SCR.A/1286/2007 1/83 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION No. 1286 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= SANTOKBEN SHARMANBHAI JADEJA - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR ND NANAVATI WITH MR MITESH R AMIN for Applicant(s) : 1, MR KAMAL TRIVEDI, ADVOCAT GENERAL WITH MR RC KODEKAR ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 13/08/2007 ORAL JUDGMENT 1. By way of this petition under Article 227 of the Constitution of India, the petitioner – original accused No.1 – Santokben Sharmanbhai SCR.A/1286/2007 2/83 JUDGMENT Jadeja has prayed for an appropriate order to quash and set aside the order dated 13.6.2007 passed by the learned JMFC, Junagadh passed below application Mark – 8 granting Narco Analysis Test and Brain Mapping Test of the petitioner. The petitioner has also prayed for an appropriate order to quash and set aside the order dated 30.6.2007 passed by the learned Additional Sessions Judge & Presiding Officer, 4th Fast Track Court, Junagadh passed in Criminal Revision Application No.89 of 2007 in dismissing the same and confirming the order passed by the learned JMFC, Junagadh granting Narco Analysis Test and Brain Mapping Test of the petitioner. 2. At the outset, it is to be noted that against the State so many cases involving serious offences such as Saurabuddin encounter case and others are pending in which the question with regard to Narco Analysis Test and Brain Mapping Test of the concerned accused are pending at different stages i.e. either at the SCR.A/1286/2007 3/83 JUDGMENT stage of proceedings before the learned Magistrate or revisional stage before the learned Sessions Court or before this Court and considering timely requirement of such tests at the stage of investigation, considering the above, this Court has considered present petition on merits. The decision of this Court in the present petition have a baring upon the aforesaid proceedings before the different trial Courts / revisional Courts hence, this petition is considered on merits. It was also brought to the notice of the Court that one proceeding is pending before the Hon'ble Supreme Court and the case is referred to the Larger Bench, and considering the same an opportunity was given to the petitioner to move an appropriate application before the Hon'ble Supreme Court for transfer of the proceedings and twice this Court granted time to the petitioner to move such an application for transfer in view of the pending proceedings before the Hon'ble Supreme Court and in fact on SCR.A/1286/2007 4/83 JUDGMENT 19.7.2007 at the request of the learned counsel appearing for the petitioner, this petition was adjourned to 1 st August, 2007 as the statement was made that the petitioner proposes to move an appropriate application before the Hon'ble Supreme Court for transfer of this proceedings in view of the pendency of some other proceedings raising similar controversy before the Hon'ble Supreme Court. This Court also recorded the statement of the learned counsel appearing for the petitioner that if an appropriate order is not obtained from the Hon'ble Supreme Court, they will proceed further with the present petition. That thereafter, present petition came up for hearing on 1st August, 2007, which was adjourned to 6th August, 2007 and Shri N.D.Nanavati, learned Senior Advocate appearing for the petitioner has submitted that the petitioner does not propose to move an appropriate application before the Hon'ble Supreme Court for transfer of the present proceedings and he would like to submit on merits and that is how, SCR.A/1286/2007 5/83 JUDGMENT this Court has heard the learned advocates appearing on behalf of the respective parties on merits and is deciding the present petition on merits. 3. Before dealing with the present petition on merits and the contentions on behalf of the rival parties with regard to need of Narco Analysis Test and/or Brain Mapping Test, few facts are necessary for the determination of the present petition to appreciate the prayer of the Investigating Officer for conducting the Narco Analysis Test and / or Brain Mapping Test of the petitioner. 