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IN THE HIGH COURT OF JUDICATURE AT PATNA
ASHWANI KUMAR SINGH, J.
Smt. Veena Devi - Petitioner
Versus
The State of Bihar through the District Magistrate, Begusarai & Ors. - Respondents
Cr. WJC No.246 of 2015
Decided on : 22-09-2015
(A) Constitution of India – Articles 20(3) and 21 – Criminal Procedure Code, 1973 – Sections 161, 313 and 315 – Right against self-incrimination – Right to Silence is a principle of common law – Normally, Courts or Tribunals of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect or an accused is guilty merely because he has refused to respond to questions put to him by police or by Court – It has several facets – One is that burden is on State or rather prosecution to prove that accused is guilty – Another is that an accused is presumed to be innocent till he is proved to be guilty – A third is right of accused against self-incrimination, namely, right to be silent and that he cannot be compelled to incriminate himself – Sections 161, 313 and 315 and 315 Cr.P.C. raises presumption against guilt and in favour of innocence, guarantees right of silence both at stage of investigation and at trial and also preclude any party or Court from commenting upon silence. (Paras 6 and 13)
(B) Constitution of India – Articles 20(3) and 21 – Criminal Procedure Code, 1973 – Sections 161, 313 and 315 – Right against self-incrimination – Protection of Article 20(3) becomes available to a person as soon as he is named as an accused either in an FIR instituted under Section 154 Cr.P.C. or in a complaint instituted against him in Court – Protection is also available to a person who becomes an accused, subsequently in course of investigation or in inquiry in connection with a criminal case – Protection given under Article 20(3) is in nature of privilege to be exercised by a person or accused of any offence – Accused includes a suspect or a person against whom there are some oral or circumstantial evidence pointing towards his involvement in crime – When a person is interrogated and during investigation he perceives that he is being subjected for commission of some offence or when he is treated as an accused or suspect by interrogating agency, he can claim pivilege granted to him under Article 20(3). (Para 17)
(C) Constitution of India – Articles 20(3) and 21 – Criminal Procedure Code, 1973 – Sections 161, 313 and 315 – Right against self-incrimination – Scope and ambit – Self-incrimination must mean giving information based upon personal knowledge of person giving information and cannot include merely mechanical process of producing documents in Court – Giving thumb impressions or impression of foot or palm or finger or specimens of writings or exposing body for the purpose of identification are not covered by the expression to be a witness under Article 20(3). (Para 22)
(D) Constitution of India – Articles 20(3) and 21 – Criminal Procedure Code, 1973 – Sections 161, 313 and 315 – Right against self-incrimination – Narco-Analysis, Brain Mapping, Lie Detection test and Polygraph test – Forcible intrusion into mind of accused not only violates Article 20(3) but also intrudes on privacy and liberty of an individual, violating Article 21 of Constitution – Forcing individual to such methods of investigation violates scheme of legal process – Even if a person is subjected mode of investigation of consent, result of test cannot be an admissible piece of evidence – In conducting Polygraph tests investigating agencies have to follow strictly guidelines laid down by National Human Rights Commission – On application filed on behalf of prosecution, Court ought to have issued summons to petitioner at first instance, in order to enquire as to whether petitioner was willing to undergo Polygraph test – Since even when a lie detection test without consent of an accused is not permissible in law, Court could not have issued warrant of arrest against petitioner for administering polygraph test – Impugned order set aside. (Paras 28, 37 and 38)
By the present writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner, Veena Devi seeks quashing of the order dated 6.6.2014, passed by the learned Judicial Magistrate, 1st Class, Begusarai, in Bhagwanpur P. S. Case No. 49 of 2014, whereby a warrant of arrest has been issued against the petitioner.
2. The relevant facts of case are as under:-
(a) One Narendra Thakur lodged a report with Bhagwanpur Police Station on 7.3.2014 that on 6.3.2014 at about 6 p.m., his niece Rani Kumari, aged about 8 years, had gone outside the house to play but did not return.
(b) On the basis of the aforesaid information, a missing person report was entered in the station diary of the Police Station on 7.3.2014. As the victim could not be located, the informant suspected that some unknown criminal might have kidnapped her.
(c ) Accordingly, on the basis of a written report, dated 8.3.2014, submitted by Narendra Thakur, Bhagwanpur P. S. Case No. 49 of 2014, was registered under Sections 364 and 372/34 of the Indian Penal Code (for short IPC) against unknown and investigation was taken up.
(d) In course of investigation, the petitioner was detained by the police on 10th March 2014, and was forwarded to the Court on 12th March, 2014. On the same day, the Jurisdictional Magistrate remanded her to judicial custody. The petitioner challenged the remand order dated 12th March, 2014, in revision, before the District & Sessions Judge, Begusarai on the ground that her detention by the police beyond 24 hours was violative of Section 57 of the Criminal Procedure Code (For short Cr.P.C.‘). The said revision application was ultimately heard by the learned 3rd Additional Sessions Judge, Begusarai, who allowed the same vide order, dated 26.5.2014, by declaring the remand of the petitioner to be illegal and setting aside the same.
(e) Consequent to the order, dated 26.5.2014, passed by the revisional Court, the petitioner was set at liberty by the Jurisdictional Magistrate, vide order dated 27.5.2014.
(f) While the petitioner was still in custody, the Investigating Officer of the case, completed the investigation in so far as it related to the petitioner and two of the co-accused, namely, Basanti Devi and Gayatri Devi and finding the case to be true, submitted charge-sheet on 10th May, 2014, against them for the offences under Sections 364, 372/34 IPC.
(g) After perusal of the charge-sheet and the materials available in the case-diary, the Jurisdictional Magistrate took cognizance of the offences under Sections 364, 372/34 IPC against the petitioner and two others vide order dated 28.5.2014. After taking cognizance of the offence, the Investigating Officer of the case filed an application before the Jurisdictional Magistrate, on 6.6.2014, praying therein for issuance of a warrant of arrest against the petitioner for the reason that a lie detection test of the petitioner is essential in order to recover the missing girl. It was further stated that as the petitioner was not found at her house and was absconding, the notice in this regard could not be served upon her.
(h) Taking into consideration the application of the Investigating Officer, the Jurisdictional Magistrate vide impugned order dated 6.6.2014, issued warrant of arrest against the petitioner.
3. Assailing the impugned order dated 6.6.2014, learned counsel for the petitioner submits that an accused of a case cannot be compelled to become a witness against himself. He submits that a forcible lie detection test amounts to disproportionate intrusion into personal liberty. The same would also to be contrary to the rights guaranteed to a citizen under Clause (3) of Article 20 and Article 21 of the Constitution of India. He submits that compulsory administration of such scientific test violates the right against self-incrimination. In support of his submissions, he has placed reliance on the decision of the Supreme Court in Smt. Selvi & Ors. vs. State of Karnataka [(201
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