Similar opinion held by A.P.High Court in recent Satyam Scam
* HONOURABLE SRI JUSTICE A.GOPAL REDDY
HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
+ CRL.P.NOS.5454, 5569 and 5564 of 2009
$The State, CBI represented by Chief Investigating Officer, Hyderabad.
! Counsel for the petitioner : Sri C. Padmanabha Reddy
in Crl.P.No.5454/2009 : Senior Advocate
Sri S. Bharat Kumar
Counsel for petitioner in : Sri D. Prakash Reddy
Crl.P.No.5564/2009 Senior Advocate
Sri K. Ravinder Reddy
Counsel for petitioner in : Sri B. Nalini Kumar
^ 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
HON’BLE SRI JUSTICE A.GOPAL REDDY
HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
CRL.P.NOS.5454,5569 and 5564 of 2009
Byrraju Ramalinga Raju
The State, CBI represented by Chief Investigating Officer, Hyderabad.
The Court made the following:
HON’BLE SRI JUSTICE A.GOPAL REDDY
HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
CRL.P.NOS.5454,5569 and 5564 of 2009
(Per the Hon’ble Sri Justice A. Gopal Reddy)
These criminal petitions filed under Section 482 of the Code of Civil 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, (2) Ramchandra Ram Reddy v. State of Maharashtra, (3) Arun Gulab Gavali v. State of Maharashtra and others; (4) Central Bureau of Investigation, New Delhi v. Abdul Karim Ladsab Telgi and others; (5) Dinesh Dalmia v. State; (6) Smt. Selvi v. State of Karnataka: (7) Santokben Sharmanbhai Jadega v. State of Gujarat; (8) State of Andhra Pradesh v. Smt. Inapuri Padma and others; (9) Rojo George v. The Deputy Superintendent of Police; (10) Shailender Sharma v. State and another, (11) Smt. Rayala M. Bhuvaneswari v. Nagaphanender Rayala,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, 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 in 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; BIJOE EMMANUEL V. STATE OF KERALA; KRISHNA JANARDHAN BHAT V. DATTATRAYA G. HEGDE; and R.RAJAGOPAL V. STATE OF TN
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. 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 held that the Magistrate can issue a direction ordering the accused to submit to medical examination as contemplated by Sec. 53 Cr.P.C., Section 53 does not debar the investigating officer and courts from exercising the power which is necessary for doing justice in criminal cases. Once the investigating officer and courts have power to investigate, the order passed by the Magistrate will amount to extending aid only to the investigation. The Supreme Court in KATHI KALU OGHAD (1 supra) upheld all types of investigations and imposed safeguards while conducting investigation. He further contended that in the absence of any prohibition for conducting brain mapping and narco analysis test either under Article 20(3) or Under Sec. 161(2) Cr.P.C., examination envisaged under Sec. 53(2) includes interrogation, both tests are part of interrogation only. For the said proposition, he placed a reliance on the judgment of this court in B.RAMI REDDY V. STATE OF ANDHRA PRADESH .
15. Sri T.Niranjan Reddy, learned Special Public Prosecutor for CBI while supplementing the arguments of Sri M. Ravindran contended that on amendment of explanation to Sec. 53, all tests are permitted. He further contended that if there were a conflict between fundamental rights of two parties, that right which advances public morality would prevail by placing reliance on the judgment of the Supreme Court in SHARDA V. DHARMPAL. If the accused avoids medical examination on the ground that it violates his right to privacy or for that matter right to personal liberty as enshrined under Article 21 of the Constitution, then it is the duty of investigating agency to investigate and bring out the truth to advance public morality and its right to investigate would prevail. The two tests ie., polygraph and bran mapping, which are permitted by the learned Magistrate, will not be used in evidence and it can only be used to aid the investigation to ascertain the factum of veracity of accused pertaining to the custodial interrogation, the information within the exclusive knowledge of the accused. He brought to our notice the permission granted to the investigating agency for conducting polygraph and brain mapping tests by the Karnataka High Court in its order dt. 10-9-2004 in Crl.P.No.1964/2004. He further brought to our notice the judgment of the Supreme Court in KAMALANATHA V. STATE OF T.N., wherein the Supreme Court upheld the findings of the DNA expert.
16. Before we answer the reference, it is useful to set out constitutional safeguards guaranteed under Articles 19(1) (a) and 19 (2), 20(3) and 21 of the Constitution and statutory provisions which deal with investigation.
Art.19(1)(a):Protection of certain rights regarding freedom of speech, etc.—(1) All citizens shall have the right—
(a) to freedom of speech and expression;
(b) to (g) x x x
Art.19(2) :Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of 4[the sovereignty and integrity of India,] the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.]
20. Protection in respect of conviction for offences.—(1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.
21. Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law.
2(h) Cr.P.C., “investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;
Section 53 Cr.P.C.,. Examination of accused by medical practitioner at the request of police officer.
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 an examination of the person arrested as is reasonably 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 Sections 53-A and 54,—
(a) “examination” shall include the examination of blood, blood stains, semen, swabs in case of s*xual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical Practioner 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.
Section 161 Cr.P.C.,. Examination of witnesses by police.
161. Examination of witnesses by police.—(1) Any police officer making an investigation under this Chapter, or any police officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer truly all questions relating to such case put to him by such officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records:
Provided that statement made under this sub-section may also be recorded by audio-video electronic means.
17. National Human Rights Commission issued certain guidelines relating to Administration of Polygraph Test (Lie Detector Test) on an accused. They are:
i) No Lie Detector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.
ii) If the accused volunteers for a 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.
iii) The consent should be recorded before a Judicial Magistrate.
iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.
v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a ‘confessional’ statement to the Magistrate but will have the status of a statement made to the police.
vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.
vii) The actual recording of the Lie Detector Test shall be done in an independent agency (such as a hospital)and conducted in the presence of a lawyer.
viii) A full medical and factual narration of manner of the information received must betaken on records.
