SA CHAPTER - 5 JUDICIAL APPROACH TOWARDS USE OF FORENSIC SCIENCE TESTS WITH SPECIAL REFERENCE TO FSL REPORTS Judicial Response over the use of forensic science tests in Cases with Researcher Analysis Sd 5.1.2 5.13 5.14 5.15 5.1.6 S.L7 5.18 5.1.9 5.1.10 S.LM1 5.1.12 5.1.13 5.1.14 5.LIS 5.1.16 Smt. Salvi and Ors, vs. State of Kamataka ‘The State of U.P. through the CBI vs. Rajesh Talwar & another DR. Rajesh Talwar & Anr, vs. CBI and Anr, Dinesh Dalmia vs. State 2006 CRIL 2401 The State of Bombay vs. Kathi Kalu Oghad and Ors. AIR 1961 SC 1808: (1962) 64 BomLR 240 : 1961 CriL] 856 (1962) 3 SCR 10 Ritesh Sinha vs. State of U.P & Anr, Mansoor Ali Khan vs. State by Inspector of Police, R-2 Kodambakkam Police Station : Chennai Sharada vs. Dharampal Gautam Kundu vs. State of West Bengae Kunhiraman vs. Manoj ‘Mp. Sharma vs. Satish Chandra Nandini Sathpathy vs. P.L. Dani State of Maharashtra ys. Dnyanoba Bhikoba Dagade Chandradevi vs. State of Tamilnadu Kaliya vs. State of Madhya Pradesh. Bisseswar Poddar vs. Nabadwip Chandra Poddar and Anr. 3075.2 5.1.17 Byrra Ramalinga Raju S/O. B. Satyanarayanarayana vs. The State CBI Rep. by Chief Investigating Officer An Analysis of Judicial Response and Legislations Regarding Forensic Science Tests Observations of Judicial Trend Regarding Admissibility and Evidentiary Value of The Forensic Science Test in Administration of Justice 308CHAPTER - 5 JUDICIAL APPROACH TOWARDS USE OF FORENSIC SCIENCE TESTS WITH SPECIAL REFERENCE TO FSL REPORTS Three major acts, the Indian penal code (IPC), the code of criminal procedure code (Cr.P.C) and the Evidence Act, were enacted shortly after 1857,when British Government took over the governance of India from east India company, to regulate the administration of criminal justice in India. In addition there are offences which are not dealt with the penal code , but are dealt with under a number of special and local laws enacted time to time, The criminal laws are supplemented by rules framed by the government, superior courts like the High court and the Supreme Court and are included in court, police and prison manuals. Until the enactment of the Indian penal code and the code of criminal procedure, criminal justice had been administered in India by east India Company under the Mohmadan law as modified from time to time by the company’s regulation act of British parliament. The company took over the administration of justice and police in 1792-1793, and thereafter, it entrusted police duties to ‘darogas’ appointed on district basis. The police, in their investigation and arrest, were supervised by the magistrates of the district, whose penal powers initially were limited. For the trial of more serious offences, courts of circuit were created ,but their number had to be limited because of huge salaries demanded by the presiding judges. Consequently, there was an increase in the power of magistrates, so that the number of offence triable by circuit courts remain as low as possible. This resulted in all those evils which are inherent in a union of executive and judicial powers, Mr. James Fitz Stephen, a 309distinguished English jurist, and the law member of the Government of India in 1869, examined the whole question of reorganisation of judicial establishment and strongly supported the union of executive and judicial powers in a magistrates as this was considered necessary for the British rule in the country. For the first time, a uniform law of criminal procedure for the whole country was prescribed by the code of criminal procedure 1882, replacing the code of 1861 and several other separate Acts of procedure, mostly rudimentary in character, existing in the provinces and the presidency towns, The code of 1882 was replaced by the code of 1898, which was radically amended in 1923(now the code of criminal procedure code1973,) As for civil procedure for the first time a uniform code of civil procedure, applicable to the whole country, was enacted 5.1 JUDICIAL RESPONSE OF THE CASES WITH RESEARCHER ANALYSIS There are numerous cases in which the use of forensic science tests used while administering justice. Here the researcher has taken up some important cases and try to analyze them with regard to understand the judicial trend over the admissibility of the forensic science tests. 5.1.1 SMT. SELVI AND ORS. VERSUS STATE OF KARNATAKA™* Court: The supreme court of India Facts in Brief Selvi’s daughter kavita had married shivkumar of a different cast against the wishes of her family. Shivkumar was brutally killed in 2004, and selvi » AIR 2010 SC1974, 2010 ALD(cri)401, 2010 crimes241(sc), 2010 GHH(2) 357, 2010 GLH@S7)2, IT 2010(S)SC11, 2010(2) KHC412 2 hntp:ftww scribed cony/doc/5219417S/selvi-ors-V-state of karnataka-Ants 310and two others became the suspects. Since the prosecution's case depended entirely on circumstantial evidence, it sought the court's permission to conduct polygraph and brain mapping tests on the three persons. The court granted permission and the tests were conducted. ‘When the results of the polygraph tests indicated signs of deception, the prosecution sought the court's permission to perform Narcoanlysis test. All of them challenged this decision in the Karnataka High court, but failed to get relief. They than went in appeal to Supreme Court. ISSUES FRAMED 1. Whether the involuntary administration of the impugned techniques violates the ‘right against self incrimination enumerated in Article 20(3) of the constitution? 1-AWhether the investigative use of the impugned techniques creates a likelihood of incrimination for the subject? 1-B whether the results derived from the impugned techniques amount to “testimonial compulsion’ thereby attracting the bar of Article 20(3)? 2.Whether the involuntary administration of the impugned techniques is a reasonable restriction on ‘personal liberty’ as understood in the context of A.21 of the constitution? CONTENTION OF PETITIONER 148. on the other hand, the counsel for the the appellants have contended that the parliament was well aware of the impugned techniques at the time of 2005 amendment and consciously choose not to include them in the amended explanation to sec 53,53 A and 54 of CrP.C. It was reas: med that this choice recognised the distinction between testimonial ailacts and physical evidence. While bodily substances such as blood, semensputum ,sweat, hair and fingernail clippings can be readily characterised as physical evidence, the same cannot be said for the techniques in question. This argument was supported by invoking the rule of ‘ejusdem generis’ which is used in the interpretation of statues. This rule entails that the meaning of general words which follow specific words in a statutory provision should be construed in light of the commonality between those specific words. In the present case, the substance enumerated are all the examples of physical evidence. Hence the words and such other tests’ which appear in the explanion to sec.53 53A and 54 of Cr.p.c should be construed to include the examination of physical evidence but not that of testimonial acts. The appellant have been contented that the use of the impugned techniques amounts to cruel, inhuman or degrading treatment. Even though the Indian constitution does not explicitly enumerated a protection against cruel inhuman or degrading punishment or treatment in a manner akin to the Eighth amendment of the U.S. Constitition, tjis court has discussed this aspect in several cases. CONTENTION OF THE RESPONDENTS 146. The respondents have urged that the impugned techniques should be read into the relavant provisions i.e sec 53 and 54 of CrPC. As described earlier, a medical examination of an arrested person can be directed during the course of investigation, either at the instance of the investigating officer or the arrested person. It has also been clarified that it is within the powers of a court to direct such a medical examination on its own, Such an examination can also be directed in respect of a person who has been released from custody on bail as well as a person who has 312been granted anticipatory bail. Furthermore, sec 53 contemplates the use of force as is reasonably necessary’ for conducting a medical examination. This means that once a court has directed the medical examination of a particular person, it is within the powers of the investigators and the examiners to resort a reasonable degree of physical force for conducting the same 147. the contentious provision is the explanation to sec 53,53 A and 54 of CrPC(amended 2005)which has been reproduced above. It has been contended that the phrase ‘moder and scientific techniques including DNA profiling and such other tests’ should be liberally construed to include the impugned technique, polygraph examination and BEAP test have not been expressly enumerated, they could be read in by examining the legislative intent. Emphasis was placed on the phrase ‘and such other tests’ to argue that the parliament had chosen an approach where the list of modem and scientific techniques’ contemplated was illustrative and not exhaustive. It was also argued that in any cas statutory provisions can be liberally construed in light of scientific advancements. With the development of newer technologies, their use can be governed by older statues which had been framed to regulate the older technologies used for similar purposes. 188. In the present case, written submission made on behalf of the respondent have tried to liken the compulsory administration of the impugned techniques with DNA profiling technique. 201. In response the counsel for the respondents have been drawn our attention to literature which suggests that in the case of the impugned techniques, the intention on part of the investigators is to extract information and not to inflict any pain or suffering. Furthermore, it has 313been contended that the actual administration of either the narcoanalysis technique, polygraph examination or the BEAP test does not involve a condemnable degree of phys al pain or suffering. Even though some physical force may be used or threats may be given to compel a person to undergo the tests, it was argued that the administration of these tests ordinarily does not result in physical injuries. 207. The respondent's position is that the compulsory administration of impugned techniques should be permitted at least for investigative purposes, and if the test results lead to the discovery of fresh evidence then these fruits should be admissible. 215. The respondents have contended that even if the compulsory administration of the impugned techniques amounts to a seemingly disproportionate intrusion into personal liberty, their investigative use is justifiable since there is a compelling public interest in cliciting information that could help in preventing criminal activities in future. Such utilitarian considerations hold some signific ince in light of the need to combat terrorist activities, in surgeries and organised crime. It has been argued that such exigencies justify some intrusions into civil liberties. The textual basis of these restrains could be groun: wuch as preserving the ‘sovereignty’ and ‘integrity of India’, ‘the security of the state’ and * public order’ among others. It was suggested that if investigators are allowed to rely on these tests, the results could help in uncovering plots, apprehending suspects and preventing armed attacks as well as the commis sion of offences. Reference was also made to the frequently discussed ‘Ticking Bomb scenario 314JUDGEMENT 221. In our considered opinion, the compulsory administration of the impugned techniques violates the ‘right against self-incrimination’. This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. This Court has recognized that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161(2) of the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted in evidence if they have been obtained through the use of compulsion, Article 20(3) protects an individual's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible ‘conveyance of personal knowledge that is relevant to the facts in issue‘. The results obtained from each of the impugned tests bear a ‘testimonial’ character and they cannot be categorised as material evidence. 222. We are also of the view that forcing an individual to undergo any of the impugned techniques violates the standard of ‘substantive due process‘ which is required for restraining personal liberty. Such a violation will occur irrespective of whether these techniques are forcibly administered during the course of an investigation or for any other purpose since the test results could also expose a person to adverse consequences of a non-penal nature. The impugned techniques cannot be read into the statutory provisions which enable medical examination during investigation in criminal cases, ic. the Explanation to Sections 53, 53A and 54 of the Code of Criminal Procedure, 1973. Such an expansive interpretation is not feasible in light of the rule of ‘ejusdem generis’ and 31sthe considerations which govern the interpretation of statutes in relation to scientific advancements. We have also elaborated how the compulsory administration of any of these techniques is an unjustified intrusion into the mental privacy of an individual. It would also amount to ‘cruel, inhuman or degrading treatment’ with regard to the language of evolving international human rights norms. Furthermore, placing reliance on the results gathered from these techniques comes into conflict with the ‘right to fair trial’, Invocations of a compelling public interest cannot justify the dilution of constitutional rights such as the ‘right against self- incrimination’. 223. 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, 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. 316RATIO DECIDENDI "Compulsory involuntary administration of the Narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) violates the ‘right against self-incrimination’ enumerated in Article 20(3) of the Constitution as the subject does not exercise conscious control over the responses during the administration of the test." "Article 20(3) not only a trial right but its protection extends to the stage of investigation also." "Provisions of Section 27 of the Evidence Act are not within the prohibition under Article 20(3) unless compulsion has been used in obtaining the information and any information or material that is subsequently discovered with the help of voluntary administered test results to be admitted." RESEARCHER'S ANALYSIS The court went on affirming that polygraph test, narcoanalysis test and brain mapping test is violative of Art. 20 (3) of the Constitution. This is because, the person on whom such tests are administered loses his senses and might give such answers which are incriminating himself. On the other hand, if a person has strong, deceptive, and controlled mind, he may deceive the investigating agency. Such tests are not only cruel but also barbarous in nature and does not involve and humanity. Rejecting the argument of "compelling public interest”, it held that Art, 20 and 21 are non-derogable and under the Constitution they could not be suspended even during the state of emergency. It therefore held that, such tests could not be conducted on terror suspects against their consent. 317The court further noted that when a person gives consent to undergo any of these tests, the results by themselves cannot be admitted as evidence because the person does not in fact exercise conscious control over the responses during the administration of the test. But, any information or material subsequently discovered with the help of such voluntarily administered test, is admissible in view of the Sec. 27 of the Evidence Act. The court also invariably emphasized on the guidelines laid down by the National Human Rights Commission in the year of 2000. Cases affected:(after selvi's judgement): These high-profile accused won't undergo narco test new Ramalinga Raj & V Srinivasan in Rs 7,000cr Satyam scam case I) G Vanzara in Sohrabuddin fake encounter case Rajesh and Nupur Talwar in Aamshi murder case Kobad Ghandy, Maoist leader Santokben Iadeja, Gujarat's ‘godmother' These accused underwent tests and prosecution depended on corroborative evidence based on name Will they seek rec-trial? Surinder Koli, Nithari serial killer Abdul Kareem Telgi, ailing scamster, but relatives can question conviction Convicts on name test can opt for retrial. 5.1.2 THE STATE OF U.P.THROUGH THE C.B.I VERSUS RAJESH TALWAR & ANOTHER™” COURT: ADITIONAL SI IONS JUDGE/SPECIAL JUDGE,ANTI CORRUPATION, C.B.I. GHAZIABAD FACTS IN BRIEF On 15-5-2008 at about 9.30 P.M only Dr. Rajesh Talwar,Dr.Nupur Talwar,Ms. Arushi and Hemraj were last seen in the house by Umesh Sharma, the driver of Dr. Rajesh Talwar and in the morning of 16-5-2008 Ms. Arushi was found dead in her bed room, which was adjacent to the 2 Sessions trial no 477 of 2012 318bedroom of accused persons and between these bedrooms there were a wooden partition wall. The dead body of domestic servant Hemraj was found on the terrace of the house on 17-05-2008 and there is nothing to suggest that intruder(s) perpetrated this fieldish and flagitious crime. ISSUES FRAMED Both the accused were charged for offence punishable under section 302 read with Sec.34 and Sec.201 read with Sec. 34 LP.C CONTENSION OF PETITIONER Argument on behalf of prosecution is that from the evidence adduced by prosecution and circumstances, it is fully established beyond reasonable doubt that in the intervening night of 1Sand 16-5-2008,both the deceased were seen alive in the company of both the accused persons by Umesh Sharma at about 9.30 P.M and in the morning of 16-5-2008 Ms. Arushi was found dead in her bed and the dead body of the servant hemraj was found on 17-5-2008 in the terrace of the house and there is nothing to suggest that in the fateful night any intruders came inside the house and committed the murders of both the deceased. It was further added in the submissions of the learned prosecutors that no explaination has been offered by the accused persons as to how and under what circumstances both the deceased died and the circumstances unerringly point out towards the guilt of the accused persons that they are the authors of this diabolical crime. In furtherance of the arguments, it was also submitted that from the evidence and material as available on record,it is also proved that both the accused knowing that the double murder has been commited, caused the evidence of the commission of the murders to disappear with the intention to screen themselves from legal punishment and Dr. Rajesh Talwar also knowingly gave false information to the 319police station sector 20, Noida, that the murder of Ms. Arushi has been committed by Hemraj, who is absconding since last night and as such the accused person are liable to be convicted accordingly. CONTENTION OF RESPONDENTS Counsel of the accused is that this case is hedged on circumstantial evidence and the theory of grave and sudden provocation as propounded by P.W-38 Dr.M.S Dahiya in his report Exhibit Ka-93 does not inspire confidence and is liable to founder. Elaborating his submissions, it was vigorously argued by Mr. Mir that Dr. Dahiya has inculcated this theory in his report Exhibit-Ka-93 on the basis of information supplied to him by the investigating agency that the blood of Hemraj was found on the pillow of Arushi in her bedroom, that it appears that the accused Dr.Rajesh Talwar had seen both the deceased in the bedroom of Arushi in compromising position which incensed the accused to commit the murders; that DrDahiya has himself mentioned in his report Exhibit-93 that perusal photographs, CDs, Postmortem examination reports etc. cannot be a substitute for a real site visit and hence the observation of his own report has its limitation; that Dr.Dahiya has no where mentioned in his report that he visited and inspected the scene of crime on 9-10-2009 and his cross examination he has admitted that no public person was associated during the alleged inspection memo was prepared, that Dr. Dahiya has stated that he visited the place of occurrence alongwith inspector Arvind Jaitely but inspector has not been produced by the prosecution to corroborate the statement of Dr. Dahiya;that Mr. A.G.L Kaul has himself mentioned in his closure report Exh-Ka-98 that no blood of Hemraj was found on the bed-sheet and pillow of Arushi and that there is no evidence to suggest that Hemraj was killed in room of Arushi.It has also been submitted that no blood, biological fluid, sputum, 320sperm, body hair, public hair, skin/flesh or any biological material belonging to Hemraj was found in arushi’s room anywhere. It was also argued that Dr. Dohre has simply mentioned in his postmortem examination report of Arushi that white discharge was observed in the vagina of Arushi but he has not mentioned in the postmortem examination report that opening of vaginal cavity was prominent and the vaginal canal could be seen ;that the hymen of the deceased was old, tom and healed and these facts were not stated to the earlier investigating officers on 18-5-2008,18-7-1008 and 3-10-2008,P.W-5 Dr. Sunil kumar Dohre has admitted on internal page no:5 of his cross examination that in the postmortem examination report it has not been mentioned that white discharge was found in the vaginal cavity of Arushi, Colum no:5,6,14 no abnormality detected has been written and the witness has also admitted in his cross examination that no spermatozoa was detected in the slides and the subjective finding of Dr. Dohre is inadmissible in evidence and as such no reliance can be placed on the evidence of Dr. Dohre, likewise,it has been contended by the leamed counsel for the accused that the evidence of P.w: 36 Dr. Naresh Raj to the effect that swelling of the pecker of Hemraj was because either he has been murdered in the midst of sexual intercourse or just before he was about to have the sexual intercourse which he has stated on the basis of marital experience is nothing but a medical blasphemy and this part of evidence smacks of his lack of knowledge of forensic science and he has never stated such fact of, his lack of knowledge of forensic science and he has never stated such fact to the investigating officer Anil Kumar Samania, C.B.I Inspector S.H, Sachan and Mr. A.G.L-Kaul under section 161 Cr.P.C and thus in the court he has given the above statement for the first time after making improvements and hence no reliance can be placed upon the testimony of Dr. Naresh Raj. It was further contended that Dr. Naresh Raj has himself 321admitted in his evidence that he can not produce any authority whatsoever in support of above statement and rather he has admitted that he agreed with the opinion of Modi on Medical jurisprudence, forensic Science and Toxicology that “from 18 to 36hours or 48 hours after death, eyes are forced out of their sockets, a frothy reddish fluid or mucus is forced out of mouth and nostrils, abdomen become greatly distended, the penis and scrotum become enormously swollen” and thus the evidence of Dr. Naresh Raj does not lend any credence that penis of Hemraj was inflated due to being in sexual intercourse and accordingly theory of grave and sudden provocation based on nooks as projected by the prosecution has to be rejected in toto. JUDGEMENT The accused Dr. Rajesh Talwar and Dr. Nupur Talwar are convicted under section 302 read with section 34 and section 201 read with section 34 IPC. Dr. Rajesh Talwar is also convicted under sec.203 LP.C. Both the accused are sentenced to rigorous imprisonment for life under sec.34 IPC with a fine of Rs.10,000/- each and in default of payment of fine to undergo six months simple imprisonment and to five years rigorous imprisonment under sec. 201 read with sec 34 LP.C with a fine of Rs.5000/- each and in default of payment of fine undergo simple imprisonment of three months. Dr Rajesh Talwar is also sentenced to one year simple imprisonment under sec 203 of IPC with fine of Rs. 2000/- and in default of payment of fine to undergo simple imprisonment of one month, All the sentences shall run concurrently. 