Criminal Procedure Constitutional

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Investigation plays a critical role in the administration of criminal justice system. It is one of the most primary distinct features of criminal routine code. The criminal routine code 1973 which was inspired from the 1898 Act defines ‘Investigation’ as:

Investigation includes all the proceedings underneath this code for the collection of proof conducted by a police officer or by any person (other than a magistrate) who is authorised by magistrate in this behalf;

The framers while framing draft of code of criminal routine 1973 relied on older code of 1898 which was enacted by the British parliament. The term investigation was very narrowly interpreted earlier. But Supreme Court through it is logically placed reasoning gave wide interpretation to it. Broadly speaking investigation of an offense comprises of -

1) Proceeding to the place of offense.

2) Ascertainment of the facts and circumstances of the case.

3) Discovery and arrest of the suspected offender.

4) Collection of proof relating to the commission of the offence which may consist of-

a) The examination of respective persons (including the accused), and the reduction of their affirmations into writings if the police officer making investigation thinks fit;

b) The search of places or seizure of things considered necessary for investigation or trial.

For the examination of humans by investigating authorities, there are a great deal of methods for extracting selective information for the intention of gathering proof which would be admissible in the court of law.

Scientific and technical advancements has somewhat assisted the police as well as any other persons so authorised by courts to gather evidence. Narcoanalysis is one such method conducted through administering barbiturates and inducing the accused in sleep like state or hypnotism. This term was coined by ‘Horseley’ but accepted widely in 1922 when ‘Robert House’ used drug test on two prisoners . The Narcoanalysis test is based on the principle that a person is competent to lie using his imagination and, underneath the influence of sure barbiturates, this capacity for imagination is blocked or neutralized by leading the person into a semiconscious state. It becomes difficult for the person to lie and his answers would be restricted to facts he is conscious of.

FSL Bangalore is the de facto hub for narcoanalysis for respective police departments throughout the country. Narcoanalysis is done using sodium pentothal, in conjunction with three other tests – psychological profiling, polygraph (`lie detector’) tests, and brain mapping . These investigations are done by a team comprising of an anaesthesiologist, a psychiatrist, a audio videographers. The procedure is commonly conducted in government hospitals after a court order is passed instructing doctors and authorities for the same. Before conducting forensic tests personal consent form is required to be filled by persons appearing for test.

Legal questions are raised regarding their validity with a heap of of them keeping in the light of legal principles and technical perspective and numerous others rejecting it as violation of constitutional provision Article 20(3). This investigative technique nonetheless humanitarian as an substitute to physical torture still raises severe questions of person rights and liberties. Moreover defective dose may even send the accused into coma or even result in death. The effect of bio-molecules on humans is apparent as the drug depresses central nervous system, lowers blood pressure and slows heart rate putting accused in hypnotic trance.

Despite these severe worries in regards to narcoanalysis, the revelations made for the duration of analysis have been found to be utile in solving significant cases of Mumbai serial train blasts, blasts in Delhi, Malegaon and Hyderabad. In most of these cases revelations made have lead to the invention of incriminating selective information being admissible beneath section 27 of Indian Evidence Act 1872. The invention of selective information regarding conspiracy and attempts to dislodge proof has found place under section 120(B) and 201 of Indian penal Code. Narcoanalysis technique has thence not only revolutionized the causes of crime investigation but likewise lead to respective courts to redefine the scope of Article 20(3) of the Indian constitution.

‘No person accused of any offence shall be compelled to be witness versus himself ‘

This privilege versus self-incrimination also provides the individual, the right to stay silent. Arguments have been made that narcoanalysis constitutes mental torture and thence violates the right to life beneath Article 21. Thus this technique raises authenti issues like encroachment on individual’s rights and liberties.

If we take a leaf from American constitutional jurisprudence for interpreting constitutionality of narcoanalysis, it may be seen that The New Jersey Supreme Court banned the use of Sodium amytal narcoanalysis in Pitts v. State for lack of scientific reliability. Even in 1993, in order to judge the legal admissibility of scientific evidence, scientific study and, in particular, expert testimony the Supreme Court of the United States evolved what has now come to be known as Daubert Standard in 1993.

The Supreme Court of the United States in Daubert v. Merrle Dow Pharmaceuticals said that for any scientific proof to be of use in legal proceedings there are four necessities to be satisfied. These are:

1. The theory or technique must be falsifiable, refutable, and testable.

2. It ought to have been subjected to peer review and publication.

3. Its potential error rate will have to be known and also the existence and maintenance of standards concerning it is operation.

4. The theory and technique must also be in general accepted by a applicable scientific community.

In Dinesh Dalmia v. State of Maharashtra the Madras High Court ruled that narcoanalysis testimony was not by obligation because the accused may be taken to the laboratory for such tests versus his will, but the revelation for the duration of such tests is rather voluntary.

However Bombay High Court kept in the Adbul Karim Telgi case that “certain physical tests involving minimal bodily harm” like narco-analysis and brain mapping did not violate Article 20 (3) and did not compromise the constitutional shelter versus self-incrimination. Bombay High Court seems to have held that narco-analysis is permissible because it involves “minimal bodily harm”, which implies that all such methods of extracting data that inflict minimal bodily hurt are legally permissible . The legal and constitutional infirmity of narco-analysis lies in the fact that it takes away one’s control on one’s mind, which brings it in the category of mental torture. And tortures of all kind fall foul with Article 21, underneath which right versus torture is implied. Therefore, narco-analysis not only stands weak versus the challenge of Article 20 (3) but also finds itself in a tight spot with respect to Article 21.

Conclusion-

Law is a living process, which changes according to the changes in society, science, and ethics and so on. The Legal System will have to imbibe developments and advances that take place in science as long as they do not violate rudimentary legal principles and are for the good of the society. The criminal justice system must be based on just and equitable principles. The issue of using narco-analysis test as a tool of interrogation in India has been widely debated. The extent to which it is accepted in our legal system and our society is something, which will be clearer in the near future. In a circumstance where narco-analysis is benefitting judicial acceptances and supports in spite of being an “unreliable & doubtful” science, we have to severely rethink in regards to it is legal and constitutional validity from humane rights perspective.

Now that the Bombay High Court has given it is rulings permitting such procedures, it is usage will have to be encouraged in grave offenses. It is very helpful when investigating officer is hard pressed for time and needs to elicit data from terrorist outfits. Narco-analysis followed by the recovery of weapons and other helpful things to court, would make the procedure admissible in court and such procedures would gain an all round acceptance.

Criminal Procedure Constitutional

Criminal Procedure: Constitutional Constraints Upon Investigation and Proof focuses on issues raised by law enforcement investigatory practices. The casebook, which may be employed in both firstborn and upper-level courses, considers a range of pretrial issues, including searches and seizures, confessions, eyewitness identification procedures, entrapment, the right to counsel, and the exclusionary rules. The text is an magnificent tool for comprehensive exploration of the protections provided by the Fourth Amendment, the Fifth Amendment Due Process Clause and Privilege Against Compulsory Self-Incrimination, and the Sixth Amendment Right to the Assistance of Counsel:

• Each chapter begins with an Introductory Note to provide a context for the cases that follow;

• All excerpted United States Supreme Court views are cautiously edited to preserve the critical elements of the majority and dissenting Justices’ reasoning;

• Textual note material is kept to a minimum;

• An plenteous number of cumulative and topical troubles based on actual federal and state cases appear at the end of each section; and

• The casebook is compatible for a assortment of instructing methods from established Socratic to problem-oriented approaches.

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