4. An FIR is registered at Junagadh Taluka Police Station on 13.5.2007 given by one Jyotiben Dilipbhai Pipariya against two accused persons named Mohan Amir Gohil and Mahesh alias Bhaddo Mulji Chauhan for the offence punishable under sections 302, 394, 376 and others of Indian Penal Code and as stated above, the said SCR.A/1286/2007 6/83 JUDGMENT FIR is registered on 13.5.2007 being CR No. I – 69 of 2007. It appears that inspite of the best efforts made by the Investigating Agency and the State, those two named accused persons could not be arrested and they are absconding. At this stage it is required to be noted that there is a hue and cry in the public with regard to the aforesaid incident and the offence committed by the accused persons and agitation has taken place on large scale by the public raised alleging inter alia the inaction on the part of the State and the Investigating Agency in not able to arrest the accused persons of the aforesaid FIR. During the course of the investigation of the CR I 69 of 2007 and on the basis of the statement given by the sister of the accused of CR I 69 of 2007 – Mohan Hamir that the said accused persons have contacted and met the petitioner and both of them requested the petitioner to give shelter and accordingly said two persons accused are under her shelter and therefore the FIR is registered on 8.6.2007 at Junagadh B Division SCR.A/1286/2007 7/83 JUDGMENT Police Station against the petitioner and four other unknown persons for the offence under sections 212, 506(2) and 114 of the Indian Penal Code and the said complaint is given by the Police Inspector, Crime Branch, Junagadh alleging inter alia that the petitioner has committed offence of harboring and sheltering as well as of criminal intimidation and abetment. That the petitioner came to be arrested and Investigating Officer has produced the petitioner before the learned JMFC, Junagadh and an application seeking police remand for the period of 4 days was submitted which was objected by the petitioner, however, considering the seriousness of the offence alleged, the learned Magistrate by an order dated 10.6.2007 granted police remand of the petitioner upto 11.00 A.M. Of 13.6.2007. The said order was challenged by the petitioner before this Court by way of Special Criminal Application No. 1101 of 2007 and the same was withdrawn as having become infructuous. On expiry of the period of remand on 13.6.2007, an SCR.A/1286/2007 8/83 JUDGMENT application for further remand for a period of 3 days was given by the Investigating Officer however, the learned Magistrate by order dated 13.6.2007 rejected the said application seeking further remand. The petitioner submitted an application for bail and simultaneously the prosecuting agency gave an application on 11.6.2007 for taking the petitioner for performing the Brain Mapping Test as well as Narco Analysis Test. The said application was at Mark – 8. The said application came to be objected by the petitioner on the ground which will be referred to hereinafter. The learned JMFC, Junagadh granted the application of the prosecution for taking the petitioner for performing the Narco Analysis Test as well as the Brain Mapping Test vide order dated 13.6.2007. Being aggrieved by the said order, the petitioner gave an application for staying the operation of the said order vide Exh.16 so as to enable the petitioner to challenge the said order before the Revisional Court and the learned JMFC, Junagadh stayed the operation of SCR.A/1286/2007 9/83 JUDGMENT the order upto 26.6.2007. Against the order granting Narco Analysis Test and Brain Mapping Test, the petitioner preferred Criminal Revision Application No.2007 in the Court of learned District & Sessions Judge, Junagadh on 18.6.2007. In the meantime, the learned JMFC passed an order to adjourn the hearing of the bail application of the petitioner till the petitioner undertakes Narco Analysis Test and Brain Mapping Test. The petitioner being aggrieved by the said order in defering the hearing of the bail application till the petitioner undertakes Narco Analysis Test and Brain Mapping Test preferred Special Criminal Application No. 1132 of 2007 before this Court and by order dated 29.6.2007 this Court directed the learned JMFC to decide and dispose of the bail application with certain observations. Thereafter the said application was heard by the learned JMFC and the learned JMFC allowed the said bail application and released the petitioner on bail. That thereafter the aforesaid Criminal Revision SCR.A/1286/2007 10/83 JUDGMENT Application No. 89 of 2007 filed by the petitioner filed against the order of granting Narco Analysis Test and Brain Mapping Test came to be heard by the learned Sessions Judge who by his judgment and order dated 30.6.2007 dismissed the said Criminal Revision Application and confirmed the order passed by the learned JMFC granting application of the prosecution for taking the petitioner for performing Narco Analysis Test and Brain Mapping Test. Against the order of rejection of the Criminal Revision Application as well as the order passed by the learned JMFC, Junagadh granting application of the prosecution for taking the petitioner for peforming Narco Analysis Test as well as Brain Mapping Test the petitioner – original accused has preferred present Special Criminal Application under Article 227 of the Constitution of India. 