18. In M.P. SHARMA V. SATIS CHANDRA a FIR was first lodged, and this was followed by an investigation under the Companies Act. It was held that the privilege under Art.20(3) is available to an individual as well as an incorporation company, if accused of an offence. In order to avail the protection against self-incrimination, the person claiming the same should be one “accused of an offence” at the time when he makes the statement. The privilege under Article 20(3) is undoubtedly available at the trial stage but is also available at the pre-trial stage ie., during police investigation if the person concerned can be regarded as an accused. Art.20(3) offers immunity at two stages; (a) at the stage when testimony is sought to be obtained from such person by compulsion; (b) at the stage when compelled testimony is sought to be used against him as evidence at the trial. Giving evidence and producing documents under Section 240 of the Companies Act does not constitute any offence under Article 20(3) of the Constitution.
19. In NANDINI SATPATHY (12 supra), it was held that Art. 20 (3) is a human article, a guarantee of dignity and integrity and of inviolability of the person and refusal to covert an adversary system into an inquisitorial scheme in the antagonistic ante-chamber of a police station. Justice V.R.Krishna Iyer advocated an expansive interpretation of the phrase “compelled testimony”. According to him, it is evidence procured “not merely by physical threats or violence” but also by “psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, over-bearing and intimidatory methods and the like.” Any mode of pressure, “subtle or crude, mental or physical, direct or indirect but sufficiently substantial” applied by police to obtain information from an accused strongly suggestive of guilt becomes compulsion. Further ”frequent threats of prosecution if there is failure to answer may take on the complexion of undue pressure” violation mandate of right against self incrimination.
20. In MIRINDA V ARIZONA, after arrest, the accused was taken to special interrogation room, where the prosecution secured a confession. The U.S. Supreme Court while considering such interrogation observed as under:
“…we might not find the defendants’ statements to have been involuntary in traditional terms……. It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity….We sometimes forget how long it has taken to establish the privilege against self incrimination, the sources from which it came and the fervor with which it was defended. Its roots go back into ancient times. …As a ‘noble principle often transcends its origins’, the privilege has come rightfully to be recognized in part as an individual substantive right, a right to a private enclave where he may lead a private life…..In sum, the privilege is fulfilled only when the person is guaranteed the right to remain silent unless he chooses to speak in the unfettered exercise of his own will.”
While observing so, the U.S. Supreme Court held that “if a person is in custody, is subjected to interrogation he must be first informed in clear and unequivocal terms that he has “the right to remain silent” and concurred with the interrogation atmosphere and the evils it can bring. For those unaware of the privilege, the warning is needed simply to make them aware of it—the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute pre-requisite in overcoming the inherent pressures of the interrogation atmosphere. It was further held it reflects many of our fundamental values and most noble aspirations. Our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt, our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear sense of fair play which dictates “a fair State—individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to hare the entire load.”
21. Judicial opinion has for a long time fluctuated as to whether Article 20(3) covers something more besides oral evidence. The Supreme Court in M.P.SHARMA (22 supra) took a broad view of same and observed that to limit Art.20(3) to the oral evidence of a person standing trial for an offence is “to confine the content of the constitutional guarantee to its barely literal import”; and so to limit Art.20(3) would be to rob the guarantee of its substantial purpose and to miss the substance The question was re-considered by the Supreme Court in KATHI KALU OGHAD (1 supra), where the main question involved was whether Article 20(3) was violated when the accused is directed to give his specimen handwriting, or signatures or the impression of his palm and fingers. The Supreme Court ruled that Article 20(3) is not violated in any of the above situations stating that “self-incrimination must mean conveying information based upon personal knowledge of the person giving information” and covers only “personal testimony which must depend upon his volition.” The Court further stated “to be a witness may be equivalent to furnishing evidence in the sense of making oral or written statement, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purposes of identification Different categories of evidence which have been classified by the Supreme Court as “not incriminating’
22. Cl.(3) of Article 20 of the Constitution guarantees a fundamental right against self incrimination and Article 21 of the Constitution grants a further fundamental right to life and liberty of a person cannot be curtailed except by a procedure laid down by law. In MANEKA GANDHI V. UNION OF INDIA it was further interpreted that the procedure envisaged by Article 21 is a procedure which must be just, fair and equitable. The Criminal Procedure Code contains several provisions which correspond with the spirit of Article 20(3) of the Constitution. Section 161(2) of Criminal Procedure Code, 1973 grants aright to silence during interrogation by police. The degree of protection granted by Article 20(3) and Section 161(2) Cr.P.C., is substantially the same. But the Supreme Court in NANDINI SATPATHY (12 supra) held the accused person may remain silent or refuse to answer when confronted with incriminating questions. The ban on self-accusation while investigation or trial is under way goes beyond that case and protects the accused in regard to other offences pending or imminent. Similarly, Section 313(3) Cr.P.C., protects right to silent at the time of trial and states that the accused shall not be liable to punishment for reason of refusal to answer any question put to him.
23. Article 20(3) of the Constitution was primarily incorporated to ensure that no torture is subjected on the accused to extract confessions, since it was common knowledge that confessions are obtained under torture.
