IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 24TH JUNE 2009 / 3RD ASHADHA 1931 Crl.MC.No. 1218 of 2009() ------------------------- AGAINST THE ORDER DATED 12/03/2009 IN CRMP.2696/2009 IN R.C.8(S)/93/KER. of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER(S): ---------------------- 1. SISTER SHERLY, D/O. LATE THOMAS, ST. JOSEPH'S GENERALATE, S.H. MOUNT P.O., NATTASSERRY, KOTTAYAM. 2. MRS. ACHAMMA, ST. JOSEPH'S CONVENT HOSTEL, BARTON HILL, THIRUVANANTHAPURAM , KERALA. 3. SMT. THRESSIAMMA, THEKKEKKATTU HOUSE, VELIANNOOR P.O., THAMARAKKADU, KOTTAYAM KERALA. BY MR.M.K.DAMODARAN, SENIOR ADVOCATE ADV. MR.ALAN PAPALI MR.SOJAN MICHEAL RESPONDENT(S): ------------------------- 1. CENTRAL BUREAU OF INVESTIGATION, ACB COCHIN REPRESENTED BY THE STANDING COUNCIL, HIGH COURT OF KERALA, ERNAKULAM. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. *ADDL. R3 IMPLEADED ADDL.R3: MR.THOMAS, AIKARAKUNNEL HOUSE, KURAVILANGADU P.O., KOTTAYAM DISTRICT. * IMPLEADED AS ADDL.R3 AS PER ORDER DATED 24/06/2009 IN CRL.MA.1935/2009. R2 BY PUBLIC PROSECUTOR MR.GIKKU JACOB R1 BY ADV. MR.M.V.S.NAMBOOTHIRY,SC, C.B.I. ADDL. R3 BY ADV. MR.A.X.VARGHESE, MR.A.V.JOJO. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17/06/2009, ALONG WITH WPC NO. 8273 OF 2009, THE COURT ON 24/06/2009 PASSED THE FOLLOWING: Crl.MC.No. 1218 of 2009 ORDER ON CRL.MA.NO.1896/2009 IN CRL.MC.NO.1218/2009 DISMISSED 24/06/2009. SD/- M.SASIDHARAN NAMBIAR, JUDGE //TRUE COPY// P.S. TO JUDGE rs. M.SASIDHARAN NAMBIAR,J. =========================== CRL.M.C.No.1218/2009 & W.P.(C)8273 OF 2009 =========================== Dated this the 24th day of June,2009 ORDER Whether Narco Analysis test is violative of Article 19, 20(3) or 21 of Constitution of India?, (2) whether Narco Analysis is injurious to health and thereby illegal?,(3) whether Narco Analysis test can be conducted without consent?. These are questions to be considered in these petitions. 2. The Investigating Agency, Central Bureau of Investigation, filed Crl.M.P.2696/2009 before Chief Judicial Magistrate, Ernakulam for permission to conduct Narco Analysis test on three witnesses, the petitioners in Crl.M.C.1218/2009 and also a Senior Police Officer. As per order dated 12.3.2009, Chief Judicial Magistrate permitted it and directed the four witnesses to appear before the Director of the Forensic Laboratory, Ahammedabad as and when required the Investigating Agency to bear their expenses. W.P. (C) No.8273/2009 was filed under Article 226 of Constitution of India by the first petitioner in Crl.M.C.1218/2009, for a declaration that she cannot be Crl.M.C.1218/2009 & W.P.(C)8273/2009 2 compelled to undergo Narco Analysis test without her consent and also to declare that the Narco Analysis test is injurious to health and violative of Article 21 of Constitution of India and for a direction to the Investigating Agency not to conduct the Narco Analysis test on her before she obtains copy of the order passed by the Chief Judicial Magistrate in Crl.M.P.2696/2009 so as to challenge it. Crl.M.C is filed challenging the order in Crl.M.P.2696/2009. The contentions raised in the Writ Petition by the first petitioner and by the petitioners in Crl.M.C.1218/2009 is one and the same. First petitioner in Crl.M.C.1218/2009 is the petitioner in W.P(C) 8273/2009. 3. The order in Crl.M.P.2696/2009 passed by Chief Judicial Magistrate is challenged on the ground that it is illegal as it is violative of Section 161 of the Code of Criminal Procedure, Article 19, 20(3) and 21 of the Constitution of India and is not permitted under section 53 of the Code of Criminal Procedure and in any case without obtaining their free consent, petitioners cannot be subjected to Narco Analysis Test. It was contended that Narco Analysis Test being a health hazard cannot be allowed to be conducted on the petitioners against their wishes and it is violative of Article 25 of the Constitution of India as it infringes the freedom of their religion. Crl.M.C.1218/2009 & W.P.(C)8273/2009 3 4. The father of deceased Abhaya filed Crl.M.Appl.1935/2009, to get himself impleaded in the petition contending that he has a right to be heard. As this court in W.P(C) 35590/2007 has already found that the father of the deceased has a right to be heard and he has been permitted by the Supreme Court to challenge the order granting to the accused, in Special Leave application, Crl.M.A.1935 of 2009 in Crl.M.C.1218/2009 is allowed and the petitioner therein is impleaded as third respondent in Crl.M.C.1218/2009. The counsel appearing for the third respondent was also heard. 5. Learned senior counsel appearing for petitioner argued that though a learned single Judge of this Court in Rojo George v. Deputy Superintendent of Police (2006 (2) KLT 197)held that Narco Analysis Test is not violative of Article 20(3) and 21 of Constitution of India, the earlier Division Bench decision of this Court in Sekharan & Others v. State of Kerala (1979 KLT 337) was not considered in the decision of the single Judge and therefore it is not a binding law. Learned senior counsel also argued that learned single Judge did not properly consider the various decisions of the Supreme Court on these aspects and so it is not binding and therefore this court has to reconsider Crl.M.C.1218/2009 & W.P.