Madhya Pradesh High Court
Vijay vs The State Of Madhya Pradesh on 27 October, 2023
Author: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
ON THE 27 th OF OCTOBER, 2023
MISC. CRIMINAL CASE No. 45214 of 2023
BETWEEN:-
1. VIJAY S/O MOHANLAL DEVDA, AGED ABOUT 36
YEARS, OCCUPATION: INSPECTOR R/O VILLAGE
METHAVA P.S. JALWADA TEHSIL BARWAH DISTT.
KHARGONE (MADHYA PRADESH)
2. RAKESH S/O SEKDA DAVAR, AGED ABOUT 26
YE A R S , OCCUPATION: CONSTABLE VILLAGE
ARADA BALIPUR TEHSIL DAHI DIST. DHAR
(MADHYA PRADESH)
3. VIRENDRA S/O BARDA DAVAR, AGED ABOUT 30
YE A R S , OCCUPATION: CONSTABLE VILLAGE
GHADA PATELPURA TEHSIL DAHI DIST. DHAR
(MADHYA PRADESH)
4. SURESH S/O MUKAM SINGH CHOUHAN, AGED
ABOUT 39 YEARS, OCCUPATION: HEAD
CONSTABLE VILLAGE BADA DIST ALIRAJPUR
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI VIVEK SINGH, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH POLICE STATION SONDWA DISTT.
ALIRAJPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ANAND SONI, LEARNED ADDITIONAL ADVOCATE GENERAL
WITH SHRI RAJESH JOSHI, GA FOR THE STATE OF M.P.)
....................................................................................................................................
HEARD ON: 20.10.2023
DELIVERED ON 27.10.2023
This application was heard and the Court pronounced the following:
Signature Not Verified
Signed by: AMIT KUMAR
Signing time: 10/27/2023
6:24:37 PM
2
ORDER
1 . T h e petitioners have preferred this petition under Section 482 of
Cr.P.C. for quashment of the order dated 26.09.2023 passed in CRR
No.08/2023 by I ASJ, Alirajpur whereby the learned revisional Court has
dismissed the petition of the petitioners by affirming the order dated 01.09.2023
passed in Crime Case No.236/2023 by JMFC, Alirajpur whereby the application
filed by the prosecution regarding Narco, Polygraph and Brain Mapping test of
the petitioners was allowed.
2. Brief facts of the case are that the police has registered a case against
the petitioners bearing Crime No.236/2023 at Police Station Sondwa, District
Alirajpur under Sections 379, 392, 452, 294, 166-A, 420 and 409 of IPC
regarding loot of ancient gold coins having worth in crores of rupees. The
petitioners are police personnel and facing the allegations of crime. Earlier, on
26.08.2023, the petitioners have given their consent for conducting of their
Narco, Polygraph and Brain Mapping tests in Sahmati Panchnama.
3. In view of their consent recorded under a Sahmati Panchnama of the
petitioners, the prosecution has filed an application before the learned Judicial
Magistrate First Class for conducting of the aforesaid tests which was allowed.
Being aggrieved, the petitioners have filed a criminal revision before the learned
revisional Court on the ground that they have never consented for the aforesaid
tests and conduction of tests, they will suffer irreparable loss to their health, but
vide the impugned order, the learned revisional Court has dismissed the revision
petition filed by the petitioners, hence, the present petition before this Court.
4 . During the course of arguments, counsel for the petitioners has
submitted that both the learned Courts below have not considered the factum of
consent and passed the impugned orders and the same are bad in law. It is
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Signed by: AMIT KUMAR
Signing time: 10/27/2023
6:24:37 PM
further submitted that the impugned orders are against the principles of Article
20(3) of the Constitution of India by which the protection has been given to the
Indian Citizens that no person /accused of any offence shall be compelled to be
a witness against himself. It is further submitted that the learned Courts below
have not considered the legal aspect involved in the matter and passed the
impugned orders in violation of provisions of Article 20(3) of the Constitution
of India. It is also contended that the learned trial Court as well as Revisional
Court have passed the impugned orders in contravention of the law laid down
by Hon'ble Apex Court passed in the case of Selvi And Others vs. State of
Karnataka [(2010) 7 SCC 263]. Hence, the impugned orders passed by the
Courts below are liable to be stuck down.