5. Shri N.D.Nanavati, learned Senior Advocate appearing for the petitioner has assailed the order passed by the learned JMFC, Junagadh SCR.A/1286/2007 11/83 JUDGMENT confirmed by the learned Additional Sessions Judge, Junagadh in granting the application of the prosecution for taking the petitioner for Narco Analysis Test as well as Brain Mapping Test on the following grounds :- (i) The learned Magistrate has committed serious and grave error in giving direction to the accused for undertaking Narco Analysis Test as well as Brain Mapping Test as the same violates the protection guaranteed under Article 20(3) of the Constitution of India as the order containing the direction given is nothing but to compel the accused to give evidence against herself which is prohibited under Article 20(3) of the Constitution of India. (ii) The test involve injection of certain solution in the body of the witness and therefore, without the consent of the SCR.A/1286/2007 12/83 JUDGMENT petitioner nothing can be injected in the body of the petitioner. (iii) The petitioner cannot be compelled to give statement which is self- incriminating and as such, such test is not considered as reliable and the drugs sought to be administered to the petitioner – original accused is dangerous to the health of the petitioner. (iv) The petitioner is charged only for the offence under sections 212 and 506(2) of the Indian Penal Code which are trivial in nature and for which Narco Analysis Test and/or Brain Mapping Test are not required, more particularly, when the FIR is lodged after a long period and the informant is Police Inspector of Criminal Branch. 6. Shri N.D.Nanavati, learned Senior Advocate appearing for the petitioner has vehemently SCR.A/1286/2007 13/83 JUDGMENT submitted that in the criminal jurisprudence accepted in India, a person facing an investigation is constitutionally conferred with the right viz. right to remain silent, leaving it for the Investigating Agency to investigate the factual allegations resorting to only those methods which are specifically permitted under various statutory provisions. It is submitted by him that the accused cannot be compelled to be a witness against himself / herself by conducting such Narco Analysis Test and the same would offend the constitutional protection guarantee under Article 20(3) of the Constitution of India. Shri Nanavati, learned Senior Advocate has submitted that there are no statutory provisions in the Criminal Procedure Code or any statutory remedies by which the Investigating Agency can compel the accused to undergo any test including Narco Analysis Test. It is further submitted by him that in the year 2002 the Law Commission of India considered in detail the provisions of Article 20(3) of the Constitution of India in the context of right SCR.A/1286/2007 14/83 JUDGMENT of silence given to the accused and has considered whether there is any need or desirability or constitutional permissibility to amend the Criminal Procedure Code so as to temper with the right conferred upon the accused against self – incrimination and the Law Commission of India has filed its Report before the Central Government and the Law Commission has examined the history behind conferment of such a right upon an accused and also examined the pari materia provisions in United Kingdom, Australia, USA, Canada, China and India and after a detailed and a careful consideration, the Law Commission of India found that no amendment in Criminal Procedure Code is necessary and any changes in law relating to silence of the accused, if made, will be ultra-virus to Articles 20(3) and 21 of the Constitution of India. Shri Nanavati, learned Senior Advocate has also further submitted that the question of such test, which results into the accused being compelled to incriminate himself fell for consideration by SCR.A/1286/2007 15/83 JUDGMENT the National Human Rights Commission in the context of Polygraph test and the said Commission considered the question of permissibility of a lesser drastic test viz. Polygraph test, which is commonly known as “Lie Detector Test” and it is submitted that in the case of Polygraph test, the National Human Rights Commission prohibited commission of such a test without express and informed consent of the accused. It is submitted that the Commission has laid down guidelines relating to the said test on an accused in context of the constitutional guarantee embodied in part – III of the Constitution of India in general and Article 20(3) of the Constitution in particular. It is submitted that the said guidelines are sent to all the States. Therefore, it is submitted that in light of the above, granting of application for Narco Analysis Test and Brain Mapping Test of