Court Can Direct Polygraph Test If Accused Consents To It: Himachal Pradesh HC [Read Judgment]

The Himachal Pradesh High Court has observed that it is not legally impermissible for a Court to issue direction to a person to undergo Narco-Analysis, polygraph and Brain Electrical Activation Profile (BEAP) test, but such a direction shall be subject to consent of said person and the person has a right to elect to consent or refuse to undergo such test.

In this case, the Special Judge had allowed an application preferred by Investigating Agency seeking permission to take voice sample and to conduct polygraph test of the accused observing that he gave his consent for the same. Before the Special Judge, the accused had pleaded that in case polygraph test and voice sample are legally permissible, he is ready and willing to undergo the same to show his bonafide.

Before the High Court, assailing the order of Special Judge, it was contended by the accused that that readiness and willingness to undergo the test on behalf was subject to legal permissibility of these tests and no provision in Code of Criminal Procedure provides for undertaking these tests. It was contended that these tests are not legally permissible and hence conditional consent of the accused cannot be treated as a consent to undergo these tests.

Referring to Apex Court judgments, Justice Vivek Singh Thakur observed that there is no statutory prohibition against the issuance of such direction, the Court can issue the direction to a person to undergo test, which is not expressly enumerated in Cr.P.C. and in circumstances, where an individual consents to undergo these tests, there is no dilution of Article 20(3) of Constitution.

Referring to Selvi vs. State of Karnataka [(2010)7 SCC 263],, the bench further observed:

Tests may be of three kinds: 'permissible with or without consent', 'permissible with consent only' and 'impermissible altogether'. From ratio of law laid down in Selvi's case, it is evident that 'polygraph test' falls in second category, which is permissible but subject to consent of the subject-person. Therefore, I am the considered view that it is not legally impermissible to Court to issue direction to a person to undergo Narco Analysis, polygraph and BEAP test, but, such direction shall be subject to consent of said person and the person has a right to elect to consent or refuse to undergo such test and nothing contrary to the aforesaid verdict of Court or any other material has been placed before me to establish that it is impermissible to the Court to issue direction to a person to undergo polygraph test during investigation, rather, in view of pronouncements of Apex Court, it is permissible for the Court to issue such direction, which shall be subject to consent of a person.

The Court also noted that the Special Court had clarified that the statement recorded during polygraph test shall be in nature of statement made to police. 

Referring to Rajendra Pralhadrao Wasnik vs.State of Maharashtra (2019)12 SCC 460, the court said that it is expected from Investigating Agency to adopt latest advanced scientific technologies and methods of investigation to arrive at right conclusion.

Case no.: Cr. MMO No. 596 of 2018
Case Name: Vinod Mittal vs. State of HP
Coram: Justice Vivek Singh Thakur
Counsel: Sr. Adv Satyen Vaidya, Adv Vivek Sharma, AAG Desh Raj Thakur

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