CHAPTER 6

CONCLUSIONS AND SUGGESTIONS

6.1 CONCLUSION

Every civilised nation is making sincere efforts for the eradication of custodial
violence, torture and abuse of police power. This menace is not peculiar to India, but it
is widespread. It has been the concern of International Community because the problem
is universal and the challenge is almost global. The Universal Declaration of Human
Rights marked the emergence of protection from cruel, inhuman treatment and
degrading treatment or punishment.1 Investigation is the most important step in fair
trial. A trial would be fair only if the investigation is done in a fair and just manner. If
investigation is faulty then justice cannot be done to the parties. It is at the investigation
stage that witnesses are examined, discoveries are made, criminals are apprehended,
arrested and after investigation is done, trial commences.

The big question that comes into mind is how investigation should be done?
How revealations should be extracted, especially, when the accused sitting in front of
investigation authorities is a hard-core and habitual offender. Authorities in such
circumstance often resort to third degree torture which should not be part of justice
Delivery system. The issues arises in such a situation is that torture should not be done
to the accused in custody, however investigation should be done in efficient manner so
that guilty could be punished. How is that possible? Of course no miracle is going to
happen overnight and case is not going to get solved automatically. In such a scenario,
scientific tools and techniques must be welcomed whole heartedly.

If we look at our lifestyles it is not the same what it used to be some 20 or 30 or

40 years ago, science has touched our lives in every way. From air-conditioner to
heaters, from microwaves to induction, people do not sit under the shade of three in
summer; they prefer air conditioned rooms, once there were huge computer systems;
now it is replaced by smart phones, our each and everything has been changed with the
advancement of science with the only exception i.e. the court room. It is really

1
Shakila Abdul Gafar Khan v. Vasant Raghunath Dhokle 2004(1) RCR (Cr) 460.

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unfortunate that where justice is to be done is government and by age old tools and
devices. The honourable Supreme Court in Sharma v. Satish,2 held that if formal
accusation has been made against the person, he can claim immunity from being
compelled to make a self incriminating statement. In another landmark decision,
Nandani Satpathy v. P.L. Dani3 the Supreme Court of India has widened the scope of
the Article 20(3) to include "Right to Silence". 4 The court further held that “the phrase
‘compelled testimony’ must be read as evidence procured not merely by physical threats
or violence but by psychic mental torture, atmospheric pressure, environmental
coercion, tiring interrogatives, proximity, overbearing and intimidatory methods and
like.”5 In such a scenario is it possible to do efficient investigation? It seems as if all
human rights are possessed only by the accused. The victim has nothing that could be
termed as rights. The victimology is restricted to books and declarations only with zero
significance in practicality.

When criminals are using science in the commissions of crime, there is no

reason to restrict police or investigation authorities in taking aid of scientific techniques.
It is not that science is altogether rejected in the courts of law, however there are some
reservations when scientific tools come in conflict with the rights available to the
accused. The rights available to the accused persons are treated almost divine. They are
so widely interpreted that now inventions and discoveries are altogether rejected.

One must not forget that our laws are centuries old. Present day’s developments
could not be imagined at that time. How courts, can think that these modern techniques
of crime detection should find clear mention in the bare acts. Keeping in mind the phase
when our laws were made every possible thing is included in the law, now the only
thing required is to interpret the provisions of law in such a way so as to make sure that
no guilty goes unpunished which is the ultimate object of the criminal law. In
Ramachandran Ram Reddy and others v. State of Maharashtra,6 it was aptly held by the
court that in the course of investigation in relation to a crime or an offence,
2
AIR 1954 SCR 1077.
3
AIR 1977 SC 1025.
4
“no one can forcibly extract statements from the accused, who has the right to keep silent during the
course of interrogation”.
5
Nandani Satpathy v. P. L. Dani, AIR 1978 1025.
6
2004 All MR (Cr) 1704

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investigating machinery is entitled to undertake scientific tests in order to identify a
guilty person and to collect the necessary evidence in the course of the investigation.
Similar were the observations of Madras High Court in Dinesh Dalmia v. State7 in para
17 that “if accused has not allegedly come forward with the truth, scientific tests are
resorted to by the investigation agency. Such a course does not amount to testimonial
compulsion. When there is here 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 agencies took recourse to scientific method
of investigation”.