322RATIO DECIDENDI Keeping in view the entire facts and circumstances I am of the view that both the accused are not menace to the orderly society this is not a fit case for inflicting death penalty under sec 302 of IPC. RESEARCHER'S ANALYSIS The court herein took serious note of the crime committed and also of furnishing false evidence. The court also considered the test performed at Banglore FSL like Narco analysis, polygraph and brain mapping. The court after close scrutiny of the facts, circumstances and evidences, convicted the accused under the charge of murder tightly ordered punishment of imprisonment for life. 5.1.3 D.R.RAJESH TALWAR AND ANR. VERSUS C.B.I. AND ANR™* COURT: Supreme Court Of India FACTS IN BRIEF: This special leave petition has been preferred against the impugned judgement dated 19-7-2013, passed by the hlgh court of judicature at allahabad in application under sec.482 No.20215 of 2013 whereby the petitioner's prayer for documents pertaining to scientific tests made in their application 405/Kha dated 11-6-2013 filed under sec.233 of the code of criminal procedure,1973(herein referred to as Cr.p.c)read with Sec.91 was rejected. This petitioner are being tried for charges of commiting the murder of their daughter Arushi and their domestic helper Hemraj in their house. At *(2013]ACR 971 323the intial stage,the investigation was conducted by U.P Police however it was later transferred to the Central Bureau of Investigation(hereinafter referred to as the ‘CBI’. A closure report was submitted before magistrate who discharged with it and has isued the process to the petitioners for the charge of commiting the double murder. ISSUES FRAMED By moving an application,the petitioners’ sought for the following reports during the trial L Iw se Narco-analysis test reports and CD of Krishana conducted at FSL Banglore; Narco-analysis test reports and CD of Rajkumar conducted at FSL Banglore; Narco-analysis test reports and CD of Vijay Mandal conducted at FSL Banglore; Brain mapping test of Rajkumar conducted at FSL Gandhinagar; Brain mapping test of Krishna conducted at Banglore: Brain mapping test of Vijay Mandal conducted at Banglore; Lie detector,polygraph test reports of krishna, Rajkumar and Vijay Mandal conducted at CFSL New Delhi;FSL Banglore;FSL Gandhiagar; Psychological analysis test reports of KrishnaRajkumar and Vijay Mandal conducted at AIMS,FSL Banglore FSL Gandhinagar. The Narco-analysis test, brain mapping test polygraph test and psychological tests done at AIMS,CFSL New Delhi and FSL Gandhinagar of the accused DrRajesh Talwar and Mrs.Nupur Talwar, 32410.The written opinion/report and its annexure and other related documents dated 31-7-2008 of the post-mortem doctors ic Sunil Dohre and Dr. Naresh Raj regarding inspection and examination of the murder weapon (khukhri) sent to them by the CBI. In addition, applicants also asked for call records, material forming basis of report prepared by PW.6 and sound stimulation test reports- Whether Justified? CONTENSION OF THE PITITIONER Counsel of the petitioners submitted that the production of the reports pertaining to the above namd 3 persons is absolutely essential and relying on Sec.91 of Cr.P.C; submitted that the production of these reports being relevant, the prayers ought to have been allowed by the High Court. According to Shri Lalit, the reports, if produced, would not breach either Article 21 read with Article. 21 read with Art. 20(3) which protects the accused from self incrimination and/or would not be hit by Sec.21 of the evidence Act. Since the persons in respect of whom those reports have been prepared on the basis of statements and data collected in contravention of Art.20 are premature and this could only have been found after the reports were produced in courts. CONTENTION OF THE RESPONDENTS Leamed ASG vehemently opposed the prayer and submitted that the production of the reports is pointless in view of the law laid down by this court in Selvi and others vs. State of Kamataka,(2010)7 SCC 263, wherein such reports are held to be inadmissible in evidence. The leamed ASG further submitted that the timing of the application and the stage at which it was made clearly shows that the application s are vexatious and 325intended to delay the proceedings which are at a concluding stage. IN support of his contention, Shri Luthara relied on sequence of events which according to him show that the petitioner have at every stage tried to delay the proceedings by making one application after the other. The learned counsel further submitted that even the present special leave petition is delayed in view of the fact that it is preferred on 18-9-2013 against the judgment of the Allahabad High Court which was passed on 19-7-2013. The order of the trial court was, in fact, passed on 18-6-2013 JUDGEMENT From afore stated facts, it is evident that the petitioners have been adopting dilatory tactics on every moment. The impugned order was passed on 19-7-2013. This petitioner was filed after about two months. In view of the above, we are of the considered opinion that facts and circumstances of the case do not warrant any interference. This special leave petition is accordingly dismissed. RATIO DECIDENDI Criminal Courts are not obliged to accede to the request made by any party to entertain and allow application for additional evidence and in fact, are bound in terms of sec.233(3) Cr.P.C to refuse such request if it appear that they are made in order to vex the proceedings or delay the same. RESEARCHER'S ANALYSIS The Apex Court went on deciding that when the parties to the lis, with the malice intention to delay the court proceedings/trial moves application s, though under the provisions of law, and the court dealing with the case is of the opinion that such application is not required to be entertained, may reject the application. The idea of fair trial does not mean that at every 326stage of the court proceedings, vague,false and frivious applications to be moved. The A.21 does not extend protection to cause delay in the court proceedings. 5.1.4 DINESH DALMIA VERSUS STATE 2006 CRIL 2401 COURT: THE HIGH COURT OF MADRAS FACTS IN BRIEF The petitioner was arrested and prosecuted before the leaned Additional Chief Metropolitan Magistrate, Egmore, Chennai on 14-2-2006. The learned Additional Chief Metropolitan Magistrate, Egmore, Chennai was pleased to grant police custody from 14-2-2006. The said police custody was extended till 27-2-2006 on the basis of the affidavit filed by the investigating officers. The accused was thereafter surrendered to judicial custody on 27-2-2006. The respondent Police filed a petition secking permission to conduct the polygraph, Narco-analysis and brain mapping test on the accused and to direct the superintendent of prisons, central jail, Chennai to produce the accused before FSL Banglore on 7th and 8th March 2006,to undergo the aforesaid tests. ISSUES FRAMED Of Course, A.20(3) of the constitution of India 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. 327CONTENTION OF PETITIONER In the criminal revision, it is contended that the accused cannot be compelled to give evidence as against him. The grant of police custody beyond 15 days, is out of purview of Sec.167 of Crp.c. There is an intrusion in the constitutional right of the accused to be silent under Article 20(3)of the Constitution Of India. Leaned Counsel appearing for the petitioner accused would submit that there is health hazard in polygraph, narco analysis and brain mapping tests. It is an indirect physical torture launched against the accused, it is submitted. Leamed senior counsel would further argue that when the accused had not given any consent to the subject himself to the aforesaid scientific tests, a false statement has been given in the petition by the Investigating Officers as though the accused volunteered to face such tests. It is his further submission that the leamed Additional Chief Metropolitan Magistrate, Egmore, Chennai has thrown to wind the mandatory provision as contemplated under section 167 of the code of criminal procedure that the police custody shall not be permitted beyond 15 days. CONTENTION OF RESPONDE! TS Leamed Counsel for the respondent on being served with the notice, appeared and submitted that the accused has volunteered to undergo the tests. It is his submission that the question taking the accused to police custody beyond the period of 15 days does not arise in this matter as the accused had been directed only to appear for the tests. He would further argue that the aforesaid scientific tests will have to be conducted to un travel the mystery. It is his last submission that the criminal revision case laid by the petitioner accused under sec 397 of the CRP.C is not maintainable. 328It is pointed out by the learned counsel for the respondent, the scientific tests are like taking MRI or CT Scene. The scientific value of such tests and the credibility thereof will have to be evaluated only during the course of trail. 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 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. JUDGEMENT In this matter, the right to direct the accused to undergo scientific tests has been finally determined by the court below and hereby the criminal proceedings taken to demystify the grey area of investigation has culminated, Therefore, the court finds that the present order impugned which substantially determines the rights of the parties is a final order challengeable under section 397 of the code of criminal procedure by way of revision. As 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 there 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, 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. 329Therefore, there is no warrant for upsetting the order passed by the court below.In the result, the criminal revision petition stands dismissed. Consequently, connected criminal miscellaneous petitions also stand dismissed. RATIO DECIDENDI The safe test laid down by this court through a series of decisions in this If the contention of the petitioner who moves the superior court in revision, as against the order under challenger is upheld, would the criminal proceedings as a whole culminate? If it would, then the order is not interlocutory in spite of the fact that it was passed during any interlocutory stage RESEARCHERS ANALYSIS The petitioner was impleaded for alleged misappropriation and embezzlement of huge amount by selling shares of DSQ software limited, Investigating Agency demanded custody at various intervals which was granted, In total, almost 14 days custody was granted by the trial court judge and thereafter accused was sent to the judicial custody. In this case the Investigating Agency, then moved a petition for directing the accused to be sent to FSL, Banlore, for polygraph, narcoanalysis and brain mapping, which was granted by the magistrate considering the gravity of the charges. It was contended by the counsel of the petitioner that custody can not be granted for more period of time in view of Sec. 167 of Cr..P.C. Further ,he contended that the subjecting the accused to such tests would be violative of the constitutional guarantee under Art.20(3). As opposed to this, counsel for the respondent contended that subjecting the accused to such tests would be violative of the constitutional guarantee under Art 20(3). As opposed to this, counsel for the Respondent contended that it 330does not violate any of the fundamental right as the investigating Agency, instead of opting for third degree methods, prays for some scientific tests owing to the facts and circumstances of the case which should be permitted, The approach of the court was more or less practical as the socio-economic offences are so frequently observed these days. Further these are the offences which not only affect any single individual of class but it affects to the whole society, 5.1.5 THE STATE OF BOMBAY VERSUS KATHI KALU OGHAD AND ORS AIR 1961 SC 1808:(1962)64 BOMLR 240: 1961 CRILJ 856:(1962)3 SCR 10 COURT: THE SUPREME COURT OF INDIA FACTS IN BRIEF The respondent was charged, along with another person under section 302, read with section 34 of the LP.C as also under section 19(¢) of the Indian Arms Act (XI of 1878). The trail court found him guilty of those charges and sentenced him to imprisonment for life under section 302 read with section 34 of the LP.C and to a term of two years rigorous imprisonment for the offence under the Arms Act. At the trial the identification of the respondent ,as one of the two alleged culprits, was the most important question to be decided by the court, Besides other evidence, the prosecution adduced in evidence a chit Ex-5 alleged to be in his handwriting and said to have been given by him, In order to prove that Ex.5 was in the handwriting of the respondent, the police had obtained from him, during the investigation, three specimen handwriting of his on the separate sheets of paper which were marked as Exh 27,28 and 29. This disputed documents, namely Ex.5 was compared with the admitted handwriting on Exh.27,28 and 29 by the Handwriting Expert 331whose evidence was to effect that they are all writings by the same person, At the trial and in the high court, the question was raised as to the admissibility of the specimen writings contained in exh.27,28 and 29,in view of the provisions of Article 20(3) of the constitution. It is an admitted fact that those specimen writings of the accused had been taken by the police while he was in police custody, but it was disputed whether the accused had been compelled to give those writings within the meaning of clause 3 of Article 20. The plea of the accused that he was forced by the Deputy Superintendent Of Police to give those writings has not been accepted by the learned Trial Judge. But those documents have been excluded from consideration ,as inadmissible evidence, on the ground that though there was no threat or force used by from the police in obtaining those writings from the accused person, the yet in the view of the court "the element of compulsion was implicit in his being at that time in police custody.” In this conclusion both the trial judge and the High Court have agreed. The Identification of the accused person was also sought to be proved by the evidence of the witnesses, who identified him an identification parade, But the holding of the identification parade has not been sought to be brought within the prohibition of the clause 3 of art 20.After eliminating and EXs, 27,28, and 29 from their consideration, The high court, on a consideration of the other evidence in the case, came to the conclusion that the identity of the respondent had not been established beyond a reasonable doubt. Hence, giving him the benefit of doubt, they acquitted him. The state of Bombay moved this court and obtained special leave to appeal from judgment and order of acquittal, passed by the High Court. Besides 332ISSUES FRAMED (a) Whether by production of the specimen handwriting, the accused could be said to have been a witness against himself within the meaning of Article 20(3) of the constitution? (b)Whether the mere fact that when those specimen handwritings had been given, the accused was in police custody, could by itself amount to compulsion, apart from any other circumstances which could be urged as vitiating the consent of the accused in giving these specimen handwritings? (©) Whether a direction given by a court to an accused present in court to give his specimen writing and signature for the purpose of comparison under sec.73 of the Indian Evidence Ac t infringes the fundamental rights enriched in Article20(3) of the constitution? CINTENTION OF THE PETITIONER Caluse (3) aforesaid , in view of its setting, its history and the policy underlying, the privilege accorded by the constitution to an accused person, should not be applied at the stage of investigation of an offence. It should be confined to cases of compulsory extraction of incriminating Dagduas or communications by an accused person in court the expression ‘compelled to be a witness’ being understood as meaning ‘being compelled to give oral testimony’, It does not include the compulsory production of the documents. Similarly, it does not prohibit the compulsory exhibition or examination of the body of the accused, or any part of it, or the taking of specimen writing, thumb impression impression of the palm or the feet or the fingers of an accused. Whether or not there has been compulsion should be judged by the nature of the 333action taken by the authority, or the court has determines the controversy, and not the state of mind of the accused. A person seeking protection under the clause must satisfy all the four constitutes elements contained in clause (3) of Art, 20,namely,(1) he must be an accused person;(2) he must have been compelled;(3)the compulsion must be to be a witness and;(4)against himself, Compulsion, according to him, means coercion or constraint and does not include mere asking by the police to do a certain thing or the direction by court to give thumb impression or specimen writing. In other words, compulsion has to be equated to what has been sometimes characterized as "third degree" methods to extort confessional statements."To be witness" is an expression which must be understood in consonance with the existing law of evidence and criminal procedure, e.g section 27 and 73 of the evidence act and section 94 and 96 of the code of criminal procedure. Though, according to English Law ,the expression is confined to oral testimony, he was prepared to go to the length of conceding that any statement, whether oral or in writing by an accused person, transmitting his knowledge disclosing relevant facts of which he was aware, would amount to bring a witness against himself. But mere production of some material evidence, by itself, would not come within the ambit of the expression 'to be a witness’ CONTENTION 0F RESPONDENTS The clause aforesaid of the Constitution gives complete protection of the widest amplitude to an accused person, irrespective of the time and place and of the nature of the evidence, whether it is oral or documentary or material. The extreme form, which his argument took can best be stated in his own words as follows : "Anything caused, by any kind of threat or 334inducement, to be said or done, by a person, accused or likely to be accused of any offence, by non-voluntary positive act or speech of that person which furthers the cause of any prosecution against him or which results or is likely to result in the incrimination of that person qua any offence, is violative of the fundamental right guaranteed under clause (3) of Article 20 of the Constitution of India“. According to his argument, if an accused person makes any statement or any discovery, there is not only a rebuttable presumption that he had been compelled to do so, but that it should be taken as a conclusive proof of that inferential fact. Any Kind of inducement, according to him, is also included in the expression ‘compulsion’ by the police or elsewhere. The test, according to him, is not the volition of the accused but the incriminatory nature of the statement or communication. Hence, any statement made to a police officer, while in police custody, brings the same within the prohibitory ambit of the clause of the Constitution. JUDGEMENT (1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement. 