WHETHER PERSON RELEASED ON ANTICIPATORY BAIL CAN BE INTERROGATED BY THE POLICE?

Hon’ble Supreme Court in case of Fida Hussain Bohra Versus The State of Maharashtra Criminal Appeal No.420  of 2009 decided  on March 3, 2009 Supreme Court permitted the investigating agency to apply for interrogation of the accused either alone or with the other accused person, and directed that the application shall be allowed and made following observation:-

“We, therefore, are of the opinion that in the facts and circumstances of this case interest of justice would be sub-served if it is directed that the appellant shall in the event, any application therefore is filed by the investigation agency may be interrogated at any time suitable for the Investigating Officer either alone or with other accused persons, shall be allowed. Appellant shall comply with such other direction or directions as may be issued by the learned Sessions Judge, if and when, the learned Sessions Judge passes an order at the instance of the investigating agency or otherwise relying or on the basis of these observations.”

COMPLAINCE OF SECTION 41 AND 42 N.D.P.S ACT WHETHER MANDATORY?

Hon’ble Supreme Court while dealing with the above issue held that if search is made on the basis of secret information received by the police officer then it becomes mandatory for the police officer to forward the same to the senior police officer, within the time mentioned in the Section and also if the search is to be made after sunrise and sunset, warrant must be obtained. If there are reasons to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Recording of grounds of belief is must and sending the information to the senior officer is must and absence of these will vitiates trial. If search seizure is conducted in violation of  section 41 and 42 it will vitiate the trial.

Hon’ble Supreme Court  in case of State of Rajasthan vs Jag Raj Singh @ Hansa, 2016 (4) SCR 451 concluded:-

1- Under Section 41(1) only an empowered Magistrate can issue warrant for the arrest or for the search in respect of offences punishable under Chapter IV of the Act etc. when he has reason to believe that such offences have been committed or such substances are kept or concealed in any building, conveyance or place. When such warrant for arrest or for search is issued by a Magistrate who is not empowered, then such search or arrest if carried out would be illegal. Likewise only empowered officers or duly authorized officers as enumerated in Sections 41(2) and 42(1) can act under the provisions of the NDPS Act. If such arrest or search is made under the provisions of the NDPS Act by anyone other than such officers, the same would be illegal.

2 Under Section 41(2) only the empowered officer can give the authorisation to his subordinate officer to carry out the arrest of a person or search as mentioned therein. If there is a contravention, that would affect the prosecution case and vitiate the conviction.

3 Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.

4.Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has  been explained or not, will be a question of fact in each case.

EVIDENTIARY VALUE OF TEST IDENTIFICATION PARADE

The law as it stands today is set out in the following decisions of this Court which are reproduced as herein under in Munshi Singh Gautam vs. State of M.P. (2005) 9 SCC 631, at page 643:

" As was observed by this Court in Matru vs. State of U.P. 1971 2 SCC 75 identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines.

The identification can only be used as corroborative of the statement in Court. ( Santokh Singh vs. Izhar Hussain 1973 2 SCC 406.) The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses.

The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source.

The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime.

The identification proceedings are in the nature of tests  and It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such an allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.

POLICE SHOULD NOT ARREST A PERSON CASUALLY IN 498 A I.P.C AND MAGISTRATE NOT TO AUTHORISE THE DETENTION MECHANICALLY

Hon’ble Supreme Court   while dealing with the  issue of arrest in cases of 498 A IPC and use of section 41 A Cr.P.C. issued following guidelines in case of  Arnesh Kumar  vs State of Bihar (2014) 8 SCC 273.

All the State Governments to instruct its police officers not to automatically arrest when a case underSection 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;

All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);

The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

Notice of appearance in terms of Section 41A of Cr. P C be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance.

GUIDELINES FOR VIDEO-FILMING AND PHOTOGRAPHY OF POST-MORTEM EXAMINATION IN CASE OF DEATH IN POLICE ACTION

The National Human Right Commission issued following guidelines to be observed while video filming and photography of postmortem examination in cases of death in police action:-

In case of deaths in police action while conducting post-mortem examination of the deceased photographs of the deceased should be taken and the post-mortem examination of the deceased should be video filmed.

