2019 Supreme(Ker) 996

IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, J.
Sr.Sephy, D/o Joseph – Appellant
Versus
Central Bureau Of Investigation Kochi – Respondent
Crl.M.C.Nos.8617, 8616 of 2019
Decided on : 12-12-2019

IMPORTANT POINTS:
• The use of physical means (such as shaking the suspect, sleep deprivation and enforcing uncomfortable positions for prolonged periods) during interrogation of terrorism suspects was illegal. Among the various issues raised in that case, it was also held that the “necessity” defence could be used only as a post-factum justification for past conduct and that it could not be the basis of a blanket pre-emptive permission for coercive interrogation practices in the future
• Adducing of evidence of all such witnesses, including CW-100 and CW-101 and any other proposed witnesses, which are in matters in relation to alleged disclosures said to have been made by the petitioners in relation to narco analysis tests, brain mapping tests, polygraph tests, etc. shall not be allowed to be adduced in evidence by the Special Judge concerned.
• Constitution of India mandates that the right against self-incrimination guaranteed in Art.20(3) should also be read as a component of “personal liberty” under Article 21 of the Constitution of India and also that “right to privacy” should also account for its intersection with Article 20(3).
• Free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but a human right also. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution.

Headnote:

Constitution of India- Art.21 – Indian Penal Code- Secs. 449, 302, 201 read with Sec. 34 –Criminal Procedure Code- Sec. 174 -The Evidence Act, 1872-- Sections 24, 25, 26 and 27 -The use of physical means (such as shaking the suspect, sleep deprivation and enforcing uncomfortable positions for prolonged periods) during interrogation of terrorism suspects was illegal. Among the various issues raised in that case, it was also held that the “necessity” defence could be used only as a post-factum justification for past conduct and that it could not be the basis of a blanket pre-emptive permission for coercive interrogation practices in the future-, the “due procedure” contemplated in Art.21 of the Constitution of India should be a procedure established by law, which is just fair and reasonable-It is the bounden constitutional and legal obligation of the courts to ensure that, while passing orders in this nature, the constitutionally guaranteed rights and other statutory rights of the affected persons concerned, are duly respected and treated with all sanctity.

Statement of facts:

On 27.3.1992, one Sister Abhaya, a nun, who belongs to a monastic order of the Roman Catholic community, was found dead in the well of the St. Pious Xth Convent Hostel, Kottayam, and a crime was thereupon registered as Crime No. 187/1992 of Kottayam West Police Station, in accordance with the provisions contained in Sec. 174 of the Cr.P.C- The sole petitioner in Crl.M.C.No.8617/2019 and the sole petitioner in Crl.M.C.No.8616/2019 have been initially arrayed as accused 1 and 3 among the three accused in the instant Sessions Case, S.C.No. 1114/2011 on the file of the Court of the Addl. Sessions Judge cum Special Judge (SPE/CBI), Thiruvananthapuram, (“Special Court” for short), in which the offences alleged therein are those punishable under Secs. 449, 302, 201 read with Sec. 34 of the I.P.C. The case arose out of a crime (Crime No.187/1992 of Kottayam West Police Station), which was later transferred to the respondent Central Bureau of Investigation (CBI) for further investigation and CBI reregistered said crime as Regular Case (RC No.8(S)/1993-SPE/KER. The respondent investigating agency (CBI) has filed the final report/charge sheet on 17.7.2009, which later led to the pendency of afore-captioned Sessions Case, S.C.No. 1114/2011 on the file of the abovesaid Special Sessions Court dealing with the CBI cases.

Finding of the court:

The impugned order would require interdiction. Accordingly, it is ordered that the impugned Anx.II order dated 19.10.2019 rendered by the Court of the Addl. Sessions Judge & Special Judge, CBI, Thiruvananthapuram on Crl.M.P.Nos.149 and 150 of 2019 in S.C.No.1114/2011 will stand quashed. Consequently, it is ordered that the plea made by the petitioners in those Crl.M.P.Nos.149 & 150 of 2019 in S.C.No. 1114/ 2011 will stand allowed. It is brought to the notice of this Court by the petitioners that, not only charge witnesses, CW-100 and CW-101, but also certain other witnesses have also been proposed by the respondent CBI to adduce evidence with respect to the matters in relation to narco analysis test and other tests. If that be so, it is ordered that adducing of evidence of all such witnesses, including CW-100 and CW-101 and any other proposed witnesses, which are in matters in relation to alleged disclosures said to have been made by the petitioners in relation to narco analysis tests, brain mapping tests, polygraph tests, etc. shall not be allowed to be adduced in evidence by the Special Judge concerned.

Result: Disposed of.