24. Dr. Chandra Sekharan, the Pro-Chancellor of National Law University, Jodhpur and President of the Forensic Science Society of India and a Padma Bhushan award recipient, speaking to the Hindu (published on 5-3-2004) said that “Narco analysis, polygraph and brain mapping can neither be classified as scientific tests nor can their results form the basis for confirmation of offences”. He further expressed the view that the results of the tests only showed the responses of the examinees to questions and images and did not meet the “falsifiability criterion” (reliability and testability of the results). He further expressed the view that conducting the tests was nothing but replacing the “physical third degree” mode of interrogation with a “psychological third degree” mode. He said no drugs could reveal the information concealed by a person. The outcome under a “sleep-like state” could be contaminated by deception, fantasy, garbled speech and so on. Dr. Chandra Sekharan, in his article “TRUTH ABOUT TRUTH DETECTING TECHNIQUES” under chapter Polygraph Test, stated:
“..The polygraph monitors and records selected body changes that are affected by a person’s emotional condition. The recorded changes are then studied, analyzed and correlated in respect to specific questions or other stimuli….
The term “polygraph” would literally mean “many writings”. The name refers to the manner in which selected physiological activities are simultaneously recorded. Polygraph examiners may use conventional instruments, sometimes referred to as analog instruments, or computerized polygraph instruments. Again, the name “polygraph test” is itself misleading. The word “test” indicates an ‘objective process of evaluation’ based on facts; similar to a DNA or a blood test. Results obtained from a polygraph test are much less credible since the device measures the body’s reaction to two different types of questions. The two different types of questions are known as relevant and control questions. The examiner must compare responses from relevant questions to those of control questions in order to form an opinion.
The polygraphist will ask a question for which the reaction is supposed to be measured. This is known as the relevant question. If the response to the relevant question reaches the level of an assumed lie, the person is considered deceptive. If it reaches the vicinity of the assumed lie, it is inconclusive. Thus there is scope for the polygraph examiner to manipulate the results.
The polygraph examination results can be entirely manipulated by the examiner. Every polygraph examiner will make a conscious decision to pass the examinee, fail the examinee, or conduct the polygraph professionally. The polygraphist realizes the vulnerability of the polygraph. The polygraphist knows that by sensitizing the examinee prior to the administration of the polygraph, he or she can manipulate the results.
The polygraph works by being able to detect the ‘fight or flight’ response of the human body. The ability of a polygraphist to manipulate this is ridiculously easy. The polygraphist will do this by sensitizing the examinee prior to the polygraph test. This can be accomplished in a variety of ways. Some of the more frequent ways are by demeaning, making accusatory statements, yelling, and/or making disbelieving gestures in front of the examinee, prior to the administration of the polygraph.
In some cases the polygraphist will inflict stimulation onto both relevant and/or control questions. To the examinee, there is no difference between the control and relevant questions; they believe each question is of equal importance. Therefore, strategically placed stimulation on a control question will cause cross-over contamination of the relevant question.
The simplistic methodology used in polygraph testing has no grounding in the scientific method: it is no more scientific than astrology or tarot cards. Government agencies value it because people who don’t realize it’s a fraud sometimes make damaging admissions. But as a result of reliance on this voodoo science, the truthful are often falsely branded as liars while the deceptive pass through.
In a 1983 Federal study of polygraph accuracy, the author of the study, Leonard Saxe, stated the following about the polygraph, ”It doesn’t work. It’s not accurate, and can lead to what are called false positives, finding people untruthful when in fact they are truthful, and the opposite….
“Polygraph is more art than science, and unless an admission is obtained, the final determination is frequently what we refer to as a scientific wild-ass guess (SWAG)” says retired CIA polygraphists John F. Sullivan. Opining about polygraph, the well known physicist David Dearborn of Lawrence Livermore National Laboratory says “If you choose to implement this astrology surrogate, and to treat us with such deep disrespect, do not confuse our contempt for arrogance.” According to former CIA Director John M. Deutch, “(The CIA’s) reliance on the polygraph is truly insane.”
The P300 brain wave response is just a waveform with a single spike which is very similar in the suspect as well as the other witnesses. Unless scientists find out a distinct characteristic in the brainwave response of the perpetrator which is totally different from the responses of other witnesses, even the information derived from brainwave response will have no meaning…..
25. According to Wikipedia, the encyclopedia, A polygraph (popularly referred to as a lie detector) is an instrument that measures and records several physiological responses such as blood volumes, pulse, respiration, breathing rhythms/ratios, and skin conductivity while the subject is asked and answers a series of questions, on the theory that false answers will produce physiological reactivity which can be measured. The polygraph measures physiological changes caused by the autonomic nervous system(sympathetic and parasympathetic)during questioning. Within the US federal government, a polygraph examination is also referred to as a psychophysiological detection of deception (PDD) examination. US Federal Government agencies such as the FBI and the CIA and many Police Departments such as the LAPD use polygraph examinations to assist in identifying suspects and vetting new employees.
‘Testing procedure’ is summarised in Wikipedia, the encyclopaedia. It reads as under:
A typical polygraph test starts with a pre-test interview to gain some preliminary information which will later be used for "control questions", or CQ. Then the tester will explain how the polygraph is supposed to work, emphasizing that it can detect lies and that it is important to answer truthfully. Then a "stim test" is often conducted: the subject is asked to deliberately lie and then the tester reports that he was able to detect this lie. Then the actual test starts. Some of the questions asked are "irrelevant" or IR ("Is your name Lebron James?"), others are "probable-lie" control questions that most people will lie about ("Have you ever stolen money?") and the remainder are the "relevant questions", or RQ, that the tester is really interested in. The different types of questions alternate. The test is passed if the physiological responses during the probable-lie control questions (CQ) are larger than those during the relevant questions (RQ). If this is not the case, the tester attempts to elicit admissions during a post-test interview, for example, "Your situation will only get worse if we don't clear this up".