The field of criminology has expanded rapidly during the last few years, and the
demand for supplemental methods of detecting deception and improving the efficiency
of interrogation have increased concomitantly. Narco-analysis for criminal interrogation
is a valuable technique, which would profoundly affect both the innocent and the guilty
and thereby hasten the cause of justice.8 Taking into consideration the problems faced
by investigation agency in interrogating non-cooperating accused, these modern
scientific techniques were extremely helpful in exhuming the truth. It is strongly argued
that undergoing these tests amount to testimonial compulsion, in Kathi Kalu Oghad’s9
case, hon’ble Supreme Court considered the meaning of compulsion in context of
Article 20(3). It was held that compulsion under Indian Law is equivalent to Duress
under English Law. Court gave reference of Dictionary of English Law by Earl Jowir,
wherein Duress is explained as follows:

“Duress is where a man is compelled to do an act by injury, beating or unlawful

imprisonment (sometimes called duress in strict sense) or by the threat of being
killed, suffering some grievous bodily harm, or being unlawfully imprisoned
(sometimes called menace, or duress per mines). Duress also includes
threatening, beating or imprisonment of the wife, parent or child of a person”.

It was further observed by the court that the compulsion under Article 20(3)
refers to physical act and state of mind does not come under its purview, so these tests

7
2006 Cri LJ 2401 (Mad).
8
Selvi Murugesthan and Others v. State of Karnataka.
9
State of Bombay vs. Kathi Kalu Aghad, AIR 1961 SC 1808.

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do not violate provisions of the constitution. Moreover, the courts should not forget
section 27 of Indian Evidence Act, where in it is clearly mentioned that any discovery
made by investigating authorities in pursuance of accused’s statement is admission
irrespective of the fact how it was extracted. This section is wide enough to include in
its amplitude all the discoveries made by these techniques without violation of any
provision of Law. It is the rule of interpretation that legislation is not expected to
include unnecessary words or provisions. The legislature cannot be presumed to
contradict itself by enacting apparently two conflicting provisions.10

Under Article 20(3) protection is given to accused against testimonial

compulsion. It is protection under which accused statement cannot be used against
himself. In Tahsildar Singh v. State of U.P.,11 it was held by the Supreme Court that the
statement does not include what is not said. In polygraph test as well as Brain mapping,
no statement is given by the accused so it is out of the purview of protection guaranteed
under Article 20(3) of the constitution. As far as Narco-analysis is concerned, a person
to whom ‘truth-serum’ is administered undoubtedly makes a statement. The Narco-
analysis test is based on the principle that a person tells a lie using his imagination and
under the influence of certain drugs, this capacity for imagination is blocked or
neutralized by leading the person into a semiconscious state. It becomes difficult for the
person to lie and his answers would be restricted to facts he is aware of. Forensic
Science Laboratory, Bangalore is the hub for Narco-analysis for various police
departments across the country. The question whether such statement can be forcibly
taken from the accused by requiring him to undergo narco-analysis was considered by
the Bombay High Court in Ramchandra Ram Reddy and others Vs. State of
Maharashtra,12 The Court held that such statement will attract the bar of Article 20(3)
only if it is inculpating or incriminating the person making it. Whether it is so or not can
be ascertained only after the test is administered and not before. Therefore, there is no
reason to prevent administration of this test also because there are enough protections
available under the Indian Evidence Act, Criminal Procedure Code and Constitution to

10
T Bhattacharya, “The Interpretation of Statues”, Allahabad: Central Law Agency, 6 th Edition, 2006,
p.36.
11
AIR 1959 SC 1012.
12
I (2005) CCR 355 (AB)/2004 All MR (Cri) 1704.

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prevent inclusion of any incriminating statement if one comes out after administration
of the test.

