detector Test) and Brain Mapping Test or F-300 Test, is nolonger permissible in view of the provisions of Section 167(2)(a) Cr.P.C., 5. Both the tests are not authentic and are not approved by any law for the time being in force & conducting of said tests has not been approved by any statute. 6. The A-1 has categorically stated that he has nothing to reveal nor anything to disclose leading to recovery. 7. It is submitted that Brain Mapping Test or F-300 Test is considered as not trustworthy. The said tests are not going to serve any purpose to the investigating agency. Apart from taking the above objections, it was further pleaded that the investigating agency is trying to compel the accused to testify against himself which is not permissible under the law. The privilege against self-incrimination under Article 20(3) of the Constitution of India is a fundamental canon of Common Law Criminal Jurisprudence. Techniques involved in the said tests raise genuine issues like encroachment of an individual’s rights, liberties and freedom. “Compulsion to be a witness” goes against the maxim Nemo Tenetur Seipsum Accusare (No one is bound to accuse or criminate himself). The accused have a right to silence as enshrined under Section 161(2) of the Code of Criminal Procedure and the Indian Constitution. The request sought by CBI is against the fundamental rights of the accused guaranteed under the Constitution, which is nothing but an abuse of process of law. The accused does not consent to the proposed tests as they are against their rights. Polygraph Test (Lie Detector Test) was not reliable and the validity of which was sub- judice before the Supreme Court. Brain Mappping Test known as F- 300 Test is contrary to the guidelines issued by the National Human Rights Commission vide Guidelines No.117/8/97-98 dt. 11-1-2000, to be mandatorily observed by the investigating agencies while conducting the Polygraph and Bran Mapping Tests. As per the said guidelines, no Lie Detector test should be administered except on the basis of the consent of the accused. 8. Learned XIV Additional Metropolitan Magistrate, Hyderabad by the impugned order dt. 9-7-2009 allowed the petition filed by the CBI ie., Crl.M.P.No.1827/2009 permitting it to conduct Lie Detector Test and Brain Mapping test on the accused within a period of 8 weeks with the following conditions: 1. Any self-incriminating statement, if made by the accused cannot be used or relied upon by the prosecution. 2. The investigating officer shall intimate the date and time of tests to the respondents/accused. 3. The actual recording of the Lie Detector Test shall be done by independent agency (such as hospital) and conduct in the presence of Lawyer. 4. Full medical and effectual narration of the incident must be recorded. 9. Questioning the said order, the present petitions under Sc. 482 Cr.P.C., were filed by A-1 to A-3 respectively. 10. A learned single Judge who initially heard the matters at length, after referring to the various judgments cited, namely, (1) State of Bombay v. Kathi Kalu Oghad[1], (2) Ramchandra Ram Reddy v. State of Maharashtra[2], (3) Arun Gulab Gavali v. State of Maharashtra and others[3]; (4) Central Bureau of Investigation, New Delhi v. Abdul Karim Ladsab Telgi and others[4]; (5) Dinesh Dalmia v. State[5]; (6) Smt. Selvi v. State of Karnataka[6]: (7) Santokben Sharmanbhai Jadega v. State of Gujarat[7]; (8) State of Andhra Pradesh v. Smt. Inapuri Padma and others[8]; (9) Rojo George v. The Deputy Superintendent of Police[9]; (10) Shailender Sharma v. State and another[10], (11) Smt. Rayala M. Bhuvaneswari v. Nagaphanender Rayala[11],by the CBI as well as the accused observed as under: “Similarly, the power and authority to conduct these tests by the investigating agency can only be traced in general to the Code of Criminal Procedure, 1973 or in particular either to Section 53 or to Section 161 of the said Code. If the power were to be traced to Section 53, Sub-Section (1) thereof prescribed that at the request of a police officer, it shall be lawful for a registered medical practitioner to examine the person of an accused, which may afford evidence as to the commission of an offence and the Explanation (a) to the said Section 53 defines the word “examination” to be inclusive of those details specified therein. It is true that a reference is made in the inclusive definition to scientific techniques including DNA profiling and such other tests, but the said words are qualified by the words “which the registered medical practitioner thinks necessary in a particular case”. The plain and unambiguous language of the said definition is, thus, as though the use of the modern and scientific techniques including DNA profiling and such other tests, will have to be thought necessary by a registered medical practitioner in a particular case, if they are to be resorted to and a registered medical practitioner comes into picture under Sub-Section (1) of Section 53 at the request of a police officer to have an examination of the