Criticisms have been given regarding the validity of the administration of the Comparative Questions test (CQT). The CQT may be vulnerable to being conducted in an interrogation-like fashion. This kind of interrogation style would elicit a nervous response from innocent and guilty suspects alike. There are several other ways of administrating the questions.
An alternative is the Guilty Knowledge test (GKT), or the Concealed Information Test (CIT). The administration of this test is given to prevent potential errors that may arise from the questioning style. The test is usually conducted by a tester with no knowledge of the crime or circumstances in question. The administrator tests the participant on their knowledge of the crime that would not be known to an innocent person. For example: "Was the crime committed with a .45 or a 9 mm?" The questions are in multiple choice and the participant is rated on how they react to the correct answer. If they react strongly to the guilty information, then proponents of the test believe that it is likely that they know facts relevant to the case. This administration is considered more valid by supporters of the test because it contains many safeguards to avoid the risk of the administrator influencing the results.
26. A Division Bench of Bombay High Court in RAMCHANDRA RAM REDDY (2 supra) while considering the exact nature of the three tests, namely, (1) Lie Detector test or polygraph test; (2) Brain Mapping or P-300 test; and (3) Narco Analysis test or Truth Serum Test, as under:
The Lie Detector Test is an examination which is conducted by various probes attached to the body of the person who is interrogated by the Expert. The heart rate, the skin conductance is measured. The underlying theory of this test is that when people lie they also get measurably nervous about lying. The heart beat increases, blood pressure goes up, breath-is ing rhythm charge, perspiration increases, etc. A baseline for this physiological characteristic is established by asking the subject questions whose answers investigator knows. Deviation from the base line for truthfulness is taken as a sign of lie. Here therefore there is no direct invasion of the body. In this test the polygraph is taken which gives this reaction and an expert would then explain these reactions in the Court which would be his reading of the polygraph from which would flow his conclusion which are to be admitted or not admitted by a Judge on appreciation of the statement and the objections raised thereto. In this case the witness may answer or may not answer the questions. The response of his answers to questions as recorded on the polygraph analysis of which is sought to be tendered as evidence if and when the occasion arises.
The second test is Brain Mapping or P-300 test. In this test of Brain mapping the suspect is first interviewed and interrogated to find out whether he is concealing any information. The activation of brain for the associated memory is carried out by presenting list of words to the subjects. There are three types of words in the list used for Brain Mapping test, Part I consisted of neutral words, which have no direct relationship with the-case. Part II consists to probe words directly related to the case and suspects to elicit concealed information, which all suspects have had opportunity to come to know during the course of events related to the case. Then comes Part III which consists of target, which are not part of the first two parts. The words in this part are based on confidential findings which the suspect does not know. The recording of this test is done by acquiring the response through 32 channel eeg-ERP Neuro Scan cording system. It is carried out by asking the suspect to sit down and close his eyes. The 32 channel electrodes are placed according to international system, and 32 discrete electrodes are placed over the scalp directly. While conducting this test twice by presenting each word in three parts randomly. The suspect is instructed to relax and listen to the words presented in the auditory mode. This test does not expect any oral response from the witness. The conclusion drawn by the experts after the conduct of the test to indicate the possession of the knowledge about the relevant subject which is helpful in the investigation and collection of evidence. In this case it is also not direct violation of the body, in ordinary sense of the word, is conducted. It will be seen that what is received at the conclusion of such test is indication of the fact that the accused or the suspect does have or is in possession of knowledge about the subject on which he was questioned. Here there is no verbal response from the witness. Except touching the physique of the person both these tests do not involve invasion of the body in the ordinary sense of the term.
held that entire debate in the Constituent Assembly discloses that what framers of the Constitution had in mind was protection from testimonial compulsion or the protection to an accused or witness from being compelling to be a witness against himself. The Bombay High Court further held thus:
“…. the tests of Brain Mapping and Lie Detector in which the map of the brain is the result, or polygraph, then either cannot be said to be a statement. As we have seen from the descripttion of the tests noted above and end result of brain mapping tests, is a map showing re-actions of the brain to certain target questions and the conclusion that can be drawn by an expert after such treatment is that the person undergoing the tests does possess certain knowledge of the crime in relation to which target questions were put to the accused. It does not give or provide any means to know what that knowledge is. Therefore even after administration of these tests, what comes out is (i) that the person undergoing the tests has the knowledge of the crime about which he was questioned (brain mapping) and (ii) the polygraph indicates that the person undergoing the tests is speaking lie. In both these tests there is no way to find out what the lie is or what is the information stored in the brain of the person concerned. That being the end result of the tests, it cannot be said by any stretch of imagination that the end result is the statement made by the witness. At the most it can be called the information received or taken out from the witness. Whatever is the information it has to be established that it is incriminating the person who makes it for invoking the protection under Article 20 (3 ). In our opinion therefore there is no reason why these two tests be not administered. (para 18)
Since both the end results of the above tests cannot be called a statement as defined by the Supreme Court in TAHSILDAR SINGH V. STATE OF UP (AIR 1959 SC 1012), the Bombay High Court further held that brain mapping or P-300 or Lie Detector/polygraph tests can be administered to any accused or a witness. There is no statement coming out of the involuntary tests, and the conclusions which come out of such tests are not statement, the conclusions are not proved in any manner to be even likely to be incriminating to the maker of it, the expert can very well depose as an expert in relation to the tests in Court that the Brain Mapping of the accused or the witness discloses existence of knowledge about a crime in the brain of those persons undergoing the tests. What that information is nobody is going to say or anybody can say and therefore there is no question that even the statement coming via expert is incriminatory. The protection given by Article 20 (3) gives protection from compulsory testimony, it therefore cannot apply to these two tests. We therefore reject all the contentions in relation to these two tests.
