lie detection & brain mapping tests

The privilege against `self incrimination is a fundamental canon of Common law criminal jurisprudence.

-That the accused need not make any statement against his will.

-It is a protection against such “compulsion” resulting in his giving evidence against himself.

In 2004, the Bombay High Court ruled in the multi-crore-rupee fake stamp paper case that subjecting an accused to certain tests like narcoanalysis does not violate the fundamental right against self-incrimination. Article 20(3) of the Constitution guarantees this: "No person accused of any offence shall be compelled to be a witness against himself." Statements made under narco analysis are not admissible in evidence.















In a 2006 judgment (Dinesh Dalmia v State), the Madras High Court held that subjecting an accused to narco analysis is not tantamount to testimony by compulsion. The court said about the accused: "he may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary."







In January 24th, 2008, a bench of Chief Justice K.G. Balakrishnan reserved its ruling after hearing arguments for three days from various parties, including Solicitor General Goolam E. Vahanvati and senior advocate Dushyant Dave, appointed by the bench as amicus curiae to assist the court in the case.







Telgi and his accomplices are facing probe by various states' police and other investigative agencies for their alleged criminal acts.







These accused people have challenged the legality of the use polygraph, brain mapping and narco-analysis by the investigative agencies to probe the crime.















The Bombay High Court recently in a significant verdict in the case of, Ramchandra Reddy and Ors. v. State of Maharashtra, upheld the legality of the use of P300 or Brain finger-printing, lie-detector test and the use of truth serum or narco analysis. The court upheld a special court order given by the special court in Pune as mentioned above, allowing the SIT to conduct scientific tests on the accused in the fake stamp paper scam including the main accused, Abdul Karim Telgi. The verdict also said that the evidence procured under the effect of truth serum is also admissible. In the course of the judgment, a distinction was drawn between “statement” (made before a police officer) and “testimony” (made under oath in court). The Judges, Justice Palshikar and Justice Kakade, said that the lie-detector and the brain mapping tests did not involve any “statement” being made and the statement made under narco analysis was not admissible in evidence during trial. The judgment also held that these tests involve “minimal bodily harm”.















A court in Kerala recently pronounced that no court order is required to do a narco analysis, Disposing of a petition filed by the CBI seeking permission of the court, the magistrate said that filing this type of a plea would only delay the investigation. The court said nobody could stand in the way of the investigating agency conducting tests recognized as effective investigation tools. When the technicalities of the test itself are not clear and uniform, it becomes difficult to accept the stand taken by the court.























 Views

The main provision regarding crime investigation and trial in the Indian Constitution is Art. 20(3). It deals with the privilege against self-incrimination. It has its equivalents in the Magna Carta and the law of almost every civilized country. The privilege against `self incrimination is a fundamental canon of Common law criminal jurisprudence.















1.The characteristic features of this principle are-







2.The accused is presumed to be innocent,







3.That it is for the prosecution to establish his guilt, and







4.That the accused need not make any statement against his will.







5.The privilege against self-incrimination thus enables the maintenance of human privacy and observance of civilized standards in the enforcement of criminal justice.







Art. 20(3) which embody this privilege reads, “No person accused of any offence shall be compelled to be a witness against himself”.















On analysis, this provision will be found to contain the following components:







1.It is a right available to a person “accused of an offence”;







2.It is a protection against such “compulsion” “to be a witness”;







3.It is a protection against such “compulsion” resulting in his giving evidence against himself.







All the three ingredients must necessarily coexist before the protection of Art  20(3) can be claimed. If any of these ingredients is missing, Art. 20(3) cannot be invoked.























The application of narco analysis test involves the fundamental question pertaining to judicial matters and also to Human Rights. The legal position of applying this technique as an investigative aid raises genuine issues like encroachment of an individual’s rights, liberties and freedom.























The right against forced self-incrimination, widely known as the Right to Silence is enshrined in the Code of Criminal Procedure (CrPC) and the Indian constitution. In the CrPC, the legislature has guarded a citizen’s right against self-incrimination.















It is well established that the Right to Silence has been granted to the accused by virtue of the pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one can forcibly extract statements from the accused, who has the right to keep silent during the course of interrogation (investigation). By the administration of these tests, forcible intrusion into one’s mind is being restored to, thereby nullifying the validity and legitimacy of the Right to Silence.















With crimes going hi-tech and criminals becoming highly trained professionals, the use of narco analysis by the investigating officials can be very useful, because whereas the conscious mind does not speak out the truth, unconscious may reveal the information, which could provide vital lead in.

Narco analysis test could result in an output contaminated by deception, fantasy and garbled speech.

However, defense lawyers and human rights activists viewed that narco analysis test was a very primitive form of investigation and third degree treatment, and there were legal lapses in interrogation with the aid of drugs.

Adv. K.C. Suresh, B.A., LL.M ( Crimes), PGDHR (Human Rights), Kerala

Suresh_kc@sify.com

Thank you very much sirs for your time & information.

thanks for the valuable information sir.

I want to add some more to what Mr.Suresh has said. the statement obtained by coercion is not admissible, and cannot be used against the accused, but such statements  can be used for detection of facts or the discovery of other evidences. for instance, if the accused says that he has thrown the deadbody into the river after the murder, the statement can be used to find out the dead body.

the Right against self incrimination has also been recognized by US constitution by 5th Amendment, and this was also affirmed by the Supreme Court of US in Miranda v/s Arizona case.

HI

I would like to know is ther eany law for Govt Servant ( State or Central) if he gives false statement of stamp paper or give false information to any of the govt departmetn, what is the penalty for that or is ther any rule or law of state govt of central govt...

pls advise

thaks

rajendra