the petitioner would be against the protection and guarantee conferred by Article 20(3) of the Constitution of India and the same has also no SCR.A/1286/2007 16/83 JUDGMENT statutory force. Shri Nanavati, learned Senior Advocate appearing for the petitioner has relied upon the decision of this Court in case of Najabhai Ranchhod and another V/s. State of Gujarat reported in 1972 CR.L.J. 1605. He has also relied upon one another decision of this Court in case of Haribhai Chanabhai Vora & Others V/s. Keshubhai Haribhai Vora reported in 2005 (2) GLR 1747. In the said case the question was with regard to conducting of D.N.A. Test. Shri Nanavati, learned Senior Advocate has taken the Court to the Law Commission's Report as well as the guidelines issued by the National Human Rights Commission referred to hereinabove. 7. It is also further submitted by Shri Nanavati, learned Senior Advocate that police remand was given and the petitioner was in police remand and the petitioner has cooperated and nothing incriminating has been found against the petitioner. It is also further submitted that the petitioner is changed only SCR.A/1286/2007 17/83 JUDGMENT for the offences under sections 212 and 506(2) of the Indian Penal Code and thus, looking to the offences as alleged, such a drastic measure of injecting foreign chemical against the will of the petitioner is not required. It is submitted that when the allegations are only under section 202 of harboring only the aforesaid two tests are not called for. It is submitted that the nature of offences alleged is a relevant consideration for which such a drastic test is not required. It is also further submitted by him that the method adopted in the commission of crime by one or more accused is also relevant consideration like Telegi's case. It is also further submitted by him that even if all the allegations levelled against the petitioner are considered as gospel truth then also it is not a case for Narco Analysis Test. It is also further submitted by him that identical question / controversy is pending before the Hon'ble Supreme Court and the matter is referred to Larger Bench and therefore, this SCR.A/1286/2007 18/83 JUDGMENT Court should wait and/or should not pronounce any judgment in the present case till the controversy is resolved by the Hon'ble Supreme Court and/or the matter is decided by the Hon'ble Supreme Court. It is submitted by him that before the Revisional Court the petitioner has specifically made out a ground with regard to pendency of the proceedings before the Hon'ble Supreme Court but the Revisional Court has not deal with the same at all. It is submitted by him that at least the learned Revisional Court was expected to deal with and consider the same. It is submitted by him that whenever the contention is raised and the submission is made, the Court is bound to consider the same and dealt with the same and the Court cannot just ignore the same and/or do not deal with the same. By making the aforesaid submissions, Shri Nanavati, learned Senior Advocate has requested to quash and set aside the orders passed by both the Courts below and reject the application of the prosecuting agency for Narco Analysis Test and Brain SCR.A/1286/2007 19/83 JUDGMENT Mapping Test of the petitioner. 8. Shri K.B.Trivedi, learned Advocate General was called by the Court to assist the Court and he has submitted that at least four High Courts in the country have considered the permissibility of the Narco Analysis Test and Brain Mapping Test on the accused persons and have also considered the submissions and the contentions raised on behalf of the accused persons with regard to the protection guaranteed under Articles 20(3) & 21 of the Constitution of India and all the four High Courts have elaborately considered all the aspects on the point and have permitted the Narco Analysis Test and Brain Mapping Test upon the accused persons. He has submitted that the Division Bench of the Bombay High Court in case of Ramchandra Reddy V/s. State of Maharastra reported in 2004 ALL MR (Cri) 1704; The Karnataka High Court in case of Smt. Selvi & Others V/s. State by Koramangala Police Station decided on 10 th September, 2007 in Criminal SCR.A/1286/2007 20/83 JUDGMENT Petition No.1964 of 2004; the Bombay High Court in case of Arun Gulab Gavali V/s. State of Maharastra reported in 2006 Cr.L.J. 2615; the Madras High Court in case of Dinesh Dalmia V/s. State reported in 2006 Cr.L.J. 2401; and the Andhra Pradesh High Court in case of K. Venkateshwara Rao, S/o K. Vijaya Simha, Hydrabad V/s. State of A.P. Decided on 30 th August, 2007 in Criminal Revision Application No.1402 of 2006 have taken a view that by performing / conducting the Narco Analysis Test / Brain Mapping Test on the accused