BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH
Crl.R.C(MD)No.456 of 2008
M.P(MD)No.1 of 2008
A.Panneerselvam ... Petitioner
State through the
Inspector of Police,
in R.C.11/S/2005 ... Respondent
Criminal Revision Case filed under Sections 397 and 401 of the Code of Criminal Procedure, to call for the records in Crl.M.P.No.1914 of 2007 on the file of the learned Chief Judicial Magistrate, Madurai and to set aside the order dated 23.04.2008.
!For Petitioner ... Mr.N.Ananthapadmanaban
^For Respondent ... Mr.S.Rozario Sundar Raj
Special Public Prosecutor
for C.B.I. Cases.
This revision is directed against the order passed by the learned Chief Judicial Magistrate, Madurai in Crl.M.P.No.1914 of 2007 dated 23.04.2008 in directing the petitioner/accused No.2 to undergo polygraph test and brain mapping examination under Section 53 Cr.P.C.
2. The brief facts of the case are as follows:
A case in Crime No.548 of 2008 on the file of Chinnamanur Police Station came to be registered as per the order dated 21.12.2004 passed by this Court in Crl.O.P.No.24092 of 2004 filed by one Rajendra Narasimhan alleging missing of one Sivaraman. Later, the case was transferred to CB CID, Madurai and crime Sections were altered under 120-B read with 365 and 364 I.P.C. and one Andi Thevar (A1), Panneer Selvam (A2) and Pasumpon @ Periakaruppan (A3) were arrayed as accused. After investigation, CB CID filed a charge sheet before the learned Judicial Magistrate No.V, Madurai and it was pending as P.R.C.No.15 of 2004. Thereafter, on the petition filed by the complainant Rajendra Narasimhan fresh investigation was ordered by this Court, to be done by the respondent..
3. During fresh investigation CBI got information that the missing man, i.e., Sivaraman was murdered by a gang consisting of Pasumpon @ Periakaruppan (A3), Nallur Thevar (A4) and Panja Raja (A5) at the instance of Andi Thevar (A1) and Panneerselvam (A2) due to family dispute and that the said Sivaraman was born to Indurani, one of the wives of Andi Thevar (A1). Hence, the respondent CBI filed a petition before the learned Chief Judicial Magistrate, Madurai to permit the respondent to do polygraph and brain mapping examinations for the petitioner/accused No.2, who is a co-conspirator in this case of brutal murder, as he has not disclosed the facts within his exclusive knowledge relating to the conspiracy and commission of offence, as such the examinations would be helpful to the investigation.
4. After considering the objections made by the petitioner/accused No.2, the learned Chief Judicial Magistrate, Madurai had come to a conclusion of permitting the Investigating Agency to do the polygraph test and brain mapping test for the petitioner/accused No.2 and direct the petitioner, viz., A.Panneerselvam, S/o.S.Andi Thevar to undergo Polygraph test and brain mapping examination at the Forensic Science Laboratory, Madiwala, Bangalore on the date intimated by the Investigating Agency after arrangements with the Expert in the Forensic Science Laboratory, Bangalore. The present Criminal Revision Case has been filed by the petitioner/accused No.2 against the said order.
5. Heard Mr.N.Ananthapadmanaban, the learned counsel appearing for the petitioner as well as Mr.S.Rozario Sundar Raj, the learned Special Public Prosecutor for C.B.I. Cases.
6. The learned counsel for the petitioner would submit in his argument that the order passed by the learned Chief Judicial Magistrate, Madurai is not in accordance with law and it is no way helpful to the Investigating Agency, but it is a hardship imposed upon the petitioner/accused No.2 to undergo such examinations, which are injurious to the human system, which may lead to anaphylactic shock and it may lead to death and the report or result obtained from such examinations would not be having any evidentiary value and therefore such tests may not be required for the effective investigation in the case. He would further submit that the case, which is mainly resting upon circumstantial evidence has to be ascertained with the evidence collected so far and not with the inadmissible evidence of the report after the examination of the petitioner, through polygraph and brain mapping examinations. He would cite an authority in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and another reported in AIR 2005 Supreme Court 2277 to the effect that the result of the scientific tests like brain mapping test will depend upon with authenticity, the probative value of brain mapping test has to be considered at the time of trial before the Court when other connected materials are placed and the report of the examination will not itself an evidence. He would further submit that therefore it is unnecessary for the petitioner to submit himself for the brain mapping test.
7. Similarly, he would cite yet another authority reported in Ram Singh v. Sonia & Ors. reported in AIR 2007 Supreme Court 1218 to the effect that since the polygraph evidence is not a subject coming under expert's evidence as per Section 45 of Evidence Act and it being a science in mystique, it could at best be used as an aid to investigation and not as an evidence. Therefore, he would submit that the polygraph test is also not essential for the purpose of effective investigation. However, the learned Chief Judicial Magistrate, Madurai had come to a conclusion of directing the petitioner/accused No.2 to undergo polygraph and brain mapping examination as prayed for by the Investigating Agency, which is not at all sustainable.
