WP (Crl.) 532/2008 Page 1 of 21 * IN THE HIGH COURT OF DELHI AT NEW DELHI + WP (Crl.) 532 OF 2008 % Date of Decision: November 14th, 2008 Sh. Shailender Sharma ..... Petitioner Through: Mr. R.S. Sodhi with Mr. R.S. Nirman and Mr. Ajay Kumar, Advocates. Versus State & Another .... Respondents Through: Mr. Saleem Ahmed, ASC (Crl.) with Mr. Habibur Rehman, Advocate for the State. Mr. Jayant K. Sud with Mr. Anupam Mishra and Mr. Atul Sahi, Advocates for R-2. CORAM: HON'BLE MR. JUSTICE MANMOHAN 1. Whether Reporters of local papers may be allowed to see the judgment? Yes. 2. To be referred to the Reporter or not? Yes. 3. Whether the judgment should be reported in the digest? Yes. J U D G M E N T MANMOHAN, J 1. The issue that arises for consideration in the present proceedings is the constitutionality and legality of subjecting an accused to Narco Analysis Test without his consent. WP (Crl.) 532/2008 Page 2 of 21 2. The facts of this case are that on 6th July, 2007 at 1.25 AM the police received information regarding an accident at Mathura Road, near Haldiram, Delhi. When the police reached the spot they found a damaged Wagon R car bearing No. DL-9C-M-9711, which had already been placed on the left side on the road. At about the same time, the police also received information from Apollo Hospital regarding admission of Mr. Chetan Sharma, S/o. Shri Chand aged 22 years in an injured condition. In fact, the doctors declared Chetan Sharma as „brought dead‟ vide MLC No. 314 of 2007. On the basis of this information police registered a case vide FIR No. 516/2007 under Section 279/304A IPC. 3. The Investigating Officer seized the vehicle and subsequently got the car mechanically inspected. The postmortem report of the deceased was also collected by the Investigating Officer. However, no public witness of the incident is available. 4. During initial investigation on 5th July, 2007 the Petitioner/Accused, who is an uncle of the deceased, stated that deceased Chetan who was present with him at Apollo Hospital, took his Wagon R car to fetch food and on the way Chetan met with an accident. He further stated that on being telephonically informed about the accident, the Petitioner/Accused reached the spot and found that the car had toppled to the left side and deceased Chetan‟s head had been crushed between the vehicle and the road. According to the police, Petitioner/Accused initially stated that he managed to get the car to stand up and pulled out Chetan from the car and took him to WP (Crl.) 532/2008 Page 3 of 21 Apollo Hospital. During investigation, mobile call details of deceased Chetan and Petitioner/Accused were obtained and Petitioner/Accused was further interrogated. 5. Finally on 29th July, 2007 the Petitioner/ Accused disclosed to the police that while he was driving the vehicle, it met with an accident in which the car toppled to the left side and as a consequence of this accident, Chetan who was sitting on the left side of the car got crushed between the road and the car. On the basis of this interrogation, the police added Sections 201 IPC and arrested the Petitioner/Accused. But he was subsequently released on bail. 6. It is pertinent to mention here that the father of the deceased has been leveling allegations that his son Chetan has been murdered by the Petitioner/Accused and the behaviour of the Petitioner/Accused has not been normal towards him from the date of the accident. 7. To find out the truth, a lie detector test was conducted on the Petitioner/Accused and according to the police, the analysis of the same revealed deceptive responses on behalf of the Petitioner/Accused. It was only thereafter that the police filed an application seeking a direction from the Court to direct the Petitioner/Accused to undergo Narco Analysis Test. 8. The Metropolitan Magistrate vide his order dated 28th March, 2008 allowed the application of the prosecution and directed the Petitioner/Accused to undergo the Narco Analysis Test. WP (Crl.) 532/2008 Page 4 of 21 9. Mr. R.S. Sodhi, learned Counsel for Petitioner/Accused has argued at length as to how the Narco Analysis Test was evolved and as to what are its ingredients. Mr. Sodhi termed the test a „psychological third degree test‟ which has several side effects. According to him, one cannot vouch for reliability of such a test. 10. Mr. Sodhi further submitted that Narco Analysis Test is nothing but compelling an accused to give a statement against him and consequently constitutional protection of right of silence as contained in Article 20 (3) of the Constitution comes to the aid of the accused persons. In this context Mr. Sodhi relied upon the judgment of the Apex Court in Nandini Satpathy Vs. P.L. Dani & Another reported in (1978) 2 SCC 424, wherein it has been held as under:- ―57. 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 in court only. In our judgment, 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 prolixity, 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 WP (Crl.) 532/2008 Page 5 of 21 for obtaining information from an accused strongly suggestive of guilt, it becomes ―compelled testimony‖, violative of Article 20(3). 