(C)8273/2009 4 the decision and if necessary it is to be referred to the Division Bench. Learned senior counsel argued that in any case the question whether Narco Analysis Test is violative of Article 19 of the Constitution of India was not considered in that case and if Narco analysis is to be conducted petitioners are to be taken to Ahammedabad as against their wishes and it is violative of their freedom of movement and in any such test is not permissible under the Code of Criminal Procedure and therefore the order passed by the Chief Judicial Magistrate is to be quashed. Learned senior counsel also argued that when the Investigating Agency approached the Chief Judicial Magistrate for permission to conduct the test stating that they sought consent of the petitioners to undergo the test, fact that petitioners refused to give consent was suppressed from the court and the impugned order was obtained from the court playing fraud and therefore the order is vitiated. Reliance was placed on the decision of the Apex Court in S.P.Chengalvaraya Naidu v. Jagannath (AIR 1994 SC 853) and it was argued that when such material aspect was withheld from the court and the impugned order was obtained by playing fraud, the order is to be set aside. It was also argued that in W.P(C) 35392/2008 the Crl.M.C.1218/2009 & W.P.(C)8273/2009 5 Investigating Agency had undertaken that they will follow the mandate of Section 160(1) of Code of Criminal Procedure while questioning the three witnesses against their wishes and the fact that if petitioners are to be taken outside the State to conduct the Narco Analysis Test, it would be violative of the undertaking given to this court was also suppressed from the Chief Judicial Magistrate and therefore on that ground also the order is to be set aside. Learned senior counsel then argued that the question whether a person could be subjected to Narco Analysis Test without consent came up for decision before the Supreme Court in Venkateswara Rao v State of A.P. (Special Leave to Appeal 5846/2006) and finding that the question whether an accused can be compelled to undergo Narco Analysis test is of some importance, the matter was referred to the larger Bench after recording the submission of the counsel appearing for the CBI that until further orders ,Narco Analysis Test shall not be conducted, hence the petition filed before the Chief Judicial Magistrate is against the said undertaking. It was submitted that the question was later heard by the Supreme Court and a decision is awaited and in such circumstance, the Investigating Agency cannot be permitted to conduct a Narco Analysis Test. Learned senior counsel also pointed out that the Law Commission has Crl.M.C.1218/2009 & W.P.(C)8273/2009 6 recommended to ban Narco Analysis Test finding that it is violative of the fundamental rights and is not followed by civilized countries and in such circumstance the impugned order is to be quashed. 6.The learned counsel appearing for the CBI and the learned counsel appearing for the third respondent supported the impugned order contradicting the submissions. It was pointed out that the undertaking given to the Apex Court in Special Leave to Appeal 5846/2006 relied on by the petitioners is only in respect of the said case and there is no order baning the Narco Analysis Test or prohibiting the CBI from seeking permission to conduct Narco Analysis Test. It was also submitted that even after the order passed in Special Leave to Appeal 5846/2006 dated 20.11.2006 Supreme Court in Special Leave to Appeal 1535/2006 and Crl.Misc. Petition 3381/2006 permitted the CBI to complete renarco analysis test on the suspect on the dates indicated and therefore the submission that Narco Analysis Test was not permitted by the Supreme Court is not correct. They also pointed out that apart from the decision of the learned single Judge of this court, Narco Analysis test was approved by the High Courts of Madras, Bombay and Delhi finding that they are not violative of the fundamental rights enshrined the Constitution and therefore Crl.M.C.1218/2009 & W.P.