1984 anti-Sikh riots: Delhi Court allows former Congress leader Sajjan Kumar to use polygraph test in his defence

Delhi's Rouse Avenue Court on Monday allowed former Congress MP Sajjan Kumar to use polygraph test in his defence in an ongoing 1984 anti-Sikh riots case against him [State v Sajjan Kumar]..Kumar had moved the Court for a list of all documents on which the prosecution may not have relied upon the case including additional witness statements and a polygraph test conducted by the Central Forensic Science Laboratory (CFSL) in 2018. Special Judge MK Nagpal observed that the prosecution cannot use Kumar’s polygraph test report as evidence against him, but the accused can certainly use the same report in his defense.“However, in the considered opinion of this court, since the above report by itself cannot absolve the accused from alleged offenses in these cases in view of the specific oral evidence which has come on record against him during the course of an investigation conducted by the SIT, this report cannot be termed as a document of sterling quality and hence, it cannot be used by the accused at the stage of charge and thus, the accused is only being given liberty to rely upon and to prove the said report in his defense during the course of the trial,” the order stated..The judge further observed that in the case of Selvi v State of Karnataka the Supreme Court had considered the legality of involuntary administration of certain scientific techniques, namely Narco analysis, polygraph etc tests for the purpose of improving investigation efforts in criminal cases for an accused person."The conclusions which were drawn by their Lordships in the said case were that the compulsory administration of the impugned techniques violated the rights of accused against self-incrimination," the Court observed.But that does not bar accused from relying on such tests, the Court said..The case arose from killing of a father-and-son duo, namely, Jaswant Singh and Tarun Deep Singh, by a mob, which was reportedly led by Kumar. He allegedly instigated and abetted the burning of the two victims besides causing damage, destruction and loot of their household articles and inflicting injuries on their family members.During this time, several cases were registered or re-registered against Kumar in the various parts of Delhi and the present case happened to be one of the related cases to the violence and also the only case in which the accused has been arrested.Kumar was interrogated and arrested in the present case on April 6, 2021, while he was confined in Tihar Jail in the other case..Counsel for Kumar argued that all the statements filed by the prosecution should be on record.The prosecution has no right to withhold such statements or place them in the category of 'documents not relied upon' because both the investigating agency and the prosecution are bound to conduct a fair investigation and provide a fair trial to the accused, he added.On the other hand, the State counsel argued that Kumar had no right to seek consideration of these documents at the stage of charge.He further said that if any of such documents are required to be proved or any witness is required to be summoned by Kumar for proving his defense or innocence, it can only be done during the trial as per the guidelines laid down by the Supreme Court.The Court held that though involuntary or forcible administration of techniques like polygraph test cannot be permitted, the Supreme Court has left room and permitted voluntary administration of the techniques in the context of criminal justice, provided certain safeguards have been put in force while conducting the said tests."It has been observed that it was nowhere held by their Lordships in the above said case that the subject or accused cannot use or rely upon the report of such voluntary tests or examinations if the result thereof comes in his favour or negates his participation in commission of the alleged offences," the Court said.In the present case, the accused had consented to undergo a polygraph test for helping the investigation agency in arriving at some reasonable conclusion regarding his participation in commission of the alleged offences, the Court noted.Hence, he has also a right to place reliance upon the report of such test, if the same in any manner substantiates or strengthens his defence, the Court said while allowing the plea..[Read Order]