59. 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 cannot 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 adjudging 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. On the other hand, Mr. Jayant K. Sud learned counsel for the deceased‟s father submitted that the constitutionality of Narco Analysis Test was no longer res integra as it had been upheld by the Madras and the Bombay High Court. In this context he relied upon the judgment of the Madras High Court in the case of Dinesh Dalmia Vs. State reported in 2006 Criminal Law Journal 2401, wherein it has been held as under:- 14. ……... That the accused will face health hazard and his physical frame will be endangered if he undergoes such scientific tests are totally without any scientific basis. As rightly pointed out by the learned counsel for the respondent, the scientific tests are like taking MRI or CT Scan. The scientific value of such tests and the credibility thereof will have to be evaluated only during the course of trial. Unless such tests are conducted, the investigating agency may not be in a position to come out with clinching testimony as against WP (Crl.) 532/2008 Page 6 of 21 the petitioner. Subjecting an accused to undergo such scientific tests will not amount to breaking his silence by force…… 12. He further referred to the judgment of the Division Bench of the Bombay High Court in the case of Ramachandra Ram Reddy Vs. State of Maharashtra reported in MANU/MH/0067/2004 wherein it has been held as under :- ―21. That takes us to the third test which is called as Narco Analysis (Truth Serum Test). We stated above that in this test the person to whom it is administered does make a statement as stated above. It undoubtedly is a statement. The question which falls for consideration therefore, is whether such statement can be forcibly taken from the accused by requiring him to undergo the Truth Serum Test against his will. It will be seen that such statement will attract the bar of Article 20(3) only if it is inculpating or incriminating to the person making it. Whether it is so or not can be ascertained only after the test is administered and not before. In our opinion therefore, there is no reason to prevent administration of this test also because there are enough protections available under the Indian Evidence Act, under Criminal Procedure Code and under the Constitution (Article 20(3), to prevent inclusion of any incriminating statement if one comes out after administration of the test. 22. We have to look at this aspect of holding test in a very broad prospective. The protection or the cover granted by the fundamental right appearing in Clause (3) of the Constitution is complete and invariable. The question is what is sought to be provided by guaranteeing such right and it is undisputed that what is sought to be protected is the protection of human rights and dignities. It is also to be considered in the light of other equally important provisions of the Constitution. Article 51(A) which has been added to the Constitution by subsequent amendment provides via Clause (1) which says that it shall be the duty and the duty cannot be properly done by the State, if unnecessarily large protection is spelt out from other provisions like Article 20(3). Prevention of crime is a sole prerogative of the State and the punishment of the crime if proved is also the duty of the State. Feters on these duties can be put only in extreme WP (Crl.) 532/2008 Page 7 of 21 cases where the protection of fundamental rights weigh more than the fundamental duty casts on the State. However we need not further dilate on this aspect for the reason that in our opinion administration of these tests against the will of the person to whom it is sought to be administered does not violate the guarantee of Article 20(3) as in the first two cases it is not a statement and that it is not incriminatory in any manner. It is the last case where it is a statement and unless it is shown to be incriminating to a person making it, it does not give rise to the protection under Article 20(3). The petitions are premature in relation to the third test…… 23. ………In so far as the third test is concerned enough protection exists, recourse to which can be taken if and when the investigating agency seeks to introduce such statement as evidence. We need not therefore consider the contention in relation to the time when the right or protection given by Article 20(3) starts. In our opinion, we also need not consider several judgments cited at the bar which relate to scope and extent of Article 20(3). The judgment in Sharma's case the Supreme Court laid down what is the extent of guarantee under Article 20(3). It was then explained by 11 Judges Bench in Kathi Kalu's case what exactly is the protection. The law has been ultimately crystalised by the Supreme Court in the case of Nandini Satpathy. In all these cases, what came up for consideration, was obviously a statement made by the witness which obviously was incriminating and therefore the scope was accordingly considered by the Supreme Court of India. In the present case we have came to the conclusion that it is not a statement in relation to the first two tests and in relation to the third test it is a statement entry of which in evidence is adequately protected by various provisions of law and therefore we need not consider this and other cases cited at the bar. 24. In the result, all these petitions fail and are dismissed.