TNN | Jan 9, 2016, 01.17 AM IST
“Chintan was hiding information and did not cooperate with investigators. For procuring more details necessary for the probe, we need to conduct narcoanalysis on him,” the public prosecutor told the court, but Chintan’s counsel Shubhada Khot said his client had not given consent for the procedure.
Sanchu Menon, Hema’s friend, had filed an application through his counsel Vinod Gangwal accusing Chintan’s lawyer, Jaishri Bharadwaj, of perjury. Gangwal argued that Bharadwaj’s application alleging “third degree treatment” to Chintan in the lock-up was false as his medical reports were normal and that he had clearly said in the court that he had no complaints against the police. Chintan’s counsel replied they had made a statement on his behalf and the facts could be confirmed through medical examination.
A section of media had reported that one of the accused, Azad Rajbhar, is a minor. While his lawyer is yet to provide supporting documents to back the claim, the police said Rajbhar had told them he is an adult.
IN THE COURT OF THE LEARNED 17TH METROPOLITAN MAGISTRATE COURT, AT BORIVALI, MUMBAI
MISC.APPLICATION NO. OF 2016
C.R.NO.444 OF 2015
(KANDIVALI POLICE STATION)
STATE OF MAHARASHTRA
Sr.Inspector of Police
Kandivali Police Station ….COMPLAINANT
CHINTAN UPADHYAY ….ACCUSED NO.5
WRITTEN SUBMISSIONS ON BEHALF OF ACCUSED NO.5
1. An Application has been filed by the Prosecution seeking permission for the Narco Analysis of Accused No.5, in order to help the prosecution to gather evidence.
2. It is pertinent to note that this case has become high profile being disproportionally hyped into a Media Trial. This hype is, overtly or covertly, contributed by the Investigating Agency, which is apparent on the face of the Newspaper reports, wherein the Police had indicated their source for saucy headlines.
3. A concerted effort is being made to ensure sympathy for the deceased and the relatives by painting Accused No.5 in wrong colours and drawing inferences on conjectures and surmises. Though the Defence also shares the grief of the near and dear ones of both the deceased, but these sentiments cannot substitute law, logic and rational.
4. As on today the Prosecution has not gainfully achieved or obtained even a single piece of evidence, connecting Accused No.5 with the crime. They have, therefore, planted with the Press, various stories, not based on the interrogations and result of enquiry, but to mislead public at large.
5.1 Certain recent reports in this case are self eloquent. The Times of India a leading newspaper and widely read in judicial establishment, is a case on point. ********** A young journalist, in **** over enthusiasm, on report dated 13.12.2015 described the bodies of the deceased as *********************** stuffed in a cardboard box, with hardly any clothes. This description, neither we find in the remand application nor in the First Information Report. The source of this journalist and of the esteemed newspaper, cannot be the eye witness from the Police Department. This is a fiction created by journalists and used by well established newspaper, flashing headlines.
5.2 There is no different journalistic attitude prevailing in the field now-a-days, and Hindustan Times is also not an exception. Their reports are equally atrocious, fictitious as that of Times of India. Many other leading newspapers are also suffering from the same vice of unfair reporting and cheap publicity for the journalists. This immature breed of young journalists have not understood that intelligence supplements experience. A cautious reporting, rightly chosen words with dispassionate approach while reporting, is better in long run for building up their careers, than to be a tool in the hands of some vested interests. Copies of the said reports and subsequent fictional stories implanted by the Police, with the help of inexperienced Journalists and widely published by leading newspapers, are hereto annexed and marked as EXHIBIT “A” Colly. These reports had never been denied by the Police Department ever in last few days.
6. A last effort, while the Accused was in police custody, has been done by the Investigators by filing this Application and putting Accused No.5 in a Catch-22 situation. This is an attempt to malign his character further.
7.1 If the Accused agrees for the Narco Analysis, the videograph of the Laboratory Test will be selectively used by planting further stories; this time to the visual media. The Investigators are fully convinced that Accused No.5 is totally innocent and there is absolutely no evidence, legal or otherwise despite 10 days of interrogation from 13.12.2015 till 22.12.2015 by DCB, CID, Crime and, thereafter, making him go through the rigours of police custody, from 22.12.2015 to 04.01.2016.
7.2 During which time he was made to lie on the floor during night time, on a cardboard bed, despite knowing that the Accused was under medication for his spondylitis and back pain due to spinal disorder. The medicines collected at the time of his arrest were described, in the newspaper reports, as drugs. The words were right, however, they were used in such a context, as if suggesting Accused No.5 could be a drug addict. The Application filed on behalf of the Accused No.5 for medical treatment got rejected by the Police on their assurance that he will be provided medical treatment from time to time.
8. It is pertinent to note that only on two occasions the Accused was sent with Police escorts, for check up, first on 29.12.2015, in the evening to Nagpada Police Hospital to comply with the directions given by this Hon’ble Court and on the next day he was sent to J.J.Hospital, but was not examined by an Orthopaedic and certificate noted external examination and enquiry only.
9. Even when the plight of the Accused was pointed to this Hon’ble Court on 01.01.2016, some of the relatives of the deceased shouted with vehement acrimony during the Court proceedings, reminding the back pain of his deceased brother and suggesting that let there be tooth for tooth and blood for blood. This is the outcome of the concerted efforts of the Investigating Agency and those new generation journalists.
10. If the Accused refuses to comply with the request of the Investigating Officer, the “Judges” sitting in the Editor’s office and at the Kandivali Police Station, will be free to give verdict of Accused shying away from bringing the truth on fore and, therefore, he should be treated, “as presumed to be guilty”. The position of the Accused No.5 is, therefore, vulnerable. On one side is the hype generated and the other side protection of life and liberty of a person, who is wrongly Accused and abused in public domain.