The video film and photographs should be sent to the Commission. The aim of video-filming and photography of postmortem examination should be:-

 i) to record the detailed findings of the post-mortem examination, especially pertaining to marks of injury and violence which may suggest custodial torture.

ii) to supplement the findings of post-mortem examination (recorded in the postmortem report) by video graphic evidence so as to rule out any undue influence or suppression of material information.

 iii) to facilitate an independent review of the post-mortem examination report at a later stage if required.

 2. The following precautions should be taken before conducting post-mortem examination:

i) Both hands of the deceased need to be wrapped in white paper bags before transportation. The dead body afterwards should be covered in special Body Bags having zip pouches for proper transportation.

ii) Clothing on the body of the deceased should not be removed by the police or any other person. It should be collected, examined as well as preserved and sealed by the doctor conducting the autopsy, and should be sent for further examination at the concerned forensic science laboratory. A detailed note regarding examination of the clothing should be incorporated in the postmortem examination report by the doctor conducting the autopsy.

iii) In case of alleged firearms deaths, the dead body should be subjected to radiological examination (X-rays/ CT Scan) prior to autopsy.

3. Video-filming and photography of post-mortem examination should be done in the following manner:

 i) At the time of video-filming of the post-mortem examination the voice of the doctor conducting the post-mortem should be recorded. The doctor should narrate his prima-facie observations while conducting the postmortem examination.

ii) A total of 20-25 coloured photographs covering the whole body should be taken. Some photographs of the body should be taken without removing the clothes. The photographs should include the following:

a) Profile photo-face (front, right lateral and left lateral views), back of head.

b) Front of body (up to torso-chest and abdomen) – and back

c) Upper extremity - front and back

d) Lower extremity – front and back 

e) Focusing on each injury/ lesion-zoomed in after properly numbering the

f) Internal examination findings (2 photos of soles and palms each, after making incision to show absence/ evidence of any old/ deep seated injury). * In firearm injuries while describing, the distance from heel as well as midline must be taken in respect of each injury which will help later in reconstruction of events.

iii) Photographs should be taken after incorporating post-mortem number, date of examination and a scale for dimensions in the frame of photographs itself.

iv) While taking photographs the camera should be held at right - angle to the object being photographed.

 v) Video-filming and photography of the post-mortem examination should be done by a person trained in forensic photography and videography. A good quality digital camera with 10X optical zoom and minimum 10 mega pixels should be used.

GUIDELINES FOR USE OF POLYGRAPHY, BRAINMAPPING AND NARCOANALYSIS IN INVESTIGATION AND ITS ADMISSIBILITY IN EVIDENCE

The legal questions which relate to the involuntary administration of certain scientific techniques, namely narcoanalysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) test for the purpose of improving investigation efforts in criminal cases was dealt by the hon’ble Supreme Court  in case of Selvi Vs State of Karnataka (2010) 7 SCC 267 and SC observed :-

“we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice, provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted, in accordance with section 27 of the Evidence Act, 1872.

The National Human Rights Commission had published `Guidelines for the Administration of Polygraph Test (Lie  Detector Test) on an Accused' in 2000. These guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the `Narcoanalysis technique' and the `Brain Electrical Activation Profile' test. The text of these guidelines has been reproduced below:”

(i) No Lie Detector Tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.

(ii) If the accused volunteers for a Lie Detector Test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.

(iii) The consent should be recorded before a Judicial Magistrate.

(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.

(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a `confessional' statement to the Magistrate but will have the status of a statement made to the police.

(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.

(vii) The actual recording of the Lie Detector Test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.

 (viii) A full medical and factual narration of the manner of the information received must be taken on record.

USE OF SCIENTIFIC INVESTIGATIVE TECHNIQUES IN CRIME INVESTIGATION

Hon’ble  Supreme Court while disposing off the Criminal Appeal  Dharamdeo Yadav vs State of U.P. (2014) 5 SCC 509 which relates with the murder of Diana Routley a citizen of Newzeland who came to India as tourist went to Varanasi and disappeared.  FIR was lodged and investigation started. During the investigation accused were arrested and under section 27 Evidence Act , skeleton was recovered. Since there was no eye witness to the seen of crime the whole case was based on Circumstantial Evidence. In order to establish the identity of skeleton of deceased  Photo Super Imposition Technique and DNA  Fingerprinting was  used. Based on last seen theory , and  other scientific and circumstantial evidence the Supreme Court commuted the death sentence of accused  into life imprisonment.

