New Delhi, September 21: The Delhi High Court has held that an accused who has expressly refused to undergo a Narco Analysis Test cannot be compelled to take the test at the request of a complainant, observing that consent for such a procedure is a personal and non-derogable constitutional safeguard.
Justice Purushaindra Kumar Kaurav dismissed a petition filed by the father of a 21-year-old woman who died in connection with a case registered in 2017. The petitioner had challenged orders passed by the trial court and the Additional Sessions Judge rejecting his plea seeking Narco Analysis Tests of the accused.
The High Court noted that two accused, Jaspal alias Tinku and Vivek Kumar alias Monu, had separately informed the trial court that they were unwilling to undergo the test. The trial court subsequently held that the procedure could not be forcibly administered.
The High Court, however, pointed out that the trial court's order recorded the refusal of only two accused but proceeded on the basis that all three surviving accused had declined to undergo the test.
The petitioner had argued that the alleged murder took place inside a room where the possibility of eyewitnesses was virtually absent and that scientific techniques such as Narco Analysis should therefore be used to uncover the truth. He also submitted that the victim and her family were entitled to a fair investigation and trial under Article 21 of the Constitution.
Rejecting the plea, the High Court relied on the Supreme Court's landmark judgment in Selvi, which held that forcibly subjecting an individual to Narco Analysis, polygraph examination or similar techniques violates substantive due process and amounts to an unwarranted intrusion into personal liberty.
The Supreme Court had also made it clear that compulsory administration of such techniques cannot be justified merely on the ground of public interest.
The High Court further referred to the Supreme Court's subsequent judgment in Amlesh Kumar, which reiterated that involuntary administration of a Narco Analysis Test violates the constitutional protection against self-incrimination under Article 20(3), besides the requirement of substantive due process.
The court also made it clear that even an accused cannot claim an absolute right to undergo a Narco Analysis Test merely by seeking one. Any voluntary test must satisfy the safeguards governing free and informed consent and other legal requirements.
The High Court observed that if an accused himself cannot claim an indefeasible right to undergo the test, a complainant cannot claim such a right to compel an unwilling accused to undergo it.
The court acknowledged the victim's right to a fair investigation and trial and said it could not remain insensitive to the circumstances of the case or to “the entirely legitimate anguish of a father seeking justice for a daughter so brutally done to death.”
However, it held that the interests of the victim cannot override the constitutional safeguards available to an accused.
The High Court consequently found no illegality, perversity or jurisdictional error in the orders passed by the trial court and the Sessions Court. It held that the surviving accused, having declined to undergo the Narco Analysis Test, could not be compelled to take it at the complainant's instance.
At the same time, the court clarified that the petitioner remained free to pursue remedies concerning a fair investigation. Since the chargesheet had already been filed, the concerned court was given liberty to examine all relevant aspects of the matter.
The petitioner could also seek further investigation or appropriate monitoring of the investigation in accordance with law, the High Court said.