27. A learned single Judge of the Delhi High Court in SHAILENDER SHARMA (10 supra) held the term examination of a person in terms of Section 53 Cr.P.C., takes within its ambit the examination of a person by way of a Narco Analysis Test as it is a modern and scientific technique. Consequently, Sec.53 Cr.P.C., provides statutory sanction for the Narco Analysis Test and, in my view, the said test is an important aid in the process of investigation. Since the accused in the above case, in the initial lie detector test had given deceptive responses, the trial court has rightly exercised its discretion in allowing the prosecution application seeking the accused to undergo Narco Analysis Test. While dealing with the above case, the learned Judge was of the view that to attract Article 20(3) of the Constitution, four ingredients have to be fulfilled, namely, (a) There must bean accused person, (b) He must have been compelled, (c) The compulsion must be to a witness, (d) Against himself, and held that during the test, the statement made by the accused may provide some clues and leads to the investigating agency. However, if during the said test, accused makes a statement which incriminates him, then the said statement cannot be used against him and holding so upheld the order passed by the Metropolitan Magistrate directing the petitioner-accused to undergo Narco Analysis Test with an observation any self incrimination statement, if made by the accused, cannot be used or relied upon by the prosecution.
28. In DINESH DALMIA (5 supra), a learned single Judge of the Madras High Court dismissed criminal revision filed by the accused against the orders of the Magistrate granting permission to conduct polygraph, narco analysis and brain mapping tests on the accused observing, of course, Art. 20(3) of the Constitution recognizes the right of the accused to be silent, the investigating officer has come out with a version that the accused has volunteered to undergo such a test. Of course, such a contention of the Investigating Officer is disputed by the accused now. Since the accused had not allegedly come forward with the truth, the scientific tests are resorted to by the investigating agency. Such a course does not amount to testimonial compulsion. When here is a hue and cry from the public and the human rights activists that the investigating sleuths adopt third degree methods to extract information from the accused, it is high time the investigating agency took recourse to scientific methods of investigation, but the learned Judge has not discussed with the rights of the accused under Art. 20(3) and 21 of the Constitution in elaboration.
29. In ARUN GULAB GAVALI (3 supra), the Bombay High Court held as under:
“6 ) AS regards the Brain Mapping and Lie detector Tests, the Division Bench of this court had clearly held in Ramchandra Ram Reddy's case (supra) 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 any constitutional guarantee as in the first two cases it is not a statement and that it is not incriminatory in any manner. Apparently, the contention regarding violation of the constitutional guarantee in cases of a person being subjected to Brain Mapping Test or lie Detector Test stands rejected and the law on the point stands concluded by the said decision.
In the said case, learned Judge observed that decision in RAMCHANDRA RAM REDDY (2 supra) was stayed for a period of eight weeks and when a party approached the Apex Court, it could not obtain any interim relief for continuation of such stay and accordingly dismissed the petition filed by the petitioner-accused seeking a direction to the investigating agency to record the statement of the petitioner in the presence of his advocate and medical officer and further to prohibit the investigating agency from undertaking Narcotic Analysis Test, lie detector test or a brain mapping test on the petitioner.
30. In ABDUL KARIM LADSAB TELGI (4 supra) the Bombay High Court held that the requirement of lending voice sample to the investigating agency by the concerned accused for the purpose of identification of their voice cannot infringe Article 20(3) of the Constitution as it is outside the limit of “testimony” much less “testimonial compulsion”.
31. In SANTOKBEN SHARMANBHAI JADEJA (7 supra), the accused moved the Gujarath High Court for quashing the order passed by the Judicial Magistrate of First Class allowing the application filed by the investigating agency granting Narco Analysis and brain mapping tests on the petitioner. It was brought to the notice of the learned single Judge of the Gujarath High Court that one proceeding is pending before the Honourable 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 Honourable Supreme Court for transfer of the proceedings. Since the petitioner has not taken any steps to approach the Supreme Court for transfer of the proceedings, the High Court decided the matter on merits elaborately after following the judgments of the Bombay High Court in RAMCHANDRA RAM REDDY (2 supra) and Karnataka High Court in Smt. SELVI (6 supra) and after considering the need for brain mapping test and narco analysis test whether the said tests would violate the fundamental right under Art. 20(3) of the Constitution and after elaborately considering the various provisions of the Constitution of India as well as Criminal Procedure Code permitting to conduct/perform Narco Analysis test and brain mapping test on the accused, dismissed the petition upholding the order passed by the Magistrate.
32. This court in INAPURI PADMA (8 supra) while allowing the revision case filed by the prosecution for conducting narco analysis test on the respondents who are not the accused or suspects by the police held as under:
“14 ) IN the present case, since the respondents are not the accused arrested by the Police, there is no need to obtain any permission from the Court to undertake Narco analysis Test, if they express no objection for undertaking the said test. In cases where the witnesses are not willing to undergo the test, then only it is required by the Police to make an application to the Court seeking permission for undertaking a test against such persons. The Police are required to convince the Court as to what are the circumstances that made the Police to gain an impression that the persons proposed to be put to Narco Analysis test, likelihood of knowing something about the commission of the offence. Since the respondents are not the accused or suspects in the above crime, the question of putting the test of testimonial compulsion in these applications does not arise.”