The Hon’ble Supreme Court while emphasizing on the use of Modern Scientific Techniques observed “

CRIME SCENE MANAGEMENT

“Crime scene has to be scientifically dealt with without any error. In criminal cases, especially based on circumstantial evidence, forensic science plays a pivotal role, which may assist in establishing the element of crime, identifying the suspect, ascertaining the guilt or innocence of the accused. One of the major activities of the Investigating officer at the crime scene is to make thorough search for potential evidence that have probative value in the crime. Investigating Officer may be guarded against potential contamination of physical evidence which can grow at the crime scene during collection, packing and forwarding. Proper precaution has to be taken to preserve evidence and also against any attempt to tamper with the material or causing any contamination or damage.”

EXPERT SCIENTIFIC EVIDENCE

Criminal Judicial System is this country is at cross-roads, many a times, reliable, trustworthy, credible witnesses to the crime seldom come forward to depose before the court and even the hardened criminals get away from the clutches of law. Even the reliable witnesses for the prosecution turn hostile due to intimidation, fear and host of other reasons. Investigating agency has, therefore, to look for other ways and means to improve the quality of investigation, which can only be through the collection of scientific evidence.

In this age of science, we have to build legal foundations that are sound in science as well as in law. Practices and principles that served in the past, now people think, must give way to innovative and creative methods, if we want to save our criminal justice system. Emerging new types of crimes and their level of sophistication, the traditional methods and tools have become outdated, hence the necessity to strengthen the forensic science for crime detection.

Oral evidence depends on several facts, like power of observation, humiliation, external influence, forgetfulness etc., whereas forensic evidence is free from those infirmities. Judiciary should also be equipped to understand and deal with such scientific materials. Constant interaction of Judges with scientists, engineers would promote and widen their knowledge to deal with such scientific evidence and to effectively deal with criminal cases based on scientific evidence. We are not advocating that, in all cases, the scientific evidence is the sure test, but only emphasizing the necessity of promoting scientific evidence also to detect and prove crimes over and above the other evidence.

Scientific evidence encompasses the so-called hard science, such as physics, chemistry, mathematics, biology and soft science, such as economics, psychology and sociology. Opinions are gathered from persons with scientific, technical or other specialized knowledge, whose skill, experience, training or education may assist the Court to understand the evidence or determine the fact in issue. Many a times, the Court has to deal with circumstantial evidence and scientific and technical evidence often plays a pivotal role. Sir Francis Bacon, Lord Chancellor of England, in his Magnum Opus put forth the first theory of scientific method. Bacons view was that a scientist should be disinterested observer of nature, collecting observations with a mind cleansed of harmful preconceptions, that might cause error to creep into the scientific record. Distancing themselves from the theory of Bacon, the US Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993) held as follows:-

Science is not an encyclopedic body of knowledge about the universe. Instead, it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement.

PHOTOGRAPHY SUPERIMPOSITION

Personal Identification or Uniqueness of Individual:-

Superimposition Technique:- for personal identification superimposition technique was done in this case, for which photograph of face of alleged individual Diana Clare Routley obtained from S.S.P. Varanasi (Ex.1) from which a black and white photograph (Ex.2) was made the skull and mandible was fixed in best position anatomical position and photograph of skull along with Mandible was taken (Ex.3) by minutely adjusting same angle and distance from which photograph of face (Ex.2) was taken.

The negative of photograph (Ex.2) and negative of skull (Ex.3) was precisely adjusted in stand in dark room for registration marks then sumporim posed photograph was taken first partially exposing negative of photograph on photograph paper then exposing negative of skull on the same photograph thus the superimposed photograph (Ex.4) was obtained and registration marks and lines were compared and was found that they matched and coincided exactly establishing that the skull belonged to the photograph of the individual. (Annexure Ex.1 to Ex. 4 for perusal).

