Bharat Lal Chandrakar v. State Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition (Criminal) No. 217 of 2017 • Bharat Lal Chandrakar S/o Shri Gopal Ram Chandrakar, aged about 44 years, R/o Ward No. 12, Pitiyajhar, Mahasamund, Police Station & District- Mahasamund (C.G.). ---- Petitioner

Versus

1. State of Chhattisgarh, Through: Secretary, Home Department, Mahanadi Bhawan, Mantralaya, Capital Complex, Naya Raipur, District Raipur (C.G.).

2. Director General of Police, Raipur, District Raipur (C.G.).

3. Superintendent of Police, Mahasamund, District- Mahasamund (C.G.).

4. Sub- Divisional Officer (Police) Mahasamund, District Mahasamund (C.G.).

5. Station House Officer, Police Station- Mahasamund, DistrictMahasamund (C.G.).

6. Union of India, through- Secretary, Ministry of Personnel, Public Grievances and Pension (Department of Personnel and Training) North Block, New Delhi, PIN-110001.

7. Central Bureau of Investigation, Through Superintendent of Police, Bhilai, District Durg (C.G.).

8. Lokesh Chandrakar S/o Prahlad Chandrakar, aged about 29 years, R/o Village- Umarda, Post, Police Station and DistrictMahasamund (C.G.). ---- Respondents For Petitioner : Mr. Manoj Paranjpe, Advocate and Mr. Bhavat Sharma, Advocate.

For State/Respondent Nos. 1 To 5 : Mr. Gurudev I. Sharan, G. A. For Respondent Nos. 6 & 7 : Mr. Ramakant Mishra, Asst. S. G.

For Respondent No. 8 : Mr. Prafull N. Bharat, Sr. Advocate alongwith Mr. Mayank Chandrakar,

Advocate Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 16.07.2021 1.

The petitioner has filed this writ petition under Article 226 of the Constitution being aggrieved by inaction on the part of the respondent authorities, whereby even after lapse of more than two years, respondent authorities have failed to complete the investigation.

2.

The facts projected by the petitioner in brief is that he has filed the present petition mainly contended that even after more than two years Respondent/authority have failed to complete investigation and are not able to find out the real culprit of murder of his brother namely- Lalit Chandrakar @ Pappur, sister in law namely- Shali Chandrakar and two nieces namely Ishika and Gitanjali Chandrakar.

3.

Learned counsel for the petitioner would submit that it is a clear case of murder by one Lokesh Chandrakar but despite clear material on record no action has been taken.

4.

On above factual matrix he has filed the present petition and prayed for following relief:

"10.1 That, the Hon'ble Court may kindly be pleased to issue a writ/writs, direction/directions, order/orders and it is therefore most humbly prayed that this Hon'ble Court may kindly be pleased to allow the instant petition and the mater may kindly behanded over to the respondent No. 7 i.e. CBI, for fair and impartial investigation of the matter, in the interest of justice. 10.2. That, this Hon'ble Court may kindly be pleased to issue a

writ/writs, direction/directions, order/orders to the respondents and call for the entire record pertaining to the present case. 10.3 That, this Hon'ble Court may kindly be pleased to grant any other relief(s), which is deemed fit and proper in the aforesaid facts and circumstances of the case." 5.

This Court issued notice to the State as well as to the private respondent. Private respondent No. 8 has filed his return mainly contending that it was a clear case of accident not a case of murder therefore, the prayer sought by the petitioner can not be considered by this Court and prayed for dismissal of the petition. 6.

The State has filed their return and they have also filed the document i.e. R/1 dated 31.05.2017.In pursuance of the order dated 31.05.2017, one S.I.T. has been constituted but the investigation has not been completed. It has been contended by the learned counsel for the State that during pendency of the present writ petition, the State has decided to go for Narco test of respondent No. 8 and for that they have moved an application before Chief Judicial Magistrate First Class, Mahasamund. They have submitted various applications and seek permission from the CJM for permission to go for Narco test of respondent No. 8 these proceedings are pending since 03.05.2019. The Thana incharg City Kotwali, Mahasamund vide notice dated 16.01.2020 has got permission from respondent No. 8 sought, his willing to go for Narco test and various notices issued to him on 16.01.2020, 06.04.21 and thereafter finally as reflected in the memo dated 06.04.2021, written to the Chief Judicial Magistrate First Class, wherein it has been mentioned that respondent No. 8

has consent for Narco test. Polygraph examination and brain electronic activation profile which are in the inventory administration of certain scientific technics for the purposes in proving investigation efforts in criminal cases. Learned counsel for the respondent No. 8 would submit that Narco and other type of tests have not been given favoured by the Hon'ble Supreme Court in the matter of Selvi and Others Vs. State of Karnataka reported in 2010 (7) SCC 263.