33. A larger Bench of this court in M. VIJAYA V. CHAIRMAN AND MD, SINGARENI COLLERIES CO., LTD., HYDERABAD on a taken up writ petition on the basis of a letter written by the petitioner address to the Honourable the Chief Justice alleging that she was infected with dreadful disease of AIDS (Acquired Immune Deficiency Syndrome) on account of the negligence on the part of the authorities of Maternity and Family Welfare Hospital, Godavarikhani held that in the interests of the general public it is necessary for the State to identify HIV positive cases and any action taken in that regard cannot be termed as unconstitutional as under Article 47 of the Constitution, the State was under an obligation to take all steps for the improvement of the public health. A law designed to achieve this object, if fair and reasonable will not be in breach of Article 21 of the Constitution of India.
34. The Supreme Court in SHARDA (20 supra) was called upon to consider the legality of the order passed by the Court dealing with divorce proceedings under Hindu Marriage Act. Before the trial court, the respondent-husband filed an application for divorce against the appellant-wife. He also filed an application seeking directions for medical examination of the appellant-wife. The trial court allowed the said application by an order dt. 8-10-1999. Aggrieved by the said order, wife filed a revision petition before the High Court, which was dismissed. On further appeal by the wife, the Supreme Court observed that if there were a conflict between fundamental rights of two parties, that right which advances public morality would prevail. The Supreme Court after referring to the principles laid down in R. RAJAGOPAL V. STATE OF T.N. (16 supra) dismissed the appeal filed by the wife concluding that (1) A matrimonial court has the power to order a person to undergo medical test, (2) Passing of such an order by the court would not be in violation of the right to personal liberty under Article 21 of the Indian Constitution, (3) However, the court should exercise such a power if the applicant has a strong prima facie case and there is sufficient material before the court. If despite the order of the court, the respondent refuses to submit himself to medical examination, the court will be entitled to draw an adverse inference against the party refusing to undergo medical examination.
35. In A.R.ANTULAY V. R.S.NAYAK the Supreme Court while considering its earlier order withdrawing the cases from the Special Judge notified to try the cases under Prevention of Corruption Act and transferring the same to the High Court is valid or not held that where a court divests a person of his constitutional or statutory right (even though in exercise of its power of interpretation) it acts contrary to “procedure established by law” and there is a violation of Art.21 of the Constitution.
36. The Law Commission of India, in its 180th report on Article 20(3) of the Constitution of India and the right to silence, after critically analyzing the origins of right to silence, inclusion of right to silence in the Universal Declaration of Human Rights, 1948 as Art. 11.1 thereof, and various laws and judicial decisions in United Kingdom, Australia, United States of America, Canada and China, summarized that the law in India appears to be same as in USA and Canada. In view of the provisions of clause (3) of Art. 20 and the requirement of a fair procedure under Art. 21, and the provisions of ICCPR to which India is a party and taking into account the problems faced by the Courts in UK, we are firmly of the view that it will not only be impractical to introduce the changes which have been made in UK but any such changes will be contrary to the constitutional protections referred to above. In fact, the changes brought about in the Criminal Procedure Code, 1973, namely, deletion of Section 342(2) of the old Code, which provides the Court to draw an interference from the silence of the accused because of the guarantee under Cl.(3) of Art.20 of the Constitution, leaving out the certain provisions which were there in 1898 Code, appear to have been the result of the provisions of clause (3) of Art. 20 and Art. 21 of the Constitution. The Law Commission, on a over all review, was of the opinion that no changes in the law relating to silence of the accused are necessary and if made, they will be ultra vires of Art.20(3) and Art.21 of the Constitution of India and recommended accordingly.
37. Though it is the cardinal principle of criminal jurisprudence that the burden of proof of an offence would always lie on the prosecution, exceptions have been provided in Sections 105 and 106 of the Evidence Act. Section 105 says that if a person is accused of any offence, the burden of proving the existence of circumstances brining the case within any of the general exemptions in the Indian Penal Code or within any special exception or proviso contained in any other Code or in any law defining the offence, is upon him and the court shall presume the absence of such circumstances. Section 106 makes another exception, providing that any fact if it is to be established within the knowledge of any persons, the burden of proof is upon him. Section 113-A of the Evidence Act raises a presumption as to abatement of suicide by a married woman by her husband or his relatives. Section 114-A raises a presumption of absence of consent in a rape case.
38. In VEERASAMI V. UNION OF INDIA, the Supreme Court held that provision of Prevention of Corruption Act placing the burden of proof on the accused is reasonable and is not unjust, unfair nor it can be regarded as violative of Art.21 of the Constitution.
39. In SANJAY DUTT V. STATE the Supreme Court held that the presumption that possession of fire arms in any notified area was meant for terrorist or disruptive act was held valid and it was for the accused to prove non-existence of a fact essential to constitute an ingredient of an offence under Section 5 of Terrorist and Disruptive (Activities) Prevention Act, 1987.
40. While justifying the provision compelling the accused to prove the facts constituting offence under Section 57-A of the Kerala Abkari Act by operation of its sub-section (5) is opposed to the mandate of Article 20(3) amounts to and compels him to be a witness to prove his innocence, the Supreme Court in P.N.KRISHNALAL V. GOVT. OF KERALA held that “the legislature enacted deterrent social provisions to contract degradation of human conduct. These special provisions are to some extent harsh and are a departure from normal criminal jurisprudence. But it is not uncommon in criminal statutes. It is a special mode to tackle new situations.”
41. In all the above cases (27 to 29 supra), it was held that placing burden on the accused is reasonable and not unjust in view of the statutory provisions considered therein.
42. In the light of the law declared by the Apex Court as well as various High Courts, we have to now consider whether subjecting the petitioners-accused to brain mapping and polygraph (lie detector) tests would be as per procedure established by law or not?
43. The view of the Supreme Court in SECRETARY, MINOR IRRIGATION AND RURAL ENGG. SERVICES, U. P. VS. SAHNGOO RAM ARYA was that the right to life under Article 21 includes the right of a person to live without being hounded by the Police or the CBI to find out whether he has committed any offence or is living as a law-abiding citizen.
