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2010(7) SCC 263

:
Name of the Hon'ble Judges

 K.G. Balakrishnan,
 C.J R.V. Raveendran and
 J.M. Panchal, JJ
Facts of the case
 Kavita wife of Shivkumar and daughter of Selvi
Murugesan an MLA of Tamil Nadu lodged an FIR
about the murder of her husband by her parents an
their friend.
 She had charged her parents for the murder as she had
made love marriage against the wishes of her parents.
 The victim was kidnapped and found murdered the
very next day .
 The head of the victim was smashed with a boulder
and could be recognized through the driving license.
Facts cont.
 As the case was dependent on the circumstancial
evidence the police asked the permission of the court
to undergo polygraph test and the brain mapping test
of the suspects.
 It couldn’t provide the straight results so the court
asked the permission for the narco analysis and it was
granted.
 The suspects challenged this decision in the Karnataka
high court, but failed to get relief.
 They then went in appeal to the supreme court.
Legal issues involved
 Whether the involuntary administration of the
impugned techniques violates the `right against self-
incrimination' enumerated in Article 20(3) of the
Constitution.
 Whether the results derived from the impugned
techniques amount to `testimonial compulsion'
thereby attracting the bar of Article 20(3)
 Whether the involuntary administration of the
impugned techniques is a reasonable restriction on
`personal liberty' as understood in the context of
Article 21 of the Constitution
Arguments under the case:
Arguments by the Appellants
 The person being interrogated could possibly make
self-incriminating statements on account of
apprehensions that these techniques will extract the
truth, It is a settled principle that a statement obtained
through coercion, threat or inducement is involuntary
and hence inadmissible as evidence during trial.
 A subject is encouraged to speak in a drug-induced
state, thus it amounts to testimonial compulsion.
Arguments cont.
 The provisions in the Code of Criminal Procedure, 1973 that
provide for `medical examination' during the course of
investigation cannot be read expansively to include the
impugned techniques.

