# Saroj Kumar & Ors v. State of U.P. & Ors

- **Citation:** (2022) 10 ILRA 161
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-13
- **Case number:** Criminal Misc. Writ Petition No. 7559 of 2022
- **Bench:** Rajan Roy, Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saroj-kumar-ors-v-state-of-u-p-ors-47700
- **Pages:** 6

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 2(h), 173(2), 204, 313
& 482 - Indian Penal Code, 1860 -
Sections 201 & 302 - Indian Evidence
Act, 1872 - Section - 3: - Criminal Writ
Petition - mandamus for commanding the
investigating authority for conduction the
'Narco Analysis Test' or 'Lie Detector Test' so
as to investigation may be lead to its right
direction - court finds that, since, the
materials collected through these test cannot
be used as corroborative piece of evidence
and Narco Analysis Test or Polygraph Test is
not admissible in the Law - thus, no such
mandamus can be issued - relief of the
petitioner is rejected - However, if the
investigating officer on his own decides to get
the said tests he can do so subject to consent
of the accused. (Para - 9, 10)

Writ Petition Disposed of. (E-11)

List of Cases cited:

## Text

10 All. Saroj Kumar & Ors. Vs. State of U.P. & Ors.
161
(2022) 10 ILRA 161
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.10.2022

BEFORE

THE HON'BLE RAJAN ROY, J.
THE HON'BLE SANJAY KUMAR PACHORI, J.

Criminal Misc. Writ Petition No. 7559 of 2022

Saroj Kumar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Arvind Kumar

Counsel for the Respondents:
G.A.

Criminal Law - Criminal Procedure Code,
1973 - Sections 2(h), 173(2), 204, 313
& 482 - Indian Penal Code, 1860 -
Sections 201 & 302 - Indian Evidence
Act, 1872 - Section - 3: - Criminal Writ
Petition - mandamus for commanding the
investigating authority for conduction the
'Narco Analysis Test' or 'Lie Detector Test' so
as to investigation may be lead to its right
direction - court finds that, since, the
materials collected through these test cannot
be used as corroborative piece of evidence
and Narco Analysis Test or Polygraph Test is
not admissible in the Law - thus, no such
mandamus can be issued - relief of the
petitioner is rejected - However, if the
investigating officer on his own decides to get
the said tests he can do so subject to consent
of the accused. (Para - 9, 10)

Writ Petition Disposed of. (E-11)

List of Cases cited:

1. Madhuri Devi Vs St. of U.P. & ors., Writ Petition
No.7590 (MB) of 2015, judgment dated 15.11.2019

2. Ram Prasad Vs St. of U.P. & ors.; Writ Petition
No.31348 (MB) of 2019
3. Louis Vs St. of Kerala & ors., Crl. MC No.4007
of 2021

4. Union of India & anr. Vs W.N. Chadha; 1993
Cr.L.J. 859

5. St. of Bihar v. J.A.C. Saldanha, 1967 (3) SCR
668

6.
Ram
Lal
Narang
versus
St.
(Delhi
Administration), (1979)2 SCC 322

(Delivered by Hon'ble Rajan Roy, J.
&
Hon'ble Sanjay Kumar Pachori, J.)

1. Heard Mr. Arvind Kumar, learned
counsel for the petitioners and Mr. Badrul
Hasan, learned Additional Government
Advocate appearing on behalf of the State.

2. By means of the present petition
the petitioners have sought the following
reliefs:

"(I) issue a writ order or
direction in the nature of Mandamus
commanding the opposite parties to take
immediate
positive
decision
on
representation dated 12.09.2022 contained
as Annexure no.1 to this writ petition by
which petitioners are seeking utilization of
modern scientific technique of ?brain
mapping test? like ?NARCO? or ?lie
detector test? upon the petitioners as well
as complainant to lead the investigation in
right direction and contract out the truth of
case pertaining to F.I.R. no.86/2022 dated
04.03.2022, U/S 302, 201 I.P.C. Police
Station-Mohd.
Pur
Khala,
District
Barabanki.

