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Brain Mapping Test  in India

Brain Mapping Test - Narco Analysis Test in India

Conducting of or performing of the Brain Mapping Test on the accused would not take away the protection guaranteed under Article 20(3) of the Constitution of India
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What is Brain Mapping Test

The Brain Mapping Test is also known as P-300 test. In this test of Brain Mapping the suspect is first interviewed and interrogated find out whether he is concealing any information. The activation of brain for the associated memory is carried out by presenting list of words to the subjects. There are three types of words in the list used for Brain Mapping Test,
Part I consisted of neutral words, which have no direct relationship with the case.
Part II consists of probe words directly related to the case and suspects to elicit concealed information, which all suspects have had opportunity to come to know during the course of events related to the case.
Part III consists of target, which are not part of the first two parts.The words in this part are based on confidential findings which suspect does not know.

The recording of this test is done by acquiring the response through 32 channel EEG-ERP Neuro Scan cording system. It is carried out by asking the suspect to sit down and close his eyes. The 32 channel electrodes are placed over the scalp directly while conducting this test twice by presenting each word in three parts randomly. the suspect is instructed to relax and listen to the words presented in the auditory mode. This test does not expect any oral response from the witness. The conclusion drawn by the experts after the conduct of the test to indicate the possession of the knowledge about the relevant subject which is helpful in the investigation and collecting of evidence. After the administration of the test, what comes out is that, the person undergoing the test has the knowledge of the crime about which he was questioned (brain mapping). In the said test there is no way to find out what the lie is or what is the information stored in the brain of the person concerned. It can be called the information received of taken out from the witness.

Performing Brain Mapping Test

Merely conducting of or performing of the Brain Mapping Test on the accused would not take away the protection guaranteed under Article 20(3) of the Constitution of India and the said aspect is not required to be considered at the time of performing or conducting the Brain Mapping Test and only when the statement which has been recorded during the course of the Narco Analysis test, if it is used against the person as evidence at that stage, the same is required to be considered. Therefore, the question of consent at the stage of conducting/ performing the Brain Mapping Test is not required to be considered. As stated hereinabove, conducting /performing of the Brain Mapping Test is a part of investigation and for the investigation by the Investigating Agency the consent of the accused is not required, otherwise the Investigating Agency will not be in a position to further investigate the case, if the consent of the accused is required. At this stage, it is also required to be noted that the accused has not allegedly come forward with the truth and therefore, scientific tests are resorted to by the Investigating Agency.

When the accused/person has not told the truth during the investigation, naturally, that accused/ person would not be voluntarily giving consent for the Brain Mapping Tests as he is always apprehensive that if the Brain Mapping Test is conducted then the same might go against him therefore, he is bound to not give consent. Even it is not expected from a person/ accused to give consent for the Brain Mapping Test when he has not come forward with the truth. As stated above the Brain Mapping Test is a scientific methods of investigation and is the part of investigation. There is no provision under the Criminal Procedure Code to have the consent of the accused before or during the investigation. It is also to be noted that before subjecting the accused to Narco Analysis Test his/her mental fitness will be ascertained and thereafter only accused will be subjected to Narco Analysis Test. The dosage level required to take a person to the hypnotic stage is found to be 3-4 times smaller than those required for stages beyond. Therefore, this low concentration of the drug used in the said test will

not have any adverse effect on any system of the body. Necessary precautions are always taken by the medical experts at the time of examination and the doctors and anesthetists and the experts are present at the time of conduction/ performing such test.

Under the circumstances, the contention on behalf of the petitioner accused that before conducting/performing the Brain Mapping Test, the consent of the accused person who will be subjected to the Brain Mapping Tests is required cannot be accepted and the answer to such question is in negative. (Santokben Sharmanbhai ]adeja v. State of Gujarat, 2009 Cri LJ 68 (Cuj).)

However, certainly he cannot defer hearing of the bail application and the learned Judge has to take an appropriate decision on the bail application one way or the other on merits, and he might in appropriate case if satisfied that as the investigation is: pending it is not desirable at that stage to grant bail, even consider not to grant bail and or even he may consider granting of bail on certain conditions as he may deem. fit. However, he is not justified in deferring hearing of the bail application. Bail. Applications are required to be heard and decided as early as possible. Under the circumstances, the learned Trial Court was not justified in deferring hearing of the bail application till Narco Analysis Test and Brain Mapping Tests are performed the petitioner.