 Another pertinent contention raised by the appellants is that the


involvement of medical personnel in the compulsory
administration of the impugned tests is violative of their
professional ethics.
 Article 21 has been judicially expanded to include a `right against
cruel, inhuman or degrading treatment', and the involuntary
administration of the impugned techniques violates this right.
 The scientific validity of the impugned techniques and their
results are not entirely reliable.
Arguments by the Respondents
 The respondents have argued about the importance of
extracting information which could help the investigating
agencies to prevent criminal activities in the future as well
as in circumstances where it is difficult to gather evidence
through ordinary means.
 It has also been urged that administering these techniques
does not cause any bodily harm and that the extracted
information will be used only for strengthening
investigation.
 it has been argued that the information extracted through
methods such as `polygraph examination' and the `Brain
Electrical Activation Profile (BEAP) test' cannot be equated
with `testimonial compulsion' because the test subject is
not required to give verbal answers
Argument cont.
 It was further argued that the verbal revelations made
during a narcoanalysis test do not attract the bar of Article
20(3) since the inculpatory or exculpatory nature of these
revelations is not known at the time of conducting the test.
 It has been argued that the Explanation to Sections 53, 53A
and 54 of the CrPC containing the phrase `modern and
scientific techniques including DNA profiling and such
other tests' should be liberally construed to include the
impugned techniques.
 it has been argued that the promotion of these techniques
could reduce the regrettably high incidence of `third
degree methods' that are being used by policemen all over
the country.
Some foreign cases referred by the
court.
 United States v. Piccinonna : It was held that
polygraph testimony could be admissible under two
situations, namely when the parties themselves agree
on a stipulation to this effect or for the purpose of
impeaching and corroborating the testimony of
witnesses. It was clarified that polygraph examination
results could not be directly used to bolster the
testimony of a witness. However, they could be used to
attack the credibility of a witness 885 F.2d 1529 (11th
Circ. 1989)
Foreign cases cont.
 In United States v. Galbreth:, the District Court took note of
New Mexico Rule of Evidence 11-707 which established standards
for the admission of polygraph evidence. The said provision laid
down that polygraph evidence would be admissible only when
the following conditions are met: the examiner must have had at
least 5 years experience in conducting polygraph tests and 20
hours of continuing education within the past year; the
polygraph examination must be tape recorded in its entirety; the
polygraph charts must be scored quantitatively in a manner
generally accepted as reliable by polygraph experts; all polygraph
materials must be provided to the opposing party at least 10 days
before trial; and all polygraph examinations conducted on the
subject must be disclosed. It was found that all of these
requirements had been complied with in the facts at hand
908 F. Supp 877 (D.N.M. 1995)
Foreign cases cont.
 In State v. Lindemuth:
 The testimony of a psychiatrist was not admitted when he
wanted to show that the answers given by a defendant while
under the influence of sodium pentothal supported the
defendant's plea of innocence in a murder case. The trial court's
refusal to admit such testimony was endorsed by the appellate
court, and it was noted that Until the use of the drug as a means
of procuring the truth from people under its influence is
accorded general scientific recognition, we are unwilling to
enlarge the already immense field where medical experts,
apparently equally qualified, express such diametrically opposed
views on the same facts and conditions, to the despair of the
court reporter and the bewilderment of the fact N.M. 237 (1952)
56
Foreign cases cont.
 Slaughter v. Oklahoma 105 P. 3d 832 (2005):
 It was held that certain claims about the Brain
Fingerprinting test that are not supported by anything
other than bare affidavit. The claims are that the technique
has been extensively tested, has been presented and
analyzed in numerous peer-review articles in recognized
scientific publications, has a very low rate of error, has
objective standards to control its operation, and is
generally accepted within the `relevant scientific
community'. These bare claims, however, without any form
of corroboration, are unconvincing and, more importantly,
legally insufficient to establish Petitioner's post-conviction
request for relief
Important indian cases referred by
the court.
 Kathi Kalu Oghad [1962] 3 SCR 10
The protection under article 20(3) is available to the
accused as well as the witnesses too.
Protection is not only at the trial stage but at the
investigation stage too.
If it is permissible in law to obtain evidence from the
accused person by compulsion, this privilege would be
an incentive for those in charge of enforcement of law
`to sit comfortably in the shade rubbing red pepper
into a poor devils' eyes rather than to go about in the
sun hunting up evidence.
Indian cases cont.
 We must emphasize that a situation where a testimonial
response is used for comparison with facts already known to
investigators is inherently different from a situation where a
testimonial response helps the investigators to subsequently
discover fresh facts or materials that could be relevant to the
ongoing investigation.

 In People's Union for Civil Liberties v. Union of India, it was


held that the unauthorised tapping of telephones by police
personnel violated the `right to privacy' as contemplated under
Article 21. However, it was not stated that telephone-tapping by
the police was absolutely prohibited, presumably because the
same may be necessary in some circumstances to prevent
criminal acts and in the course of investigation AIR 1997 SC 568
Judgement of the Apex court.
 In our considered opinion, the compulsory
administration of the impugned techniques violates
the `right against self- incrimination‘
 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.
Judgement cont.
 Article 20(3) protects an individual's choice between
speaking and remaining silent, irrespective of whether the
subsequent testimony proves to be incriminatory or not.
 We are also of the view that forcing an individual to
undergo any of the impugned techniques violates the
standard of `substantive due process' which is required for
restraining personal liberty. It would also amount to `cruel,
inhuman or degrading treatment' with regard to the
language of evolving international human rights norms.
 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
Judgement cont.
 However, we do leave room for the voluntary
administration of the impugned techniques in the
context of criminal justice, provided that certain
safeguards 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.
Judgement cont.
 The National Human Rights Commission had published `Guidelines for the
Administration of Polygraph Test (Lie Detector Test) on an Accused' in 2000:
they have to be followed for conducting such tests and they are:
 No Lie Detector Tests should be administered except on the basis of consent of
the accused.
 should be given access to a lawyer
 the physical, emotional and legal implication of such a test should be explained
to him.
 The consent should be recorded before a Judicial Magistrate.
 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.
 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
Conclusion
 Need of a proper legislative enactment which shall
deal with each and every procedure regarding such
tests. And also should deal with penalties and
punishments for those police officers who without
proper procedure conduct such tests.