Calcutta High Court
Dwijadas Banerjee And Pritimoy Panda @ ... vs State Of West Bengal on 11 October, 2004
Equivalent citations: (2005)3CALLT55(HC), 2005(1)CHN537, 2005CRILJ3151
JUDGMENT P.N. Sinha, J.
1. These two revisional application having been heard together involves identical question of law regarding power of the Magistrate to ask the accused petitioners to give their voice for recording or to rendition of their voice to the Investigating Officer (I.O.) for comparison with the voice earlier recorded in tape-record. As the points involved are identical questions of law, I intend to dispose of both the revisional applications by this common judgment and order.
2. The facts of the case as it appears from the revisional applications is that a suo moto complaint/FIR was lodged by Inspector Md. Abdur Rashid of CID, West Bengal alleging inter alia that in the morning of 12.5.04 he received a source information to the effect that two persons in the age group of 55/60 years would come to Russa Road (South) and crossing of 3rd Lane in front of Narendra Mistanna Bhandar under Jadavpur police station between 13.00 to 14.00 hours with one manuscript containing the literary work of Kabiguru Rabindra Nath Tagore in Japanese script with its translation in Bengali for showing it to a broker for selling the same as they were in search of a good customer for the said manuscript which has antique value. The complainant along with force left for Russa Road (South) and crossing of 3"' Lane and started watching the place in front of the said Narendra Mistanna Bhandcr. At about 13.45 hours two persons came in front of the said sweetmeat shop, one of whom was wearing pant and shirt and had a cotton bag in his hand, and the other was wearing pajama and panjabi. The complainant and his force surrounded them and two persons namely Nikhil Chatterjee and Mannan Ali Mondal wore called to attend the operation and in presence of the said two witnesses, the said two persons were apprehended and on interrogation they disclosed their name as Tapan Bose, S/o. Amal Bose and Biswanath Roy S/o. late Haripada Roy, both of Sree Pally of Purba Putiary. After observing all legal formalities the said two persons were searched in presence of the above named witnesses and during search one manuscript in Japanese script and its Bengali translation covered in a small polished wooden box fixed with a pair of pins made of ivory like were recovered from the cotton bag which was in possession of Tapan Bose. The writing on the said manuscript appeared to be that of Kabiguru Rabindra Nath Tagore. On further interrogation the aforesaid persons disclosed that Pritimoy Panda @ Pitu Panda of Bhabanipore had given the said manuscript to them for selling at a high price. The said articles were seized by preparing a seizure list.
3. After arrest, the said two persons were produced before the learned Sub-Divisional Judicial Magistrate (in short SDJM), Alipore and they were remanded to police custody till 21.5.04, and thereafter, further remanded to police custody till 24.5.04, and thereafter they were sent to judicial custody. Following the statement of Tapan Bose and Biswanath Roy the petitioner of CRR No. 2074 of 2004, namely Pritimoy Panda @ Pitu Panda was arrested on 18.5.04 and pursuant to his statement the accused petitioner of CRR No. 1942 of 2004 namely Dwijadas Banerjee was arrested and it was revealed that the said Dwijadas Banerjee made over the manuscript to the accused persons. The police recorded telephonic conversation between Dwijadas Banerjee and Pritimoy Panda, the two petitioners of these revisional applications regarding sale of the manuscript in a micro-cassette which was seized by police on 12.5.04. On 21.5.04 the accused persons were produced before the learned Judicial Magistrate, 4th Court for recording their statement under Section 164 of Cr. PC which was declined by the accused persons. On 21.5.04 the I.O. again prayed for recording voice of these two petitioners namely Dwijadas Banerjee and Pritimoy Panda before the learned SDJM, Alipore and the learned SDJM by order dated 4.6.04 allowed the prayer of the I.O. Being aggrieved by, and dissatisfied with, the order of the learned SDJM, Alipore giving direction to the petitioners for rending their voice to I.O. for comparison they preferred criminal motions before the learned Sessions Judge, Alipore and the criminal motion preferred by Pritimoy Panda was registered as Criminal Motion No. 319 of 2004 and the criminal motion preferred by Dwijadas Banerjee was registered as Criminal Motion No. 320 of 2004.
