An accused facing prosecution for sexual assault of a child under Sections 377 and 511 of Indian Penal Code and Section 6 of Protection of Children from Sexual Offences Act, filed an application under Section 173 (8) of Cr.P.C. 1973 praying that investigating agency be directed to conduct Polygraph/Narco Analysis/Brain Mapping test on him. Both the trial court and the Delhi high court dismissed his application. On Friday, when the SLP filed by the appellant-accused, Sidhu Yadav @ Siddharth against the State of NCT of Delhi came up for hearing, the Supreme Court bench of the Chief Justice Dipak Misra, and Justices A.M.Khanwilkar and D.Y.Chandrachud, too found no merit in his application, and dismissed the same.
The accused alleged that the investigation was done in a prejudiced manner, neglecting evidence which could have exonerated the petitioner.
Trial Court relied on the Allahabad High Court’s judgment, Shyama Charan Dubey v State of Uttar Pradesh, (1990) wherein it has been held that neither the prosecution, that is, informant, nor the accused could claim as a matter of right a direction from the court commanding further investigation by an investigating officer under Section 173 (8) Cr.P.C. after a chargesheet had been filed.
The trial court also relied on the Privy Council judgment in Stephen Seniviratne v The King, (1936) wherein it has been held that it is a wrong idea that the prosecution should discharge the functions both of prosecution and defence; it if does so, confusion is very apt to result.
The Delhi High Court, citing a Bombay High Court judgment in 2016 in [email protected] Ananda Chandane v The State of Maharashtra, held that just as inculpatory statement of the accused cannot be made basis for conviction, exculpatory statement cannot be made basis for acquittal, and it would be futile exercise to permit the accused to undergo such test.
The counsel for the accused submitted before the High Court that the purpose of the application for NARCO test was to preserve the evidence, as with passage of time, value of the test will be diminished. In support of this contention, two High Court judgments were cited, namely, Vinodbhai Gangadas Vanjani v State of Gujarat (2016) and Dr.Purushottam Swaroopchand Soni v The State of Gujarat (2007). The Delhi High Court, however, held that these two judgments were in the context of different facts. The Delhi High court order was delivered by Justice A.K.Pathak, on March 21 this year.