(II) issue a writ order or direction
in the nature of mandamus commanding
opposite party no.-4 to obtain viscera
analysis report from Forensic Scientfic
Laboratory Lucknow pertaining case/ F.I.R.
162 INDIAN LAW REPORTS ALLAHABAD SERIES
no.86/2022 dated 04.03.2022, U/S 302, 201
I.P.C. Police Station-Mohd. Pur Khala,
District Barabanki.

(III) issue a writ order or
direction in the nature and manner which
deemed
just
and
proper
in
the
circumstances of the case.

(IV) allow the writ petition with
costs."

3. The petitioners are the accused in
F.I.R. No.86 of 2022, under Sections 302,
201 I.P.C. Police Station Mohd. Pur Khala,
District Barabanki. They have filed this
petition seeking a writ of mandamus
commanding the opposite parties to take
immediate
positive
decision
on
representation dated 12.09.2022 annexed as
Annexure No.1 to the petition by which the
petitioners have sought utilization of
modern scientific technique of ?brain
mapping test? like ?NARCO? or ?lie
detector test? upon petitioners as well as
complainant to lead the investigation in
right direction and to extract the truth of the
case. Another relief has been sought in the
nature of mandamus commanding opposite
party no.4 to obtain viscera analysis report
from
Forensic
Scientific
Laboratory,
Lucknow pertaining to the aforesaid case as
viscera has been preserved.

4. Learned counsel for the petitioners
has relied upon a judgment of this Court
dated 21.08.2015 rendered in the case of
Madhuri Devi Vs. State of U.P. and
others; Writ Petition No.7590 (MB) of
2015. He has also relied upon another
judgment dated 15.11.2019 rendered in the
case of Ram Prasad Vs. State of U.P. and
others; Writ Petition No.31348 (MB) of
2019 in support of his case.

5. On the other hand learned A.G.A.
Mr. Badrul Hasan has placed before the
Court a judgment of Single Judge Bench of
the Kerala High Court in the case of Louis
Vs. State of Kerala and others; Crl. MC
No.4007 of 2021 wherein a similar request
at the behest of the accused was denied on
the ground that such narco analysis test etc.
are not admissible as evidence and also that
the accused does not have any such
enforceable right.

6. We specifically asked the learned
counsel for the petitioners as to whether
such tests as are referred in the relief clause
i.e. narco or lie detector test or brain
mapping test are admissible in evidence
under the Indian Evidence Act or not,
learned counsel for the petitioners fairly
submitted that they are not admissible in
evidence, however, they would help in
giving direction to the investigation and to
reveal the truth.