335(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately tum out to be incriminatory, is not ‘cornpulsion* (3) To be a witness’ is not equivalent to ‘furnishing evidence’ in its widest significance; that is to say, as including not merely making of oral or written Dagduas but also production of documents or giving materials which may be relevant at a trial to determine the guilt innocence of the accused. (4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression ‘to be a witness’ (5) To be a witness’ means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise. * (6) To be a witness’ in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now hear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing. (7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made Held, that there was no infringement of Art. 20(3) of the Constitution in compelling an accused person to give his specimen handwriting or signature, or impressions of his thumb, fingers, palm or foot to the 336investigating officer or under orders of a court for the purposes of comparison. Held, further, that the provisions of s. 27 of the Indian Evidence Act did not offend Art. 20(3) unless compulsion was used in obtaining the information. Compulsion was not inherent in the receipt of information from an accused person in the custody of a lice officer, it will be a question of fact in each case to be determined by the court on the evidence before it whether compulsion had been used in obtaining the information. RATIO DECIDENDI The evidence of specimen handwriting or the impressions of the accused person’s fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions, identity between the two set is established. By themselves, these impressions or the handwritings do not incriminate the accused person, or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself. So when an accused person is compelled to give a specimen handwriting or impressions of his finger, palm or foot, it may be said that he has been compelled to be a witness; it cannot however be said that he has been compelled to be a witness against himself. RESEARCHER'S ANALYSIS Another riddle was solved by the highest deciding court of India that the fingerprints and alike material, if produced, does not offend Art. 20 (3) of the Constitution. The court went on believing that such productions are 337nothing but merely materials/samples for comparison, It further rightly noted that these productions does not directly incriminate the accused and prove the guilt. These are the materials for comparison and there are only possibilities that they may match or may not match. So, if they do not match, the accused may be set free on the count. However, if, after the comparison, materials/samples match, accused may be held guilty for the offence he is charged with. The court, thus demarcated the very thin line between ‘to be a witness’ and ‘to be a witness against himself. This distinction is of vital importance while dealing with the issues involving Art, 20 (3) and Art 21 of the Constitution of India, 5.1.6 RITESH SINHA VERSUS STATE OF UTTAR PRADESH & ANR.” COURT: THE SUPREME COURT OF INDIA. FACTS IN BRIEF On 7/12/2009, one Prashant Kapil, In-charge, Electronics Cell, P.S. Sadar Bazar, District Saharanpur lodged a First Information Report alleging that one , Dhoom Singh in connivance with the Appellant was collecting money from people on the pretext that he would get them recruited in the police department, After his arrest, one mobile phone was seized from Dhoom Singh. As the police wanted to verify whether the recorded conversation, which is in their possession, is between accused Dhoom Singh and the Appellant, they needed voice sample of the Appellant. The police, therefore, filed an application before learned Chief Judicial Magistrate, Janpad Saharanpur, praying that the Appellant be summoned to the court for recording the sample of his voice. On 8/1/2010, leamed Chief Judicial Magistrate, Saharanpur issued summons to the Appellant (2013) 2 see 387 338to appear before the investigating officer and give his voice sample. The Appellant approached the Allahabad High Court under Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Code") for quashing of the said order. The High Court by the impugned order dated 9/7/2010 rejected the said application, hence, this appeal by special leave. ISSUES FRANEED BY RANJANA PRAKASH DESAI, J. 3. In my View, two important questions of law raised in this appeal, which we need to address, are as under: (@ Whether Article 20(3) of the Constitution of India, which protects a person accused of an offence from being compelled to be a witness against himself, extends to protecting such an accused from being compelled to give his voice sample during the course of investigation into an offence? (i) Assuming that there is no violation of Article 20(3) of the Constitution of India, whether in the absence of any provision in the Code, can a Magistrate authorize the investigating agency to record the voice sample of the person accused of an offence? BY AFTAB ALAM,J. The question is whether the law has any provision under which a person, suspected of having committed an offence, may be compelled to give his voice sample to aid the police in investigation of the case. The next and the more important question is. in case there is no express or evidently applicable provision in law in that regard. should the court invent one by the process of interpretation. 339CONTENTION OF PETITIONER 5. Mr. Dave, learned Counsel for the Appellant, at the outset, made it clear that he was not pressing the challenge that the order passed by the Magistrate violates the Appellant's fundamental right of protection from self-incrimination as guaranteed under Article 20(3) of the Constitution. Counsel submitted, however, that there is no provision in the Code or in any other law which authorizes the police to make an application for an order directing the accused to permit recording of his voice for voice sample test. Counsel submitted that a Magistrate has no inherent powers and, therefore, learned Magistrate could not have given such a direction (Adalat Prasad y. Rooplal Jindal MANU/SC/0688/2004MANU/SC/ 0688/2004 : (2004) 7 SC no other provision providing for a power, it ought not to be read in any other provision (State of UP. v. Ram Babu Misra (1980) 2 SCC 242, SN. Sharma v. Bipen Kumar Tiwari MANU/SC/O182/1970MANU/SC/ 0182/1970 : (1970) 1 SCC 653). Counsel pointed out that in Ram Babu Misra, this Court restricted the scope of Section 73 of the Indian 38). Counsel submitted that because there is Evidence Act and took out from the purview of Section 5 of the Identification of Prisoners Act, 1920 (for short, "the Prisoners Act), handwritings and signatures. As suggested by this Court, therefore, the Code was amended and Section 311A was inserted. Counsel submitted that Section 5 of the Prisoners Act is inapplicable to the present case because it is enacted only for the purpose of keeping a record of the prisoners and other convicts and not for collection of evidence (Balraj Bhalla v. Sri Ramesh Chandra Nigam MANU/UP/003/960MANU/UP/ 0031/1960 : AIR 1960 All 157). Counsel submitted that this is supported by Section 7 of the Prisoners Act, which provides for destruction of photographs and records of measurement on acquittal. The term 340“measurement” deti ned in Section 2(a) of the Prisoners Act covers only those things which could be physically measured. Counsel submitted that the Prisoners Act, being a penal statute, the term measurement appearing therein must be given a restricted meaning (Regional Provident Fund Commissioner v. Roughly Mills Cot Ltd. and Ors. (2012) 2 SCC 489). Counsel submitted that investigation has to be conducted within the parameters of the Code. It is not uncontrolled and unfettered (State of ‘West Bengal v. Swapan Guha MANU/SC/OIZO/ 1 982MANU/SC/0120/ 1982 : (1982) 1 SCC 561). Counsel submitted that the High Court judgments, where unamended Section 53 of the Code is involved, are not relevant. Counsel submitted that Explanation (a) to Section 53 of the Code was introduced in 2005 and, therefore, those judgments cannot be relied upon for interpreting the said Section as it stands today. Counsel submitted that various examinations listed in the said Explanation are the ones for which the police can have the accused examined by a medical practitioner. These tests are all of physical attributes present in the body of a person like blood, nail, hair etc., which once taken can be examined by modern and scientific techniques. Voice sample specifically has not been included as one of the tests in the said Explanation even though the amendment was made in 2005 when Parliament was well aware of such test being available and, has, therefore, been intentionally omitted. Counsel submitted that the words "such other tests" mentioned in the said Explanation are controlled by the words "which the registered medical practitioner thinks necessary". Therefore, the discretion, as to the choice of the test, does not vest in the police but it-vests in the medical practitioner. This would clearly exclude voice test on the principle of ejusdem generis. Counsel submitted that in Selvi and Ors. v. State of Kamataka MANU/SC/0325/2010MANU/SC/0325/2010 : (2010) 7 SCC 263 this Court has held that Section 53 of the Code has to be given a 341restrictive interpretation and not an expansive one. Counsel submitted that the decision of this Court in Sakiri Vasu’ * v. State of Uttar Pradesh MANU/SC/8401/2008MANU/SC/8401/2008 : (2009) 2 SCC 409 is inapplicable since to do an act under ancillary power the main power has to be conferred, which has not been conferred in this case. Therefore, there is no question of resorting to ancillary power. Counsel submitted that the High Court fell into a grave error in refusing to quash the order passed by learned Magistrate summoning the Appellant for the purpose of giving sample of his voice to the investigating officer. CONTENTION OF RESPONDENTS 7. Mr. Dash, leamed Counsel for the State of Uttar Pradesh submitted that the definition of the term ‘investigation’ appearing in the Code is inclusive. It means collection of evidence for proving a particular fact. A conjoint reading of the definition of the term ‘investigation’ and Sections 156 and 157 of the Code would show that While investigating a crime, the police have to take various steps (H.N. Rishbud and Anr. V. State of Delhi MANU/SC/0049/1954MANU/SC/0049/1954 : AIR 1955 SC 196) Counsel pointed out that in Selvi, meaning and scope of the term investigation” has been held to include measures that had not been enumerated in the statutory provisions. In this connection, in Selvi, this Court took note of Rajasthan High Court judgment in Mahipal Madema and Anr, v, State of Rajasthan MANU/RH/0080/1970MANU/RH/0080/ 1970 : 1971 Cri.L.J. 1405 and Allahabad High Court judgment in Jamshed v. State of UP. MANU/UP/0239/1976MANU/UP/0239/1976 : 1976 Cri.L.1, 1680. Relying on Kathi Kalu ‘Oghad and Ors., counsel submitted that taking of thumb impressions, impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused for the purpose of identification is not furnishing evidence in the larger sense 342because Constitution makers never intended to put obstacles in the way of effective investigation. Counsel also relied on State of UP. v. Boota Singh MANU/SC/0182/1978MANU/SC/0182/1978 : (1979) 1 SCC 31 where the contention that taking specimen signatures of the Respondents by police during investigation was hit by Section 162 of the Code was rejected. Counsel submitted that the question of admissibility of tape recorded conversation is relevant for the present controversy. In this connection, he relied on RM. Malkani v. State of Maharashtra MANU/SC/0204/ 1972MANU/SC/020411972 : (1973) 1 SCC 471. Counsel submitted that under Section 5 of the Prisoners Act, a person can be directed to give voice sample. In this connection, he relied on the Bombay High Court's judgment in Tel gi. Counsel submitted that a purposive interpretation needs to be put on the relevant sections to strengthen the hands of the investigating agency to deal with the modem crimes where tape recorded conversations are often very crucial. JUDGEMENT BY: RANJANA PRAKASH DESAI, 1 47. In the ultimate analysis, therefore, I am of the Opinion that the Magistrate's power to authorize the investigating agency to record voice sample of the person accused of an offence can be traced to Section 5 of the Prisoners Act and Section 53 of the Code. The Magistrate has an ancillary or implied power under Section 53 of the Code to pass an order permitting taking of voice sample to aid investigation. This conclusion of mine is based on the interpretation of relevant sections of the Prisoners Act and Section 53 of the Code and also is in tune with the concer expressed by this Court in Kathi Kalu Oghad that it is as much necessary to protect an accused person against being compelled to incriminate 343himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. 49. In the view that I have taken, I find no infirmity in the impugned order passed by the High Court confirming the order passed by leaned Chief Judicial Magistrate, Saharanpur summoning the Appellant to the court for recording the sample of his voice. The appeal is dismissed. BY AFT AB ALAM, 1 93. Should the Court still insist that voice sample is included in the definition of "measurements" under the Identification of Prisoners Act and in the Explanation to Section 53 of the Code of Criminal Procedure? I would answer in the negative 94, In light of the above discussion, I respectfully differ from the judgment proposed by my sister Desai J. I would allow the appeal and set aside the order passed by the Magistrate and affirmed by the High Court, 95. Let copies of this judgment be sent to the Union Law Minister and the Attorney General and their attention be drawn to the issue involved in the 96. In View of the difference of opinion between us, let this case be listed for hearing before a bench of three Judges after obtaining the necessary direction from the Honourable the Chief Justice of India. RATIO DECIDENDI - N/A RESEARCHER'S ANALYSIS The Division Bench was, not being in agreement with each other, in fact placed the matter before the three judges’ bench for the final decision. Hon'ble Justice R. Desai was of the opinion that Sec. 53 of the Cr. P.C. 344conferred implied power and authority to the magistrate for ordering the accused to medical examination as it deems necessary. However, Hon'ble Justice A. Al am differed from the View taken by the Desai, J. He contended that Sec. 53 does not give express power to the magistrate and as the legislature has not specifically stated about the powers of magistrate under Sec. 53. Nothing could be inferred from the section what is not specifically provided therein, Thus, he was much more clinging to the strict and literal interpretation of the section. He kept himself very much confined to and within the boundary of Sec. 53. Upon such differences of opinion, the matter was placed before the three judges’ bench of the Supreme Court of India for the decision. 5.1.7 MANSOOR ALI KHAN VERSUS STATE BY INSPECTOR OF POLICE, R-2 KODAMBAKKAM POLICE STATION: (CHENNAI.*” COURT: HIGH COURT OF MADRAS FACTS IN BRIEF The accused, who employed PW-l/victim girl as his Secretary/Assistant, on 08.12.1996, asking her to assist him in his transactions, took her to a Hotel; that, during the course of their stay in the Hotel, he administered sedatives through juice and on PW-1 becoming unconscious after consuming the juice, committed rape on her; that, even after PW-1 regaining consciousness, by consoling her and creating a strong impression that he would marry her, again he had intercourse and continued the intimacy for a substantial period; and that, on PWlbecoming pregnant, when she insisted the accused to establish the marriage tie, he asked her to undergo abortion and refused to marry and »° Criminal Appeal No:284 of 2001 345ultimately after delivery of a child deserted her. ‘The victim, when approached the police at the advanced stage of pregnancy, was asked to come after delivery; hence, finding that her complaint is not being registered, she sent the complaint dated 29.04.1998 through registered post to the Commissioner of Police, and ultimately, the same was taken on file by the respondent police on 21.5.1998. In the meantime, on 24.05.1998, she gave birth to a female child. ISSUES FRAMED Whether the appellant is guilty of offences under Sec. 376, 417 and 506 (2) of the Indian Penal Code? CONTENTION OF PETITION! R Counsel for the appellant, by pointing out that the prosecution case rests mainly on the testimony of PW-I and that since her testimony can be proved to have tainted with improvements and deviations when contrasted with the FIR and her statement under Section 164 Cr.P.C. before the Magistrate, would submit that the case of the prosecution shall fall to ground. According to him, in the complaint, though PW-1 has stated that she was given a cool drink and after taking the same she became unconscious, nothing has been mentioned about the act of rape by the appellant except stating ' when I regained conscious I found that I was deserted by him. CONTENTION OF RESPONDENTS Leamed Government Advocate submits that, though the complaint was given belatedly in this case where the offence alleged to have been committed is rape, the fact remains that the first act was committed by the appellant by way of administering juice mixed with sedative and it is only 346thereafter, PW-1, unable to wriggle out from the situation, continued the affair. Even though PW-1 is a major and the offence under Section 376 IPC. may not be made out, because of the promise made by the appellant, PW-I continued the affair, resulting in her pregnancy and giving birth to a child. According to him, since materials are available to show that the appellant made false promise to allure the victim, he is liable to be convicted at least under Section 417 IPC. JUDGEMENT 11. Consequently, the order of the trial court convicting and sentencing the appellant for the offences punishable under Sections 376 (1) and 417 IPC. is set aside and the appellant stands acquitted of the charges. The appellant is directed to deposit Rs.7,00,000/~ (Rupees seven lakhs only) before the trial court to the credit of Sessions Case No.579 of 2000 within a period of six weeks from today. Failing the trail court is directed to intiate recovery proceedings known to law against him. RATIO DECIDENDI The consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. RESEARCHER'S ANALYSIS The Court of Appeal was moved for vacation of the order passed by the learned trial court convicting accused for the offence of rape and other charges. During the trial, DNA test was also performed which affirmed that the child born was of the accused only. The court appreciated the evidences produced before the trial court and upon finding them insufficient for the purpose of arraignment, acquitted the accused. 347However, considering the facts and the circumstances of the case, the court was pleased to direct the accused to pay certain amount as compensation to the Victim. The court's humanitarian View is appreciated. 5.1.8 SHARADA VERSUS DHARMPAL™ COURT: THE SUPREME COURT OF INDIA FACTS IN BRIEF The parties herein were married on 26.6.1991 according to the Hindu rites. On or about 3.6.1995, the respondent filed an application for divorce against the appellant under Section 12(1)(b) and 13(1)(ii) of the Hindu Marriage Act, 1955. He filed an application seeking directions for medical examination of the appellant on Sth May, 1999. The appellant objected thereto inter alia on the ground that the Court had no jurisdiction to pass such directions. By an order dated 8,10,1999 the said application was allowed directing the appellant to submit herself to the medical examination. Aggrieved by the said order, she filed a Revision Petition before the High Court which was dismissed by the impugned judgment. ISSUES FRANIED A. Whether a Matrimonial Court has the power to direct a party to undergo medical examination? > AIR20038C3450, 2003(3)ALLMR(SC)331, 2003(3)ALT41(SC), 2003 2 Awguppamse. 200302) BLIRI420, 2003(2)CTC760, 12003)DMC62ISC, [2004(1)ICRI8SCL 1°1°20933) $C399, 2003(2) KLT243(SC), 2003-2-st87, RLW2003(3) SC379. 