In the same case, Bombay High Court further held that Article 20(3) is to be
considered in the light of other important provision of the constitution as for instance
clause 1 of Article 51(A) which says that it is the duty of the State to prevent crime and
this duty cannot be properly done if unnecessary large protection is spelt out from other
provisions like Article 20(3). Fetters on the duties can be put only in extreme cases
where the protection of fundamental rights weigh more than fundamental duty cast upon
the state.13

In Arun Gulab Gavali Vs. State of Maharashtra and Others, 14 it was stated by
Bombay High Court that the investigating machinery is duty empowered to secure
presence of any person having knowledge of an offence under investigation, either
directly or indirectly or having knowledge of the facts which could assist the
investigating machinery to unearth the necessary facts disclosing the evidence in
support of the accusation against any person being involved in the offence or in relation
to the offence itself and being so, it eventually follows that the investigating machinery
can require to appear at different places where investigation or a part of investigation is
to be carried out. But, it cannot be said that any person called for assisting the
investigating agencies that the would dictate his terms regarding his appearance before
the investigating machinery or that he could release to accompany the investigating
machinery to a particular place or that investigation should be carried out a particular
place only. It will be entirely on the investigating authorities to deal with this aspect and
this assistance cannot be said to amount to denial of personal liberty 15 under Article 21
of the Indian Constitution.

These scientific tests are like taking MRI or CT Scan and subjecting the accused
to undergo such scientific tests will not amount to breaking silence of accused by force.

13
Para 22.
14
2006 Cri LJ 2615 (Bom) (DB).
15
Para 10, Arun Gulab Gavali V. State of Maharashtra.

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The accused may be taken to laboratory for such tests against his will, but the revelation
during such tests is quite voluntary. 16

A serious debate is going on today whether Narco-analysis is violation of human

right? Those who object it argue that it is a torture of a person with modern technique.
They also say that these tests are blatant violation of right against self incrimination
enunciated in Article 20(3).17 In United States Constitution this right is recognized in
Fifth Amendment.18 According to Article 14(3) (g) of the International Covenant on
Civil and Political Rights, 1996, in the determination of any criminal charge against
him, everyone shall be entitled to the minimum guarantee, in full equality, not be
compelled to testify against himself or to confess guilt 19. The argument in favour of
Narco Analysis test is that it is a scientific and justifiable technique to reveal the truth. It
is the best substitute of traditional physical torture and third degree methods used by
interrogating agencies20.

Narco analysis test does not violate article 20(3) of the Constitution of India.
Article 20(3) guaranties ‘Right against Self Incrimination’, this doctrine states that "no
person, accused of any offence, shall be compelled to be a witness against himself”. On
analysis of Article 20(3) of the Constitution of India, it consists of the following
elements:

1. It is a right available to a person ‘accused of an offence.’

2. It is a protection against ‘compulsion’ to be a witness.

3. It is a protection against such ‘compulsion’ resulting in his giving evidence

against himself.

All of the abovementioned conditions must co-exist in order to attract Article 20

(3). Similarly, the admissibility of brain mapping in Indian courts is facing prohibitive
mandates of Article 20(3) and Article 21 of the Constitution of India. The polygraph
test is at present used by investigators as an aid to investigation but has no evidentiary

16
Dinesh Dalmia V. State, 2006 Cri LJ 2401, (Mad).
17
Article 20(3), which says that no accused should be compelled to give evidence against himself.
18
“No person…… shall be compelled in any criminal case, to be a witness against himself”.
19
Ishita Chaterjee, 129
20
Ishita Chaterjee, 131.

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value in courts. The record of physiological and biological responses through a
polygraph machine is yet to be admissible in the court of law.

The Supreme Court, in Dattu Shamrao Valke v. State of Maharshtra,21 held that
even though the investigating agencies have conducted brain mapping evidence, the
court declined to comment on its admissibility. But the court opined on the admissibility
of scientific evidence quoting the decision in Daubert v. Merryll Pharmaceuticals
Inc.,22. The court held that in India the use of scientific test should be made admissible
considering the following points:

(1) Whether the theory or technique can be or has been tested?

(2) Whether the theory or technique has been subjected to peer review and
publication.

(3) Whether the theory or technique has received general acceptance?

(4) The known or potential error rate of a technique.

The Indian court doesn’t show an interest to lay down any guidelines for
admissibility of brain mapping evidence. Since the examination of accused by theses
deception detective techniques does involve forceful intrusion into the subject’s mind,
some consider these techniques come under the prohibitive scope of the Indian
Constitution because, the information received is indicative of the fact that the accused
or the suspect does have or is in possession of knowledge about the subject on which he
is questioned. Though the response is not in strict form of interrogation as the accused
does not even realize how his responses will be calculated, yet the motive and intention
behind the act is effectively realized. This is considered in gross and blatant violation of
the protection granted under the Constitution of India. Akin to this ‘test of
transgression’ seemingly violates right to Equality as enshrined in Article 14 of
Constitution.23 According to, Bhagwati ,J.

