Narco Test of rape victim and prosecution witnesses.

 

Narco Test of rape victim and prosecution witnesses.

Bombay High court’s  judgment refusing  to grant permission for 'Narco test' is per incuriam.

Accused filed an application to recall the impugned order as it is against the  Supreme Court’s judgment.

 

Mumbai: The issue regarding right of the accused  to demand  for 'Narco Analysis  Test' of the rape victim and the prosecution witnesses came for consideration  before the Bombay High Court on 23.10.2020.

The writ petition was filed against the order passed by the Sessions Judge,  Greater Mumbai.  The applicant is arraigned as an accused in connection with C.R. No. 128/2015 registered with J.J. Marg Police Station, Mumbai, for the alleged offences punishable under 376(1), 376(2B), 377, 354, 506 of the IPC and Sections 3, 4, 5 and 9 of the POCSO. It is the case of the prosecution that the applicant/accused had sexually assaulted the victim girl aged 10/12 years, who is the complainant's niece. 

When the applicant was arrested by the Police, the counsel appearing for accused Adv. Nilesh Ojha pointed out to the Court that 'the accused has shown his willingness and also made an application for conducting his Narco Test and if in the Narco Test he is found to have been committed an offence then he should not be released on bail rather he should be convicted.' Thereafter considering the legality of the case  the accused was released on bail. But Police did not show any interest in conducting Narco Test of the accused.

During the trial the applicant filed an application for conducting the Narco-Analysis Test of the prosecution witnesses i.e. the complainant and the victim girl, an orphan aged 10/12 years.  In the aforesaid application, the applicant has stated that the examination-in-chief of the victim's aunt i.e. the complainant reveals that she is not telling the truth and that there are several discrepancies in her deposition as well as the victim’s deposition and that the victim girl, an orphan, is deposing under the pressure of her aunt and thus, it is necessary to conduct the “Narco-Analysis Test” of the complainant and the victim to ascertain the truth  and accordingly, it was prayed that an appropriate order be passed directing the Authority to conduct Narco-Analysis Test of both, i.e. the victim and her aunt i.e. the complainant.

Said application was rejected by the sessions Court. While refusing to grant the prayer of the accused the  sessions judge had taken a view that during investigation the Police can ask for Narco Test of the accused but the accused cannot ask the Narco test of the victim.

Said order of the Sessions Judge was challenged before Bombay High Court. While dismissing the petition  the High Court Judge Smt. Revati Mohite Dere took a view that the Narco test cannot be allowed to bring the truth to the surface when there are discrepancies in the evidence of the victim and prosecution witnesses.

Actually the view taken by the Bench of justice Revati Mohite Dere is exactly against the binding precedent of full Bench of the  Supreme Court in Selvi Vs. State of Karnataka (2010) 7 SCC 263, where in Para 49 it is ruled as under;

“49. This technique can serve several ends. The revelations could help investigators to uncover vital evidence or to corroborate pre-existing testimonies and prosecution theories. Narco analysis test have also been used to detect “malingering” (faking of amnesia). The premise is that during the “hypnotic stage” the subject is unable to willfully suppress the memories associated with relevant facts. Thus, it has been urged that drug-induced revelations can help narrow down investigation efforts thereby saving public resources. There is of course a very real possibility that information extracted through such interviews can lead to the uncovering of independent evidence which may be relevant. Hence, we must consider the implications of such derivative use of the drug-induced revelations, even if such revelations are not admissible as evidence. We must also account for the uses of this technique by persons other than investigators and prosecutors. Nacroanalysis test could be requested by the defendants who want to prove their innocence. Demands for this test could also be made for purposes such as gauging the credibility of testimony, to refresh the memory of witnesses or to ascertain the mental capacity of persons to stand trial. Such uses can have a direct impact on the efficiency of investigations as well as the fairness of criminal trials. [See generally George H. Dession, Lawrence Z. Freedman, Richard C. Donnelly and Frederick G. Redlich, “Drug-induced Revelation and Criminal Investigation”¹⁶.]”

 

Therefore  the accused in his petition had said that the judgment being per incuriam can be recalled and set aside by the Court.

The  second crucial ground raised in recall application  is that the impugned order in refusing to allow the request for narco Test is without any reason as to why such application is not to be allowed and whether such test is necessary for the just decision of the case.

The necessity to pass the reasoned order is explained in following landmark judgments;

G.1.  In Union of India (UOI) Vs. Ibrahim Uddin and Anr., (2012) 8 SCC 148, it is ruled as under ;

“Reasoned Order- It is a settled legal proposition that judicial order must be supported by reasons, recorded in it. The person who is adversely affected must know why his application has been rejected.

Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of the of natural justice. The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. Recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected. (Vide: State of Orissa v. Dhaniram Luhar MANU/SC/0082/2004 : AIR 2004 SC 1794; State of Uttaranchal and Anr. v. Sunil Kumar Singh Negi MANU/SC/7315/2008 : AIR 2008 SC 2026; TheSecretary & Curator, Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity and Ors. MANU/SC/0155/2010 : AIR 2010 SC 1285; and Sant Lal Gupta and Ors. v. Modern Cooperative Group Housing Society Limited and Ors. MANU/SC/0859/2010 : (2010) 13 SCC 336). (Para 33) ”

G.2.  In Bhagabhai Dhanabhai Barad MANU/GJ/0398/2019 it is ruled as under;

‘‘Reasoned Order – Any Order should be with intellectual reasons on each point- Any Judge or quasi judicial authority is bound to pass a reasoned order Reasons in support of decisions must be cogent, clear and succinct.