44. Results from Brain Electrical Oscillations Signature Test (short “BEOS”) are now accepted in Indian Courts of Law. In 2008, a woman was convicted of murder largely because of brain scan results. The woman, Aditi Sharma, was accused of killing her former fiancé, Udit Bharati. They were living in Pune when Ms. Sharma met another man and eloped with him to Delhi. Later Ms. Sharma returned to Pune and, according to prosecutors, asked Mr. Bharati to meet her at a McDonald’s. She was accused of poisoning him with arsenic-laced food. Ms. Sharma, 24, agreed to take BEOS in Mumbai, the capital of Maharashtra. (Suspects may be tested only with their consent, but forensic investigators say many agree because they assume it will spare them an aggressive police interrogation.) After placing 32 electrodes on Ms. Sharma’s head, investigators said, they read aloud their version of events, speaking in the first person (“I bought arsenic”; “I met Udit at McDonald’s”), along with neutral statements like “The sky is blue,” which help the software distinguish memories from normal cognition. For an hour, Ms. Sharma said nothing. But the relevant nooks of her brain where memories are thought to be stored buzzed when the crime was recounted, according to Mr. Joseph, the state investigator. The judge endorsed Mr. Joseph’s assertion that the scans were proof of “experiential knowledge” of having committed the murder, rather than just having heard about it. (SEE: INDIA’S NOVEL USE OF BRAIN SCANS IN COURTS PUBLISHED BY ANAND GIRIDHARADAS (SEPTEMBER 14,2008) (Paper available on Internet (WEBSITE: nytimes.com). In the said article, the author further stated thus:
“Psychologists and neuroscientists in the United States, which has been at the forefront of brain-based lie detection, variously called India’s application of the technology to legal cases “fascinating,” “ridiculous,” “chilling” and “unconscionable.” (While attempts have been made in the United States to introduce findings of similar tests into court cases, these generally have been by defense lawyers trying to show the mental impairment of the accused, not by prosecutors trying to convict.)
I find this both interesting and disturbing,” Henry T. Greely, a bioethicist at Stanford Law School, said of the Indian verdict. “We keep looking for a magic, technological solution to lie detection. Maybe we’ll have it someday, but we need to demand the highest standards of proof before we ruin people’s lives based on its application.
Methods of eliciting truth have long proved problematic. Truth drugs tend to make suspects babble as much falsehood as truth. Polygraph tests measure anxiety more than deception, and good liars may not feel anxious. In 1998, the United State Supreme Court said there was “simply no consensus that polygraph evidence is reliable.”
This latest Indian attempt at getting past criminals’ defenses begins with an electroencephalogram, or EEG, in which electrodes are placed on the head to measure electrical waves. The suspect sits in silence, eyes shut. An investigator reads aloud details of the crime — as prosecutors see it — and the resulting brain images are processed using software built in Bangalore.
The software tries to detect whether, when the crime’s details are recited, the brain lights up in specific regions — the areas that, according to the technology’s inventors, show measurable changes when experiences are relived, their smells and sounds summoned back to consciousness. The inventors of the technology claim the system can distinguish between people’s memories of events they witnessed and between deeds they committed.
The Brain Electrical Oscillations Signature test, or BEOS, was developed by Champadi Raman Mukundan, a neuroscientist who formerly ran the clinical psychology department of the National Institute of Mental Health and Neuro Sciences in Bangalore. His system builds on methods developed at American universities by other scientists, including Emanuel Donchin, Lawrence A. Farwell and J. Peter Rosenfeld.
Despite the technology’s promise — some believe it could transform investigations as much as DNA evidence has — many experts in psychology and neuroscience were troubled that it was used to win a criminal conviction before being validated by any independent study and reported in a respected scientific journal. Publication of data from testing of the scans would allow other scientists to judge its merits — and the validity of the studies — during peer reviews. “
45. Art.21 of the Constitution is repository of all important human rights, essential for a person or a citizen to enjoy the fundamental rights, right to life and personal liberty. In KARTAR SINGH V. STATE OF PUNJAB, it was held that Art.21 is a declaration of deep faith and belief in human rights and in this pattern of guarantee woven in Chapter III of the Constitution, personal liberty of man is at root of Art.21 and each expression used in this Article enhances human dignity and values. It lays foundation for a society where rule of law has primary and not arbitrary or capricious exercise of power.
46. The view of Dr. Chandra Sekharan on Polygraph test and brain mapping or P-300 test was the polygraph examination results can be entirely manipulated by the examiner and in some cases polygraphist will inflict stimulation onto both relevant and/or control questions. The simplistic methodology used in polygraph testing has no grounding in the scientific method and it is no more scientific than astrology or tarot cards. Government agencies value it because people who don’t realize it’s a fraud sometimes make damaging admissions. But as a result of reliance on this voodoo science, the truthful are often falsely branded as liars while deceptive pass through. Similarly, brain mapping or P-300 test wave response it just a waveform with a single spike which is very similar in the suspect as well as the other witnesses. Unless scientists find out a distinct characteristic in the brainwave response of the perpetrator which is totally different from the responses of other witnesses, even the information derived from brainwave response will have no meaning.