7. We have gone through the decision
of a Coordinate Bench of this Court in the
case of Madhuri Devi (supra). That was a
writ petition filed by the informant seeking
a
writ
of
mandamus
directing
the
investigating agency to take action against
the accused, respondents 4 to 9 in the
course of investigation of the case. In
effect, the petition sought issuance of a writ
directing the investigating agency to
conduct proper investigation. In the said
judgment the Coordinate Bench referred to
a decision of Hon?ble the Supreme Court in
the case of Union of India and another Vs.
W.N. Chadha; 1993 Cr.L.J. 859. In para 92
of the judgment it has been categorically
observed that the accused has no right to
have any say as regards the manner and
method of investigation. Save under certain
exceptions under the entire scheme of the
Code, the accused has no participation as a
matter of right during the course of the
investigation of a case instituted on a police
10 All. Saroj Kumar & Ors. Vs. State of U.P. & Ors.
163
report till the investigation culminates in
filing of a final report under Section 173(2)
of the Code or in a proceeding instituted
otherwise than on a police report till the
process is issued under Section 204 of the
Code, as the case may be. The Court further
observed that at the same time there are
certain
provisions
under
the
Code
empowering the Magistrate to give an
opportunity of being heard under certain
specified circumstances. It also referred to
other decisions specifically the decision of
the Hon?ble Supreme Court in the case of
State of Bihar v. J.A.C. Saldanha, 1967
(3) SCR 668 wherein it was opined that the
field of investigation of any cognizable
offence is exclusively within the domain of
the investigating agencies over which the
courts cannot have control and have no
power to stifle or impinge upon the
proceedings in the investigation so long as
the investigation proceeds in compliance
with
the
provisions
relating
to
investigation. In para 38 of the decision in
the case of Madhuri Devi (supra) relevant
extracts of the judgment in the case of W.N.
Chadha (supra) have been considered. The
Court has nevertheless observed that
although an accused would have no right of
hearing, however, a duty is cast on the
investigating agency to conduct fair and
impartial investigation. If the investigator
receives relevant information in regard to
the facts of a case under investigation, be it
from the complainant informant, a witness
or even the accused, a duty is cast on the
said investigating officer to investigate that
aspect. In case the investigation is select
and one sided, the truth cannot be
unearthed.
If
facts
or
some
evidence/material is brought to the notice
of the investigator, on consideration of
which it can be demonstrated that the
accused is not connected with commission
of the crime, surely in such cases, the
investigating agency would be obliged to
investigate that aspect, in the interest of fair
play and purity of administration of
criminal justice. For this purpose, the
information given by the accused cannot be
ignored on the analogy that he has no right
to be heard. The Coordinate Bench referred
to decisions of Hon?ble Supreme Court in
the case of Ram Lal Narang versus State
(Delhi Administration), (1979)2 SCC 322
wherein also it has been indicated that
When it comes to the notice of the
investigating agency that a person already
accused of an offence has a good alibi, it
would be a duty of that agency to
investigate the genuineness of the plea of
alibi. In para 42 of the decision in the case
of Madhuri Devi (supra) it has also been
observed that in a case of mala fide
implication
of
an
accused
if
the
investigating officer also considers the
version of the accused in that context and
takes
into
consideration
the
evidence/material then there would nothing
be wrong in it. We are in agreement with
the
above
view
expressed
by
the
Coordinate Bench, however, in the case at
hand the facts are very different. Here it is
not a case where some relevant facts as
defined in the Indian Evidence Act is
available and the same is not been taken
into consideration by the Investigating
Officer. In fact in this context we may like
to refer to the definition of investigation as
contained in Section 2 (h) of Cr.P.C. The
said term is defined to include all the
proceedings under this Code for the
collection of evidence conducted by a
police officer or by any person (other than a
Magistrate) who is authorised by a
Magistrate in this behalf. Now, admittedly,
the result of Narco test etc. would not be
admissible as evidence as already noticed
herein above. We may in this context refer
to the decision relied upon by learned
164 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional
Government
Advocate
as
rendered by a Single Judge Bench of the
Kerala High Court in the case of Louis Vs.
State of Kerala (supra) wherein the court
had considered the definition of ?evidence?
in Section 3 of the Indian Evidence Act and
the definition of term ?fact? contained
therein as also the submission of the Public
Prosecutor that the said definition of fact
provides that that only mental condition of
which any person is conscious comes under
the definition of fact. The Kerala High
Court
has
thereafter
opined
in
the
abovesaid case which is extracted as under:

"18. So when a Narco Analysis
test is conducted with the intervention of
some medication, when a person is not
conscious and make some revelations from
the sub conscious mind the credibility of
that revelation stands far short of the fact
described under the Evidence Act. The
possibility of some persons concocting
fanciful stories in the course of hypnotic
stage
also
cannot
be
ignored.
The
responses of different individual in such
circumstances would vary the result of not
having any uniform criteria for evaluating
the efficacy of the Narco Analysis technique
is a matter of another concern as per the
dictum in the Selvi's case.