8. The learned Special Public Prosecutor for C.B.I. Cases would submit in his argument that the investigation is almost in a completed stage, but for the examination of the petitioner/accused No.2 through polygraph (Lie Detection) test and the brain mapping examination. No doubt, the polygraph test would go to show as to whether the testimony of the said person is genuine or not and in order to ascertain the said quality of the evidence given by the said person, the polygraph test is necessary and the brain mapping examination is also helpful for the purpose of ascertaining the evidence collected from the said person and the veracity of the results of those examinations could be ascertained only at the time of trial and therefore the Investigating Agency may be permitted to proceed against the petitioner/accused No.2 for conducting polygraph as well as brain mapping examinations as directed by the learned Chief Judicial Magistrate, Madurai. Moreover, he would submit that examinations under polygraph and brain mapping are similar to that of taking M.R.I. or C.T. scan and there is no danger to the body of the person subjected to such tests or examinations and if there is any danger to the health of such person, such examination would be deferred. He would also cite an authority of this Court in Dinesh Dalmia v. State reported in 2006 Crl.L.J.2401, in support of his case. Therefore, he would request the Court to dismiss the revision petition filed by the petitioner and to confirm the order passed by the learned Chief Judicial Magistrate, Madurai.
9. I have given anxious consideration to the arguments advanced on either side. The point for consideration is as to whether the polygraph (Lie Detection) test and the brain mapping examination as ordered by the learned Chief Judicial Magistrate, Madurai is essentially necessary for further investigation and if so, is it harmful to the health condition of the person subjected to such test and examination?
10. No doubt, it is made clear by the Hon'ble Supreme Court in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and another reported in AIR 2005 Supreme Court 2277 that scientific tests like polygraph and Nargo Analysis and brain mapping examinations would depend upon its authenticity, which could be decided at the time of trial only. The relevant passage would run as follows: "Furthermore, the admissibility of a result of a scientific test will depend upon its authenticity. Whether the brain mapping test is so developed that the report will have a probative value so as to enable a court to place reliance thereupon, is a matter which would require further consideration, if and when the materials in support thereof are placed before the Court".
11. Similarly it has also been clearly mentioned in the Judgment of the Hon'ble Supreme Court in Ram Singh v. Sonia & Ors. reported in AIR 2007 Supreme Court 1218, which would run as follows:
"Insofar as the Polygraph (Lie Detection) Test which was conducted on A-2 is concerned, Mr.Sushil Kumar submits that since polygraph evidence is not subject of expert evidence as per Sec.45 of Evidence Act being a science in mystique, it could at best be used as an aid to investigation and not as an evidence. In support of his submission, he has relied on Romeo Phillion and Her Majesty The Queen, (1978) 1 SCR 18 and R. v. Beland, (1987)2 SCR 398, which are decisions rendered by the Canadian Supreme Court, and on Mallard v. Queen, 2003 WASCA 296, a decision of the Australian Supreme Court. Mr. Tulsi, on the other hand, submits that the result of Polygraph Test can be used against the accused. As there are other materials sufficient for upholding conviction of A-2, we refrain ourselves from going into the question of admissibility or otherwise of the result of Polygraph Test in the present case".
12. On a careful perusal of the aforesaid Judgments of the Hon'ble Supreme Court, we could see that the authenticity of the reports given out of the polygraph test and the brain mapping examination could be ascertained only with the other evidence by the trial Court at the time of trial. This Court had already come to conclusion in Dinesh Dalmia v. State reported in 2006 Crl.L.J.2401 that the polygraph and brain mapping tests are like taking MRI or CT Scan and the scientific value of such tests and credibility thereof can be evaluated only during course of trial and it is high time for the Investigating Agency to take recourse to scientific methods of investigation and therefore it has become necessary for this Court to permit the Investigating Agency to take reports through scientific methods of investigation. The relevant passage would run as follows:
"As the accused had not allegedly come forward with the truth, the scientific tests are resorted to by the investigating agency. Such a course does not amounts to testimonial compulsion. When there is a hue and cry from the public and the human rights activists that the investigating sleuths adopt third degree methods to extract information from the accused, it is high time the investigating agency took recourse to scientific methods of investigation. The learned Additional Chief metropolitan Magistrate, Egmore, Chennai, has granted the relief as prayed for by the respondent herein to secure the ends of justice. Therefore, there is no warrant for upsetting the order passed by the Court below".
13. The learned Special Public Prosecutor for C.B.I. cases would also submit that there will not be any harm to the health of the petitioner/accused No.2, while undergoing polygraph test as well as brain mapping examination. He would also assure that there will not be any harm to the petitioner while conducting such examinations by the Investigating Agency. It is also made known to the Court that the co-accused was also subjected to undergo polygraph and brain mapping examination in order to ascertain the evidence given by him. Therefore, it has become necessary for this court to permit the Investigating Agency to go on with the investigation through conducting polygraph test as well as brain mapping examination on the petitioner/accused No.2 as directed by the learned Chief Judicial Magistrate, Madurai.
14. The petitioner is on bail. For undergoing such examinations, he ought to have subjected himself before the Investigating Agency and it will not amount to any police custody. The petitioner is also directed to submit himself to undergo polygraph test and brain mapping examination as per the programme or schedule of the Investigating Agency and to obey to such examinations and the Investigating Agency is also directed to conduct such examinations and tests without detriment to the health of the petitioner.
15. With the aforesaid observations, the Criminal Revision Case filed by the petitioner is dismissed, after confirming the order passed by the learned Chief Judicial Magistrate, Madurai in Crl.M.P.No.1914 of 2007 dated 23.04.2008. Consequently, connected M.P(MD)No.1 of 2008 is also dismissed.
1.The Inspector of Police,
2.The Special Public Prosecutor for C.B.I. Cases,