‖ 13. In rejoinder, Mr. Sodhi submitted that the said High Court judgments were neither binding nor conclusive. He pointed out that when the legality of Narco Analysis Test was raised before the Apex Court, the Supreme Court only allowed it when the accused agreed to give its consent to undergo WP (Crl.) 532/2008 Page 8 of 21 the test. In this context, Mr. Sodhi referred to the order dated 13th April, 2005 of the Supreme Court in Jitubhai Babubhai Patel Vs. State of Gujarat. The said order is reproduced hereinbelow :- ―By order dated 16th December, 2003, passed in Special Criminal Application No.1200 of 2003, the High Court directed that narco test of the accused-petitioner Jitubhai Babubhai Patel be conducted at the earliest and not later than fifteen days from the date of the receipt of the application submitted by the Investigating Officer. It seems that pursuant to the said order, the Investigating Officer addressed a letter to the petitioner for remaining present on 22nd December, 2003 for narco test. On receipt of that letter, some telegrams were sent by the accused to the learned Judges. In the impugned order dated 26th December, 2003, the High Court has rightly deprecated the practice of sending telegrams to the Judges but left the matter at that without taking any further action. The order, however, reiterates the earlier directions dated 16th December, 2003 about conduct of narco test. The main question for consideration in these petitions is whether narco test can be conducted without the consent of the petitioner. Insofar as the present case is concerned, the respondent-State, on affidavit, has taken the stand that it does not want to conduct the said test without the consent of the petitioner. Mr.Lalit, learned senior counsel appearing for the respondent, reiterates that stand and submits that the narco test in the present case would be conducted only if the petitioner consents. Learned counsel for the petitioner objects to the said test and states that the petitioner is not willing to give his consent. In view of the stand of the respondent, insofar as the present case is concerned, the point in issue has become only academic and, therefore, we leave it to be decided in an appropriate case. The direction of the High Court in conduct of narco test of the petitioner is clarified to mean that the test would be conducted only in the event of the petitioner consenting thereto. The special leave petitions are disposed of accordingly.‖ WP (Crl.) 532/2008 Page 9 of 21 14. Right to silence has been a topic of much debate. Professor N.R. Madhava Menon in a recent article ―Human Rights vis-à-vis Security and Safety‖ has submitted that the issues and the approach to criminal justice system varies from time to time with changes in socio-economic situation and quality of governance. According to him, after independence of India the focus shifted from crime to liberty, but now with rise of terrorism and organized crime, the focus is on preservation of integrity of the nation, control of abuse of police power and ability of the criminal justice system to inspire public confidence. He further states that in every society according to the times that we live in there is a ‗trade off‘ between liberty and security. According to Professor Menon, the right to silence during a criminal trial is not really a right but a privilege and recently in Singapore and United Kingdom, the right to silence has been curtailed and the Courts have been allowed to draw inferences as may appear proper from the fact of silence of the accused under given circumstances. It is pertinent to mention that the Malimath Committee on Criminal Justice Reforms (2003) and the Administrative Reforms Committee on Public Order and Terrorism (2007- 2008) have recommended that the Courts should be empowered by suitable amendment to question the accused and if the accused continues to remain silent and refuses to answer any question put to him by the Court, then to draw adverse inferences as it considers appropriate in the circumstances. WP (Crl.) 532/2008 Page 10 of 21 15. But in my view Professor Menon‟s approach requires an amendment to the statute and it is for the Government and Legislature to consider this aspect. 16. Therefore, in the present case, what arises for consideration are actually three issues. Firstly, whether the conduct of Narco Analysis Test is authorized by law? Secondly under whose authority this test can be carried out? Thirdly, whether such a test on an accused violates Article 20 (3) of the Constitution of India? 