2003(3) SCALE47S. anonymous [2003135011 06, 2003(2)41870 348B, Whether passing of such an order would be in violation of Article 21 of the Constitution of India? CONTENTION OF PETITIONER 3. Mr. Kaushik, the leamed counsel appearing on behalf of the appellant herein has principally raised two contentions in support of this appeal. Firstly, compelling a person to undergo a medical examination by an order of the Court would be violative of right to ‘personal liberty‘ guaranteed under Article 21 of the Constitution of India. Secondly, in absence of a specific empowering provision, a court dealing with matrimonial cases cannot subject a party to the lis to undergo medical examination against his her volition. In the event, if a party does not undergo such medical examination, the Court may merely draw an adverse inference. CONT ENTION OF RESPONDENTS 5. Ms. Nanita Sharma, the learned counsel appearing on behalf of the respondent, submitted that a Matrimonial Court is required to arrive at a finding as to whether the appellant herein had been suffering from unsoundness of mind, mental disorder or insanity by virtue of the provisions contained in Section 5, Section 12(1) and Section 13(1) of the Hindu Marriage Act, 1955. As such a state of mind of a party to the marriage may render the marriage voidable, the Court is entitled to take the exPert's opinion in his behalf so as to enable it to satisfy itself as regard the existence of the conditions for grant of a decree for divorce. 6. The leaned counsel further contended that the (SIC) to medical examination aided by scientific data would not infringe the right to personal liberty under Article 21 of the Constitution of India. 349JUDGEMENT The Court after elaborate discussion concluded: @® A matrimonial court has the power to order a person to undergo medical trash (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 him. RATIO DECIDENDI Under Section 75 (e) of Code of Civil Procedure and Order XXVI, Rule 10A, the civil court has the requisite power to issue a direction to hold a scientific, technical or expert investigation. RESEARCHER'S ANALYSIS In this case, the husband had tiled divorce petition under Sec. 12(1) (b) and 13(I)(ii) of the Hindu Marriage Act, 1955. On moving an application by the husband to the court, to get her wife medically examined for the said purpose, the trial court granted the application. Upon which, the wife/Appellant herein, went in appeal before the High Court where the High Court rejected her contention and upheld the order of the trial court, Thereafter, the appeal came to be filed before the Hon'ble Supreme Court questioning the powers of the court to order ‘medical examination’. This court was pleased to uphold the view take by the trial court and the court looking to the necessity of the case. 3505.1.9 GAUTAM KUNDU VERSUS STATE OE WEST BENGAE™; COURT: THE HIGH COURT OF CALCUTTA FACTS IN BRIEF 1. This criminal revision is directed against the Order dated Ist February, 1992 passed by the learned Additional Chief Judicial Magistrate, 24- Parganas (South), Alipore in Misc. Case No. 143 of 1991 (TR. 48/92). Smt, Shaswati Kundu, the OP. herein filed the said case being case No. 143/91 for maintenance under Section 125, Criminal Procedure Code for herself and her minor child against her husband Goutam Kundu, the petitioner herein. "The marriage between the parties took place on 16th January, 1990 and Smt. Shaswati Kundu gave birth to a daughter on 3rd January, 1991. The husband disputed the paternity of the child and prayed before the Court below for blood group test of the child with a View to proving that it was somebody else through whom the Wife conceived the child and consequently he was not liable to pay maintenance for the child which is not his child. The leamed Court below by its impugned order dated the Ist February, 1992 rejected the prayer of the husband. It is against that order of rejection the petitioner husband has ' come up before this Court. ISSUES F RANIED Whether a judge of the High Court has power to order a blood test whenever it is in the best interest of the child? (1992)2CALLT130(HC), 96CWNTS 1, 96CWN751 351CONTENTION 0F PETITIONER Appearing for the petitioner husband submitted that science has by now advanced to a considerable extent and through scientific test of blood group of the child and the man it is possible to resolve the dispute of paternity at least in certain cases. He further submitted that if the result of the blood group test shows mat the man is not the father of the child the result is a certainty, but if however the test shows that the man be the father of the child the uncertainty however will continue to remain. In other words, blood group test may absolve someone from paternity with certitude, if the test answers that way, but where however. the test answers the alternative way, namely that the man may be the father of the child the vice of uncertainty however remains uplifted, Mr. Chatterjee submitted that the petitioner husband in this case should not be debarred from having recourse to necessary blood group test so that in case the result of the test is negative it will be scientifically established that he is not the biological father of the child and in that case there will be no question of his paying maintenance for the child. CONTENTION OF RESPONDENTS: The judgement does not quote any of the contention of the Respondent. It examines the order of the court below. JUDGEMENT The leaned Court below by its impugned order dated the Ist February, 1992 rejected the prayer of the husband. The prayer for blood test does not require any interference. 352RATIO DECIDENDI Sec. 112 of the Indian Evidence Act is a bar determining the paternity and legitimacy of a child born during the wedlock of the husband and wife. RESEARCHER'S ANALYSIS In the instant case, the husband challenged the patemity of the child and prayed for blood test contending that he is not biological father of the child. The Hon'ble High Court rightly appreciated the issue in question and stated that as the mandate of law is quite clear and there is no strong prima facie proof which would prove that there was ‘no access’, The Court taking canopy of Sec. 112 of the Indian Evidence Act did not allow the application moved by the husband/Petitioner herein. 5.1.10 KUNHIRAMAN VERSUS MANOJ ** COURT: THE HIGH COURT OF KERALA FACTS IN BRIEF Kunhiraman is a wealthy middle-aged eligible bachelor. Vilasini Is his neighbour. She is a young spinster working as agent of an insurance company. Vilasini became pregnant and gave birth to Manoj. Pregnancy and delivery Were cleverly concealed by her because she was unmarried. Delivery was in the paramba, where the child was abandoned. Matter came to the notice of the police. She was prosecuted, but acquitted. Now the child is happily living with her. In the birth register, Kunhiraman‘s name appeared as father on her Information. He objected and got his name removed. On behalf of Manoj, she filed M.C. No. 17 of 1988 before the Chief Judicial Magistrate. Thalasserry against Kunhiraman Under * as91)DMC 499 353Section 125 of the Code of Criminal Procedure for getting maintenance. Kunhiraman denied paternity. Chief Judicial Magistrate found him to be the putative father and awarded maintenance at the monthly rate of Rs, 500/-. Kunhiraman wants to revise that order. ISSUES FRAMED Whether the order can be passed solely on the basis of DNA test? CONTENTION OF PETITIONER There is the possibility of Vilasini making an attempt to find out a suitable father in him for the child because he is an eligible Wealthy bachelor. But, except the alleged act of impregnating her, there is no other motive suggested for false implication. As earlier stated, there is no evidence to show that Vllasini Is a lady of bad virtues, except the alleged connection with Kunhiraman on his promise to marry her. Attitude of Kunhiraman that he had no occasion to meet Vilasini, CON TENTION OF RESPONDENTS The Counsel relied upon the prosecution story. JUDGEMENT The result of DNA test by itself could be taken as conclusive in deciding paternity. It is useful in other areas also like hair, semen, teeth, dead bodies, etc. But I used it only for tilting the balance in accepting the other acceptable evidence which may not in themselves be cent per cent conclusive. I have no hesitation in confirming the conclusion of the trial Court that Kunhiraman is the putative father of Manoj 354RATIO DECIDENDI Presumption is in favour of virtues and not in favour of immorality. Immorality has to be established. RESEARCHER'S ANALYSIS This was the very first case which was decided on the basis of DNA test. The court was simply concerned with the paternity dispute in the instant case. The court held that DNA Results are conclusive proof and not required to be established/supported by further evidences. The Court further noted as follows: " PW 3 Is the Immediate neighbour of Kunhiraman. He is a venerable old man In his seventies having no axe to grind against Kunhiraman, Only suggestion was that be was giving false evidence because he was a colleague of Vilasini's father. That suggestion was denied by him and there Is no evidence or probability in support of the suggestion. In my opinion, every word he said could be believed. He had occasion to see Vilasini and Kunhiraman together on several days at the residence of Kunhiraman during periods when the child could have been begotten. He said that his opinion and the public opinion in the locality is that Kunhiraman is the person responsible for pregnancy." Thus, the court relied Upon the testimony of neighbour as an expert witness, 5.1.11 MP. SHARMA VERSUS SATISH CHANDRA ™ COURT: THE SUPRENIE COURT OF INDIA FACTS IN BRIEF The Registrar of the Joint Stock Companies, Delhi State, lodged information with the Inspector General, Delhi Special Police * 1954)8.CR 1077 355Establishment, to the following effect. Messrs. Dalmia Jain Airways Ltd. was registered in his office on the 9°” July, 1946, with an authorised capital of Rs. 10 crores and went into liquidation on the 13th June, 1952. An investigation into the affairs of the company was ordered, by the Government and the report of the inspector appointed under section 138 of the Indian Companies Act indicated that an organised attempt was made from the inception of the company to misappropriate and embezzle the funds of the company-and declare it to be substantial loss, and to conceal from the shareholders the true state of affairs by submitting false accounts and balance-sheets. Various dishonest and fraudulent transactions were also disclosed which show that false accounts with fictitious entries and false records were being maintained and dishonest transfers of moneys had been made. It was accordingly alleged that offences under sections 406, 408, 409, 418, 420, 465, 467, 468, 471 and 477(a) of the Indian Penal Code had been committed. It was also stated that Seth R. K. Dalmia who was the Director and Chairman of Dalmia Jain Airways Ltd. has been controlling certain other concems, viz., (1) Dalmia Cement & Paper Marketing Co., Ltd., (2) Dalmia Jain Aviation Ltd. now known as Asia Udyog Ltd., and (3) Allen Berry & Co., Ltd., through his nomineesand that all these concerns were utilised in order to commit the frauds. It was further stated therein by the Registrar of Joint Stock Companies that to determine the extent of the fraud, it was necessary to get hold of books not only of Dalmia Jain Airways Ltd. but also of the allied concerns controlled by the Dalmia group, some of which are outside the Delhi State. Lists of the offices and places in which and of the persons in whose custody the records may be available were furnished. Speedy investigation was asked for. This information was recorded by the Special Police on the 19th November, 1953, as the First Information Report. On the basis thereof an application was made to the 356District Magistrate, Delhi, under section 96 of the Criminal Procedure Code, for the issue of warrants for the search of documents and in the places, as per schedules furnished. Permission to investi gate in respect of some of the non-cognisable offences mentioned in the First Information Report was also asked for. On the same day, the District Magistrate ordered investigation of the offences and issued warrants for simultaneous searches at as many as 34 places. The searches were made on the 25th November, 1953, and subsequent days and a voluminous mass of records was seized from various places. The petitioners pray that the search warrants may be quashed as being absolutely illegal, and ask for return of the documents seized. ISSUES FRANIED 1. Whether the warrants issued under Sec. 96 (1) is violative of Art. 19(1)(£) of the Constitution of India? 2. Whether it is violative of Art. 20 (3) of the Constitution of India? CONTENTION OF PETITIONER The contentions raised are that the fundamental rights of the petitioners under article 20(3) and article 19(1)(f) have been violated by the searches in question. by the Dalmia group, some of which are outside the Delhi State. Lists of the offices and places in which and of the persons in whose custody the records may be available were furnished. Speedy investigation was asked for. This information was recorded by the Special Police on the 19th November, 1953, as the First Information Report. On the basis thereof an application was made to the District Magistrate, Delhi, under section 96 of the Criminal Procedure Code, for the issue of warrants for the search of documents and in the places, as per schedules 357furnished, Permission to investigate in respect of some of the non- cognisable offences mentioned in the First Information Report was also asked for. On the same day, the District Magistrate ordered investigation of the offences and issued warrants for simultaneous searches at as many as 34 places. The searches were made on the 25th November, 1953, and subsequent days and a voluminous mass of records were seized from various places. The petitioners pray that the search warrants may be quashed as being absolutely illegal, and ask for return of the documents seized, CONTENTION OF RESPONDE! TS ‘It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. JUDGEMENT Held, that the provision for the search warrant under the first alternative of 21, 96(1) of the Code of Criminal Procedure does not offend art. 19()() of the Constitution, A search and seizure is only a temporary interference with the right to hold the property searched and the articles seized. Statutory recognition in this behalf is a necessary and reasonable restriction and cannot per se be considered to be unconstitutional, A compelled production of incriminating documents by a person against whom a First Information Report has been made is testimonial compulsion within the meaning of A.20(3) of the Constitution. But a search and seizure of a document under the provisions of s. 94 and 96 of the Code of Criminal Procedure is not a compelled production thereof within the meaning of art. 20 (3) and hence does not offend the said Article. 358RATIO DECIDENDI A compelled production of incriminating documents by a person against whom a First Information Report has been made is testimonial compulsion within the meaning of art. 20(3) of the Constitution, But a search and seizure of a document under the provisions of s. 94 and 96 of the Code of Criminal Procedure is not a compelled production thereof within the meaning of art. 20 (3) and hence does not offend the said Article. The phrase used in article 20(3) is "to be a witness" and not to “appear as a witness": It follows that the protection afforded to an accused in so far as it is related to the phrase "to be a Witness’ is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. A notice to produce is addressed to the party concerned and his production in compliance therewith constitutes a testimonial act by him within the meaning of article 20(3) as above explained. But search warrant is addressed to an officer of the Government, generally a police officer. Neither the search nor the seizures are acts of the occupier of the searched premises. They are acts of another to which he is obliged to submit and are, therefore, not his testimonial acts in any sense. RESEARCHER'S ANALYSIS Hon'ble Apex Court has categorically stated that the Order of Search & Seizure does not itself become objectionable on the ground that it is coerced production of evidences. The Court has further defined “Testimonial Compulsion" for the purpose of Art, 20(3). In addition to this, the Court was very much inclined to go into the root of the matter and held that Art. 20(3) extends protection only in cases where the 359)accused provides incriminating statement and not when the accused is ordered to produce certain evidences/documents. 5.1.12 NANDINI SATHPATHY VERSUS P. L. DANI’ COURT: THE SUPREME COURT OF INDIA FACTS IN BRIEF A complaint was filed by the Deputy Superintendent of Police, Vigilance Wirectorate of Vigilance) Cuttack, against the appellant, the former Chief Minister of Orissa under S. 179 IPC. Before the Sub-Divisional Judicial Magistrate, Sadar, Cuttack alleging offending facts which we will presently explain. There upon the Magistrate took cognizance of the offence and issued summons for appearance against the accused (Smt. Nandini Satpathy). Aggrieved by the action of the Magistrate and urging that the complaint did not and could not disclose an offence, the agitated accused-appellant moved the High Court under Art, 226 of the Constitution as well as under S. 401 of the Cr. P. Code, challenging the validity of the magisterial proceeding. The broad submissions, unsuccessfully made before the High Court, was that the charge rested upon a failure to answer interrogations by the police but this charge was unsustainable because the umbrella of Art. 20 (3) of the Constitution and the immunity under S. 161 (2) of the Cr. P. Code were wide enough to shield her in her refusal, The plea of unconstitutionality and illegality, put forward by this pre-emptive proceeding was rebuffed by the High Court and so she appealed to this Court by certificate granted under Art. 132(1), resulting in the above two appeals, thereby taking a calculated risk which might boomerang on the litigant if she failed, because what this Court now decides finally binds © AIR 1978 SC 1025:1978 SCRG)SOS: 1978 SCCR)ADA 360Smt, Nandini Satpathy, a former Chief Minister of Orissa and one time minister at the national level was directed to appear at the Vigilance, Police Station, Cuttack, in September last year, for being examined in connection with a case registered against her by the Deputy Superintendent of Police, Vigilance, Cuttack, under section 5(2) read with section’ 5(1) (d) & (¢) of the Prevention of Corruption Act and under section 161/165 and 120-B and 109 LP.C. On the strength of this first information, in which the appellant, her son and others were shown as accused persons, investigation was commenced. During the course of the investigation it was that she was interrogated with reference to a long string of questions, given to her in writing. Skipping the details of the dates and forgetting the niceties of the provisions, the gravamen of the accusation was one of acquisition of assets disproportionate to the known, licit sources of income and probable resources over the years of the accused, who occupied a public position and exercised public power for a long spell during which, the police version runs, the lady by receipt of illegal gratification aggranaised herself-~a pattern of accusation tragically and traumatically so common against public persons who have exercised and exited from public power, and a phenomenon so suggestive of Lord Acton’s famous dictum. The charge, it is so obvious, has a wide ranging “scope and considerable temporal sweep, covering activities and acquisitions, sources and resources private and public dealings and nexus with finances, personal and of relatives. The dimensions of the offences naturally broadened the area of investigation, and to do justice to such investigation, the net of interrogation had to be cast wide. Inevitably, a police officer who is not too precise, too sensitive and too constitutionally conscientious is apt to trample underfoot the guaranteed right of testimonial tastiness. This is precisely the grievance of the appellant, and 361the defence of the respondent is the absence of the ‘right of silence, to use the familiar phrase of 20th century vintage. ISSUES FRAMED The points in controversy may flexibly be formulated thus: d, 1. Is a person likely to be accused of crimes ie. a suspect a entitled to the sanctuary of silence as one “accused of any offence”? Is it sufficient that he is a potential of course, not distant candidate for accusation by the police? 2. Does the bar against self-incrimination operate not merely with reference to a particular accusation in regard to which the police investigator interrogates, or does it extend also to other pending or potential accusations outside the specific investigation which has led to the questioning? That is to say, can an accused person who is being questioned by a police officer in a certain case, refuse to answer questions plainly non-criminal so far as that case is concerned but probably exposes him to the perils of inculpation in other cases in posses or in else elsewhere? 