47. The Bombay High Court RAMCHANDRA RAM REDDY (2 supra) while disclosing how the lie detector test or polygraph test is conducted was of the view that witness may answer or may not answer the questions. The response of his answers as recorded on the polygraph analysis of which is sought to be tendered as evidence if and when the occasion arises. Brain mapping or P-300 test does not expect any oral response from the witness. The conclusion drawn by the experts after the conduct of the test to indicate the possession of the knowledge about the relevant subject which is helpful in the investigation and collection of evidence. In this case, it is also not direct violation of the body, in ordinary sense of the word, is conducted. What is received at the conclusion of such test is indication of the fact that the accused or the suspect does have or is in possession of knowledge about the subject on which he was questioned. There is no verbal response from the witness. Therefore, both tests do not involve invasion of the body in the ordinary sense of the term. In ARUN GULAB GAVLI (3 supra) the Bombay High Court simply followed and RAMCHANDRA RAM REDDY (2 supra) and rejected the contention that administration of above two tests against the will of the person to whom it is sought to be administered does not violate any constitutional guarantee as it is not a statement and it is not incriminatory in any manner. The law declared by the High Court of Bombay in RAMCHANDRA RAM REDDY (2 supra) is also a procedure established by law. There is no bar for conducting such tests. With great respect, we cannot agree with the view expressed by the Bombay High Court in ARUN GULAB GAVALI (2 supra) that the declaration in RAMCHANDRA RAM REDDY (2 supra) is a procedure established by law since Art.13 (3)(a) of the Constitution defines ‘law’ includes any ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law. The law declared by the Bombay High Court in RAMCHANDRA RAM REDDY (2 supra) will have a precedential value and cannot be treated as a procedure established by law unless it is declared by the Supreme Court under Art. 141 and 142 of the Constitution.
48. According to Justice Fazil Karim in his book on “Judicial Review of Public Action”, the right to life has been so expanded as to include, for example, the right to legal aid, the right to speedy trial, the right to basic necessities of life, protection against adverse effects of electro-magnetic fields, the right to pure and unpolluted water, the right access to justice, etc., (Vol.I pp.588-589), as referred to in Durga Das Basu Commentary on the Constitution of India, volume 3, 8th edition 2008.
49. Explanation to Section 53(2) of the Code of Criminal Procedure defines “examination”, which includes the examination of blood, blood stains and finger nail clippings by the use of modern and scientific technique including DNA profiling and such other tests which the registered medical practitioner thinks necessary.
50. As rightly contended by the learned Senior Counsel, Sri C. Padmanabha Reddy, it is not the Medical Practitioner who thinks that lie detector test and brain mapping test are required to know the mental condition of the accused person, but the investigated agency wanted to obtain information from the petitioners by compelling them to undergo such tests.
51. The Supreme Court in para 61 of NANDINI SATPATHY (12 supra) categorically held that the prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilt, it becomes 'compelled testimony', violative of Art. 20 (3).
52. From the explanation to Sections 53 and 53(A) Cr.P.C., which have been brought about by the Code of Criminal Procedure (Amendment Act, 2005) which are extracted hereinabove, the question, therefore, is whether “such other tests” as stated under explanation to Sec. 53(2) would include polygraph and brain mapping also. The three tests, narco analysis, brain mapping and polygraph, have not been included in other tests and the same have to be interpreted under ejusdem genesis rule. If the application of ejusdem genesis rule is applied, the section may not permit one to take that the above three tests are contemplated by the words “such other tests” used in Section 53 Cr.P.C., The Courts cannot supplant or widen “such other tests” by including the above three tests. The Supreme Court in M.P.SHARMA (22 supra) categorically held that Art.20(3) offers immunity not only at the stage when testimony is sought to be obtained from such person by compulsion but also at the stage when compelled testimony is sought to be used against him as evidence at the trial. The testing procedure as extracted above and the control questions as analyzed by the Bombay High Court would show that polygraph analysis of which is sought to be tendered as evidence if and when the occasion arises. Similarly, in brain mapping or P-300 test, three types of words, Part-I-neutral words, Part-II-probe words and Part-III-target words in the list used for brain mapping test and it is done by acquiring the response through 32 channel eeg-ERP Neuro Scan cording system, and what is received at the conclusion of such test is indication of the fact that the accused or the suspect does have or is in possession of knowledge about the subject on which he was questioned. When the accused tested with electroencephalogram or EEG, in which electrodes are placed on the head to measure electrical waves; when the suspect sits in silence with eyes shut and an investigator reads aloud the details of the crime—as prosecutors see it and the resulting brain images are processed using software, the answers elicited, as mentioned in earlier paragraphs, are involuntary. When the crime details are recited to the accused, brain lights up in specific regions—the areas that according to the technology’s inventors show measurable changes when experiences are relived, their smells and sounds summoned back to consciousness. After keeping the accused in silence for sometime relevant nooks of accused brain where memories are thought to be stored buzzed when the crime was recounted, which all involve invasion of the body of the accused or suspect without his consent, which is not permitted under law, which is in violation of Art.21 of the Constitution. In view of the same, the information received, if it is incriminating the person who makes it, he can invoke the protection under Art. 20(3) of the Constitution not only at the stage when the said incriminating evidence is tendered against him but also at the stage when the same is sought to be obtained from him. Therefore, subjecting the petitioners-accused to undergo above three tests is not in accordance with the procedure established by law, which clearly in violation of Art. 21 of the Constitution.
53. For the foregoing reasons, we have no hesitation to hold that the petitioners/accused cannot be compelled to undergo brain mapping and lie detector (polygraph) tests in the absence of any procedure established by law to the said effect. The impugned order dt.9-7-2009 passed in Crl.M.P. No.1827/2009 by the XIV Additional Chief Metropolitan Magistrate, Hyderabad is set-aside. Consequently, Crl.M.P.No.1827/2009 shall stand dismissed.
54. The Criminal Petitions are accordingly allowed.
A. GOPAL REDDY, J
LR COPY TO BE TYPED: YES