SELVI Vs. STATE

JUDGEMENT

(1.) THE petitioners-accused 1 to 3, who have been directed to appear before the Investigating officer and co-operate in the investigation for undergoing Narco-analysis Test in Victoria hospital at Bangalore, have challenged the impugned order dated 26-6-2004 passed by the Court of VI Additional Chief Metropolitan Magistrate, Bangalore.

(2.) FACTS in brief, which gave rise to the present matter, are: the complainant namely, Kavita, is the daughter of accused 1 and 2. She and deceased shivakumar (who belonged to different caste from that of Kavita) fell in love and married against the wishes of accused 1 and 2. According to the complainant, on 10-4-2004, at about 8. 00 p. m. , when she and her deceased husband were returning near L. L. T. Guest House after having had eatables in a bakery situated in front of L. L. T. College, a maruthi van bearing No. KA-04-MA3167 came and four persons kidnapped her husband in that van. So, she lodged a complaint, registered at Crime No. 219 of 2004 for the offence under Section 365 of the Indian penal Code at Koramangala Police Station. Thereafter, a dead body was found by one Nagendra kumar on 11-4-2004 by the side of Hindustan Granite Factory compound at Attibele. So, he filed a complaint at Attibele Police Station. That was registered at Crime No. 58 of 2004 for the offence under Section 302 of the Indian Penal Code against unknown persons on 11-4-2004. During investigation, said dead body was found to be the dead body of deceased Shivakumar and as such, case papers of said crime were transferred to Koramangala Police Station on the ground of jurisdiction and further investigation was taken over by Koramangala Police in Crime No. 219 of 2004. During investigation, witnesses examined including the parents of deceased besides the complainant Kavita, wife of deceased Shivakumar, suspected the hands of accused 1 and 2 (who are parents of Kavita) along with others in the murder of Shivakumar. So, apprehending their arrest by Police, accused 1 to 3 moved the jurisdictional Sessions Court (Bangalore Rural district, Bangalore) for anticipatory bail under Section 438 of the Criminal Procedure Code and obtained the same with certain conditions. Since the entire case of prosecution (regarding murder of deceased Shivakumar) depends only on circumstantial evidence, the prosecution sought permission from the Court to conduct polygraphy and Brain Mapping Tests on accused 1 to 3. That was allowed and those tests were conducted. In the report of said tests, in conclusion, it is noted as under:

(3.) IT was vehemently argued for the accused that the learned Magistrate committed a serious and grave error in giving directions to the accused to appear for undergoing Narco-analysis Test as the same violate their fundamental right guaranteed under Article 20 (3) of the Constitution. According to him, the order containing the directions given is nothing but compelling the accused to give evidence against themselves, which is prohibited under said Article 20 (3) of the constitution. It was further submitted that the accused cannot waive their fundamental right as held by the Supreme Court in the case of Behram Khurshid Pesikaka v. State of Bombay, AIR1955 SC 123 , (1955 )57 BOMLR575 , 1955 Crilj215 , [1955 ]1 scr613 and also in the case of Basheshar Nath v. Commissioner of Income-tax, Delhi and rajasthan and Anr. , AIR1959 SC 149 , [1959 ]35 ITR190 (SC ), 1959 supp (1 )SCC528 , [1959 ]supp1 SCR528 , and, even if waived, they cannot be compelled to give statement against themselves in view of the said constitutional mandate and consequently, the impugned order requires to be quashed under Section 482 of the Criminal Procedure Code. On the other hand, the learned State Public Prosecutor has supported the impugned order. Perused the records carefully.