person, at the stage of investigation do not violate the constitutional protection guaranteed under Article 20(3) and 21 of the Constitution of India. It is also further submitted that in all the aforesaid cases, the Courts have also considered the need of such scientific tests by observing that it is a need for the day for such a scientific tests. Learned Advocate General has also drawn the attention of the Court to the relevant materials in favour of conducting of the Narco Analysis Test inclusive SCR.A/1286/2007 21/83 JUDGMENT of the guidelines issued by the National Human Rights Commission and the Report of the Law Commission. He has also taken the Court to the order passed by this Court in Special Criminal Application No.1200 of 2003 dated 16.12.2007 in case of Malav A. Bhatt V/s. State of Gujarat as well as the judgment of the Hon'ble Supreme Court in case of Jitubhai Babubhai Patal V/s. State of Gujarat reported in 2005 (10) SCC 545 and the news report dated 17.7.2007 extracting from the web-site of IndLaw Communications Private Ltd. Pointing out that the Hon'ble Karnataka High Court has allowed one petition against the Narco Analysis Test. Shri Trivedi has submitted that the aforesaid submissions are only to be construed as his own opinion with a view to assist the Hon'ble Court and may not be construed as opinion and/or policy of the State. 9. Shri R.C.Kodekar, learned APP appearing on behalf of the State has opposed the present petition. It is submitted that considering the SCR.A/1286/2007 22/83 JUDGMENT provisions of the Criminal Procedure Code, more particularly, sections 156 to 159, the Investigating Agency of the State has statutory right to investigate the case and Narco Analysis Test and the Brain Mapping Test and other tests are scientific tests, which are now the part of the investigation process and therefore, merely because, the petitioner does not give the consent for the said tests, the Investigating Officer should not be restrained from conducting such tests which is necessary for the purpose of finding out the truth and to nab the accused. It is also further submitted that as there were hue and cry made against the third degree during the investigation such a scientific test is required to be performed on the accused. It is ultimately for the Investigating Officer and/or the prosecuting agency to consider the nature of test required for further investigation. It is also further submitted by him that as held by the Hon'ble Supreme Court in various decisions, Investigating Agency is the master of the SCR.A/1286/2007 23/83 JUDGMENT investigation and nobody can interfere with the same inclusive of the Magistrate till the appropriate report is submitted after investigation as required and contemplated under the provisions of the Criminal Procedure Code i.e. sections 169 and / or 173. It is also further submitted by him that when after exploring all the options such a custodial interrogation of the petitioner, etc. when the Investigating Officer is still in dark and is not able to reach to the accused persons and find out the truth, and the petitioner is not telling the truth for investigation in the right direction, Brain Mapping Test and Narco Analysis Test of the petitioner is required and therefore it is requested to dismiss the present application. It is submitted by him that it is not that straight away the prosecuting agency applied for the Narco Analysis Test and/or Brain Mapping Test. Only after it is found that there is no alternative, for further investigation in a right direction, application was given for Narco Analysis Test SCR.A/1286/2007 24/83 JUDGMENT and Brain Mapping Test of the petitioner. Meeting with the submission on behalf of the petitioner that the petitioner is charged only for the offences under sections 212 and 506(2) of the Indian Penal Code and for which such tests are not called for, it is submitted that even as per the learned counsel appearing on behalf of the petitioner the nature of the offences alleged is a relevant consideration and in the present case what is required to be considered is not an allegation with regard to section 212 of the Indian Penal Code but further allegations are also required to be considered. It is submitted by him that the allegations against the petitioner are that the petitioner has committed offence of harboring and sheltering the two accused persons who are involved in the serious offence under sections 302, 394 and 376 and others of Indian Penal Code. It is submitted that a girl was murdered by the accused after committing rape upon her and the said accused persons are absconding and the allegations against the petitioner are that SCR.A/1286/2007 25/83 JUDGMENT she has harbored and sheltered those two accused