3. Does the constitutional shield of silence swing into action only in court or can it barricade the “accused” against incriminating interrogation at the stages of police investigation? 4, What is the ambit of the cryptic expression “compelled to be a witness against himself” occurring in Article 20 (3) of the Constitution? Does “compulsion” involve physical or like pressure or duress of an unlawful texture or does it cover also the crypto~cOmpulsion or psychic coercion, given a tense situation or officer in authority interrogating an accused person, armed with power to insist on an answer? 3625. Does being “a Witness against oneself” include testimonial tendency to incriminate or probative probability of guilt flowing from the answer? 6, What are the parameters of Section 161 (2) of the Cr. Procedure Code? Does tendency to expose a person to a criminal charge embrace answers which have an inculpatory impact in other criminal cases actually or about to be investigated or tried? 7. Does “any person” in Section 161 Cr. Procedure Code include an accused person or only a witness? 8, When does an answer self-incriminate or tend to expose one to a charge? What distinguishing features mark off nocent and innocent, permissible and impermissible interrogations and answers? Is the setting relevant or should the answer, in vacuo, bear a guilty badge on its bosom? 9, Does mens rea form a necessary component of section 179 LP.C., and, if so, what is its precise nature? Can a mere apprehension that any answer has a guilty potential salvage the accused or bring into play the exclusionary rule? 10, Where do we demarcate the boundaries of benefit of doubt in the setting of section 161 (2) Cr. P. C. and Section 179 1P.C.? CONTENTION OF PETITIONER 13. What are the defences open under Section 179 LP.C. read with Section 161 Cr.P.C.? Two exculpatory channels are pointed out by Sti Rath, supplemented by a third paramount right founded on constitutional immunity against testimonial self-incrimination. To itemise them for ready reference, the arguments are that a, “any person” in section 161 (1) excludes an accused person, b, that questions which form links in the chain of the prosecution case ~ these include all except irrelevant ones are prone to expose the accused to a criminal charge or charges since several 363other cases are in the offing or have been charge sheeted against the appellant and c, the expansive operation of the benignant shield against self-accusation inhibits elicitation of any answers which the accused apprehends may throw inculpably glow. 18. It is necessary, to appreciate the submissions, to remember the admitted fact that this is not the only case or investigation against the appellant and her mind may move around these many investigations, born and unborn, as she is confronted with questions. The relevance of this factor will be adverted to later. Setting the perspective of Art. 20 (3) and Sec. 161 (2) CONTENTION OF RESPONDENTS 19. The leamed Advocate General argued that Art. 20 (3), unlike Section 161 (1), did not operate at the anterior stages before the case came to court and the accused's incriminating utterance, previously recorded, was attempted to be introduced. He relied on some passages in American decisions... The leamed Advocate General, influenced by American decisions rightly agreed that in expression Section 161 (2) of the Code might cover not merely accusations already registered in police stations but those which are likely to be the basis for exposing a person to a criminal charge. JUDGEMENT 53. We hold that Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Art. 20 (3) goes back to the stage of police interrogation not, as contended, commencing in court only. In the judgment the provisions of Art. 20 (3) and Section 161 (1) substantially cover the same area, so far as police investigations are 364concerned. ‘The ban on self-accusation and the right to trial is under way, goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminal matter, We are disposed to read “compelled testimony” as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer truthfully cannot be regarded as compulsion within the meaning of Art. 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilt, it becomes “compelled testimony”, violative of A 20 (3). 67. A final note on the actual case on hand. While some aspects of A.20 (3) have been authoritatively expounded; other aspects have remained obscure and unexplored. A flash flood of demands against self- incriminatory interrogation has risen now when very important persons of yesterday have got caught in the criminal investigation coils of today. And when the big fight forensic battles the small gain by the victory, if any. The fact that the scope of the protection against self-accusation has not been clarified before in this area makes it necessary for us to take a gentler View in this case, in the interest of justice. Moreover on our interpretation, the Magistrate, trying the case under S. 179, LP.C. and ina setting where the accused allegedly has a number of other offences to 365answer for, will be thrown into a larger enquiry than the simplistic one ordinarily needed: 68. We have declared the law on a thorny constitutional question where the amber light from American rulings and beacon beams from Indian precedents have aided us in our decision. It is quite probable that the very act of directing a woman to come to the police station in violation of $ 160 (1), Cr.P.C. may make for tension and negate voluntariness. It is likely that some of the questions are self-incriminatory. More importantly, the admitted circumstances are such that the trying Magistrate may have to hold an elaborate enquiry about other investigations, potential and actual, to decide about the self-accusatory character of the answers. And, finally, the process of proving proneness for self-incrimination will itself strike a blow on the very protection under Art, 20(3). We have more reasons than one to conclude that the ends of justice will be ill-served by endless magisterial chase of a charge the legal clarity of which is, by this judgment, being authoritatively unveiled and the factual foundation of which may have some infirmities. And the consequences of refusal to answer, if most of the questions are self condemning and a few formal ones innocuous, were not gone into by us, So, we suggested to counsel that the authority of the law be vindicated by the accused undertaking to answer all relevant, not criminal, interrogations and, on this pledge of compliance, the State withdrawn the prosecution pro tempore. If the accused went back on the undertaking a prosecution could again be launched and the party proceeded against for breach of the plighted Word. The response from the State is a remarkable assertion of legal rectitude and exposition of the principles for exercise of the power to withdraw, and, finally, a conclusion couched thus: 366“After careful consideration from all angles and in the facts and circumstances on record, Government have come to the conclusion, that there are no circumstances to justify withdrawal by the State Government.” 71. To conclude. We have bestowed some thought on the law and consider this case pre-eminently one where the Government, acting without ill-will or affection, should have withdrawn the prosecution, By Government we mean the complainant public servant who is the party respondent. We do not need the Government to exercise its power to direct its subordinate to withdraw and know that it is not eo nomine party before us a public servant is not a benamidar of Government but an officer, in his own right, saddled with statutory behests to execute. We note with satisfaction that this Government is moved only by legal, not extraneous, considerations in launching and refusing to withdraw the prosecution against the appellant. We have indicated some (not all) reasons, pertinent in law, for legitimately with-drawing a prosecution and the very fact that this Court suggested it is ordinarily sufficient to rule out the charge of improper grounds and yet the State argues overzealously about the proper criteria! We could have given more relevant reasons but do not do so since the correct course, at this stage is to quash the prosecution as its stands at present. 74, The appellant, through her counsel, undertakes to abide by the above directions to answer all police interrogations relevant but not self~ incriminatory (as explained earlier). The police officer shall not summons her to the police station but examine her in terms of the proviso to S. 160 (of the Cr. P. code. The appellant shall, within 10 days from today, file a written undertaking on the lines directed above, although, regardless 367thereof her counsel’s undertaking will bind her. Indeed, we direct her to answer in accordance with the law we have just clarified. 75. The prosecution proceedings in complaint case No. 2 (c) 388 of 1977 on the file of the Sub-Divisional Magistrate, Sadar, Cuttack, are hereby quashed and the appeals allowed. RATIO DECIDENDI Relevant replies which furnish a real and clear link in the chain of evidence indeed to bind down the accused with the crime become incriminatory and offend Art 20 (3) if elicited by pressure from the mouth of the accused. RESEARCHER'S ANALYSIS The Appellant Petitioner was charged with various sections of Prevention Of Coruption Act and other sections of Indian Penal Code. She was summoned to comply with the investigation upon the basis of_ FIR. The Researcher, here, is in agreement with the ratio laid down by the court holding that the State“ action was violative of Article 20 (3) of the Constitution. The police/investigating agency was not justiiied looking to the wordings of Section 160, 161 of Cr. P.C. along with the Article 20 (3) of the Constitution, The Researcher further states that any statement which directly incriminates or provides the aid to the police investigation completing the chain of circumstantial evidence is violative of the constitutional provision. 3685.1.13 STATE OF MAHARASHTRA VERSUS DNYANOBA BHIKOBA DAGADE”* COURT: THE HIGH COURT OF BOMBAY FACTS IN BRIEF The respondent (hereinafter referred to as "the accused") ws charged with an offence punishable under Section 376 of the Indian Penal Code, in the Court of the Judicial Magistrate, First Class at Khandala, of Satara District. The case was registered as C, R. No. 64 of 1976 of the Khandala Police Station, On an application made on 14th Oct. 1976 by the Police Sub-Inspector of Khandala Police Station, the learned Judicial Magistrate, by an order of the same date, directed that the accused should submit himself to the medical officer to enable him to take the blood of the accused for analysis. It is admitted that this order was passed by the Magistrate without hearing the accused. The accused, therefore made an application on 16th Oct. 1976, pointing out what he characterised as the illegality of the order of the 14th Oct. 1976, and for cancelling the said order. After hearing the Assistant Public Prosecutor, the leamed Magistrate refused to set aside the order passed by him on 14th Oct. 1976, by holding that he was bound by the order passed by him earlier, unless It was set aside by the higher authorities. This order of the Magistrate, passed on 3rd Nov. 1976, was challenged by the accused in a revision application, being Criminal Revision Application No. 84 of 1976 filed in the Court of the Sessions Judge at Satara. The leamed Additional Sessions Judge, Satara, by his judgment and order dated 9th May 1977, negative the contentions raised on behalf of the State, and allowed the Revision Application No. 84 of 1976. While so doing, the leamed > 1979 CRLIITT 369Additional Sessions Judge, relying upon certain judgments of the Supreme Court, held that the impugned order was not an interlocutory order, and further that Section 53 of the Code of Criminal Procedure did not empower the Magistrate to pass the impugned order, It is this order of the learned Additional Sessions Judge that is the subject-matter of challenge in Criminal Revision Application No. 295 of 1977 ISSUES FRAMED Whether the order passed by the Magistrate allowing the application of the prosecution to take blood sample is justified? CONTENTION OF PETITIONER The Revision Application was opposed by the State, by contending firstly that no revision was permitted under the Criminal Procedure Code, 1973, against an order which was interlocutory in nature. According to the State, the order passed by the learned Magistrate on 14th Oct. 1976, as well as on 3rd Nov.1976, was interlocutory and they were not amenable to the revisional jurisdiction of the Sessions Court, On merits, it was contended on behalf of the State that Section 53 of the Code of the Criminal Procedure allowed the Magistrate to pass an order of the type which was done in the instant case. CONTENTION OF RESPONDENT The petition was resisted by the respondent counsel by sticking to the same defence taken before the Additional Sessions Judge. JUDGEMENT There will be an infringement of Article 21 of the Constitution if the person who is not authorised by law to order extraction of blood orders 370extraction of blood in any mannerwhich is not again authorised by law. In the instant case, Section 53 of the Criminal P. C, 1973, does not authorise the Magistrate to pass an order compelling the accused to submit themselves to the medical examination by a medical practitioner for the purpose of extraction of blood from their persons. The orders passed by the two Magistrates in the present petitions were patently illegal and without jurisdiction, and were rightly set aside by the leamed Additional Sessions Judge. RATIO DECIDENDI Section 53 of the Criminal P. C, 1973, does not authorize the Magistrate to pass an order compelling the accused to submit themselves to the medical examination by a medical practitioner for the purpose of extraction of blood from their persons. The-orders passed by the ‘Magistrates in both the cases were not interlocutory orders, and therefore, they were amenable to the provisional jurisdiction of the leamed Additional Sessions Judge. RESEARCHER'S ANALYSIS The High Court rightly considered the appeal as Sec. 53 of The Code Of Criminal Procedure, 1973 does not expressly provide that the magistrate can order the accused to undergo medical examination. The Court was quite reluctant to address to the submissions made by the counsel for the State on the ground that unless the law specifically empowers the magistrate to order for medical examination of the accused, there can be no interpretation or inference to that effect. The law has to be interpreted as it is. The court further observed that such involuntary submission to the medical examination Would be violative of Art. 21 of the Constitution of India. This is because, Art. 21 talks about the ‘procedure established by 371law’, It means, unless the law specifically confers the power to the magistrate to order the accused to undergo medical examination, such power cannot be exercised under the garb of ‘interpretation 5.1.14 CHANDRADEVI VERSUS STATE OF TAMILNADU” COURT: THE HIGH COURT OF MADRAS FACTS IN BRIEF The accused (Swami Premananda) was founder of the Boopalakrishna Ashram where children (mostly orphan) used to live, study and perform other activities including various jobs in ashrama. It was alleged that the accused raped 13 girls and killed a boy. The trial court found him guilty of offences under Sec. 120B, 376, 109, 302, 312, 354. ISSUES FRAMED 1, Whether the DNA evidence is generally accepted by the scientific community? 2. Whether the testing procedure used in this case is generally accepted as reliable, if performed properly? 3. Whether the tests were performed properly in this case? 4, Whether the conclusion reached in this case is acceptable? CONTENTION OF PETITIONER 40. According to the learned senior counsel for the accused, several charges, viz... rape on 13 victim girls, are rolled into one. In every criminal charge, there must necessarily be a formal accusation and the © criminal Appeal No.895 of 1997 and Criminal Appeal No, 896 of 1997 and Criminal ADM; NO. 897 ‘of 1997 and Criminal MP. Nos.780 to 782 of 1998 372manner of commission of the alleged acts so that the accused is put on notice and the prosecution binds themselves to establish the said acet ation. Every rape is a separate incident committed on different occasions and the allegations in reference to the date, time and the place are not common. The charge framed in reference to rape is therefore violative of the provisions dealing with the charges under the Criminal Procedure Code. It is submitted that the failure to frame a ' specific charge, being an illegality, the question of invoking Section 464 does not arise for consideration. In this context, a number of decisions have been referred to in support of these submissions. CONTENTION 0F RESPONDENTS 13. The sample writings and signatures of A-1 and A-2 were obtained in the presence of P.W.53, Superintendent of Central Prison, Tiruchy. The letters, Exs.P.8 to P.19 and P20 series, along with the sample writings of A-L and A2 were sent for hand-writing expert's opinion. P.W.54, the Finger Print Expert, had opined that the disputed signatures in Ex.P.20 must have been those of Al, Kamalananda whose sample writings are found in Ex.P.166 and R170 series. Ex.P.171, the hand-writing expert's report, after comparing Exs.P.8 to P.19 with Ex.P.167, states that the disputed writings must have been written by A-2, Kamalananda. 19(g) Leamed Special Public Prosecutor also submitted that there was no contamination while taking the sample blood for conducting the DNA. testing and the testing was done as per the probes evolved by the laboratory. The DNA. testing is universally acceptable as on date. According to him, the nonvexamination of Dr. Rae who had conducted the tests will not, in any way. affect the report or the opinion of P.W.59 since the tests were also done by Dr. Rae under the supervision of 373P.W.59. He submits that the medical evidence corroborates the testimony of P.W.14 and other medical evidence on the pregnancy of P.W.l4. In the trial court, the prosecution majorly relied upon the testimony of victim girls. Further, a dead fetus of a girl was medically examined whose DNA matched with that of the accused no. 1. The same arguments at length were advanced by the learned counsel. JUDGEMENT 170. In the result, we confirm the conviction and sentence imposed by the Jearned Sessions Judge in respect of A-4 to A-7 except for Charge No.7, which we have modified as above. However, in all other respects, the judgment of the learned Sessions Judge is hereby confirmed. Total fine on Al to A-7 ..... Rs.62,07,500/-, Out of thepayment of fine of Rs.61,30,000/~ collected from A-1 under Sec.357(1) & (3) CrP.C., a compensation of Rs.5,00,000/is to be paid to each of the victim girls, P.W.3Sureshkumari; P.W.4Nallammal; P.W.S-Princy, P.W.6-Mary; P.W.7Selvakumari @ Manjula; P.W.S-Sugunakumari @ Sudha; P.W.9- Pushparani; P.W.10-Sasikumari @ Jaya; P.W.1ZUdayakumari; P.W.13- Vanitha; P.W.14Aruljothi and P.W. 15-Malligadevi (Rs.5,00,000 X 12 = 60,00,000/-) RATIO DECIDENDI The provisions that we are concemed in this case, namely Section 302 and 376(2)(c) of the Indian Penal Code provide for imprisonment for life and imprisonment for a term, which may be for life. There is no bar under the Indian Penal Code to impose the punishment as provided for under the reSpective provisions for the respective offences. Whereas, Section 31 CLEC. enables to impose several punishments. The fact that it may 374not he practicable for a person to undergo a second sentence of life imprisonment cannot be a ground for not imposing a punishment. RESEARCHERS ANALYSIS The Court of Appeal was kind enough to appreciate the strenuous efforts made by the trial court convicting the accused under various sections of {PC including 302 and 376. In this lengthy judgement, the court appreciated the arguments advanced by counsels of both the sides. The court, apart from considering the other evidences, also took note of DNA test which was voluntarily opted by the accused. The result of this DNA test proved the guilt of the accused which reflected in the trial court judgement. On close scrutiny and perusal of the serious facts of the case and the graveness of the charges framed against the accused, Hon'ble High Court upheld the trial court judgement. Court further ordered the accused to pay amount of compensations to the victims; which was to the tune of Rs. 62,00,000/~ approximately. Thus, the High Court tried to safeguard the interest of the victims of this incident, 5.1.15 KALIYA VS STATE OF MADHYA PRADESH"* COURT: THE SUPREME COURT OF INDIA. FACTS IN BRIEF A. That on 18.6.1984, Guddi, daughter-in-Iaw of the present appellant Smt. Kaliya was admitted to J.A. Hospital, Gwalior in a burt condition. Her dying declaration was recorded and she died of the burn injuries on the same day. Information from hospital was given to Police Station, Jhansi Road, Gwalior. Her dead body was sent for post-mortem and all formalities were properly completed. 