Point of law: Narco Analysis Tes -Even if the petitioner voluntarily submits for subjecting himself for Narco Analysis Test, there is no guarantee that the statements would be voluntary. So even if the court permits the petitioner to undergo a Narco Analysis test, it has no acceptability in the eye of law.

ORDER :

1. The only question for determination in this Crl.M.C is whether the petitioner/accused has got any right to seek himself to be subjected to Narco Analysis Test. The impugned order has been passed by the Fast Tract Special Judge, Thrissur in S.C.No.160/2015 in a petition filed under Section 45 of the Indian Evidence Act, 1872 and Section 293 of the Code of Criminal Procedure, 1973 to subject the accused to Narco Analysis Test.

2. Heard both sides. (The victim was subsequently got impleaded as additional second respondent).

3. According to the learned counsel for the petitioner/accused (hereinafter referred as 'the petitioner'), petitioner has been charged under Section 376(2)(i) of the Indian Penal Code, 1860 (in short IPC) and Section 6 r/w 5 (m) of the Protection of Children from Sexual Offences Act, 2012 (PoCSO Act). The impugned order would show that the prosecution evidence is over and accused was also questioned under Section 313 of the Code of Criminal Procedure,1973 (in short Code) and the case stands posted for defence evidence. It is at that juncture the petitioner filed the petition which resulted in the impugned order.

4. Section 233 of the Code provides for entering upon defence which is relevant in this context to be extracted and it reads as follows :

Entering upon defence

(1) Where the accused is not acquitted under Section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.

(2) If the accused puts in any written statement, the Judge shall file it with the record.

(3) If the accused applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.

5. The above provision would make it clear that as per sub section (1)of section.233 the accused upon his defence can adduce any evidence in support of his defence. Sub-section (2) enables the accused to file any written statement and if so filed the Court shall file it with the record and sub-section (3) enables the accused to seek for issue of any process for compelling the attendance of any witness or production of any document or thing with a rider that if the Judge considers for specific reasons that application should be refused on the ground that it has been made for the purpose of vexation or delay or for defeating the ends of justice etc.., the court can refuse to entertain the same.

6. Section 3 of the Evidence Act which deals with Interpretation clause describes evidence as follows :-

“Interpretation clause – In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context.”

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“Evidence”.— “Evidence” means and includes—

(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry, such statements are called oral evidence;

(2) all documents including electronic records produced for the inspection of the Court], such documents are called documentary evidence.

7. Sub clause (1) provides that all statements which the Court permits or requires to be made before it by witness in relation to matters of fact under inquiry and that evidence is called as oral evidence. Sub-clause (2) provides that all documents including electronic records produced for the inspection of the Court and such documents are called documentary evidence. So these are the forms of evidence which the petitioner could adduce as per sub-section (1) of Section 233. The learned Public Prosecutor brought my attention in this context the 'Interpretation of fact' in the Evidence Act which reads as follows :-

“Fact” - “Fact” means and includes –

(1) any thi