21
2005 Cri. L.J. 2555: AIR 2005 SC 2331.
22
133 SCT 2786.
23
Art. 14 provides that the State shall not deny to any person Equality before Law or Equal protection
of law within the territory of India.

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 "equality is a dynamic concept with many aspects and dimensions and it cannot
be cribbed, cabined and confined within traditional and doctrinal limits. From a
positivistic point of view, equality is antithesis to arbitrariness. In fact equality
and arbitrariness are sworn enemies, one belong to rule of law in a republic and
while other, to the whim and caprice of absolute monarchy. Where an act is
arbitrary, it is implicit in it that it is unequal both according to the political
logic and constitutional law and therefore violative of Art. 14".24

Thus subjecting a suspect to arbitrary drug injection technique is infringement of

Article 14. Since the "procedure prescribed by law has to be fair, just and reasonable, it
shall not be fanciful, oppressive and arbitrary, a procedure to be just and fair must
embody principles of natural justice". 25

Again it is seen to be violative of the most precious right of human person, the
right to life with human dignity. 26 "Human dignity is a clear value of our constitution
and is not to be bartered away for mere apprehension entertained by interrogation
officials".27

To conclude, it can be said that these scientific techniques can be made part of
investigation process. Collection of evidence is permitted under section 2(h) of code of
criminal procedure, 1973. All these techniques are first helping tools available to the
investigating authorities. Mere compulsion to undergo the test should not be regarded as
testimonial compulsion. If an accused person is forced to undergo a test this does not
mean that the accused person is being compelled to be a witness against himself. At the
stage of subjecting a person to narco-analysis, polygraph or brain mapping test, it
cannot be even said that the statements he would give would incriminate him, then why
he is been given permission to take benefit of Article 20 (3). During the test, the
statement made by the accused may provide some clues and leads to the investigating
authorities. However, if during the said test, accused makes a statement which
incriminates him, then that statement should not be used against him in the absence of

24
EP Royappa v. State of TN, AIR 1974 SC 555; Maneka Gandhi v. Union of India, AIR 1978 SC 597;
RD Shetty v. Airport Authority, AIR 1978 SC 1628.
25
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
26
Article 21 of Indian Constitution.
27
Kishore Singh v. State of Rajasthan, AIR 1981 SC 625.

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any corroborating evidence. Of course, statements made during tests should not be used
as sole evidence to convict the accused as the tests in the opinion of researcher should
be used to assist and aid the investigating agency to find out the truth especially in grave
offences like terrorism, organized crimes, murder, kidnapping or blind crimes.

Karnataka High Court aptly quoted Dr. R.E. House in Selvi Murugeshan and
others v. State of Karnataka.

“…Society has the right to be protected against the criminal, and all of
society’s rights are manifestly superior to those of the criminal. There can be no
gainsaying the fact that a suspect is either innocent or guilty, and no one knows
the truth from the consciousness of the suspect, that society is entitled to have
truth…If society has the right to take property, then society has the right to
make, by trained men, the use of truth serum legal..”.

Clause 3 of Article 20 comes at the later stage. If accused has given some incriminatory
statement, court is free to reject that statement. However, only on the ground that
statement may come out to be inculpatory, these scientific techniques should not be
ignored as this would amount to gross injustice to the society at large. Therefore,
keeping in mind the explosion of crimes against society, the necessity of the society at
large cannot be overlooked. A balance should be made between the need of a thorough
and proper investigation and individual rights.

6.2 SUGGESTIONS

The scientific techniques are not new to India. Investigating agencies have been
using these tools since years, however, Law is silent on the use and admissibility of
scientific evidence. This is the reason that judgmental law is available both in the favour
of use of scientific techniques as well as against the use of scientific tools in
investigation. It is unfortunate that Narco-analysis, Brain-mapping and polygraph
techniques are questioned now and then. In fact not only questioned but are sometimes
regarded as in human and cruel techniques that the when science has become part and
parcel of Indian Law Courts. From finger printing to asphyxia, to everything is
dependent on science. There are number of cases where conviction is awarded on the
sole basis of scientific evidence which is commonly referred as medico-legal evidence.