2013) 10SCC 75 supreme court cases 315B. An FIR was lodged and after the completion of the investigation, a chargesheet was filed against the appellant along with her husband and son under Section 498-A IPC, the appellant was additionally charged under Section 302 IPC. C. The prosecution examined a large number of witnesses including Dr. Nirmal Kumar Gupta (PW. 18) who recorded the dying declaration, Merry Kuti [Vlichael (PW.5), the staff Nurse who was present at the time of recording the dying declaration. After the conclusion of the trial, the appellant was convicted under Section 302 IPC and sentenced as mentioned hereinabove, though, other coaccused Amar Singh (son of the appellant) and Bheema (husband of the appellant) stood convicted under Section 498-A IPC and sentenced to undergo R1 for 3 years. D. The appellant as well as the other co-accused filed Criminal Appeal Nos. 23 and 17 of 1992, respectively before the Madhya Pradesh High chm. The High Court dismissed the appeal of the present appellant vide impugned judgment and order dated 6.12.2005 but allowed the appeal of the other coaccused acquitting them of the said charges. ISSUES FRANIED The whole emphasis before the courts below as well as before this Court has been that the dying declaration cannot be relied upon since the original of the same had not been filed by the prosecution and the carbon copy could not have been exhibited and taken on record. CONTENTION OF PETITIONER OShri $.K Dubey has placed much reliance on the judgment of this Court in Narain Singh & Anr. v. State of Haryana, AIR 2004 SC 1616, wherein 376the court acquitted the accused persons only on the ground that the dying declaration itself was not proved. It has been further contended that even if the carbon copy could be relied upon it may have been tampered with as is evident from many interpolations and cuttings. The defence taken by the appellant that she had gone out of her house to provide water to the buffalo has been disbelieved by the Cour. CONTENTION OF RESPONDENTS There is ample evidence on record particularly, the statement of Dr. B.L, Jain (PW.16) and RA. Khan (PW.17) to the effect that Guddi, deceased was admitted to hospital on 18.6.1984. However, her case sheet could not be deposited by the Clerk working in the hospital. Dr. Nirmal Kumar Gupta (PW.1S) supported the case of the prosecution with respect to the admission of Guddi in the hospital and further that he recorded her dying declaration wherein she had stated that when she was lying on the bed, her mother-in-law poured kerosene oil on her and set her on fire and ran away. He further deposed that Guddi appended her thumb impression on the dying declaration, He also deposed that before recording her dying declaration, Guddi was in a fit mental condition. His statement stands fully corroborated by the evidence of Merry Kutty Michael, the staff nurse, (PW.5) who was present at the time of recording her dying declaration. The testimony of both these witnesses, namely, Dr. Nirmal Kumar Gupta (PWJ 8) and Merry Kutty Michael (PW.5) remained un impeached, ‘Dr. Nirmal Kumar Gupta (PW.IS) in his cross examination explained that Ex.P.4 was the carbon copy of the original. Dr. B.L, Jain (PW.I6) and EA. Khan (PW1I7) clearly deposed that even after 377conducting an extensive search, the original dying declaration could not be traced. JUDGEMENT 12, Dr. Nirmal Kumar Gupta (PW .18), deposed that 100% burnt patient can also be in a fit mental and physical condition to give statement. Dr. V.K. Deewan (PW .14), who performed the post-mortem of deceased Guddi, deposed that she was completely burnt and the burn injuries were anti-mortem, She had died due to Asphyxia, due to bum injuries, her death was homicidal. In view thereof, both the courts below were of the considered Opinion that the appellant was responsible for causing the death of Guddi, deceased. 13. The defence taken by the appellant that she had gone out of her house to provide water to the buffalo has been disbelieved by the Court. As the incident occurred in the house of the appellant, and she was present therein at the relevant time, she could have furnished the explanation as to how and under what circumstances Guddi died. The matter was within her special knowledge, 14. In View of the above, the appeal lacks merit and is accordingly dismissed. RATIO DECIDENDI The secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to 378establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission, In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. RESEARCHERS ANALYSIS The court herein was mainly concerned with the evidentiary value of the secondary evidence, i.e. the carbon cOpy of the dying declaration given by the deceased to the treating doctor in front of nurse. The P.W. deposed before the trial court that the deceased appended her thumb impression on the dying declaration, The court was of the opinion that as the original copy of dying declaration is not traceable, and the dying declaration has not been contradicted by the Appellants, there was no reason for disbelieving the same. As the dying declaration remained uncontroverted, it was held to be valid in View of the Indian Evidence Act. Further, the court relied upon several landmark judgements which were discussing about the uniqueness of the fingerprints that even if the finger gets burnt, ridges and prints of fingers remain intact. 3795.1.16 BISSESWAR PODDAR VERSUS NABADWIP CHANDRA PODDAR AND ANR.“” COURT: THE HIGH COURT OF CALCUTTA FACTS IN BRIEF The case of the plaintiff appellant is that the defendant No. 1 Nabadwip Chandra Poddar was the owner of a piece of land containing an area of 3 cottahs 3 chittacks and 30 square feet being the northern portion of Plot No. 44 of C. I. T. Scheme No. 44-B formed out of the old premises No. 1, Grey Street, Calcutta, On or about the 18th November, 1949 the plaintiff ent and advanced to the defendant No. 1 solely for the purpose of the latter‘s business a sum of Rs. 13.000/repayable on demand with interest at 6 per cent per annum and as security for the said loan the defendant No. 1 deposited with the plaintiff at Calcutta the title deeds relating to the said property with intent to create security thereon. On or about the 22nd July 1951, the defendant No. 1 acknowledged in writing his liability for repayment of the said loan as also the said equitable mortgage created in favour of the plaintiff. It appears further that defendant No. 1 purported to execute a conveyance on the 17th April, 1953 in favour of the defendant No. 2 Siimati Brojo Mohini Roy Chowdhury in respect of the said mortgaged property, and consequently the defendant No. 2 has been impleaded as a party to the suit. The plaintiff claims a decree for a sum of Rs. 15,844-13-4 pies and also for a declaration of charge in respect of the property mortgaged and a decree in terms of Order 34, Rule 4 in form No. 5 or 5-A of the Code of Civil Procedure. > AIR 1961 CAL3OO, 64CWN1067, 64CWN 1 067 380ISSUES FRAMED The issues that were raised before the learned trial judge Were as follows: 1. Did the plaintiff lend and advance to the defendant No. 1. Rs. 13,000/or any oilier sum on the 18th November, 1949 as alleged in paragraph 2 of the plaint? 2. Did the defendant No. 1 deposit with the plaintiff at Calcutta within the jurisdiction aforesaid title deeds relating to the property mentioned therein with intent to create security, thereon as alleged in paragraph 2 of the plaint? 3. Did the defendant No. I acknowledge in writing any liability as alleged in paragraph 3 of the plaint? 4. Is the defendant No. 2 a bona fide purchaser for value without notice of the mortgaged property? 5, The leamed trial judge has answered the issues Nos. 1, 2 and 3 in the negative and the issue No. 4 in the affirmative. 6. The findings of the learned trial judge have been challenged before us. CONTENTION OF PETITIONER Counsel for the appellant relied on Section 73 of the Evidence Act and he has also drawn our attention to several cases to show that it is permissible for the Court to compare disputed signatures with the genuine signatures and to draw its own conclusions there from, even though unaided by evidence of the experts CONTENTION OF RESPONDENTS The case of the defendant No. 1 Nabadwip Chandra Poddar is that this defendant and the plaintiff were known to each other for a long time and they jointly purchased the entire plot No. 44 of C. I. T. Scheme No. 38144(B), In the matter of the said purchase the defendant entrusted the plaintiff with looking after the interest of this defendant and to get the conveyance in respect of the said premises registered in favour of this defendant and to mutate the name of this defendant in the Calcutta Collector ate, It is alleged that pursuant to this arrangement the plaintiff on behalf of the defendant got the conveyance registered in favour of the defendant and got the name of this defendant substituted in the Calcutta Collector ate .and further got hold of the said conveyance from the Registration Office but did not return the same to the defendant in spite of requests and represented that the same was lost The factum of the loan and the equitable mortgage is disputed in the Written Statement and it is also denied that on the 22nd July 1951 or on any other date the defendant had made any acknowledgment in writing for repayment of the said loan or had acknowledged the said equitable mortgage. It is also stated in the written statement that the letter dated the 22nd July 1951 does not bear the signature of this defendant. As regards the defence set up by the defendant No. 2 it is to be pointed out that the evidence of Mahendra kumar Roy Chowdhury the husband of the defendant No. 2, as contained in answer to question 8 to the effect “L used to know the plaintiff, I had some suspicion and I approached the plaintiff and enquired of him as to whether the title deeds were with him. The plaintiff said that they were not with him,” JUDGEMENT For these reasons, we think that this appeal should be allowed, the judgment and decree of the learned trial Judge should he set aside, and there will be the usual preliminary mortgage decree for accounts in 382favour of the plaintiff. The respondents will pay the appellant the costs of this appeal. RATIO DECIDENDI No legal bar to Judge using his own eyes to compare disputed signature with admitted signatures even without aid of any evidence of any handwriting expert. It is the ludge's duty to express his Opinion on every disputed question before him, including the question of disputed Signature. In giving that opinion therefore he does not give evidence as an expert witness but discharges his legal duty to decide a depute by expressing that opinion. The evidence of the expert is really evidence only in name because it is not the evidence of a fact but the evidence of an opinion, RESEARCHER'S ANALYSIS In this case, there was a dispute related to land/property. The Respondent is alleged to have executed the conveyance to another party for consideration whereas, prior to that the same property was mortgaged to the Petitioner. Here, in this case, the substantial question of law that, whether a court is empowered to compare signature on record or not was decided, The appellate court, having considered the relevant provisions of the Evidence Act, came to conclusion that the there is no such bar for the courts to compare such signatures in case where they are disputed. 3835.117 BYRRAJU RAMALINGA RAJU, S/O B.SATYANARAYANA RAJU CS. THE STATE CBI, REP. BY CHIEF INVESTIGATING OFFICER” COURT: IN THE HIGH COURT OF ANDHRA PRADESH FACTS IN BRIEF 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 Mis. 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-l, Chairman of M/s, SCSL, Directors, Auditors and others under Sections 120-3, 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 Section 467 IPC. »° “MANUIAP/0944/2010 384ISSUES FRANIED 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 CONT ENTION OF PETITIONER It was further pleaded that the investigating agency is trying to compel theaccused 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 Mapping 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. 385CONTENTION OF RESPONDENTS 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 marco analysis test against the judgment of the Allahabad High Court in Special Leave to Appeal (Crl) No. 91/2009 on 6-2-2009. Section 167 Code of Criminal Procedure, 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 Section 53 Code of Criminal Procedure, 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 MANU/AP/OZZO/ 1977 : 1977 Cri. L]. 1797. Explanation is added to Section 53 and 53A and 54 Code of Criminal Procedure, by Act No, 25 of 2005 W.ef. 23-6-2006. Section 2th) Code of Criminal Procedure, 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 MaharashtraMANU/MH/0005/1980 : 1981 Cri.L.J. 125 held that the Magistrate can issue a direction ordering the accused to submit to medical examination as contemplated by Section 53 Code of Criminal Procedure, Section 53 does not debar the 386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 onier passed by the ‘Magistrate will amount to extending aid only to the investigation, JUDGEMENT 34, Having regard to above case law and legal and Constitutional provisions, I am of the view conducting of Polygraph test and Brain mapping (P-300) test are Constitutional as well as legal. Any hindrance to these tests, in my considered opinion will not only affect the prosecution agency's right of investigation but also interests of various victims in the country and outside affected by the alleged activities of the Petitioners/A- 1t0 A3 RATIO DECIDENDI Unless there is any prohibition either expressly or by necessary implication, either in the Indian Constitution or in LP.C or in Code of Criminal Procedure on conducting of scientific tests like Polygraph test or Brain Mapping test, this Court cannot find these two tests as unconstitutional or illegal. Brain Mapping/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 statements, 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 387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. RESEARCHER'S ANALYSIS The Court took completely a distinct View then Selvi’s case contending that tests like narcoanalysis, brain mapping, and polygraph tests are necessary under compelling circumstances like public good. In the case, the court observed the crime ratio and the modus operandi of the criminals. This case was among the high profile cases and people of India were adversely affected by this crime. In this case, Ramalinga Raju, founder of Satyam Software IT Company manipulated books of accounts and showed false profits and business. In those days market share price was booming but unfortunately, when scam was unfurled by the investigating agency, suddenly, its market price started falling. This was a major setback for the investors/traders. Therefore, Hon’ble High Court observed that ‘public good’ is of prime importance and when there is no express bar to the conducting of narcoanalysis, brain mapping and polygraph test, it cannot be believed that they are unconstitutional and arbitrary. 5.2 AN ANALYSIS OF JUDICIAL RESPONSE AND LEGISLATIONS REGARDING FORENSIC SCIENCE TESTS In case of Vasu V Santha 1975°"'(Kerala) the court has laid down certain guidelines regarding DNA tests and their admissibility to prove > Vasu Vs, Santha(1975) Kerala Times 533 388percentage. In this case the court laid down that in India, courts can not order blood test as matter of course, there must be strong prima facie case must be establish to dispel the presumption arising under Sec 112 of the Indian Evidence Act. In this case the court stated that no one can be compelled to give blood samples for analysis, blood grouping test is useful test to determine question regarding disputed paternity. It can be relied upon as a circumstantial evidence. In this case the emphesis has been laid down that no person can be compelled to give samples of blood for analysis against his or her will. Tandoor Murder case *is the first criminal case in India solved with the help of forensic, In this case shushil Sharma murdered his wife at home by firing three bullets in to his wife’s body Naina Sahani. He killed his wife believing that she has love affair with her class mate and fellow government worker Matloob Karim. After murdering, Sharma tried to burn the body into Tandoor at hotel Bagiya. The police recovered the gun of Sharma and blood stained clothes and sent them to Lodhi Road Forensic Laboratory, DNA samples were obtained of Sahani’s parents and Jashwant Kaur and sent it to the Hydrabad Forensic lab for DNA test. The Lab report,” blood sample preserved by the doctor while conducting the post morterm and the blood stains on two leads recovered from skull and neck of the body of deseased Naina are of B group. Confirming the body was that of Shalini, DNA report said,"The test prove beyond reasonable doubt that the charred body is that of Naina Sahani who is biological offspring of Harbhajansinh and Jashwant Kaur” a In case of Sidhartha Vashist v. State *” it was held by the court that the interrelationship between the ‘right against self-incrimination and the % 1996 Cri LI 3944 > AIR 1961 SC 1808, 389‘right to fair trial‘ has been recognised in most jurisdictions as well as international human rights instruments. The guarantee of ‘presumption of innocence’ bears a direct link to ‘right against self-incrimination’ since compelling the accused person to give evidence would place the burden of proving innocence on the accused instead of requiring the prosecution to prove guilt. Thus the right to refusal to answer such questions that may incriminate a person is a procedural safeguard which has gradually evolved in common law and bears a close relation to right to fair trial. ‘When the question arise that when a person can may claim the protection against self-incrimination under Article 20(3) of the Indian Constitution In the case of State of Bombay y. Kathi kalu Oghad’", the Hon'ble Supreme Court observed that conducting the Polygraph by the police without the consent of accused person is clear violation of article 20(3) of the Indian Constitution, The right against forced self-incrimination is enshrined in Article 20(3) of the Indian Constitution as well as in the Criminal Procedure Code. In this case the Bombay High Court had to decide whether compelling the accused person to undergo this test would violate his right to silence and compel him to provide evidence against himself. In this case Palshikar j. held that the right against self- incrimination applies only to court proceeding and not to police interrogation. In case of M.P. Sharma v. Satish Chandra *"*, the Supreme Court has measured the principle underlying Article 20 (3) of the Indian Constitution, which says that no person accused of any offence shall be compelled to be a witness against himself. In this case it was contented before the court that that guarantee under Article 20(3) of the 38 AIR 1954 SC 300. 