person of the accused, which will afford evidence as to the commission of an offence. The investigating agency straight away taking recourse to the conduct of Brain Mapping, Lie-Detector (Polygraph) and Narco Analysis Tests without the intervention of a registered medical practitioner, thus, may not appear to be in tune with the grammatical sense, which the provisions of Section 53 of the Code of Criminal Procedure convey. Section 161(2) of the Code of Criminal Procedure mandates that a person shall be bound to answer truly all questions relating to a case put to him by an investigating officer, but to the extent the questions tend to expose him to a criminal charge by the answers, which would have to be given, such person is not bound to answer at all. This provision is a natural corollary to the protection against testimonial compulsion under Article 20(3) of the Constitution of India. In the case of Lie-Detector or Polygraph Test, the exercise involves putting questions and the suspect giving answers and the test is claimed to be leading to the expert on analysis being able to conclude whether the suspect was true or not in giving his answers. Though the questions and answers may not directly expose the suspect to a criminal charge, the impressions created by the result of the test on the minds of either the investigating agency or the trial Court may have an indirect psychological influence on the criminal charges being considered either by the investigating agency or by the trial Court. Whether such a contingency would amount to the prohibited exposure under Section 161(2) of the Code of Criminal Procedure read with Article 20(3) of the Constitution of India also, does not appear to have been subject to any detailed analysis in the decisions referred to above. Section 45 of the Evidence Act, 1872 also may be of relevance, as it makes the opinions of experts relevant, but the said enabling provision cannot make an inadmissible opinion of the expert admissible evidence and therefore, needs no further reference. While Narco Analysis Test is not the subject mater of these criminal petitions, the situation concerning Brain Mapping Test and Lie- Detector (Polygraph) Test, thus, appears to require further examination with reference to the questions that may arise under Sections 53 and 161 of the Code of Criminal Procedure. Such examination probably becomes necessary, as no other provision of law appears to enable the investigating agency to subject a suspect or accused to such tests even involuntarily and the definition of “investigation” under Section 2 (h) of the Code of Criminal Procedure specifically included all proceedings under the Code for the collection of evidence conducted by a police officer in such definition and interference with the privacy or rights of any person including a suspect or an accused by an investigating agency can only be under a procedure having the sanction of law and not beyond. If so, while the considerations under the decisions referred to, appear to have proceeded more on the desirability of taking advantage of the advanced scientific methods in unearthing truth without resorting to the conventional third degree methods, the permissibility of conduct of such tests with reference to the authority of law under the Code of Criminal Procedure still appears to require a deep probe.” Further, learned Judge after noticing the reference order made by another single Judge in Cr.P.No.2612/2006 to a Division Bench of the constitutional validity of Narco Analysis Test; pendency of the matter before the Supreme Court against the judgment of the Karnataka High Court; and orders passed in Crl.R.C.M.P.No.2264/2007 in Crl.R.C.No.1532/2007 granting stay and postponing hearing of the revision awaiting the judgment of the Division Bench, referred the matters to a Division Bench. That is how, these matters are listed before us for hearing. 11. Sri C. Padmanabha Reddy, learned Senior Counsel representing Sri S.Bharat Kumar, counsel for the petitioner in Crl.P.No.5454/2009 contended that the reason for which the application is made by the investigating agency is that the accused are not disclosing the crucial information, therefore no accused can be a witness of his own case and compelling him to be a witness violates Article 20(3) of the Constitution. Section 53 Cr.P.C.,, authorizes examination of the accused by private practitioner at the request of the police officer on his consent but not by the investigating officer. Explanation (a) to Sec.53 defines the word ‘examination’ to be inclusive of those details specified therein and a reference is made in the inclusive definition to scientific techniques including DNA profiling and such other tests but the said words are qualified by the words “which the registered medical practitioner thinks necessary in a particular case”, but not by the investigating officer. By placing reliance on the judgment of the Supreme Court in NANDINISATPATY V. P.L.DANI[12], he contended that Article 20(3) prohibits extraction of