5. Learned counsel for the petitioners submits that in view of the settled
position of law as held in the case of Selvi (supra) in Clause (1) of para no.265
that (i) No Lie Detector Tests or any other tests should be administered except
on the basis of consent of the accused recorded before the Judicial Magistrate.
An option should be given to the accused whether he wishes to avail such test,
hence, the learned Courts below have committed error in directing to conduct
all the three tests of the petitioners. Hence, prays for setting aside the impugned
orders.
6 . In turn, learned Additional Advocate General and Govt. Advocate
appeared on behalf of the State of Madhya Pradesh, have supported the
impugned orders. It is submitted that since the matter is pertaining to the loot
of ancient golden coins of crores of rupees, the prosecution has to establish its
case in accordance with law. It is further submitted that the petitioners, who are
the police personnel and the offence is affecting the social status as well law and
order in the society, it is required to be investigated by the scientific means. It is
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Signed by: AMIT KUMAR
Signing time: 10/27/2023
6:24:37 PM
further submitted that all the petitioners have given their consent in Sehmati
Panchnama and one of the petitioner has also given his consent before the
learned Judicial magistrate for the aforesaid tests. Hence, there is no illegality
or impropriety in findings of learned Courts below. It is further submitted that in
such type of cases, where police persons are involved, such scientific
investigation is required to be permitted. It is also contended that the
investigation agency cannot be interfered by any Court of law because such
types of tests are part of the investigation. Hence, prays for dismissal of the
petition.
7. In view of the rival submissions and contentions raised in arguments, I
have gone through the record as well as the order of both the Courts below.
8. Learned AAG for the State has placed reliance on the judgement of
High Court of Madrass in the case of Dinesh Dalmia vs. State by SPE, CBI,
BS & FC, New Delhi [2006 (1) MWN (CR.) 404 and submitted that the
scientific value of such type of tests is required for testing credibility of the
petitioners and if the petitioners left on their will to give consent for such tests, it
will be hazardous for prosecution cases where such type of offences are
committed. In para no.14, 17 and 18, the High Court of Madrass has
elaborately considered the issue which are as under:-
"14.............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 the petitioner.
Subjecting an accused to undergo such scientific tests will not amount to
braking his silence by force. He may be taken to the laboratory for such
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Signed by: AMIT KUMAR
Signing time: 10/27/2023
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tests against his will, but the revelation during such tests is quite
voluntary. Therefore, such process does not amount to compelling a
witness to give evidence as against him.
17. As the accused had not allegedly come forward with the truth,
th e scientific tests are resorted to by the investigating agency. Such a
course does not amount to testimonial compulsion. When there is a hue
and cry from the public and the human rights activists that the
investigating sleuths adopt third decree methods to extract information
from the accused, it is high time the investigating agency took recourse
to scientific methods of investigation. The learned Additional Chief
Metropolitan Magistrate, Egmore, Chennai, has granted the relief as
prayed for by the respondent herein to secure the ends of justice.
Therefore, there is no warrant for upsetting the order passed by the
Court below.
18. In the result, the criminal revision petition stands dismissed.
Consequently, connected criminal miscellaneous petitions also stand
dismissed."
9. In support of his arguments, learned AAG has also placed reliance
over the judgement of Delhi High Court in the case of Shailendra Sharma vs.
State and Another [2009 (107) DRJ 499] wherein the High Court has held
that "Narco Analysis Test does not suffer from any constitutional infirmity as it
is a step in aid of investigation and any self-incriminiatory statement, if may
by the accused, cannot be used or relied upon by the prosecution".
10. In view of the aforesaid principles laid down by Hon'ble High Court,
learned AAG for the State has submitted that the orders of learned Courts
below are having no infirmity and hence, no interference is required by this
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Signed by: AMIT KUMAR
Signing time: 10/27/2023
6:24:37 PM
Court using extraordinary powers enshrined under Section 482 of Cr.P.C.