11.1 In Selvi vs. State of Karnataka the 3 Judges Bench of the Hon’ble Supreme Court, headed by the then Chief Justice, has analysed the fundamental guarantees under Article 20(3) and 21 the Constitution of India and the provisions of Sections 161(2), 53, 53A and 54 of the Code, vis-a-vis the use of Narco Analysis, Polygraph Tests and Brain Electrical Activation Profile (BEAP); their efficacies and legality qua criminal investigation.
11.2 In this context the Hon’ble Judges of the Supreme Court have relied on the United Nations Protocol “U.N. Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment, 1988”, which has been adopted by the United Nations General Assembly. Principle 1, 6 and 21 are relevant in the context of treatment to Accused No.5 and certain orders on applications filed on his behalf too, apart from the present Application seeking permission for Narco Analysis by the Prosecution.
11.3 Principle-1 lays down, “All persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for the inherent dignity of the human person”. This has hardly been followed qua Accused No.5, who was made to lie on cold shahabadi floor, with 11 degree Celsius night temperature, on a corrugated box sheet, despite knowing that he is suffering from spondylitis and severe back pain, because of spinal disorder.
11.4 Principle-6 as followed by the General Assembly and noted by the Apex Court, “No person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. No circumstance, whatever, may be invoked as a justification for torture or other cruel, inhuman or degrading treatment or punishment.”
11.5 These terms should be interpreted, according to the Apex Court, so as to extend widest possible protection against abuses, whether physical or mental, including the conditions, which deprive him the use of his natural senses.
11.6 Principle-21, as noted by the Apex Court deals with two aspects. It says :
i) It shall be prohibited to take undue advantage of the situation of a detained or imprisoned person, for the purpose of compelling him to confess, to incriminate himself otherwise or to testify against any other person.
ii) No detained person while being interrogated shall be subject to violence, threats or methods of interrogation, which impair his capacity of decision or his judgment.
12. Though the Investigating Agencies and many of the Law Courts hardly take into account these principles recognized by the Body of Nations and accepted by the Hon’ble Supreme Court and laid down as law of the country, as command of Constitution under Article 141.
13. In other words, therefore, there cannot be any compulsion made on the Accused during investigation to subject him to such, so called scientific tests, by which he will be hardly in natural and normal senses, while giving answers or in conscious state during the questioning. Such tests, under the guise of scientific method of interrogation, permit the Investigating Agency to use the test results for further investigation, on getting clues, but they are not available to the Accused for its perusal or use during the course of the trial, in his favour.
13.1 This anomaly blatantly violates Articles 19 and 21, and therefore, compelling Accused to undergo such test is violative of fundamental guarantees, as held by the Hon’ble Supreme Court.
13.2 Paras 264 and 265 of the said judgment provide the ratio of the judgment. The Apex Court has concluded that, no individual should be forcibly subjected to any of the techniques in question i.e. Narco Analysis, Polygraph Test and BEAP tests whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. The latter part of the conclusion arrived at by the Apex Court, as to certain extent, running counter to the Constitution bench judgment in the case of Olga Tellis.
13.3 According to Selvi (supra) compelling any Accused, to undergo the said test, is in violation of fundamental rights, however, the voluntary administration of the impugned techniques are permissible with certain safeguards in place. Two of such safeguards, inter alia, have been accepted as valid by the Apex Court. If such test are carried out with the consent of the Accused and his Lawyer, explains him the physical, emotional and legal implications of such tests, they can be used for using the clues and consequent evidence gathered, but the Test Results cannot be used during trial as evidence.
14. In Olga Tellis, the Constitution Bench has, however, held that the principle of promissory estoppel has no application to the exercise, assertion or enforcement of Fundamental Rights. In other words it means, no one can surrender the fundamental rights on his volition or as concession. The example given in Olga Tellis (supra) by the Bench is self explanatory. It says, “For example, the concession made by a person that he does not possess and would not exercise his right to free speech and expression or right to move freely throughout the territory of India cannot deprive him of those Constitutional rights; anymore than a concession that a person has no right of personal liberty can justify his detention to the terms of Article 22 Constitution. Fundamental rights are undoubtedly conferred by the Constitution upon individuals which have to be asserted and enforced by them if those rights are violated”.
15. Accused No.5 is being compelled under the circumstances beyond his control, such as by exerting pressures through Media sustained before arrest, interrogation for a long period of 10 days and thereafter putting him under rigors of police custody remand and making him sleep in a most inhuman way and to the scant regard to human dignity. These are against his fundamental guarantees assured by the Constitution. Since the Constitution does not permit surrender of fundamental rights by an individual, there is no question of Accused No.5 succumbing to the police requisition, which is impermissible in law and fundamentally wrong.
16. The Accused No.5 is, therefore, not ready and willing to surrender his Fundamental Rights and he does not want to show any concession at the cost of his dignity. He has immensely suffered humiliation and slur, courtesy Press and Police. He has tried to place his agonies through his Counsel before the Court, in vain. This will not give a justification to the Press and Police, to accuse him, as shying away from “revelation of truth by providing lame excuses”.
17. The Accused asserts that he is innocent. He has been arrested only because of the relatives of Hema (the deceased) and late Mr.Bhambhani, hyping in media, for their intended approach to the Hon’ble High Court, for the change of Investigating Agency. The investigation was transferred on 22.12.2015, from Crime Branch to Kandivali Police Station, only to wash off their hands and avoid the so called public and media outburst at the cost of life, liberty and career of Accused No.5.
18. The Accused, therefore, respectfully submits that the Constitution and Law does not permit surrender of his fundamental rights, which he demands to assert in the Court of Law and, therefore, the Application filed by the Prosecution, may kindly be dismissed with cost.
DATE : ADVOCATE FOR ACCUSED NO.5