19.
The
possibility
of
the
testimony being not voluntary even if the
person freely consents to undergo the test
also is there. The danger of the person not
being able to exercise an effective choice of
remaining silent and imparting personal
knowledge is CRL.M.C.4007/21 also there
since the results are derived from the
psychological responses. Apex court also
had foreseen the danger of such test being
permitted at the instance of prosecution
since on the principle of parity of
procedure if the accused files such
application that also has to be allowed.
That would result in re opening of cases or
even can be used for the purpose of
attacking the credibility of witnesses during
trial.

20. Hence even if the petitioner
voluntarily submits for subjecting himself
for Narco Analysis Test, there is no
guarantee that the statements would be
voluntary. So even if the court permits the
petitioner to undergo a Narco Analysis test,
it has no acceptability in the eye of law.

21. The learned counsel for the
de facto complainant brought to my
attention Vipin Kushwaha v. The State of
M.P.
in
M.Cr.C.No.11699/2021
dated
6.9.2021 of Madhya Pradesh High Court.
That was also a petition filed under Section
482 of the Code aggrieved by an order
rejecting an application filed by the
applicant seeking direction to perform his
Narco Test. In that decision the High Court
quoted Yogesh @ Charu Ananda Chandane
v. State of Maharashtra, an order passed in
M.Cr.C.No.11699/2021,
petition
No.2420/2016 wherein the High Court of
Bombay rejected the similar prayer for
Narco Analysis. The relevant paragraph
No.7 has been quoted in the above
CRL.M.C.4007/21 decision which reads
thus : -

"In fact, the order passed by the
learned Sessions Judge does not warrant
any interference. That the evidence which is
recorded in the course of the Narco
Analysis Test or Polygraph Test is not
admissible in evidence. It would be a
hazardous situation to permit any/every
accused to undergo narco analysis test for
proving his innocence. It is incumbent upon
the prosecution to substantiate its case and
prove the guilt of the accused beyond
reasonable doubt. Criminal Jurisprudence
contemplates that an accused has a right to
silence and it is the duty of the prosecution
to prove its case beyond reasonable doubt.
10 All. Saroj Kumar & Ors. Vs. State of U.P. & Ors.
165
The technique such as polygraph test and
narco analysis test would be helpful
technology for the investigating agency or
to seek a direction in the course of
investigation.

"We must also account for the
uses of this technique by persons other than
investigators
and
prosecutors.
Narco
Analysis tests could be requested by
defendants who want to prove their
innocence."

22. In the present case also, the
petitioner wanted to subject himself to Narco
Analysis Test which according to the learned
counsel, is necessary to buttress his
statements under Section 313 Cr.P.C. The
above settled principles of law unequivocally
lay down the position that the revelations
brought out during Narco Analysis under the
influence of a particular drug cannot be
taken as a conscious act or statement given
by a person. The possibility of accused
himself making exculpatory statements to
CRL.M.C.4007/21 support his defence also
cannot be ruled out. There is no mechanism
or the present Investigating Agency is also
not equipped to assess the credibility of such
revelations of the accused. The Investigating
Officers also would find themselves difficult
to come to a definite conclusion regarding the
veracity of the revelations so made and the
other evidence already collected by them. So
the contention of the learned counsel for the
petitioner that in order to buttress his
statements under Section 313 Cr.P.C , these
materials collected through Narco Analysis
Test can be used as corroborative piece of
evidence etc, is not at all sustainable in law.

23. In the result, Crl.M.C is found
to be devoid of any merit and hence
dismissed."

8. The evidenciary value of a narco
analysis
test
has
been
considered
threadbare and it has been recorded that
revelations brought out during Narco
Analysis under the influence of a particular
drug cannot be taken as a conscious act or
statement
given
by
a
person.
The
possibility of accused himself making
exculpatory statements to support his
defence also cannot be ruled out. There is
no mechanism or the present Investigating
Agency is also not equipped to assess the
credibility of such revelations of the
accused. The Investigating Officers also
would find themselves difficult to come to
a definite conclusion regarding the veracity
of the revelations so made and the other
evidence already collected by them.