11. In reply, learned counsel for the petitioner submits that since the law
laid down by Hon'ble Apex Court, the prosecution agencies and Courts are
bound to comply with. To bolster his contentions, counsel for the petitioners
has placed reliance over the judgment of Hon'ble Apex Court passed in the case
of Selvi And Others vs. State of Karnataka [(2010) 7 SCC 263] whereby
the Hon'ble Apex Court has observed in para Nos.264 & 265 as below:-
"264. In light of these conclusions, we hold that no individual
should be forcibly subjected to any of the techniques in question, whether
in the context of investigation in criminal cases or otherwise. Doing so
would amount to an unwarranted intrusion into personal liberty. However,
we do leave room for the voluntary administration of the impugned
techniques in the context of criminal justice, provided that certain
safeguards are in place. Even when the subject has given consent to
undergo any of these tests, the test results by themselves cannot be
admitted as evidence because the subject does not exercise conscious
control over the responses during the administration of the test. However,
any information or material that is subsequently discovered with the help
of voluntary administered test results can be admitted, in accordance with
Section 27 of the Evidence Act, 1872.
" 2 6 5 The National Human Rights Commission had published
`Guidelines for the Administration of Polygraph Test (Lie Detector Test)
on an Accused' in 2000. These guidelines should be strictly adhered to
and similar safeguards should be adopted for conducting the
`Narcoanalysis technique' and the `Brain Electrical Activation Profile' test.
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Signed by: AMIT KUMAR
Signing time: 10/27/2023
6:24:37 PM
The text of these guidelines has been reproduced below:
(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 by an independent agency (such as a hospital) and
conducted in the presence of a lawyer.
(viii) A full medical and factual narration of the manner
of the information received must be taken on record.
12. Nevertheless, the law laid down by Hon'ble Apex Court in the case of
Selvi (Supra) is binding not only on the Courts and Investigation Agencies but
also on the citizens of Indian Territory. So far as the citations cited by counsel
for the State are concerned, both the citations have been passed earlier to the
judgment passed by the Apex Court in the Case of Selvi (Supra), therefore,
they are distinguishable.
13. Now, coming to another contention of learned AAG as to whether
this Court has power to interfere in the investigation or not., the learned AAG
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Signed by: AMIT KUMAR
Signing time: 10/27/2023
6:24:37 PM
has placed reliance on the judgment of Hon'ble Apex Court passed in the case
of The State of Uttar Pradesh vs. Aman Mital & Anr. in Criminal Appeal
nos.1330-1331/2019 wherein the Hon'ble Apex Court, while dealing with the
right of the investigating agency has observed as under:
"Such directions are liable to be set aside in view of the fact that
the High Court, while exercising jurisdiction under Section 482 of the
Code, cannot interfere in the manner of investigation, in terms of the
Judgment of this Court in M. C. Abraham and Another v. State of
Maharashtra and Others [(2003) 2 SCC 649] wherein it was held as
under: -
" 1 3 . This Court held in the case of J.A.C. Saldanha
[(1980) 1 SCC 554: 1980 SCC (Cri) 272] that there is a
clear-cut and well-demarcated sphere of activity in the
field of crime detection and crime punishment.
Investigation of an offence is the field exclusively
reserved by the executive through the police department,
the superintendence over which vests in the State
Government. It is the bounden duty of the executive to
investigate, if an offence is alleged, and bring the offender
to book. Once it investigates and finds an offence having
been committed, it is its duty to collect evidence for the
purpose of proving the offence. Once that is completed
and the investigating officer submits report to the court
requesting the court to take cognizance of the offence
under Section 190 of the Code of Criminal Procedure, its
duty comes to an end. On cognizance of the offence being
taken by the court, the police function of investigation
comes to an end subject to the provision contained in
Section 173(8), then commences the adjudicatory function
of the judiciary to determine whether an offence has been
committed and if so, whether by the person or persons
charged with the crime. In the circumstances, the judgment
and order of the High Court was set aside by this Court."