(C)8273/2009 7 there is no substance in the challenge. Learned counsel also pointed out that the question considered by the Division Bench in Sekharan's case (supra)(1979 KLT 337) whether Narco Analysis Test is violative of the provisions of Constitution of India or is legal was not considered and the passing of reference about Narco Analysis Test in the said decision, did not arise for decision in that case and therefore that reference is not the law and Justice K. Padmanabhan Nair in Rojo George's case (supra) (2006(2) KLT 197) considered all the relevant aspect upheld the Narco Analysis Test and therefore the petitions are only to be dismissed. Learned counsel appearing for the CBI also pointed out that no fraud was played on the court and the reply refusing the consent by the petitioners were received subsequent to the filing of the petition before the learned Magistrate and therefore there is no suppression which could be termed as playing fraud. It was also pointed out that the application filed before the CBI is not in violation of any undertaking given to the Division Bench as canvassed and as held by the various High Courts conducting Narco Analysis test would come within the ambit of Section 53 of Code of Criminal Procedure and is perfectly legal and therefore the petitions are only to be dismissed. Crl.M.C.1218/2009 & W.P.(C)8273/2009 8 7. The dead body of deceased Abhaya who was then a student of pre-degree at B.C.M. College, Kottayam was found in a well in the Convent premises on 27.3.1992. The case was originally investigated by the local police and thereafter by the Crime Branch. Finally investigation was entrusted to the C.B.I who took over the investigation on 29.3.1993. The C.B.I submitted a final report under section 173(2) of Code of Criminal Procedure which was not accepted by the Chief Judicial Magistrate who directed which was also not accepted and further investigation was ordered. Another final report, the third was filed on 30.8.2005 where the Investigating Agency concluded that death of sister Abhaya was not a suicide but homicide and inspite of best efforts the culprits could not be traced. Chief Judicial Magistrate again directed further investigation holding that by employment of latest scientific methods like narco analysis test (truth serum test) the culprits could be found out. Subsequently narco analysis test was conducted on two suspected persons. While granting bail to those accused, after verifying the Case Diary a learned single Judge of this court remind the Investigating Agency the importance of scientific tests to find out the real culprits. C.B.I thereafter sent communications to the petitioners requesting them to give Crl.M.C.1218/2009 & W.P.(C)8273/2009 9 written consent for narco analysis or any other scientific test, on or before 9.3.2009. Crl.M.P.2696/2009 was thereafter filed by C.B.I, before the Chief Judicial Magistrate requesting permission to conduct narco analysis test on the petitioners and two others stating that their consent was sought for and out of the four Sri.Samuel is ill and is on continuous Ambulatory Peritoneal Dialysis. Stating that Forensic Science Laboratory, Ahammedabad is well equipped to conduct the scientific test, permission was sought for to conduct narco analysis test at Forensic Science Laboratory, Ahammadabad on the petitioners and Sri.K.T. Maichel, who is a retired Superintendent of Police. The application was allowed under Annexure V order. 8. Narco analysis test is conducted at the Forensic Science Laboratory following the procedure provided in Forensic Narco Analysis Laboratory Procedure prescribed published by the Directorate of Forensic Science, New Delhi. Crime investigators are utilising the narco analysis test, being a scientific procedure, to obtain relevant and necessary informations from an individual being a suspect or a witness or an accused or the complainant which will not otherwise be available. 9. Before considering the argument raised by the counsel for the petitioners and respondents it is to be Crl.M.C.1218/2009 & W.P.(C)8273/2009 10 born in mind that in this petitions it is not necessary to decide the evidentiary value of the result/report of the narco analysis test and whether it is admissible in evidence or not. Those are matters to be decided at the time of trial and not at the stage of investigation. Therefore the argument raised against the admissibility of the report/result of the narco analysis test is not a relevant aspect to be considered in these petitions. 10. Justice Padmanabhan Nair in Rojo George's case (2006(2) KLT 197) considered the relevancy as well as the objection to conduct a narco analysis test in detail. Rejecting the defence raised against it based on Article 21 and 20(3) of the Constitution and on the alleged health hazard, it was held that the test is conducted by an expert in the field after taking all precautions and strictly in accordance with the procedure prescribed by the Forensic Science Laboratory and is not violative of the fundamental rights under Article 21 of Constitution of India and will not amount to testimonial compulsion and thus violative of Article 20(3) of the Constitution of India. Holding that scientific tests like polygraph, brain mapping and narco analysis are to be used by the investigating agency as they are not violative of the fundamental rights enshrined the Constitution, C.B.I was permitted to conduct the narco Crl.M.C.1218/2009 & W.P.