What does "compelled testimony" Mean- The phrase 'compelled testimony' must be read as evidence procured not merely by physical threats or violence but by psychic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like not legal penalty for violation. So, the legal perils following upon refusal to answer, or answer: truthfully, cannot be regarded as compulsion within the meaning of Article 20(3). (Nandini Satpathy v. P. L. Dani, AIR 1978 SC 1025)

Powers of High Court in Conducting Brain Mapping Test-

The Court adjourned the matter at the instance of the learned Senior Advocate appearing on behalf of the petitioner so as to enable the petitioner to move an appropriate application before the Hon'ble Supreme Court for transfer of the present proceedings and on the last occasion it was also agreed by the learned counsel appearing on behalf of the petitioner that if no orders are obtained he will proceed further with the matter and make submissions on merits. The petitioner is not desirous of submitting an appropriate application for transfer before the Hon'ble Supreme Court and that is how this Court has taken up the matter and considered the same on merits. It is also required to be noted that conducting/performing of the aforesaid two tests are timely requirement, more particularly during the course of the investigation and even if after the period of 6 months or so and/ or after a long time, the said test are permitted to be performed, the purpose for which the said tests are required would be frustrated. If the said tests are not permitted to be performed at an appropriate time and stage, the same would defeat the purpose for which the said test is required to be performed i.e. to find out the truth to reach the real culprit and to further investigate the case. There are so many proceedings pending in the State involving serious offences like Saurabuddin encounter case and the murder of his wife Kausharbibi and others. Where the questions with regard to conducting/ performing of the Brain Mapping Test is involved and in some cases the Investigating Agency have found themselves in dark and clueless, there is necessity of conducting the Brain Mapping Tests and the proceedings are pending at different stages before the different Courts i.e. either at the stage of learned Magistrate and/ or Revisional Court and or before this Court and therefore, this Court has considered the case on merits. (Santokben Sharmanbhai ]adeja v. State of Gujarat, 2009 Cri L] 68 (Guj))

The right to direct the accused to undergo scientific tests has been finally determined by the Court below and thereby the criminal proceedings taken to demystify the grey area of investigation has culminated. Therefore, the Court finds that the present order impugned which substantially determines the rights of the parties is a final order challengeable under Section 397 of the Code of Criminal Procedure by way of revision. (Dinesh Dalmia v. State, 2006 Cri LJ 2401 (Mad))

Conducting Scientific test on accused

Huge amount has allegedly been misappropriated by the accused and the investigating agency is completely in the dark as to the end use of such a huge amount siphoned off by the accused. The Investigating Officer did not use third decree methods to extract incriminating materials through the mouth of the accused. Only a scientific test on the accused is prayed for by the respondent complainant. That the accused will face health hazard and his physical frame will be endangered if he undergoes such scientific tests are totally without any scientific basis. As rightly pointed out by the learned counsel for the respondent, the scientific tests are like taking MRI or CT Scan. The scientific value of such tests and the credibility thereof will have to be evaluated only during the course of trial. Unless such tests are conducted, the investigating agency may not be in a position to come out with clinching testimony as against the petitioner. Subjecting an accused to undergo such scientific tests will not amount to breaking his silence by force. He may be taken to the laboratory for such tests against his will, but the revelation during such tests is quite voluntary. Therefore, such process does not amount to compelling a witness to give evidence as against him.

Under Section 167 of the Code of Criminal Procedure, the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai has power only to remand the accused under police custody for a total period of 15 days. Here in this case, the police custody was already granted for 14 long days. Now the respondent has not sought before the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai, to give the accused to police custody for further interrogation. The respondent has only sought a permission to conduct three types of scientific tests and also a direction to the Superintendent of Central Prisons, to produce the accused to undergo such test Such a prayer will not amount to seeking for police custody of an accused for further interrogation. Therefore, the legal submission made by the learned senior counsel for the petitioner with regard thereto stands rejected.
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