Signature Not Verified
Signed by: AMIT KUMAR
Signing time: 10/27/2023
6:24:37 PM
13) Therefore, the directions issued including in
respect of change of Investigating Officer and that the
District Judge to be associated with 6 (2003) 2 SCC 649
various action, falling exclusively in the domain of the
Investigating Agency are patently beyond the scope of the
petition under Section 482 of the Code and are, therefore,
liable to be set aside."
14. Certainly, the extraordinary powers enshrined under Section 482 of
Cr.P.C can be used in rarest of the rare cases where ends of justice demands. It
can be used only to prevent the abuse of process of law and to secure the ends
of justice. In the case of State of W.B. vs. Narayan K. Patodia [AIR 2000
SC 405] the Hon'ble Apex Court ordained "Inherent powers of the High
Court as recognized in Section 482 of the Code are reserved to be used "to
give effect to any orders under the Code, or to prevent abuse of the process of
any court or otherwise to secure the ends of justice.".
15. Nevertheless, investigation into a cognizable offence is a statutory
power of police and superintendence threof is vested with the State
Government. So, the High Court is not justified in interfering with it without
justifiable reasons. However, in this case, since the mandate of Hon'ble Apex
Court has not been followed by investigating authorities, the High Court has to
use its extraordinary powers enshrined under Section 482 of Cr.P.C.
1 6 . From the face of impugned order dated 01.09.2023 passed by
Judicial Magistrate First Class, it is clear that Suresh Chouhan (petitioner No.4)
has only given his consent to the aforesaid three tests. Others petitioners namely
Virendra, Rakesh and Vijay have declined for all the three tests on the ground of
their respective health issues and ailment. Hence, it is clear that except petitioner
no.4/ Suresh Chouhan, no one has given their consent for conducting of the
tests before the Judicial Magistrate.
Signature Not Verified
Signed by: AMIT KUMAR
Signing time: 10/27/2023
6:24:37 PM
17. During the Course of arguments, although, on this aspect, learned
AAG for the State has contended that if these petitioners are not ready to go
through the aforesaid tests, the adverse inference would be drawn against them.
In reply, counsel for the petitioners has no objection regarding such type of
adverse inference.
18. Certainly, this Court is also of the view that if the petitioners are not
ready to go through the procedure of the aforesaid three tests, the learned trial
Court may draw appropriate inference against them as and when required in
accordance with law. However, at this Stage, in view of the settled proposition
of law, this Court is not giving any opinion in this regard.
19. In this way, as the law laid down by Hon'ble Apex Court in the case
of Selvi (supra) all three tests i.e. Narco, Polygraph and Brain Mapping test
cannot be conducted of the petitioners who have not given their consent before
the learned Magistrate.
20. In view of the aforesaid elaborate discussion and the law laid down
by Hon'ble Apex Court in the case of Selvi (supra), the finding of learned
Courts below regarding conduct of all three tests for all the petitioners
(including who have not given their consent), is liable to be and is hereby
modified to that extent that the prosecution shall conduct all the three tests of
petitioner No.4/Suresh Chouhan only who has given his consent before the
Magistrate. Rest of the petitioners i.e. Vijay, Rakesh and Virendra cannot be
forced without their consent for conducting the aforesaid tests.
21. However, in future, if the petitioners Vijay, Rakesh and Virendra
Singh give their consent for the aforesaid tests, in accordance with the law laid
down by apex Court in the case of Selvi (supra), as the case may be, the
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Signed by: AMIT KUMAR
Signing time: 10/27/2023
6:24:37 PM
investigation agency shall be at liberty to conduct their all three tests in
accordance with law.
22. With the aforesaid observation and direction, present petition stands
partly allowed and disposed off.
Certified copy as per rules.
(PREM NARAYAN SINGH)
JUDGE
AMIT
Signature Not Verified
Signed by: AMIT KUMAR
Signing time: 10/27/2023
6:24:37 PM