8 AIR 2010 SC 2352, 390Constitution against testimonial compulsion is confined only to oral evidence of a person standing his trial for an offence when he is called to the witness stand. The Supreme Court has said by rejecting this contention that there is no reason to confine the content of the Constitution guarantee to its barely literal import, and therefore, to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound. After saying this, the Supreme Court has made the following observation:“To be a witness is nothing more than to furnish evidence and such evidence can be furnished through the lips or by p reduction of a thing or of a document or in other modes”. These observation clear shows that a person can be a witness and can provide evidence against hiself by different varieties of modes. One method would be to appear for medical examination and, thus, to enable the prosecution to some evidence against him, In Ram Jawayya Kupar’s case’ it was held by the court that in the absence of any law, any infringement in fundamental right must be struck down as unconstitutional Lie detection test comes under the general power of investigation (section 160-167, Cr.P.C) But it must be realized that it is a choice of the person to allow himself/herself to be put to Polygraph test or not and it should not be left to the discretion of police. Except it is allowed by the law it must be seen as illegal and unconstitutional. But if this test is conducted by the investigating authority, it must be conducted with the free consent of the person, Free consent means that it is chosen one and is not given under coercive circumstances for example if a person says that “I wish to take a Lie Detector test because i wish to clear my name” it shows that he wants to undergo Polygraph test but it is still to be shown that whether this SCR 225 391voluntariness under coercive circumstances or not. If a police officer told to a person “take a Lie Detector test and we will let you go”, it shows that the police officer has linked up the freedom to go with the Lie Detector test and as such it cannot be held voluntary. These kinds of statement are held to be self-incriminatory.If a person has committed a heinous crime and he is lying or his act is against the security of Country, such person cannot take the benefit of right against the self-incrimination under the Article 20(3) of the Indian Constitution. It means that under such circumstances, this test may be conducted by the investigating agency to find out the truth. In case of Nandini Sathpathi y P.L. Dani *'’, the former Chief Minister of Orissa, has made complaint that she was being prosecuted for her refusal to answer police question about a corruption case lodged against her. She said that she cannot compelled to give answer of the question asked by the police officer as she has right against self-incrimination under Article 20(3) of Indian Constitution and she has also been protected under section 161(2) of Cr.P.C. In such circumstances it depend upon the nature corruption .if the lady has committed simple mistake or not a heavy corruption then its ok otherwi the Lie Detector test. There must be Article 20(3) but there is loss in using Lie Detector test depending upon the gravity of facts of the cases. she may compel to undergo In Ramchandra Reddy v. State of Maharashtra’, it was held by the court that “The Lie Detector test is an examination which is conducted by various probe attached to the body of the person who is interrogated by the Expert. In this test the heart rate, the skin conductance is measured. The underlying theory of this test is that when people lie they become STAIR 1978 $C 1025 >" 2008 (1) CCR 335 (DB) 392nervous. The heart beat increases, blood pressure goes up, breathing rhythm changes, perspiration increases, ete. A baseline for this physiological characteristic is established by asking the subject questions whose answers investigators know. Deviation from the baseline for truthfulness is taken as a sign of lie, Consequently, there is no direct incursion 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 this 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 required to be tendered as evidence if and when the occasion arise. In the case of Seshachalam encounter incident the Indian express newspaper Hyderabad on 25" August 2015 has reported that the bench comprising acting chief justice Dilip B. Bhosale and justice S.V.Bhatt was dealing with petitions filed by chilaka Chandra shekhar of the civil liberties committee and others seeking to register a case under 302 of IPC(murder against police personnel involved in the encounter in which 20 alleged red sanders smugglers from Tamilnadu were killed on April 7 2015 at Seshachalam hill ranges in chittor district, In this case petitioner expressed their lack of faith in the ongoing special investigation team and was secking a CBI probe into the incident. Special Government pleader of A.P. Krishna prakash said that they have furnished to the court the names of 41 names of policemen who participated in the encounter and SIT has already recorded their statements. The government counsel submitted that in view of the 393allegations by petitioner suspecting the role of the state government in the encounter; it was not possible for the SIT to probe into the aspects. In this case on referring to the status report submitted before the court, the government counsel said they have placed all the details in the report, including the statements of three witnesses which are claimed to be crucial in the case. Besides, the weapons which are used in the encounter were also sent for the ballistic test and report was awaited and the Hyderabad high court told forensic lab to speed up the Ballistic Report on weapons. In D.K. Basu vy. State of West Bengal’”, the Hon'ble Supreme Court has emphasized on the importance of the preventing the cruel, inhuman, degrading treatment while a person is taken into custody. In the present context involuntary and forceful administration of any of the three scientific techniques like Narco-Analysis test, Polygraph test and Brain Mapping in a forensic laboratory or in a hospital, physically confining the subject will fulfill the requirement of custodial environment and thus will attract the provision under Article 20(3) and Article 21 of the Constitution. This is applicable not only for the accused, suspect or witness but also for the investigation authorities who questioned in the process of investigation without being brought in the record as witness. It is clear that each of the three scientific techniques causes the subject to lose his control over his responses. It is clear from the language of the Article 20(3) and Article 21 of the Constitution that the involuntary administration of the above three scientific techniques will amount to cruel, inhuman and degrading treatment in the context of Article 21°” © AIR 1997 SC 610 » supra 1, 110. 394In the case of Jitubhai Patel v. State of Gujarat ™, , since the state had filed affidavit that it shall not conduct the test on the accused person without his consent, the issue of admissibility of scientific evidence becomes academic only. It may be decided at some different occasion. In this case it was held that the scientific tests such as Polygraph test, Narco-Analysis test can be conducted without taking the consent of the accused person. It should be kept in the mind that there has been a great scientific advance and there is subtle difference between old test methods of blood testing or fingerprinting and the modern era’s Polygraph and Narco-analysis test. Old tests were of the nature of physical tests, but the new scientific tests are something more than physical tests. A general opinion is being formed that these tests should be applied not only to ordinary criminal but even to VVIPs. If these scientific methods are not encouraged then use of third degree methods would be encouraged tests The principle of protection from self-incriminating evidence is founded on the presumption of innocence; the maxim “Nemo tenetur seipsum prodere” which means no one is bound to be accused against himself.“As far as the Indian law regarding this is concerned, the protection against self-incrimination continues to be more or less same as in the English common law. The protection has been given to the accused person from self-incrimination in Article 20(3) of the Indian Constitution and section 161(2) of Code of Criminal Procedure. It has been given under Article 20(3) and Section 161(2) code of criminal procedure that, “No person accused of an offence shall be compelled to be a witness against himself” and “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 200s (10) SCC Sas. 395criminal charge or to a penalty or forfeiture” respectively. In the Polygraph test no force is used. The underlying principle of the Article is the presumption of innocence of the a sused person in every criminal prosecution, where the burden of proving the guilt squarely lies on the prosecution. According to this principle, it is the duty of prosecution to discover fa and produce evidence to prove the guilt before the court. The natural inference would be that extracting information of facts from the accused person through Lie Detector devices would hit the principle of self-incrimination, provided under Article 20(3).°* The idea behind the protection against self incrimination is to support a free situation in which the accused can be certain to furnish evidence in courts and be of significant aid in elucidating truth in a case, with reference to material within their awareness and in their possession. Anything caused, by any kind of threat or inducement by a person directed towards the accused or likely to be accused of any offence, which causes him to act involuntarily and further the case against himself in any prosecution against him or which results or is likely to result in the incrimination of that person qua any offence, is violative of the fundamental right guaranteed under clause (3) of Article 20 of the Constitution of India. ‘Involuntary’ is defined as an admission, especially by an individual who has been accused of a crime that is not freely offered but rather is precipitated by a threat, fear, torture, or a promise. ** The phrase ‘compelled testimony’ is read as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, _ tiring interrogative prolixity, overbearing and intimidator methods and the like. %2 Noormohmed Jamalbhai Latiwala v. State of Gujarat MANU/GI/O131/2004. * Wigmore on evidence vol iii p.no 307 2 The state of Bombay Vs. Kathi Kalu Oghad and others. 5 Nandadini satpathy Vs, P.LDani and others AIR 1978 SC 1025 396In Rojo George v. Deputy Superintendent of Police”, CBI compelled the suspect to undergo the Polygraph test and Narco-Analysis test for revealing the truth, The suspect raised the plea that the proposed Narco- analysis test is extremely problematic test which was conducted after administering sodium pentathol due to which the central nervous system affects the heart rate slow and blood pressure became low. It was further stated that it is very difficult to determine the correct dosage of the drug to be administered on a subject since the same varies according to the age, sex, physical constitution and also mental attitude and will power. It was further stated that a wrong dose could send a subject into coma or even cause death. Further the petitioner apprehended that if he was subjected to Narco-analysis at this young age of 24, it would have far reaching consequences on both his physical and mental constitution. It was averred that he CBI attempt is to fasten the criminal’s liability in the above crime to someone, It was stated that the petitioner whole heartedly co-operated with the investigating authority while conducting the Narco- Analysis test as well as Polygraph test but the investigating authority was not able to collect any material. According the petitioner, investigating authority is bound to follow the procedure established by law even in the case of a suspect. He may not be compelled to undergo the test without an undertaking from the investigating authority that no adverse consequences would result by undergoing that test. It was also stated that subjecting a person into Narco-analysis would amount to violation of the fundamental right guaranteed to the petitioner under Article 20(3) of the Constitution of India. ‘Narco-Analysis’ is a scientific test conducted by the expert on the subject after taking all possible precaution, It is true that it has got adverse reaction also. But such adverse reaction can happen while administering any medicine prescribed by doctors practicing %* 2006(2)KLT 197 397modem medicine. So merely because there is a remote possibility of adverse reaction, use of such techniques in conducting investigation cannot be prevented. It was argued that recording of a statement of a person undergoing Narco-Analysis would amount to testimonial compulsion and the same is violative of Article 20(3) of the Constitution of India. The protection against compulsion to be a witness is limited to person accused of an offence. There is no Constitutional protection to persons other than the accused. The immunity under Article 20(3) does not extend to compulsory exhibition of the body or giving blood specimen, It is a considered view that the same principle should apply to Narco-analysis test also because it is also a scientific test conducted by a team of expert and not will amount to custodial interrogation by police. In present days, the techniques used by the criminals for commission of crime are very sophisticated and modem. The conventional method of questioning may not yield any proper result at all, That is why the scientific tests like Polygraph, Narco-Analysis Brain mapping test etc are now used in the investigation of a case. When such tests are conducted under strict supervision of the expert, it cannot be said that there is any violation of the fundamental right guaranteed to a citizen of India. In Criminal Justice System, forensic science occupies a very significant place and it is admissible in the courts Section 53(1) of Cr.P.C.(Criminal Procedure Code) provides for the medical examination of the accused by the medical practitioner at the request of the police officer According to Sce 53(1) of Criminal Procedure Code — “when a person is arrest on a charge of committing an offence under such circumstances that there are reasonable grounds for believing that an examination of the 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 the police officer snot below the rank of sub-inspector ,and for any person acting in 398good faith in his aid and under his direction to make such an examination of the person arrested as is reasonable necessary in order to ascertain of the facts which may afford such evidence ,to use such force as is reasonably necessary for that purpose” Through this Section, the forensic science gets an entry into the field of criminal investigation .The Amendment of 2005 made to Sec 53 of CrP.C, positive and protective towards the recognition of the important of scientific test which include Narco-Anal sis, Brain mapping apart from others. By virtue of sec 161(2) of CrP.C. ,the legislation has protected the citizen's rights against self-incrimination According to Sec 161(2) - “every person is bound to answer truthfully all question .put to him by a police officer ,other than the question the answer to which ,would have a tendency to expose that person to a criminal charge penalty or forfeiture.” The right to silence has been granted to the accused and no one can forcibly extract statements from the accused who has the right to keep silent during the course of investigation Section 39 Cr.P.C. also castes an onerous duty upon any person to give relevant information to the police .This Section as well as other sections relating to information to investigators has not been held unconstitutional. For an effective and efficient investigation, such a power to investigator appears to be necessary for bringing criminals to justice. It can be easily inferred from the bare reading of the aforesaid Section along with explanation that the term ‘examination ‘used in the explanation is very wide to include modem scientific techniques of investigation including DNA Profiling, Narco-Analysis test and Polygraph tests. 399Abhishek Kasliwal's case: Abhishek kasliwal a son of a leading Mubai industrialist Ambuj kasliwal owner of shri ram mills was the accused of raping a 52 year old women in his car in the mill compound. The victim lodge a complaint and the accused charged with the section 325/376, IPC as he had allegedly raped the complainant four times and badly assaulted her resulting in facture of her right hand and also serious injuries to her. The medical examination of the victim confirmed the sexual assault and forced rape. On 19-3-2006 brain mapping and polygraph tests were conducted on the accused at central forensic science lab, Bangalore and tests results confirmed the prosecution case of Kasliwal. 32 electrodes were attached to his scalp and he was shown to the words and pictures associated with the crime, his brain responses were observed and recorded. This method proved 99.99%accurate, Allegation on the accused by the victim showed the confirmation and the report of CFSL, Bangalore cleared that “if the ECG helps prove it was, as one more piece in a solid array of evidence in an strong case figting a very biased scenario, then great” Film maker Madhur Bhandarkar and actress Priti jain's case was put hit man Naresh Pardeshi a former associate of Gavali, was put to narco analysis and brain mapping tests revealed that Rs.50000/- was paid by Bhandarkar to Gavali to file complain against Ms. Jain. According to police version , actress preeti jain gave Rs2.5 lakhs to Naresh Pardeshi. This allegation is also confirmed under the influence of sodium pentothal, a drug injected while conducting the narco analysis. Pardeshi told that preeti hired him for eliminating Bhandarkar who wanted to kill preeti after false accusation of rape her. The aforesid confession was recorded in presence of an anaesthetist a general physician and clinical psychologist. 400Rahul Mahajan drug abuse case the need arose to conduct a brain mapping test to investigate about the suppliers of drug , for some vital questions about the late night drug and booze party and also to know the source of cocain which was found in the body of rahul and Bibek Moitra who was brought to hospital dead. In this case the Rahul Mahajan challnged the lower court order for brain mapping on the ground that it would violate his privacy and order violates A.21 of the constitution. The lower court had rejected the rabul's objection that it would harm him and court ruled that it was a harmless test in which three types questions are put to accused and an ECG is conducted without administering any medicine, Earlier both Narco analysis and brain mapping test were requested buot later on request for narco analysis test withdrawn, In case of Mumbai serial bomb blast case in 1993 RDX was used which was smuggled from Gujarat coast to Mumbai. On 28" April 2006 one Ijju sheikh an aide of Dawood Ibrahim was arrested from Mumbai smuggled the RDX from Gujarat to Mumbai. He has given the information about Umar Miya Bukhari and his Narco analysis test and fingerprinting tests were condcted at Gandhinagar Ahemedabad 2006 serial bomb blasts in sub-urban trains of mumbai, the Anti terrorist sqard of mumbai police had sought permission for conducting lie detection, brain mapping and narco analysis tests on the arrested suspects at Banglore. It was proposed to conduct test on Kamal Ansari, the prime suspect. Terrorist attack at Indian Institute of science on December 28, 2005 a sted terrorist attack was made at Bangalore. The arrest tested suspect Abdul Rehman Alias was subjected to Narcoanalysis and brain mapping tests and he had admitted that he met the lashkar-e-toiba top brass 401including Abdul Rehman Makki, Abdul Aziz, Abu Hamza etc.He also admitted his visit to Dhaka in 2003 which was carlier denied.He also disclosed that Naveed and Naushad had conducted the terrorist attack. Abdul Rehman's case aged about 31 who was arrested by Gulbarg Police and subject to polygraph and brain mapping test at forensic science laboratory banglore on 31 st 2006 for the purpose of abstracting the information about the activities movements of Lashakar-E-Toiba. Goa Gutka baronJ.M. Joshi was subjected to polygraphic test by CBI in march 2006 to ascertain his role in smuggling of gutka machine to pakistan and his links with Dawood.His brain mapping was also conducted at CFSL, Gujarat. Abu Salem's Narco analysis test has also opened up the new line and direction of I investigating agencies Naxalite Mallika was subject to Narco analysis test who was arrested in November 2005 because even after intense and sustained interrogation she didn’t reveal anything about Nexalite's activities Mumbai Police encounter specialist Daya Nayak was also taken to Bangalore for polygraph, brain mapping and narcoanalysis tests to elicit information from him. Abdul Karim Ladsab Telgi has committed a multi carore stamp paper scam in our country. About 300 brain mapping tests and also lie detection tests were conducted on him who showed his guilty of the crime. In the tests his changed brain activation patterns were recorded 4025.3. OBSERVATIONS OF JUDICIAL TREND REGARDING ADMISSIBILITY AND EVIDENTIARY VALUE OF THE FORENSIC SCIENCE TEST IN ADMINISTRATION OF JUSTICE There are some of the important points which came at different times before the judiciary in various cases and judiciary has seen it from various angles at various stages, as such there have always been very conflicting opinions and decisions of the court in this aspect.The Indian Constitution provides the right against self incrimination under Article 20 (3) of the Constitution and this privilege is granted to the accused to protect them against use of force and torture which may be employed by the investigating authorities. The accused cannot be compelled to be a witness against himself, Also the right to silence has been granted to the accused under section 161 (2) of the CrPC and that has been judicial recognised in Nandini Sathpathi v P.L. Dani?” as the Apex Court has also held that no one can forcibly extract statements from the accused he has a right to be silent during the course of the interrogation. Further, the guarantee of presumption of 2innocence bears a direct link to the right against self- incrimination. Since compelling the accused person to give evidence would place burden of proving innocence on the accused instead of requiring the prosecution to prove the guilt. But in many cases the court has given its approval to the practice of narco analysis test on the ground that it is a scientific substitute for the third degree torture methods employed by the police for extracting ST AIR 1978 SC 1025 © Siddharth Vashistv State, AIR 2010SC 2352. 