Personal Identification by comparison of Dental Records of alleged individual from Dental findings of bones; Dental records of Diana Clare Routley (Ex.5) the alleged individual was made available by S.S.P. Varanasi with the help of Interpol services

(a) in the lower jaw there was evidence eruption of III Molar both sides, but the teeth were missing. The dental record shows that both the lower III Molar were extracted on 8.3.1993

(b) the upper III Molar both sides teeth was not present and no sign of eruption was seen. The X-ray (Dental) (Ex.6) of Diana Clare Routely shows that both upper III Molar were not erupted/impacted.

(c) The examination of teeth and hair X-ray (taken in S.S.P.G. Hospital) (Report Ex.6) shows that there are cavities and filling in the upper left II Molar, upper right 1st Molar, lower left Molar and lower right II Molar, also small cavity in the Ist Molar lower both sides. The dental chart (Ex.5) and Dental X-ray (Ex.7) of Diana also show presence of cavity and fillings in these teeth. Thus comparison of teeth and their X-ray with the dental and their X-ray records from New Zealand of Diana completely establishes the identity of skull and mandible of being Diana Clare Routley.

(d) Blood group was detected from bones and was found Group-A. Medical report shows Blood Group-A.

DNA FINGERPRINTING

We are in this case concerned with the acceptability of the DNA report, the author of which (PW21) was the Chief of DNA Printing Lab, CDFD, Hyderabad.

The qualifications or expertise of PW21 was never in doubt. The method he adopted for DNA testing was STR analysis. Post-mortem examination of the body remains (skeleton) of Diana was conducted by Dr. C.B. Tripathi, Professor and Head of Department of Forensic Medical I.M.S., B.H.U., Varanasi. For DNA analysis, one femur and one humerus bones were preserved so as to compare with blood samples of Allen Jack Routley. In cases where skeleton is left, the bones and teeth make a very important source of DNA. Teeth, as often noticed is an excellent source of DNA, as it forms a natural barrier against exogenous DNA contamination and are resistant to environmental assaults.

The blood sample of the father of Diana was taken in accordance with the set up precept and procedure for DNA isolation test and the same was sent along with taken out femur and humerus bones of recovered skeleton to the Centre for D.N.A. Fingerprinting and Diagnostics (CDFD), Ministry of Science and Technology, Government of India, Hyderabad. PW21, as already indicated, conducted the DNA Isolation test on the basis of samples of blood of Routley and femur and humerus bones of skeleton and submitted his report dated 28.10.1998. DNA Fingerprinting analysis was carried out by STR analysis and on comparison of STR profile of Routley. When DNA profile of sample found at the scene of crime matches with DNA profile of the father, it can be concluded that both the samples are biologically the same

The DNA stands for deoxyribonucleic acid, which is the biological blueprint of every life. DNA is made-up of a double standard structure consisting of a deoxyribose sugar and phosphate backbone, cross-linked with two types of nucleic acids referred to as adenine and guanine, purines and thymine and cytosine pyrimidines.

The most important role of DNA profile is in the identification, such as an individual and his blood relations such as mother, father, brother, and so on. Successful identification of skeleton remains can also be performed by DNA profiling. DNA usually can be obtained from any biological material such as blood, semen, saliva, hair, skin, bones, etc.

The question as to whether DNA tests are virtually infallible may be a moot question, but the fact remains that such test has come to stay and is being used extensively in the investigation of crimes and the Court often accepts the views of the experts, especially when cases rest on circumstantial evidence. More than half a century, samples of human DNA began to be used in the criminal justice system. Of course, debate lingers over the safeguards that should be required in testing samples and in presenting the evidence in Court. DNA profile, however, is consistently held to be valid and reliable, but of course, it depends on the quality control and quality assurance procedures in the laboratory. Close relatives have more genes in common than individuals and various procedures have been proposed for dealing with a possibility that true source of forensic DNA is of close relative.

So far as this case is concerned, the DNA sample got from the skeleton matched with the blood sample of the father of the deceased and all the sampling and testing have been done by experts whose scientific knowledge and experience have not been doubted in these proceedings. We have, therefore, no reason to discard the evidence of PW19, PW20 and PW21. Prosecution has, therefore, succeeded in showing that the skeleton recovered from the house of the accused was that of Diana daughter of Allen Jack Routley and it was none other than the accused, who had strangulated Diana to death and buried the dead body in his house.