(C)8273/2009 11 analysis test on the suspect. The argument of the learned senior counsel is that the learned Judge omitted to take note of the Division Bench decision of this Court in Sekharan's case (1979 KLT 337) and therefore the said decision cannot be followed. The argument was built up on paragraph 31 of the Division Bench decision. True, in Paragraph 31 while discussing about the advancement of science and technology vis-a-vis use of third degree methods for investigation it was observed that use of Narco analysis, Hypnosis and Lie-detector apparatus called Polygraph and administration of truth drugs and truth serums to get at the truth from the accused are inhuman and unethical and these methods adversely affect the health of the accused on whom they are employed and often produce diseases. It was also observed that all these tests may serve truth but they are against the fundamental human rights of an accused and Amercican courts do not permit admission of such evidence with the result that an accused who is really guilty is allowed to go scot-free on account of the conduct of the police and this is a classic example of the prevalence of value of justice over value of truth. As rightly pointed out by the learned counsel appearing for the C.B.I, the question considered by the Division Bench therein was neither the legality nor the admissibility of Crl.M.C.1218/2009 & W.P.(C)8273/2009 12 a narco analysis test. It was considering the sustainability of a conviction and sentence for the offence under section 302 read with section 34 of Indian Penal Code. It was while considering the reliability of the recovery admissible under section 27 of Indian Evidence Act, the aforesaid observations were made and the said observation cannot be taken as a finding by the Division Bench of this court that narco analysis test is violative of the fundamental human rights and thereby illegal or impermissible. 11. A single Judge of the Madras High Court in Dinesh Dalmia v. State (2006 Crl.L.J.2401) had considered the question whether Investigating Officers have a right to direct the accused to undergo scientific test like narco analysis and whether it is violative of the Article 20(3) of the Constitution of India. Learned single Judge rejected the resistance based on Article 20(3) of the Constitution of India and uphold the right of the Investigating Agency to get a narco analysis test conducted on the accused. Division Bench of the Bombay High Court in Ramachandra Ram Ready v. State of Maharashtra (2004-BCR (Cri)1-657) considered the question whether conducting narco analysis test is violative of Article 20(3) of Crl.M.C.1218/2009 & W.P.(C)8273/2009 13 Constitution of India. It was held that narco analysis test (truth serum test) is not barred under Article 20(3) of the Constitution of India. Learned single Judge of the same High Court in Sampatrao R.Arvelli and another v. State of Maharashtra and Others (2009(1) KLD 541) also considered the question whether a narco analysis test on the accused/suspect is violative of Article 19, 20 and 21 of the Constitution of India. As in this case, it was contended before the learned single Judge that in view of the order passed by the Apex Court in K.Venkatarao v. State of A.P. Dated 20th November, 2006 referred to earlier and argued that narco analysis test cannot be permitted. It was found that there is no order of stay either in that particular case or a general stay order prohibiting undertaking the narco analysis test and when there is a tie between silencing constitutionally available individual right and prerogative of State to investigate and use, for that purpose, modern medicoforensic aides for larger good of larger number of persons of the community in larger interest modern scientific invention based on anesthetic drugs already in use over decades and electro gram and similar systems already used for over decades need to be used as an aid in the process of investigation and narco Crl.M.C.1218/2009 & W.P.(C)8273/2009 14 analysis test is not violative of Article 19, 20(3) or 21 of Constitution of India. The same question was considered by a learned single Judge of the Delhi High Court in Sh.Shailender Sharma v. State and Another (2009(1) KLD 212). In that case permission granted to conduct the test was challenged on the ground that it was not permissible under section 53 of Code of Criminal Procedure, violative of Article 20(3) of the Constitution of India. It was held that Explanation to Section 53 of Code of Criminal Procedure makes it inclusive of such other test which in its ambit takes in narco analysis test also. It was found that it is not violative of the fundamental rights and narco analysis test is a step in aid of investigation and forms an important base for further investigation, as it may lead to collection of further evidence on the basis of what transpired during such examination. Narco analysis test was therefore permitted. 