"adequate and intelligent reasons must be given for judicial decisions".

A pretence of reasons or 'rubber-stamp reasons' is not to be equated with a valid decision making process.

The Apex Court further held that a litigant who approaches the Court with any grievance is entitled to know the reasons for grant or rejection of his prayer.

It further held that insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done, but it must also appear to be done, as well. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi- judicial or even administrative power. Insistence on reason is a requirement for both judicial accountability and transparency. If a judge or a quasi judicial authority is not candid enough about his/her decision-making process, then, it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, MANU/UKWA/0114/2001 : 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires "adequate and intelligent reasons must be given for judicial decisions".

The doctrine of audi alteram partem has three basic essentials. Firstly, a person against whom an order is required to be passed or whose rights are likely to be affected adversely must be granted an opportunity of being heard. Secondly, the concerned authority should provide a fair and transparent procedure and lastly, the authority concerned must apply its mind and dispose of the matter by a reasoned or speaking order. This has been uniformly applied by courts in India and abroad.

"the orderly functioning of the process of review requires that the grounds upon which the administrative agency acted be clearly disclosed and adequately sustained."

To sub-serve the purpose of justice delivery system, therefore, it is essential that the Courts should record reasons for its conclusions, whether disposing of the case at admission stage or after regular hearing.

The requirement of recording reasons is applicable with greater rigour to the judicial proceedings. The orders of the court must reflect what weighed with the court of granting or declining the relief claimed by the applicant. In this regard we may refer to certain judgments of this Court."

Considering these decisions and also noticing that the combined order impugned, passed below Exh. Nos. 3 and 4 of the Criminal Appeal No. 4 of 2019 lacks completely reasons and is a cryptic, non-speaking order, therefore, cannot stand to leg nor can it be sustained. The application, which had been tendered on the part of respondent No. 1 even though contains requirements of respondent No. 1 and also has conveyed the details as would be required to be placed before the Court concerned, however, that which is obligatory on the part of the Court can have no other substitute and the appellate Court while dealing with such application, when has totally failed in its duty in giving reasons, this Court would be failing in its duty if it does not interfere and quash the said order.

Reasons being the soul of any order, this opaqueness on account of absence of reasons, it not checked, it may give impetus to the arbitrariness and to trade on extraneous grounds. Our democracy based on rule of law, favours the reasoned order and decisions based on facts and hence, to upkeep the objectives of judicial accountability and transparency, this Court is required to interfere with the order impugned.

Resultantly, the petition is allowed. The order of the appellate Court dated 07.03.2019 passed below Exhs. 3 and 4 in Criminal Appeal No. 4 of 2019 is quashed and set aside. Considering the fact that this order would leave a void.

32. Considering these decisions and also noticing that the combined order impugned, passed below Exh. Nos. 3 and 4 of the Criminal Appeal No. 4 of 2019 lacks completely reasons and is a cryptic, non-speaking order, therefore, cannot stand to leg nor can it be sustained. The application, which had been tendered on the part of respondent No. 1 even though contains requirements of respondent No. 1 and also has conveyed the details as would be required to be placed before the Court concerned, however, that which is obligatory on the part of the Court can have no other substitute and the appellate Court while dealing with such application, when has totally failed in its duty in giving reasons, this Court would be failing in its duty if it does not interfere and quash the said order.’’

 

G..3.  In Dhanuben Patel Vs. ONGC 2014 SCC OnLine Guj 15949, it is ruled as under;

 

“REASONED ORDER: The Court cannot lose sight of the fact that a losing litigant has a cause to plead and a right to challenge the order if it is adverse to him. Opinion of the Court alone can explain the cause which led to passing of the final order. Whether an argument was rejected validly or otherwise, reasoning of the order alone can show. To evaluate the submissions is obligation of the Court and to know the reasons for rejection of its contention is a legitimate expectation on the part of the litigant. Another facet of providing reasoning is to give it a value of precedent which can help in reduction of frivolous litigation.

 

B] "The giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dudley) Ltd. v. Crabtree it was observed: "Failure to give reasons amounts to denial of justice." "Reasons are live links between the mind of the decision- taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform theirappellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system; reasons at least sufficient to indicate an application of mind to the matter before Court. Another rationale is that the affected party can know why the decision has gone against him.

 

Absence of reasoning did not find favour with the Supreme Court. The Supreme Court also stated the principle that powers of the High Court were circumscribed by discussed and declared  by  judicial decision and it cannot transgress the limits on the basis of whims or subjective opinion varying from Judge to Judge. That even when the petition under Article 226 is dismissed in limini, it is expected of the High Court to pass a speaking order,may be briefly.

 

"reason is the heartbeat of every conclusion, and without the same it becomes lifeless."

Download Related Documents :  

Download the copy of the judgment
Dated 23.10.2020  Passed in the writ Petition                 Download Now

Download the copy of the Application to recall the order.          Download Now