9. The Court rejected the contention of
learned counsel for the petitioner therein that
in order to buttress his statements under
Section 313 Cr.P.C, these materials collected
through Narco Analysis Test can be used as
corroborative piece of evidence etc. as not
being sustainable in law. The Court clearly
held that the Narco Analysis Test or
Polygraph Test is not admissible in law.

10. We are also in agreement with the
opinion expressed by the Kerala High Court
considering the aforesaid discussions as the
result of the brain mapping test or narco or lie
detector test would not be admissible in
evidence, therefore, we see no reason to issue
any such mandamus for disposal of the
petitioners/accused
application
for
undertaking
such
exercise
by
the
Investigating Officer. This of course does not
mean that if the Investigating Officer on his
own decides to get the said tests conducted
then he cannot do so, meaning thereby that if
he so decides he can always get the test
conducted subject to consent of the accused.

11. So far as the judgment of a
Coordinate Bench in the case of Ram
Prasad (supra) is concerned the same does
166 INDIAN LAW REPORTS ALLAHABAD SERIES
not consider or lay down the law on the
subject. It is only the ratio of a judgment
which is binding and not its operative
portion.

12. Now we proceed to consider the
other relief prayed for regarding the viscera
analysis
report.
We
find
from
the
postmortem report that though the cause of
death mentioned therein is due to asphyxia
as a result of ante mortem drowning
however to rule out poisoning viscera for
chemical examination has been preserved.
Therefore as for as this relief is concerned
the Investigating Officer shall consider this
aspect of the matter as per law.

13. We accordingly reject the relief
no.1 and dispose of the petition as far as
relief no.2 is concerned with the aforesaid
observations.

14. The petition is disposed of.

15. No orders as to the costs.
----------
(2022) 10 ILRA 166
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.09.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 931 of 1999
With
Criminal Appeal No. 1655 of 2007

Ganesh & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri D.N.Wali, Sri Apul Misra, Sri D.R.
Chaudhary, Sri Dharmendra Singh, Sri Dilip
Kumar, Sri Ishwar Chandra Tyagi, Sri M D
Mishra, Sri Noor Mohammad, Sri P.N.Misra,
Sri R.B.Sharma, Sri Rajiv Gupta, Sri Rajrshi
Gupta, Sri S.P.S. Raghav, Sri S.S. Giri, Sri
Syed Shahnawaz Shah, Sri Manish Kumar
Tripathi,
Sri
Ram
Babu
Sharma,
Sri
Devendra Singh, Sri Anil Raghav, Sri R.C.
Pandey, Sri Santosh Kumar Singh

Counsel for the Respondent:
A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 147,148, 149,
302
&
307-Challenge
to-Convictionmurder-no delay in FIR, time taken by the
witnesses to lodge the FIR is justifiable as
the incident took place in midnight and
the distance of police station was 7 km.
from the place of occurrence- death of the
deceased persons were caused as a result
of ante-mortem fire arm injuries as stated
by PWs 1 to 4-The eye-witness account
finds support with the medical evidenceSite plan and FSL report proves the place
of occurrence- Witnesses had no enmity
to implicate falsely to the appellant-the
method, time and manner as deposed by
the ocular witness PW1 to PW4 proves
their presence on the spot-As a result,
Witnesses testimony is wholly reliable
and trustworthy-Thus, trial court rightly
appreciated the evidence.(Para 1 to 65)

B. It is well settled that the evidence of
interested or inimical witnesses is to be
scrutinized with care but cannot be
rejected merely on the ground of being a
partisan evidence. if on a perusal of the
evidence the Court is satisfied that the
evidence is creditworthy there is no bar in
the Court relying on the said evidence.
(Para 54)
The appeals are dismissed. (E-6)

List of Cases cited: