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Polygraph Test Can Be Conducted Only After Obtaining Consent of Accused; Mere Silence Will Not Amount to Consent: Karnataka High Court

Polygraph test cannot be administered without obtaining the written consent of the accused person to whom it is to be administered, the Karnataka High Court ruled (Virendra Khanna v. State of Karnataka).

By: Shailvi Gupta, Banasthali university, Jaipur.

Mere silence of the concerned person will not amount to consent of such person, a single-judge Bench of Justice Suraj Govinda Raj held.

Such consent by the accused has to be categorical, without any doubt and should be made after being informed and made aware of the implications of the test. An accused person remaining silent and neither accepting or rejecting the administration of polygraph test will not amount to consent, the Court added.

“Mere silence of the said person would not amount to consent on behalf of such person. If a person were to refuse the administration of polygraph test, no such polygraph test could be administered and even if administered, the result of the said test would be void and cannot be considered by a Court of Law,” the judgment said.

The judgment was rendered in a plea challenging an order of a trial court dated March 29, 2020, which had directed one Virendra Khanna, a party organiser and an accused in a drug case registered in 2018, to undergo a polygraph test and to cooperate with the police in the probe by providing biometric passcode/passwords of his smartphones, and passwords for email accounts. From setting guidelines for search and seizure of smartphones, laptops, Electronic Gadgets, email accounts, the Court made many pertinent observations in its judgment.

It also held that an investigating officer has no right to disclose the private data seized from the smartphones or electronic gadgets of an accused to a third party, without the written permission of the concerned court.

Specifically, on polygraph test, the Court laid down the procedure to be adopted for such a test to be valid.

Accordingly, an application for a polygraph test has to be served on the person on whom the polygraph test is to be administered, and also on the lawyer, if any, of that person. The effect and impact of the polygraph test and any answers given during the conduct of the polygraph test has to be clearly made known to the said person, the Court said.

The consent in writing to be obtained from such a person before directing the administration of the polygraph test. Merely because an accused is silent, neither accepts or rejects the administration of polygraph test would not amount to consent being provided by the accused,” the judgment said.

In the instant case, the Court observed that the trial court had passed its order directing a polygraph test without there being any application filed by the prosecution. Further, no opportunity to be heard was provided either to the petitioner or his counsel and no consent was obtained for administration of the test, the High Court noted.

Placing reliance on the case of Selvi & Ors vs State of Karnataka & Anr, the Court held that obtaining the petitioner’s consent before conducting the polygraph test is critical.

“I am of the considered opinion that the trial Court ought to have taken into consideration the decision off the Apex Court in Selvi’s case and once the trial court had been informed and/or it was brought to the notice of the trial court that on account of the decision of the Hon’ble Apex Court a polygraph test could not be conducted without a consent of the person who has to be subjected to such a test, the trial court ought to have recalled its order rather than dismissing the same.”

With these observations, the Court set aside the order of the trial court.

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