Can’t Conduct Narco, Polygraph & Brain Mapping Tests Without Recording Consent Before Magistrate: MP High Court

In a case where police officers have been arraigned for looting ancient gold coins worth crores of rupees, Madhya Pradesh High Court has held that Narco-Analysis, Polygraph and Brain Mapping tests can’t be conducted on the accused when they haven’t expressly consented to such tests before the concerned magistrate.

The single-judge bench of Justice Prem Narayan Singh also noted that it was well within the ambit of the high court to exercise its extraordinary powers under Section 482 CrPC since the directions encapsulated by the apex court in Selvi and Others v. State of Karnataka (2010) has not been adhered to by the investigating agency.

“…the finding of learned Courts below regarding conduct of all three tests for all the petitioners (including who have not given their consent), is liable to be and is hereby modified to that extent that the prosecution shall conduct all the three tests of petitioner No.4/Suresh Chouhan only who has given his consent before the Magistrate. Rest of the petitioners i.e. Vijay, Rakesh and Virendra cannot be forced without their consent for conducting the aforesaid tests”, the court laid down in clear terms in its order.

According to the prosecution, the petitioners/accused had given consent for conducting the three tests upon them in the Sahmati Panchnama dated 26.08.2023. Based on the consent recorded in the Sahmati Panchnama, prosecution applied to the judicial magistrate to conduct the above said tests. Aggrieved by this, a criminal revision petition was filed by the accused police personnel before revisional court by submitting that they had never consented to such tests. After this criminal revision petition was dismissed on 26.09.2023, the accused preferred the current petition before the High Court.

Before the High Court, Additional Advocate General had argued that investigation into a cognizable offence such as the current one is a statutory power of the police and the High Court cannot interfere in it for unjustifiable reasons. According to the state, the scientific value of such tests plays a great role in testing the credibility of the petitioners/accused. Therefore, the petitioners/accused shouldn’t be left to their own devices to give consent, or else it will be detrimental to the prosecution case.

However, the high court dismissed the arguments put forward by AAG and noted that the judicial precedents relied upon by the state were pronounced much before the all-encompassing judgment in Selvi. In Selvi, the Supreme Court held that no one can be subjected forcibly to such techniques in criminal investigations since it’s an unwarranted intrusion into their personal liberty. The apex court also held that even the test results can’t be regarded as evidence since the subject was not voluntarily giving the responses during these tests.

The High Court observed that the law laid down in Selvi is binding on the courts, investigating agencies as well as the citizens of India.

“…In this way, as the law laid down by Hon'ble Apex Court in the case of Selvi (supra) all three tests i.e. Narco, Polygraph and Brain Mapping test cannot be conducted of the petitioners who have not given their consent before the learned Magistrate”, the court concluded.

If the three accused who haven’t given consent yet choose to give consent for the tests at a later time, then the investigation agency will be able to conduct the same in accordance with the law, the court added. Since the accused are not willing to undergo the three tests, the trial court may be at liberty to draw an appropriate inference against them, the court further observed.

After perusing the order dated 01.09.2023 passed by the Judicial First-Class Magistrate, the court pointed out that only one of the accused has given consent before the judicial magistrate for conducting the said tests upon him. All other accused have declined to subject themselves to such tests on account of ailments and ill health, the court observed.

Accordingly, the petition filed by the accused was partly allowed. They were accused of offences under Sections 379, 392, 452, 294, 166-A, 420 and 409 of IPC.

Case Title: Vijay S/o Mohanlal Devda & Ors. v. State of Madhya Pradesh

Case No: Misc. Criminal Case No. 45214 of 2023

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