incriminatory evidence if elicited by pressure from the accused and if his statement also contains self exculpatory, the same ceases to, be a confession and Article 20(3) strikes at confessions and self incrimination. As per the guidelines relating to administration of Polygraph test (lie detector test) issued by NHRC no Lie Detector Test should be administered except on the basis of consent of the accused and if the accused volunteers for 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. High Courts of Bombay, Karnataka, Gujarath proceeded on the footing it will help investigating agency and this court i n STATE OF AP V. INAPURI PADMA (8 supra) simply followed the judgments of the Bombay, and Karnataka High Courts and the Supreme Court stayed the orders passed by this court in Crl.R.C.No.1402/2006 permitting narco analysis test without consent of the accused in Special Leave to Appeal (criminal) No.5846/2006 dt. 20-11-2006. 12. Sri D Prakash Reddy, learned Senior Counsel representing Sri K.Ravinder Reddy, counsel for the petitioner in Crl.P.No.5564/2009 while supplementing the arguments of Sri C. Padmnabha Reddy contended that by permitting the investigating agency to conduct Lie Detector Test and Brain Mapping test on the accused will amount to violation of personal liberty guaranteed under Article 21 of the Constitution, and the permission granted is not in accordance with the procedure established under law. Section 53 Cr.P.C., will not permit examination of his person and unless he gives consent, no such test can be conducted. As per the case of the prosecution, there is no misappropriation of the funds except falsification of the records. Section 53(2)(A) Cr.P.C., does not deal with examination by way of Brain Mapping Test, Narco Analysis Test etc, except examinations confined therein, therefore, in the absence of any procedure established liberty of a person guaranteed under Article 21 cannot be impaired. He further contended that once there is no procedure established by law, as per Sec.53 Cr.P.C., two qualifications have to be satisfied, namely, (i) committing an offence of such a nature; (ii) committed under such circumstances, subjecting the accused to two tests violate Article 21. For the said proposition, he placed reliance on the judgment of the ARUN GULAB GAVALI V. STATE OF MAHARASHTRA (3 supra). 13. Sri B. Nalini Kumar, learned counsel the petitioner- A-3 in Crl.P.No.5569/2009 contended that every accused will have a right to maintain silence under Article 19(1)(A) of the Constitution and right of privacy to be implicit in the right to life and liberty guaranteed to the citizens of India by Article 21 of the Constitution. On registering FIR on 9-1-2009, A-1 and A-2 were arrested on the same and A-3 on 10-1- 2009. Police custody was granted on 17-1-2009 from 18-1-2009 to 23- 1-2009, which was extended till 26-1-2009. On 9-3-2009 again police custody was granted from 10-3-2009 to 17-3-2009 and from 21-3-2009 to 22-3-2009. He further contended that once CBI already interrogated the accused sufficiently and laid charge sheet after investigation, by granting permission to CBI to conduct Lie Detector Test and Bran Mapping Test, the petitioners’ rights have been taken away. For the said proposition, reliance is placed on the judgments of the Supreme Court in EXCEL WEAR ETC., V. UNION OF INDIA[13]; BIJOE EMMANUEL V. STATE OF KERALA[14]; KRISHNA JANARDHAN BHAT V. DATTATRAYA G. HEGDE[15]; and R.RAJAGOPAL V. STATE OF TN[16] 14. On the other hand, M. Ravindran, Additional Solicitor General of India for the respondents in all the criminal petitions contended that Supreme Court stayed conducting narco analysis test against the judgment of the Allahabad High Court in Special Leave to Appeal (Crl) No.911/2009 on 6-2-2009. Sec. 167 Cr.P.C., provides custodial interrogation, the Lie Detector and Brain Mapping tests are extension of custodial interrogation which are permitted by the impugned order of the 14th Additional Metropolitan Magistrate, Hyderabad. What is prohibited under Article 20(3) of the Constitution is testimonial compulsion only. Further, for Brain Mapping and Lie Detector (polygraph) Test, no drug is administered. To substantiate the same, reliance is placed on the judgment the Bombay High Court in ARUN GULAB GAVALI V. STATE OF MAHARASHTRA (3 supra). He further contended that Sec. 53 Cr.P.c., was added in the year 1973 and its constitutional validity was upheld in the year 1977 by the judgment of this court in ANANTH KUMAR NAIK V. STATE OF ANDHRA PRADESH[17]. Explanation is added to Sec. 53 and 53A and 54 Cr.P.C., by Act No.25 of 2005 w.e.f. 23-6-2006. Sec.2(h) Cr.P.C., defines “investigation” includes all the proceedings under the Code of Criminal Procedure for the collection of evidence conducted by a police officer or by any person who is authorized by a Magistrate in this behalf and the said definition is inclusive one. The Bombay High Court in ANIL ANTRAO LOKAHADE V. STATE OF MAHARASHTRA[18] held that the Magistrate can issue a direction ordering