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HIGH COURT OF DELHI
Date of Decision: 03rd JULY, 2023 IN THE MATTER OF:
ASHWINI KUMAR UPADHYAY ..... Petitioner
Through: Petitioner-in-person
Through: Mr. Chetan Sharma, ASG with Mr.Anurag Ahluwalia, CGSC with
Mr. Kritagya Kumar Kait, GP, Mr. Amit Gupta, Mr. Saurabh Tripathi, Mr.Aakarsh Srivastava, Advocates for
R-1, R-2 & R-4 Mr. Santosh Kumar Tripathi, Standing Counsel for GNCTD with
Mr. Arun Panwar, Mr. Kartik Sharma, Advocates for R-3 & R-6
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. The instant Public Interest Litigation has been filed under Article 226 of the Constitution of India for a direction to the Police to subject a complainant to undergo scientific tests like Narco Analysis, Polygraphy and Brain mapping during the investigation to prove the allegation and only then record his/her statement in order to control fake cases to secure right to life, liberty, dignity and speedy justice.
2. A perusal of the Writ Petition shows that the present Writ Petition has been preferred by the Petitioner when he came across a case wherein a complaint was filed against a journalist under the SC-ST Act though the complainant and the accused did not know each other. According to the Petitioner, the journalist has been harassed and humiliated and had the complainant undergone a brainmapping test before the start of the investigation, the journalist would not have to undergo the humilation or arrest. It is stated by the Petitioner that with the growth of technology, scientific tests like Narco Analysis, Polygraphy and Brain Mapping, etc., can be used to wipe out fake cases. It is stated that such techniques are used in developed countries like USA, China, Singapore etc. but they are not being used in our country.
3. At the outset it can be said the present petition is completely misplaced. Section 154 of the Code of Criminal Procedure, 1973 (hereinafter referred to as „ the Cr.P.C‟) provides as to how an FIR is to be recorded. Section 154 of the Cr.P.C also lays down the procedure for recording an FIR in case the information is given by a woman against whom an offence under Section 326A, 326B, 354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D, 376E or 509 of the Indian Penal Code, 1860 is alleged to have been committed or attempted. After a complaint is reduced to writing in the format as prescribed under Section 154 of the Cr.P.C, the police starts investigating the offence. The Cr.P.C also lays down as to how the investigation has to be conducted and how the statements of witnesses, including the complainant, etc. are to be recorded.
4. It is well settled that courts do not interfere with the investigation as investigation is purely the domain of investigating agency. The prayer which is sought for by the Petitioner in the present PIL, if accepted, can result in further humiliation of the complainant, more so if the complainant is a lady for whom special protection/provisions have been made in the Cr.P.C. It is for the investigating agencies to uncover the truth.
5. The issue regarding the reliability of brain mapping test, polygraph test, Narco analysis, lie detector tests, etc. is still under lot of debate and a writ of mandamus can certainly not be passed by the Courts to the authorities to conduct such tests in order to ascertain the veracity of the complainant.
6. In Selvi v. State of Karnataka, (2010) 7 SCC 263, the Apex Court has held as under:
and in an attempt to rebut the same, the prosecution had called on the psychiatrist. On the basis of the results of the clinical examination, the psychiatrist offered his professional opinion that the victim had been telling the truth when she had repeated the charges that were previously made to the police. This testimony was admitted as a prior consistent statement to rehabilitate the witness but not considered as substantive evidence. Furthermore, a tape recording of the psychiatrist's interview with the girl, while she was under narcosis, was also considered as evidence. The jury went on to record a finding of guilt. When the case was brought in appeal before the Ninth Circuit Court, the conviction was reversed on the ground that the defendant had been denied the “due process of law”. It was held that before a prior consistent statement made under the influence of a sodium pentothal injection could be admitted as evidence, it should be scientifically established that the test is absolutely accurate and reliable in all cases. Although the value of the test in psychiatric examinations was recognised, it was pointed out that the reliability of sodium pentothal tests had not been sufficiently established to warrant admission of its results in evidence. It was stated that “Scientific tests reveal that people thus prompted to speak freely do not always tell the truth.” [Cited from Andre A. Moenssens [52(4) The Journal of Criminal Law, Criminology and Police Science 453- 458 (November-December 1961)] (1961) at pp. 455- 56.]” (emphasis supplied)
7. Similarly, in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294, the Apex Court has observed as under:
8. If, after investigation, the police finds that no case is made out against the accused, the Police can file a closure report under Section 174 Cr.P.C. The Constitution provides for special provisions for an accused. In case of a false complaint there are other remedies which are available in law. In view of the above, a complainant definitely cannot be forced to go through deception detection tests such as brain mapping test, polygraph test, narco analysis, lie detector tests, etc. to ascertain the veracity of the complaint before the investigation starts against the accused.
9. The Petitioner has also handed over the 277th Report of the Law Commission. A perusal of the said Report shows that even the Law Commission has not recommended that a complainant must undergo scientific tests like Narco Analysis, Polygraphy, Brain mapping, etc. to ascertain the veracity of the complaint. The Report only states that there has to be a more effective mechanism and special legal provisions to adequately compensate an accused who is a victim of wrongful prosecution. This certainly does not mean that a victim or a complainant must be forced to undergo scientific tests like Narco Analysis, Polygraphy and Brain mapping and satisfy the police that the complaint is genuine before the investigation starts.
10. With these observations, the petition is dismissed, along with the pending application(s), if any.
SATISH CHANDRA SHARMA, CJ SUBRAMONIUM PRASAD, J JULY 03, 2023