7.

Learned counsel for the respondent No. 8 would draw attention of this Court in paragraph 250, 262 and 264 and 265 of the above cited judgment which is reads as under: "250 Another factor that merits attention is the role of the experts who administer these tests. While the consideration of expert opinion testimony has become a mainstay in our Criminal justice system with the advancement of fields such as forensic toxicology, questions have been raised about the credibility of experts who are involved in administering the impugned techntifict. It is a widely accepted principle for evaluating the validity of any scientific technique that it should have been subjected to rigorous independent studies and peer review. This is so because the persons who are involved in the invention and development of certain techniques are perceived to have an interest in their promotion. Hence, it is quite likely that Such persons may give unduly favourable responses about the reliability of the techniques in question.

262. In our considered opinion, the compulsory administration of the impugned techniques violates the "right against self-incrimination". This is because the underlying rationale of the said right is to ensure the reliability as well as voluntariness of statements that are admitted as evidence. This Court has recognised that the protective scope of Article 20(3) extends to the investigative stage in criminal cases and when read with Section 161 (2) of the Code of Criminal Procedure, 1973 it protects accused persons, suspects as well as witnesses who are examined during an investigation. The test results cannot be admitted

in evidence if they have been obtained through the use of compulsion. Article 20(3) protects an individual's choice between speaking and remaining silent, irrespective of whether the subsequent testimony proves to be inculpatory or exculpatory. Article 20(3) aims to prevent the forcible "conveyance of personal knowledge that is relevant to the facts in issue". The results obtained from each of the impugned tests bear a "testimonial" character and they cannot be categorized as material evidence.

264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain sefe-guards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872.

265. The national Human Rights Commission had published Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an Accused in 2000. These Guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the "narcoanalysis technique" and the "Brain Electrical Activation Profile" test. The text of these guidelines has been reproduced below:

(I) No lie detector tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.

(ii) if the accused volunteers for a lie detector test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the Police and his lawyer.

(iii) The consent should be recorded before a Judicial Magistrate.

(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.

(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall

not be a "confessional" statement to the Magistrate but will have the status of a statement made to the police. (vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.

(vii) The actual recording of the lie detector test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.

(viii) A full medical and factual narration of the manner of the information received must be taken on record. 8.

Learned counsel for the respondent No. 8 would further submit that unless and until permission granted by the Chief Judicial Magistrate First Class, Mahasamund Narco test can be done or not.

9.

The learned counsel for the State would submit that they have already sought permission from the learned CJM and it is for the CJM to give permission or not but they have sought the permission.

10.

On the other hand, learned counsel for the Respondent No. 8 would submit that any observation or direction issued by this Court will be binding effect over the learned trial Court and it may adversely affect the decision making process of the learned CJM. 11.

Learned counsel for the petitioner would submit that he has filed petition with a prayer that the investigation with regard to murder of his brother namely- Lalit Chandrakar @ Pappu and his family members namely- Shali Chandrakar and two nieces namely Ishika and Gitanjali Chandrakar may be concluded within a time period fixed by the Court. So far as contention of the learned Sr. counsel for the respondent No. 8 is concerned, this Court is of

the firm view that once the matter is pending before the CJM this Court can not issue any direction manner in which the application has to be decided the application but this Court can definitely direct the CJM to conclude the proceeding within a time period so that a very purpose of filing the petition can be achieved. 12.

In view of such factual position is available on record, this Court direct learned CJM to decide the application submitted by the prosecution for permission of Narco test in accordance with law within a outer limit of four weeks from the date of receipt of copy of this order and State is also directed to complete the investigation within outer limit of one year from the date of receipt of copy of this order and thereafter after procedure should be followed under the law by the Investigating Agency. 13.

With this observation and direction the instant Writ Petition (Criminal) is disposed of.

Sd/- (Narendra Kumar Vyas) Judge amita