403information from the accused and when in a case, hue and cry is raised by the society and the human right activists, then the investigating authorities under pressure resort to inhuman methods for getting information of the crime from the accused. Moreover the courts felt that the information received from the accused by way of narco analysis test can be used for collecting further evidence or as a corroborative evidence and in case the accused agrees to the test, the same would not be a violation of his right. In another case of Jeetu Bhai Babubhai Patel v State of Gujarat” the Supreme Court has taken the view that conducting a narco analysis test on the accused at the stage of investigation does not violate the constitutional rights guaranteed under Article 20 (3) and Article 21 of the Constitution of India. In this regard, the famous case of Ramchandra Ram Reddy v State of Maharastra®”, also known as the Fake Stamp Paper case or the Telgi Stamp Paper Fraud case needs special mention. In this case the question was that whether the subjection of six of the accused in the case to certain physical test involving bodily harm such as narco analysis, Lie Detector Test etc. violated any constitutional right, specifically those guaranteed under Article 20 (3) of the Constitution. The Bombay High Court while justifying the narco analysis test observed that, “statement which is recorded during the course of Narco Analysis will attract the bar of Article 20 (3) only if it is inculpating or incriminating the person making it whether it is so or not can be ascertained only after the test is administered and not before. In our opinion, therefore, there is no reason to prevent %¥ (2005) 10 SCC S45 ©2004 All. MR 2004, 704 Criminal Writ Petition Number 1924 of 2003 decided on March 9, 404administration of this test also because there are enough protections available under the Indian Evidence Act, 1872, Code of Criminal procedure, 1973 and the Constitution of India to prevent inclusion of any incriminating statement if one comes out after administration of test? On the b: sis of decisions given by various courts, one other point is, also considerable that whether the test can be ordered to be conducted or can be conducted by the investigating authorities even when the accused does not consent for the same. There have been variations in the view of court in this matter also. In case of Krushi c -operative urban bank case narcoanalysis test on K. vanketeswara rao was refused to carried by Forensic science laboratory at Gandhinagar, the reason is Mr. Rao refused to sign the consent from . Furthermore in this case in 2006, Supreme Court of India stayed the order of metropolitan judge to conduct narco analysis on K.Vankateshswara Rao in absence of his consent. However, on the contrary, the Gujarat High Court in Santokben Sharmabhai Jadeja v 312 State of Gujarat’ went to the extent of dismissing the requirement of obtaining the consent of the person who is subjected to narco analysis. The court justified the performing of narco analysis stating that, “when after exhausting all possible alternatives to find out the truth and nab the accused, and when it is found by the prosecuting agency that there is no further head away in the investigation and they are absolutely in dark, there is a necessity of such a test. On the basis of the revelations and or the statement recorded while conducting the narco analysis test, the prosecuting agency may have some clues > para 21 ofthe Judgment * 2008 CrLJ, 68 (Guj HO), 405which would further help, or assist the investigating agency to investigate the crime. In narco analysis test overlooking of the side effects on the health of a subject, has also been seen by the judiciary as a tool of investigation and a scientific method for extracting truth from the subject. With the advent of time by as wider interpretation of protection against self-incrimination as well a wider interpretation of section 53A provided by Amendment in Cr.P.C in 2005, it has been considered not to be violative of Criminal laws as well as Constitution of India. The question still remains whether the investigating authorities may be allowed by the court to conduct the test, which also involve great risk to the health of the subject, even when the results have been formed to be non-corroborative and sometimes inconclusive. Should the leeway be given to investigating authorities in conducting the test and the courts stand as a mute spectator? There have been several cases in which police authorities have been allowed to conduct the test with the hope that important breakthroughs would be achieved but the test have come as a cropper. Vijay Palande arrested for the murder of Delhi Businessman Arun Pikku in Lokhandwala in 2012 was subjected to narco analysis test but the test remained inconclusive.’ Besides this the narco analysis test conducted on the dentist couple Dr. Rajesh Talwar and Nupur Talwar in Aarushi Murder Case was held to be inconclusive as also the narco analysis test on Surendra Kohli the main accused sentenced now to death, was inconclusive and failed to provide any useful information.” » Sibu Thomas and Rebecca Somerwell, TNN, June 29, 2013, Source: timesofindia indiatimes. conveity/Mumbai/aow-narco-test-gave-more-misses-theny aticle show assessed on 8-10-2014 ibid 406In appeal, the Supreme Court in Smt. Selvi & others v State of Karnataka *** call upon to determine the constitutionality of the compulsory administration of the narco analysis test. The Supreme Court in this case had to deal with a batch of appeals challenging the involuntary administration of these impugned techniques. The Court had to resolve the issue, which involved preserving the balance between the concems of efficient investigation and the preservation of individual liberties. Specifically, the Supreme Court in its decision prohibited all involuntary administration of such test, holding them to be cruel, inhuman, and degrading treatment.The first issue in which the Supreme Court strongly disagreed with the decision of High Court was the question related to the degree of validity and reliability of narco analysis, brain mapping and polygraph test. The Courts stated in its decision that the studies have shown that most of the drug- induced revelations are not related to relevant facts and they are more likely to be in the nature in consequential information about the subject's private life.” The court also noted that some subjects of narco analysis can become extremely suggestible to questioning while others might concord fanciful stories.!"°Secondly, the Supreme Court rejected the various arguments given by the High Court for upholding the constitutionality of narco analysis test under Article 20 (3) of the Constitution. The Supreme Court found that forcing a subject to narco analysis and other tests like brain mapping and polygraph test itself amounted to requisite compulsion regardless of the lack of physical harm done to administer the test or the nature of answers given during the test.'"" #7 ame 2010 $C 1974, 407The court also found that the answers given during the test are not consciously and voluntarily given and since the individual does not have the ability to decide whether or not to answer the given question, the result from the test amounted to the requisite compelled testimony to violate Article 20 (3).Even if the person voluntarily agrees to undergo the test at the outset, the responses given during the test are not voluntary. The court found that the test amounted to an invasion of privacy by introducing into the subjects mental privacy denying an opportunity to choose whether to speak or remain silent and physically restraining the subject to the location of the test. The court considered it to be forcible intrusion into a person’s mental process is, is affront to human dignity and liberty, often with grave and long lasting consequence. As we can analyse from this decision of the Supreme Court, it is a welcome development and it assumes significance because this is first instance where the Apex Court of the country has declared the compulsory administration of this test as unconstitutional, However, in this case the Supreme Court also held that the results of the test cannot by itself be admitted as evidence, even if the subject has consented for the test because there is no conscious control being exercised by the subject over his responses during the course of the test. This exception does not however harmonize with the courts stated belief that information obtained even during voluntary administration of the test, is not voluntarily given. This exception could be abused as the power of the police to coerce suspects and witness into voluntarily doing or not doing a thing is well known, Thus, till a fresh look into this exception is given by the decision of courts on the matter of narco analysis test would be varied, depending 408on the interpretation given by the court to this decision, But certainly, it cannot be denied that the decision in the Selvi case is a landmark one and is likely to effect the decision further given in this issue until clear-cut legislation in this regard is not formed. It would be improper if due consideration is not given to the decision of High Courts who have ruled in favour of conducting narco analysis test and allowed the same to be carried out. It is true that in the Selvi case the Supreme Court has overnuled the decision of various High Courts and has held that the narco analysis test as unconstitutional, but the decisions of the High Court’s given in favour of conducting this test were based on the approach they had and the views they held which made them hold this test as constitutional and not violative of Article 20 (3) and Article 21 of the Constitution of India. Section 53 has been amended and 53A the Code of Criminal Procedure has been added to under the scope in particular, the constitutionality, of the narco analysis test and brain mapping as well as polygraph test has been considered by the Bombay High Court in Ramchandra Reddy v State of Maharastra*’ and Arun Gulab Gavali v State of Maharastra*”’ and Karnataka High Court in Smt. Selvi v State the Madras High Court in Dinesh Dalmia v State, the Gujarat High Court in Santokben Sharmanbhai Jadeja v State of Gujarat and in other cases by the Kerela and Andra Pradesh High Courts among others. The views of these High Court holding the conduct of narco analysis test as valid and constitutional and allowing the same have been based on various reasoning’s given by the courts in their views. Based on these reasoning’s following point emerge in favour of these tests. * 2908 Al. MR Cr.1704 2006 CLI. 2615, 409In cases where it becomes difficult and at times impossible for the investigation agency to make any headway in the investigation, these test come as an aid and are of great value since they are based on scientific methods and techniques. If the investigating agency is prevented to conduct the new scientific test then it would amount to interference in the rights of investigating agencies to investigate the crime which has been already statutorily provided to them. Statutorily, even a Magistrate is not authorized to interfere in an investigation being done by the investigation officer until the report is submitted by him. Thus these tests are very valuable in providing information necessary for collection of evidence regarding commission of crime and the offender and must be seen in that sense. Conducting the Narco Analysis and other test is the process of collection of evidence and if the Investigating officer seeks the permission of the court in this matter, it is perfectly valid. The conducting of these tests require assistance of expert doctors and section 53A of Code of Criminal Procedure deems it lawful for a registered medical practitioner to make examination of an accused when requested by a police officer. Thus, the conducting of these tests must be seen as a process of collection of evidence which is within the provision of law. It was held in case of Veenadevi Vs. The state of Bihar through the district magistrate & ors. ** , in conducting polygraph tests investigating agencies have to follow strictly guidance laid down by national human rights commission. %* 2016(2) crimes331(pat.) 410In the narco analysis test the subject does make a statement but such a statement will attract the bar of Article 20(3) only if it is incriminating the person making it. Whether the statement is incriminating or not can only be ascertained once the test is conducted. There is no reason, whatsoever to prevent the administration of this test because there are enough protections available under the Indian Evidence Act and Code of The Supreme Court has observed in State v. Dharampal, as well as in case of State of Gujarat v. Anirudh Singh that it is the statutory duty of every witness who has the knowledge of commission of the crime to assist the state in giving evidence. Thus, when a witness withholds the information regarding a crime, the conducting of a scientific test on him cannot be said to be a violation of his right to privacy and moreover this right is not an absolute right. During the past, many High courts across the country had continued to uphold the use of such test. The Supreme Courts analysis in this case aptly demonstrates that how those decisions strain legal reasoning and relying on the scientific nature of narco analysis test. Despite the fact that scientific evidence had long discredited the test purported scientific validity, On the above analysis we find that there is no constant similarity in the views of courts regarding validity and admissibility, as also of permissions allowing conducting of narco analysis test. However, now the Indian Judiciary has recognized the nature of narco analysis test, brain mapping, and polygraph test in its detailed judgement in one of the leading cases that of Shrimati Selvi and Others v State of Karnataka this being one of the most important cases concerning narco Analysis.It is generally felt that no law in India expressly authorizes the use of narco analysis by police. However, in Shrimati Selvi and others v State while granting the permission of narco analysis test, the Karnataka High court, 4locating the power of police to conduct Narco Analysis test under section 53 of the Code of Criminal procedure, 1973. Therefore, with an intention to remove that lacuna, this new provision was incorporated in the New Code of Criminal Procedure with the sole intention of facilitating effective investigation. Section 53 authorizes the investigating machinery to get an arrested person examined by a medical practitioner. Section 54 confers such a right upon the a sed himself. This examination is contemplated under certain conditions. If the nature of the offence alleged to have been committed by the accused coupled with circumstances under which it is committed affords reasonable grounds for believing that an examination of his person will afford evidence of commission of the offence, then it has been made lawful for the registered medical practitioner to act at the request of police officer not below the rank of sub-Inspector and to carry out examination of the accused person in order to ascertain facts which may afford evidence and for that purpose to use such force as some pain or discomfort is caused (in injecting the drug) such a procedure should not be permitted”. To conclude, P300 or brain mapping test, in which the map of the brain is the result, and polygraph or lie detector test, in which the result is a graph, are constitutionally valid as it is similar to the discovery of contraband after search of a person's pockets. In these tests, the person being tested is not required to make any statement. Article 20(3) of the Constitution does not hit these because there is no element of compulsion involved. As far as the Narcoanalysis is concemed, it is controversial. This is probably because in this test, the person to whom it is administered does 412make a statement and that too, under the influence of a drug. His mind is conditioned and, therefore, it may be contended that he is being compelled. Even if a truth serum test is allowed, a statement made will attract the bar of article 20(3) only if it is inculpating or incriminating the person making it. Whether it is so or not can be ascertained only after the test is administered and not before. Furthermore, such statements will be inadmissible as evidence although they can be useful for investigation. It can also be argued that such a test intoxicates the mind and can even cause coma or death in case of an overdose and, therefore, it violates the right guaranteed under article 21 of the Constitution. Therefore, as has been stated earlier, the courts should grant permission for conducting narcoanalysis only in exceptional circumstances and the test must be properly conducted in the presence of qualified experts so that it may be used against him at the trial. The Court said that there was no reason to confine the content of the constitutional guarantee to this barely literal import. To so limit it would amount to robbing the guarantee of its substantial purpose. It was also stated that materials produced before the court are neither oral nor documentary evidence but belong to the third category of material evidence, which is outside the limit of ‘testimony’ However, the self-incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of article 20(3) of the Constitution for the reason that there has been no compulsion. From this it clearly follows that if there is no use of threat or compulsion, no question of unconstitutionality arises. Prevention of crime and to punish the criminal is the duty of the state. Therefore, in certain cases, a likely suspect may be subjected to the test at least to aid the police in the investigation stage if not the prosecution at 413the trial stage, Under a properly monitored procedure established by law, the test may be allowed. After all, society's need outweighs the privilege of an individual in certain cases, The law enforcement authorities must be allowed to gamer truth from every quarter in order to discover guilt and administer justice. Though the Constitution framers may have intended to protect an accused person from the hazards of self-incrimination in the light of the English law on the subject, they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice because it is as much necessary to protect an accused person against being compelled to incriminate himself, so as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice. The researcher opines that the section 53 of the code of criminal procedure, 1973 is constitutionally valid. The researcher agrees to the view taken by the court that examination of blood, blood stains, semen, swabs in cases of sexual offence, sputum and sweat, hair samples and finger nail clippings by the use of modem and scientific techniques including DNA profiling and other tests are mere materials/samples for comparison. These articles do not prove the guilt of the accused directly so the argument of ‘self incrimination’ seems lame to such extent. However, the examination techniques like narco analysis, brain mapping lie detector and hypnosis are illegal unjustified unless accused volunteers them. CHAPTER ANALYSIS It is observed that 185" Law Commission Report it has been observed that the law of evidence is likely to undergo radical changes with the standardization of new technologies. The judge would be handicapped if 414he is unable to understand and appreciate the probative values of new standards and concepts of evidence. One of the forensic technique widely used in the crime investigation is Narco Analysis even though success rate and usage of this test is high but there are many other issues related to the truth serum test is are of major concern .One view in favor of use of such tests, argue that the narco analysis is not an extraneous procedure and does not come within the ambit of testimonial compulsion. It is also argued that Section 53(1) of Code of criminal procedure 1973 permits use of reasonable force to ascertain those facts which may afford evidence. It is also observed that the narco analysis test is far better than the third degree methods employed by our police for extraction of truth from an individual.As against the use of it the question remains unsettled as to whether such tests can be allowed to be conducted even when it has been proved that the narcotic drug inducted for the purpose of the test is harmful for the personal safety of a person and can endanger the life of the subject. It cannot be considered as a scientific test as it involves interrogation of a person in a drugged state and amounts to torture. The methodology of the test is illegal, inhuman and unethical and is a gross violation of human rights. In the light of new development in the forensic science, the home ministry, govt. of India insisted a committee under the chairmanship of Dr. Jutice V.S. Malimath to suggest reforms in criminal justice system. This committee suggested comprehensive use of forensic science in crime investigation. According to committee the DNA expert should be included in the list of experts given in sec 293(4) of Cr.P.C 1973. TS. Eliot had remarked that where there is life, we have lost in living; where there is wisdom, we have lost in knowledge; where there is knowledge, we have lost in information. It has been widely accepted that alsthere is a discriminatory line between ‘information’ and ‘knowledge’. In fact, information unlocks knowledge which further paves the way of wisdom. As such, information is not the end in itself. Use of such derived information is very useful part of imparting the justice but on the other hand the constitutional fundamental right guaranteed under 20(3) has been violated which is entrusted to the individuals. 416