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To remove this repugnancy some suggestions are respectfully submitted by the research
as follows:

1. A policy should be formulated where expressly narco-analysis, polygraph and

brain mapping should find clear mention and provisions should be made for the
future developments also so that future scientific techniques may find room in
the statutory law of the country and aid in investigation, collection of evidence
that may lead to justice.

2. The explanation attached with the Section 53, Section 53-A and Section 54
should be given wider possible interpretation. The techniques narco-analysis,
polygraph and brain mapping should be included in the phrase ‘modern and
scientific techniques’ in light of the rule of “ejusdem generis”.

3. The current scenario in the country is that narco-analysis, polygraph and brain
mapping is valid if the test is done with the consent of the subject undergoing
the test but it cannot be done without the consent. The researcher respectfully
submits that there should be no demarcation between voluntary and involuntary
undergoing of techniques. It makes no sense that a particular technique is invalid
because the subject did not consent and the same technique is valid when it
receives the consent of the subject.

4. There is separation of powers in India. The functions of the three organs

legislative, executive and judiciary are endowed with the powers to exercise in
the fields assigned to them. The judiciary should not interfere in the field of
investigation as the permission of the court is not required in investigation under
Section 156(1) of the Code of Criminal Procedure. It is the demanded by the
courts of law that investigating agencies should use modern techniques in
investigation for complete eradication of custodial violence. However, when
authorities make use of modern and scientific techniques, courts bans the use.
While delivering the judgments courts must also keep in mind the hurdles faced
by the authorities in the field of investigation. Judiciary should encourage the
investigating authorities to use the modern tools of investigation in
constitutional manner. The use of narco-analysis, polygraph and brain mapping

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 should not be discarded altogether by the judiciary rather judiciary should peep
deep into the problems of investigating agencies in solving cases where no piece
of evidence is available.

5. The government should formulate a policy wherein the investigating authorities

be given training in such a way that they can make use of modern and scientific
tools of investigation in a more skillful manner. Questions are raised regarding
the science behind narco-analysis, polygraph and brain mapping and their use so
if the investigating authorities will get specialized training to utilize these tests it
would help in extraction of truth in a more efficient manner. This will also help
in further improvement of scientific techniques.

6. The use of narco-analysis, polygraph and brain mapping should be made

admissible and permitted as these are sophisticated techniques of investigation.
The utilization of narco-analysis, polygraph and brain mapping in interrogation
process can help in curbing the problem of custodial torture, violence and
deaths. The foremost right of every detainee is the preservation of the basic and
natural human right which is violence free environment even if the person is in
lawful custody. A person should always be treated with respect and his dignity
should be maintained at every stage. These techniques should be allowed
because these are in consonance with the preservation of human rights.

7. There are certain guidelines laid down by the National Human Rights
Commission however, they do not provide complete guidance. These guidelines
are silent on many important issues. Moreover, they are exclusively regarding
the administration of polygraph test. No regulation or assistance is available in
the country regarding the procedure to be followed in the administration of
narco-analysis and brain mapping tests. Though these tests have been conducted
in a number of high profile cases till date.

8. The rule of harmonious construction should be applied while dealing with the
interpretation of the laws prevalent in India regarding the relevancy and
admissibility of narco-analysis, polygraph and brain mapping, so that all the
questions can be put to rest that are being raised as to the validity of these

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 interrogation techniques. By adopting harmonious construction the courts can
help the investigating agencies to take benefit of said techniques and get fruitful
results. An effort should be made to blend the use of these tests with the existing
laws in such a manner that no questions are raised as to its constitutional
validity.

9. An Act should be passed by the legislature which should exclusively deal with
evidence obtained by the narco-analysis, polygraph and brain mapping and alike
techniques. The Act should contain precise definitions of all the terms such as
scientific evidence, scientific techniques, investigation, scientific expert witness,
scientific examination, tools of investigations, etc. The Act should contain rules
as well as guidelines regarding the use of scientific and modern techniques
specifically for the narco-analysis, polygraph and brain mapping so that all the
confusion regarding the use of scientific techniques be eradicated forever.

These are some suggestions humbly submitted by the researcher to make the
administration of criminal justice system in India more flawless.

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