Complainant Can't Force Unwilling Accused To Undergo Narco Test: Delhi High Court

The Delhi High Court has held that a complainant cannot seek to compel an accused who has expressly refused consent to undergo a Narco Analysis Test.

Justice Purushaindra Kumar Kaurav observed that consent is a personal and non-derogable safeguard available to the subject of the test.

“If, therefore, even an accused person cannot claim an indefeasible right to undergo the test on an application moved by himself, it necessarily follows, a fortiori, that no such right, indefeasible or otherwise, can be said to inhere in a complainant seeking to compel an unwilling accused to undergo the very same test,” the Court said.

“The consent contemplated in Selvi (supra) is a personal and nonderogable safeguard available to the subject of the test. It is not a threshold that can be crossed on the accused's behalf, over his express objection, at the instance of a third party,” it added.

For context, in Selvi & Ors. v. State of Karnataka & Anr. (2010), the Supreme Court held that no individual can be forcibly subjected to Narco Analysis, polygraph or Brain Electrical Activation Profile tests.

In the case at hand, petitioner-father of a woman who was allegedly murdered in 2017, sought a direction for conducting Narco Analysis Tests on the accused persons.

The petition challenged the orders passed by the Trial Court and the Additional Sessions Judge, rejecting the complainant's application seeking a Narco Test of the accused.

The deceased, Yogesh Kumari, had gone missing on November 16, 2017, while stepping out to buy vegetables. An FIR was subsequently registered under Sections 365, 302, 174A and 34 of the IPC, after suspicion was raised against persons residing as tenants in the same locality.

The petitioner approached the Trial Court seeking directions for conducting Narco Analysis Tests on the accused persons.

Two of the accused expressly stated before the Trial Court that they did not wish to undergo the test. The Trial Court thereafter dismissed the application, observing that such a test could not be enforced upon them.

The petitioner father challenged the order before the Sessions Court, arguing that the investigation had remained pending for several years and that scientific techniques were necessary to unearth the truth. The Sessions Court dismissed the revision.

Before the High Court, the petitioner argued that since the alleged murder had taken place inside a room and there were virtually no eyewitnesses, scientific investigation, including Narco Analysis, should be permitted in the interest of discovering the truth.

Dismissing the plea, the Court observed that the Court cannot be oblivious to the solemnity of the underlying facts, nor to the entirely legitimate anguish of a father seeking justice for a daughter so brutally done to death.

It added that the proposition that fair trial “embraces both the life and liberty of the accused as well as the interest of the victim”, and that fair investigation is an incident of fair trial, is unexceptionable and stands accepted by the Court.

The Court accordingly found no illegality, perversity or jurisdictional error in the orders refusing to compel the accused to undergo Narco Analysis.

“The concurrent finding that the surviving accused persons, having categorically declined to undergo the Narco Analysis Test, cannot be compelled to do so at the instance of the complainant, is in consonance with the binding law laid down in Selvi (supra) and reiterated in Amlesh Kumar (supra), and warrants no interference under Article 227 of the Constitution,” the Court said.

At the same time, it clarified that since the chargesheet already was filed, the concerned Court was given liberty to examine all aspects of the matter.

“….and if the petitioner may desire, may also seek for further investigation/ monitoring of the investigation,” the Court said.

Case Title: Pappu Singh v. State NCT of Delhi

Click here to read order