17. Section 53 of the Code of Criminal Procedure Act, 1973 (hereinafter to be referred as the “Cr.P.C.”) as it stands today is reproduced hereinbelow:- “53. Examination of accused by medical practitioner at the request of police officer. (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting, at the request of a police officer not below the rank of sub-inspector, and for- any person acting in good faith in his aid and -under his direction, to make such all examination of the person arrested as is reasonable necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose. (2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner. Explanation: In this section and in section 54, "registered medical practitioner means a medical practitioner who WP (Crl.) 532/2008 Page 11 of 21 possesses any recognized medical qualification as defined in clause (l) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956), and whose name has been entered in a State Medical Register. 'Explanation.-In this section and in sections 53A and 54,- (a) "examination" shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by including the use of modern and scientific techniques DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case; (b) "registered medical practitioner" means a medical practitioner who possesses any medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register.‖ (emphasis supplied) 18. I am of the opinion that the expression “such other tests” in the Explanation to Section 53 of Cr. P.C. would include within its ambit the Narco Analysis Test. 19. It is pertinent to mention that the Cr.P.C.1898 did not contain a provision similar to Section 53 in the Cr.P.C. 1973. The Law Commission of India in its 37th Report on the Cr.P.C. 1898 considered the question of legality of physical and medical examination of the accused at the stage of investigation. The Commission after noting the law as prevailing in India, United States and United Kingdom, recommended the need for a provision permitting physical and medical examination of the accused. The Commission opined that such a provision would provide valuable evidence. The relevant portion of the report states, ―as to (c) above, it would appear WP (Crl.) 532/2008 Page 12 of 21 that such a provision is needed as examination of the body would reveal valuable evidence.‖ In fact, the Commission quoted with approval the language in Section 259 of the Criminal Code Queensland, Australia as far as the frame of any such law in Indian law was concerned. 20. In its 41st Report on the Cr.P.C. 1898, the Law Commission recommended that a provision authorizing the examination of the person of an accused by a qualified medical practitioner be inserted. The Commission was of the opinion that such a provision was necessary for effective investigation and the same would not offend Article 20 (3) of the Constitution of India. The relevant portion of the report reads as under:- ―5.1 Chapter V is divided into two parts, Part A dealing with arrest generally and Part B without arrest warrant. In regard to Part A consisting of Sections 46 to 53, no amendments have been suggested in the previous report; but the Commission considered at length the question as to how far the physical examination of the arrested person is legally and constitutionally permissible and what provision, if any, should be made in the code for this purpose. It came to the conclusion that a provision on the subject was needed and recommended a new section authorizing in certain circumstances and subject to certain safeguards, the examination of the person of the accused by a qualified medical practitioner. We agree that such a provision is necessary for effective investigation and will not offend Article 20(3) of the Constitution.” 21. Accordingly, it recommended that a new Section 53A be inserted in the Code which was along the lines of Section 259 of the Queensland Criminal Code. WP (Crl.) 532/2008 Page 13 of 21 22. The Criminal Procedure Code, 1970 (Bill XLI of 1970) introduced clause 55 relating to examination of person by a medical practitioner. The Notes on Clauses to the Bill emphasized the fact that Clause 55 is a tool to facilitate effective investigation. In this regard the relevant Notes to Clauses read as follows:- ―Clauses 44 to 61 – These clauses correspond to Section 46 to 67 and deal with matters relating to arrest of persons. To facilitate effective investigation, provision has been made authorizing the examination of the arrested person by a medical practitioner, if, from the nature of the alleged offence or the circumstance under which it was alleged to have been committed, there is a reasonable ground for believing that an examination of the person will afford evidence…..‖. 23. In these circumstances, Section 53 Cr.P.C., which related to „Examination of accused by a medical practitioner at the request of police officer was inserted. 24. By the Code of Criminal Procedure (Amendment) Act, 2005 a new explanation (a) was added to Section 53 Cr.P.C. After such amendment, Section 53 Cr.P.C. reads as reproduced hereinabove. 25. In my view, the examination of the person has been defined by an inclusive definition and the use of the words ―include‖ and ―including‖ in the Explanation to Section 53 Cr.P.C. suggests that the same is not exhaustive. However, the techniques that are to be used should be modern and scientific.