The Allahabad High Court has rejected the petition observing that the evidentiary value of a narco analysis test has been considered threadbare and it has been recorded that revelations brought out during Narco Analysis under the influence of a particular drug cannot be taken as a conscious act or statement given by a person.
The Division Bench of Justice Rajan Roy and Justice Sanjay Kumar Pachori passed this order while hearing a petition filed by Saroj Kumar and Others.
By means of the petition the petitioners have sought the following reliefs:
“(I) issue a writ order or direction in the nature of Mandamus commanding the opposite parties to take immediate positive decision on representation dated 12.09.2022 contained as Annexure no 1 to the writ petition by which petitioners are seeking utilization of modern scientific technique of “brain mapping test” like “NARCO” or “lie detector test” upon the petitioners as well as complainant to lead the investigation in right direction and contract out the truth of case pertaining to FIR dated 04.03.2022, U/S 302, 201 IPC Police Station-Mohd Pur Khala, District Barabanki.
(II) issue a writ order or direction in the nature of mandamus commanding opposite party no -4 to obtain viscera analysis report from Forensic Scientific Laboratory Lucknow pertaining case/ FIR dated 04.03.2022, U/S 302, 201 IPC Police Station-Mohd Pur Khala, District Barabanki.
(III) issue a writ order or direction in the nature and manner which is deemed just and proper in the circumstances of the case.
(IV) allow the writ petition with costs.”
The petitioners are the accused in FIR under Sections 302, 201 IPC Police Station Mohd Pur Khala, District Barabanki. They have filed the petition seeking a writ of mandamus commanding the opposite parties to take immediate positive decision on representation dated 12.09.2022 which the petitioners have sought utilization of modern scientific technique of ‘brain mapping test’ like ‘NARCO’ or ‘lie detector test’ upon petitioners as well as complainant to lead the investigation in right direction and to extract the truth of the case.
Another relief has been sought in the nature of mandamus commanding opposite party no 4 to obtain viscera analysis report from Forensic Scientific Laboratory, Lucknow pertaining to the aforesaid case as viscera has been preserved.
On the other hand A.G.A Badrul Hasan has placed before the Court a judgment of Single Judge Bench of the Kerala High Court in the case of Louis Vs State of Kerala and others; wherein a similar request at the behest of the accused was denied on the ground that such narco analysis test etc. are not admissible as evidence and also that the accused does not have any such enforceable right.
The Court specifically asked the counsel for the petitioners as to whether such tests as are referred in the relief clause i.e narco or lie detector test or brain mapping test are admissible in evidence under the Indian Evidence Act or not, counsel for the petitioners fairly submitted that they are not admissible in evidence, however, they would help in giving direction to the investigation and to reveal the truth.
The Court noted that,
We have gone through the decision of a Coordinate Bench of the Court in the case of Madhuri Devi (supra). That was a writ petition filed by the informant seeking a writ of mandamus directing the investigating agency to take action against the accused respondents in the course of investigation of the case. In effect, the petition sought issuance of a writ directing the investigating agency to conduct proper investigation.
In the said judgment the Coordinate Bench referred to a decision of the Supreme Court in the case of Union of India and another Vs W.N Chadha. In para 92 of the judgment it has been categorically observed that the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. The Court further observed that at the same time there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances.
The Court further noted that,
The evidentiary value of a narco analysis test has been considered threadbare and it has been recorded that revelations brought out during Narco Analysis under the influence of a particular drug cannot be taken as a conscious act or statement given by a person. The possibility of the accused himself making exculpatory statements to support his defence also cannot be ruled out. There is no mechanism or the present Investigating Agency is also not equipped to assess the credibility of such revelations of the accused. The Investigating Officers also would find themselves difficult to come to a definite conclusion regarding the veracity of the revelations so made and the other evidence already collected by them.
The Court rejected the contention of the counsel for the petitioner therein that in order to buttress his statements under Section 313 CrPC, these materials collected through Narco Analysis Test can be used as corroborative piece of evidence etc as not being sustainable in law. The Court clearly held that the Narco Analysis Test or Polygraph Test is not admissible in law.
The Court held that,
We may in this context refer to the decision relied upon by the Additional Government Advocate as rendered by a Single Judge Bench of the Kerala High Court in the case of Louis Vs State of Kerala (supra) wherein the court had considered the definition of ‘evidence’ in Section 3 of the Indian Evidence Act and the definition of term ‘fact’ contained therein as also the submission of the Public Prosecutor that the said definition of fact provides that that only mental condition of which any person is conscious comes under the definition of fact.
We are also in agreement with the opinion expressed by the Kerala High Court considering the aforesaid discussions as the result of the brain mapping test or narco or lie detector test would not be admissible in evidence, therefore, we see no reason to issue any such mandamus for disposal of the petitioners/accused application for undertaking such exercise by the Investigating Officer. This of course does not mean that if the Investigating Officer on his own decides to get the said tests conducted then he cannot do so, meaning thereby that if he so decides he can always get the test conducted subject to consent of the accused.
So far as the judgment of a Coordinate Bench in the case of Ram Prasad (supra) is concerned the same does not consider or lay down the law on the subject. It is only the ratio of a judgment which is binding and not its operative portion, the Court said.
The Court proceeded to consider the other relief prayed for regarding the viscera analysis report. The Court found from the postmortem report that though the cause of death mentioned therein is due to asphyxia as a result of ante mortem drowning however to rule out poisoning viscera for chemical examination has been preserved. Therefore as far as this relief is concerned the Investigating Officer shall consider this aspect of the matter as per law.
The Court rejected the first relief and disposed of the petition as far as second relief is concerned with the aforesaid observations.