12. Though it was argued that by virtue of the order passed by the Apex Court, recording the submission of the counsel appearing for the C.B.I that they will not conduct narco analysis test in that case without the consent of the accused in Special Leave to Appeal(Crl)5846/2006 it was argued that in view of the undertaking thereafter no narco Crl.M.C.1218/2009 & W.P.(C)8273/2009 15 analysis test is permissible. I cannot agree with the submission as no order of stay was granted or any declaration was made that narco analysis test is not permissible. So long as it is not barred under any statute or is not violative of fundamental rights or barred under any other provisions of law, Investigating Agency is definitely entitled to employ the said scientific test. The question whether the result obtained by the Investigating Agency on such test is admissible in evidence and if so to what extent are all matters to be decided later at the time of trial and not at this stage. 13. Though relying on Article 20(3) of the Constitution of India it was contended that narco analysis test is in violation of the Constitution, I cannot agree with the submission. As declared by the Constitution Bench in M.P.Sharma v. Satish Chandra, District Magistrate, Delhi and others (A.I.R.1954 S.C.300) the right declared under Article 20(3) consist of the following components. (1) It is a right pertaining to a person “accused of an offence”. (2) It is a protection against “compulsion to be a witness” and (3) It is a protection against compulsion resulting in his giving evidence “against himself”. Unless petitioners are persons accused of an offence, they cannot Crl.M.C.1218/2009 & W.P.(C)8273/2009 16 claim protection under Article 20(3). The position is explicitly declared by the Apex Court in Balkishan A.Devidayal v. State of Maharashtra (AIR 1981 SC 379). Taking note of the interpretation placed in M.P. Sharma's case (supra) which was reiterated in Raja Narayanlal Bansilal v. Maneck Phiroz Mistry (A.I.R. 1961 SC 29) and State of Bombay v. Kathi Kalu Oghad(A.I.R.1961 1808) and K.Joseph Augusthi v. M.A. Narayan (A.I.R. 1964 SC 1552) and Ramesh Chand Mehta v. The State of West Bengal (AIR 1970 SC 940.), the position has been summed up as follows:- “To sum up, only a person against whom a formal accusation of the commission of an offence has been made can be a person “accused of an offence” within the meaning of Article 20(3). such formal accusation may be specifically made against him in an F.I.R. or a formal complaint or any other formal document or Crl.M.C.1218/2009 & W.P.(C)8273/2009 17 notice served on that person, which ordinarily results in his prosecution in Court.” Therefore the challenge against the order passed by the Chief Judicial Magistrate based on Article 20(3) can only be rejected. 14. Secondly the impugned order was challenged on that ground it violates Articles 5,12, and 17 of Universal Declaration of Human Rights 1948 and as declared by th Apex Court in People's Union for Civil Liberties v. Union of India (AIR1997 SC 568) the said convenants are applicable to India and as declared by the Supreme Court in Chairman, Railway Board v. Chandrima Das (2000) 2 SCC 465) the International Covenants and Declarations as adopted by the United Nations have to be respected by all signatory States and the meaning given to the words in those Declarations and Convenants have to be given effect to and therefore against the wishes of the petitioners narco analysis test cannot be conducted as it is an intrusion on their privacy. It was argued that though Section 160 of Code of Criminal Procedure enables a Police Officer to Crl.M.C.1218/2009 & W.P.(C)8273/2009 18 require attendance of witnesses to record their statement, it does not enable the Police Officer to take the witness out of his place of residence and that too to Ahammedabad to conduct narco analysis test. The argument is that by administering the narcotic drug stultifies the senses and thereby the freedom of speech and it violates the fundamental rights provided under Article 19 of the Constitution of India and on that ground also the order is vitiated. Learned senior counsel also argued that the order is violative of Article 21 of the Constitution of India, as petitioners cannot be deprived of their life or personal liberty other than following the procedure established by law and when the Code of Criminal Procedure does not provide for conducting narco analysis test that too as against witnesses and the order is violative of Article 21 also. It was argued that as declared by the Apex Court in Kharak Singh v State of U.P (A.I.R. 1963 SC 1295), Govind v. State of M.P. (AIR 1975 SC 1378), R.Rajagopal v. State of Tamil Nadu (AIR 1995 SC 264) the ambit of personal liberty guaranteed under Article 21 is very wide and it concludes the right for their privacy, which