Consent is mandatory for the administration of narco analysis or polygraph tests; they cannot be compelled by the accused as part of their defense.

Dated this the 11 th day of July, 2024 This Criminal Miscellaneous Case has been filed challenging Annexure.A3 order dated 27.04.2024 in Crl.M.P.No.63/2024 in S.C.No.991/2022 on the files of the Special Court for the trial of offences under the Protection of Children from Sexual Offences Act [hereinafter referred as ‘POCSO Act’], Wadakkanchery, whereby the Special Judge dismissed an application filed by the 1st accused under Section 45 of the Evidence Act , to subject PW1 to PW3 to Narco Analysis Test or Polygraph Test, to prove the defense case. The petitioner herein is the 1st accused in the above case.

2.Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused the impugned order and relevant materials available.

3.In this matter, the prosecution allegation is that, the accused who used to go to the area of the house of the victim in Puduruthi Village for selling fish on a motor cycle, with sexual intent, developed intimacy with the victim, a girl child aged 10 years, by giving fish to feed her pet cats. Then, on two different days during the period from 01.04.2022 to

10.05.2022, the accused called the victim to a place near the steps in front of the house of the victim and the road in front of the steps by offering fish to her pet cats and committed sexual assault on the victim by touching on her private part.

Thereafter, on a day in May 2022 in between 10.30 a.m. and 11.30 a.m., the accused took the victim to a secluded place on the road near her house and repeated the sexual assault against her by touching on her private part and making her to hold the penis of the accused. On this premise, the prosecution alleges commission of offences punishable under sections 354, 354A(1)(i) and (ii) of IPC, Section 8 r/w 7, 10 r/w 9(1), 10 r/w 9(m), 12 r/w 11(i) and 12 r/w 11(iv) of the POCSO Act. It is also alleged that the accused who does not belong to either Scheduled Caste or Scheduled Tribe, committed the sexual assault against the victim knowing that the victim is a member of scheduled caste and thereby committed offence punishable under sections 3(1)(w)(i) and 3(2)(va) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (hereinafter referred as ‘SC/ST (POA) Act’ for short).

4.On the above facts, the Special Judge framed charge and proceeded with trial. Then, prosecution evidence completed and after questioning the accused under Section 313 of Cr.P.C., the case was posted to adduce defense evidence. At this stage, the accused/petitioner herein filed petition under Section 45 of the Evidence Act with prayer to direct PW1 to PW3 (the defacto complainant and her parents) to undergo Narco Analysis Test or Polygraph Test to prove his innocence, contending that the allegations against him are false and family of the defacto complainant had borrowed an amount of Rs.1,50,000/- from the accused and this case was foisted against the accused to avoid repayment of the said amount.

5.The learned Special Judge as per Annexure.A3 order dismissed the application for the reasons stated in paragraph No.7 of the order and the same is as under:

“The grounds canvassed by the petitioner for subjecting PW1 to PW3 for Narco analysis or Polygraph test can only be considered as matters for his defence. The accused has no right to demand that the victim and her family should undergo a lie detection test. Moreover, it is a settled law that the information extracted through deception detection tests such as Polygraph test, Narco analysis or brain mapping cannot be used as conclusive evidence during the trial stage.

There is no request for the accused to undergo narco analysis by himself. In support of his defence the accused has already produced some documents and cited witnesses. In the above circumstances this court is of the view that the present petition is only to protect the proceedings.

Hence it is liable to be dismissed”

6.It is submitted by the learned counsel for the petitioner that the Special Judg