IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 291 of 2016
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VINODBHAI GAGANDAS VANJANI & 4….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)
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Appearance:
MR SK BAGGA, ADVOCATE for the Applicant(s) No. 1 – 5
MR KL PANDYA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 03/05/2016
ORAL ORDER
1. Heard Mr. S. K. Bagga, learned advocate for the
applicants and Mr. K. L. Pandya, learned APP for
the respondent-State.
2. The present Criminal Revision Application is
filed challenging the order dated 2/4/2016
passed by the learned Additional Sessions Judge,
City Sessions Court, Ahmedabad, in Sessions Case
No.376 of 2014 below application Exh.6 rejecting
the said application preferred by the applicants
herein under section 173(8) of the Code of
Criminal Procedure, 1973 (hereinafter referred
to as “Cr.P.C.” for short) for further
investigation in respect of the offence alleged
against the present applicants. After proceeding
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with the submissions, learned advocate for the
applicants, producing an affidavit affirmed by
himself, has submitted that as such, all the
applicants-original accused are in judicial
custody and therefore, he, upon instructions
received from one Mr. Rakesh Mulchand Dayani,
who is nephew of present applicant No.1-original
accused No.1, has filed this affidavit and now
he is restricting his submissions so far as
point/ground No.7 of the application at Exh.6
is concerned and right now, he does not press
the present Criminal Revision Application for
other grounds of further investigation which has
been sought by the applicants in the application
at Exh.6 and sought liberty to file an
application in accordance with law as and when
need arises during the stage of defense of the
accused for rest of the points/grounds. In
light of the affidavit filed on behalf of the
applicants, learned advocate for the applicants
has drawn attention of this Court towards the
observation made on page 5 of the impugned order
more particularly line Nos.4, 5 and 6 which
reads as under:
“Therefore, the lie detection test or
narco analysis test are considered to be in
aid of investigation and cannot be accepted
as an evidence of a particular fact.”
He has further submitted that except the above
observations made by the trial court, so far as
point/ground No.7 of application Exh.6 is
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concerned, no specific finding has been given
for not allowing the narco analysis test/lie
detector test as narrated in point No.7 of
application Exh.6. He has placed reliance on a
decision of the Hon’ble Supreme Court in the
case of Dr. Purshottam Swaroopchand Soni vs.
State of Gujarat reported in 2007(3) GLR page
2088 wherein it has been held by the Hon’ble
Supreme Court in paragraph Nos.7, 7.1, 7.2, 7.3
and 7.4 as under:
“7. At this stage, it is required to be
noted that in the present case, the
petitioner is the accused. It is also
important to note that the accused is
demanding Brain mapping test/Brain
fingerprinting to prove his innocence.
Brain fingerprinting is based on the
principle that the brain is central to all
human acts. In a criminal act, there may
not be many physical evidences at the crime
scene, but the brain is always there
recording the sequences of the crime. The
basic difference between a criminal and
innocent person is that the criminal has
the details of the crime stored in his
brain, whereas the innocent does not. In
Brain fingerprinting testing, the subject
is made to sit in a quiet room with sensors
on his headband that measure electrical
brain responses. Three types of stimuli:
targets, irrelevant, and probes, in the
form of words, pictures, or sounds are
presented for a fraction of a second each,
under computer control. Incoming stimulus
that is significant and noteworthy results
in a specific, electrical brain response,
known as P-300, which is one aspect of a
larger brain wave response known as
M.E.R.M.E.R. (Memory and Encoding Related
Multifaceted Electroencephalographic
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Response). However, determination of
innocence or guilt is a legal entity rather
than a scientific determination. The
investigating agencies can take the results
of Brain fingerprinting as an evidence
along with all other available evidence to
reach a verdict of guilty or not guilty.
According to a study the accuracy rate of
this test is 99.99 per cent and in U.S.A.,
the F.B.I. have been making use of this
technique to convict criminals.
7.1 According to the petitioner he has
been falsely involved in the case and he
disputes recovery of weapon at his
instance. It is also required to be noted
that the petitioner is facing serious
charge of offence of murder, which is
punishable with capital punishment. The
petitioner-accused himself volunteers for
the Brain mapping test/Lie-detector test.
For a fair trial all possible evidence is
required to be brought on record to decide
whether the accused is guilty or not.
