Accused cannot be subjected to narcoanalysis, polygraph and BEAP tests against his will & consent

Chhattisgarh High Court

Chhattisgarh High Court: Deciding the question as to the legal permissibility of narcoanalysis, polygraph test (lie detector) and BEAP (Brain Electrical Activation Profile) test on an accused during investigation, the Bench of Sanjay K. Agrawal, J. held that such tests cannot be conducted without the consent of the person suspected of an offence and against his will, as it is violative of “right against self-incrimination” guaranteed under Articles 20(3) and 21 of the Constitution and also violative of Section 161(2) of the Criminal Procedure Code,1973.

The Sub-Editor of Dainik Bhaskar newspaper was shot dead and  CBI to whom the investigation was transferred suspected the petitioner of  playing a decisive role in the said murder. CBI made an application to the Court of the Special Judicial Magistrate (CBI) seeking permission to carry out the above tests for further investigation in the case. The Court allowed the same and directed the petitioner to undergo the tests.

The question as to whether the abovesaid scientific tests can be directed to be conducted at the request of investigating authority during the course of investigation against the will of the person accused or suspect and whether it is legally permissible or not, came to be considered before the Supreme Court in Selvi v. State of Karnataka, (2010) 7 SCC 263 wherein it was authoritatively held that such scientific techniques would violate the right against self-incrimination and were violative of Articles 20(3) and 21 of the Constitution as well as Section 161(2) CrPC. It was held in Selvi that Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an accused published by the National Human Rights Commission should be strictly adhered to and similar safeguards should be adopted for conducting the “narcoanalysis technique” and the “Brain Electrical Activation Profile” test. The Guidelines clearly provide that no lie detector tests should be administered except on the basis of consent of the accused. The petitioner herein had expressly declined to undergo the aforestated scientific tests stating inter alia that he had no knowledge of the facts of the case, he  was not involved in the offence in question and was not ready and willing to undergo such tests.

The Court observed that it is well-settled principle of Indian criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty and the presumption of innocence is a human right as laid down by the Supreme Court in Narendra Singh v. State of M.P., (2004) 10 SCC 699, State of U.P. v. Naresh, (2011) 4 SCC 324 and Kailash Gour v. State of Assam, (2012) 2 SCC 34. Rejecting CBI’s contention, the Court observed that “the presumption of innocence is one of the most important and ancient rights embodied in our criminal judicial system and it is also a fundamental element of the right to fair trial that every person should be presumed to be innocent unless and until proved guilty following a fair trial. It is for the State to produce evidence of guilt. Therefore, the petitioner cannot be compelled to undergo the impugned tests in order to prove his innocence, as every person is presumed to be innocent till he is proved to be guilty and presumption of innocence is a basic human right duly recognised subject to statutory exceptions.” [Rishiraj Mukherjee v. Central Bureau of Investigation, 2016 SCC Online Chh 380]

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