Denying any opportunity to bring on record
certain evidence on the ground that the
trial will be delayed would amount to
denying substantial justice to an accused
especially when he is facing a murder
trial. On the contrary, if the Lie detector
test/Brain mapping test is allowed, and if
it is presumed that the said test is in his
favour, that will not exonerate the
petitioner-accused. The evidence is
required to be considered in their
totality. It cannot be said that merely on
lie-detector test/Brain mapping test the
petitioner-accused will be acquitted even
though other evidence against him are on
record. Looking to the particular facts of
the case, especially when the petitioner
accused specifically pleaded for Brain
mapping test, I am of the view that, such
an opportunity cannot be denied on the
ground that the trial will be delayed. It
is also required to be noted that unless it
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is proved that the petitioner accused is
guilty, the presumption is always in his
favour. Even if the Lie detector test/Brain
mapping test is allowed, at the most, it
may happen that the trial may be delayed by
a few days. Moreover, if the test allowed,
justice will be done to the petitioner and
the prosecution can have no grievance about
the test.
7.2 Under Art. 21 of the Constitution of
India, it is the fundamental right
conferred on every person, including an
accused to have a fair and open trial. The
scope of Art. 21 has received a liberal and
expansive interpretation from time to time
by the Apex Court and fair trial is the
essence of the fundamental right conferred
to every person under the Constitution.
Under the right conferred by Art. 21 of the
Constitution of India, if the liberty of a
person is deprived otherwise according to
the procedure established by law, then the
Court can interfere in the matter.
7.3 On the facts of the case, it is the
case of the petitioner-accused that he has
been falsely involved in the matter to save
a sitting Minister/her relative. According
to the petitioner a false case of
discovery/recovery has been made out after
a lapse of almost 10 days. Prima facie, it
appears that the entire case is based on
circumstantial evidence and there is no
eye- witness to the incident of murder. It
is also true that there is no direct
evidence against the accused involving him
in the murder. The petitioner had earlier
requested for Lie-detection test at the
stage of investigation, but the same was
not carried out.
7.4 It is required to be noted that the
right of the accused to give evidence to
prove his innocence not only flows from the
principles of natural justice, which is now
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held to be a part of Arts. 14 & 21 of the
Constitution of India, but also under Sec.
315 of the Code of Criminal Procedure.
Giving of evidence cannot be restricted
only to giving of oral testimony in Court.
In this century, electronic usage has been
accepted in judicial dispensation. I am of
the view that in a matter where it is the
case of the accused that he is falsely
involved, he should be permitted to give
evidence in any form whether it be in the
form of oral deposition before the Court or
in the form of scientific nature like that
of Brain-mapping test. To deprive the
accused of such a right would tantamount to
violation of his fundamental rights.”
3. Learned APP has submitted that when the prayer
has been restricted so far as point/ground No.7
of the application at Exh.6 is concerned, as
narrated in the affidavit dated 3/5/2016, he has
no objection if this Criminal Revision
Application is partly allowed so far as
point/ground No.7 of application Exh.6 is
concerned.
4. I have considered the above referred submissions
made by learned advocates for the parties and
gone through the above referred observations
made by the Hon’ble Supreme Court so far as this
narco analysis test/lie detector test is
concerned.
5. It appears from the impugned order that the
learned trial Judge has observed to the effect
that lie detector test or narco analysis test is
always to be in the aid of investigation and
cannot be accepted as an evidence of a
particular fact. For that, as such, there is no
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dispute but the particular fact or any fact
comes after the said test is carried out by the
concerned authority after following due
procedure. Under the circumstances, keeping in
mind the ratio laid down by the Hon’ble Supreme
Court in mind, in my view, the present Criminal
Revision Application deserves to be partly
allowed and the impugned order passed by the
trial court requires to be modified.
6. The present Criminal Revision Application is
partly allowed. Impugned order dated 2/4/2016
passed by the learned Additional Sessions Judge,
City Sessions Court, Ahmedabad, in Sessions Case
No.376 of 2014 below application Exh.6 is hereby
modified to the effect that the investigating
agency is hereby directed to carry out the
investigation only so far as point/ground No.7
of the application at Exh.6 is concerned under
section 173(8) of Cr.P.C. Upon completion of the
said test, the concerned Investigating Officer
is directed to produce the report of the said
test before the concerned Court after following
due procedure. The concerned authority is
requested to carry out the procedure as early as
possible after the said task is handed over by
the concerned Investigating Officer. Direct
service is permitted.
(G.B.SHAH, J.)
RADHAN
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