4. Initially on 8.6.04 when the said motions were moved the learned Sessions Judge, South 24-Parganas at Alipore granted stay of the order dated 4.6.04 passed by the learned SDJM, and challenging the said order the investigating agency preferred revisional application before this Court being CRR No. 1589 of 2004, and this Court disposed of the revisional application directing the learned Sessions Judge, Alipore to dispose of the criminal motion in accordance with law. Subsequently, the matter was heard and the learned Sessions Judge, South 24-Parganas at Alipore by order dated 28.7.04 dismissed both the criminal motions and modified the order of the learned SDJM to the extent that voice of the petitioner may be recorded by the I.O., but the I.O. shall not compel the accused persons to give their voice for recording. Challenging the order of the learned Sessions Judge the two accused persons named above has preferred these two revisional applications.
5. Mr. Sekhar Basu, learned senior advocate appearing for the petitioner Dwijadas Banerjee in CRR No. 1942/04 contended that already the I.O. has a recorded voice of this petitioner as well as the petitioner of CRR No. 2074/04. Now the I.O. wants recording of their voice further for the purpose of comparison and that prayer has been made during the stage of pendency of investigation. He contended that a Magistrate can help the investigating agency by issuing warrant of arrest, search warrant, recording of statement under Section 164 of Cr. PC, but cannot direct the accused to break his silence. The direction of the learned Magistrate to the accused persons to give their voice for recording would amount to confession which is hit by Section 25 of the Evidence Act. He further contended that Section 162(2) of Cr. PC is also a bar for recording voice of accused, if such recording of voice or statement may expose him to criminal case and in such a situation the accused has a right to keep silence and a Magistrate cannot direct the accused to render his voice for recording.
6. Mr. Basu further contended that power of Court for comparison under Section 73 of the Evidence Act cannot be utilised during investigation of a case and a Magistrate cannot help the investigating agency in the manner of investigation. Court has power for comparison during trial. The learned Sessions Judge, though modified the order of learned SDJM has also erred in law and the order of learned Sessions Judge is violative of Section 161(2) of Cr. PC and Article 20(3) of the Constitution. The learned Sessions Judge has relied upon a Full Bench decision of Patna High Court in Gulzar Khan v. State, but the said decision was overruled by the Supreme Court in State of Uttar Pradesh v. Ram Babu Misra, . The learned Judge also relied upon a decision of Punjab and Haryana High Court in Dial Singh Narain Singh v. Rachpal Jagan Nath, in and R. M. Malkani v. State of Maharashtra, , but these decisions are concerning trial and according to present decision of Supreme Court tape-recorded conversation is admissible in evidence provided the conversation is relevant to the matter in issue. These decisions are concerning trial and not at the stage of investigation.
7. Mr. Basu further contended that the Supreme Court in Nandini Satpathy v. P. L. Dani, discussed the Constitutional bar under Article 20(3) and Cr. PC Section 161(2) and the right of accused to keep silence during police interrogation and indicated that an accused cannot be compelled to break his silence and made it clear observing that the accused is entitled to keep his mouth shut if answer sought has a reasonable prospect of exposing him to guilt in some other accusation actual or imminent, even though the investigation under way is not reference to that. He also referred to other decisions which are (supra), AIR 1965 SC 1251 (State of Gujarat v. Shyamlal Mohanlal Choksi) and (supra) and contended that when a document is in possession, the accused cannot be asked to participate again for preparation of same kind of document for the purpose of investigation. Accordingly the accused petitioner is not bound to render his voice again to I.O. for the purpose of comparison with the earlier recorded voice. Statement of Pritimoy Panda when in jail custody amounts to confession and is inadmissible. When principal evidence is not admissible collection of corroborative statement is inadmissible. A Magistrate cannot be a party in investigation and a Magistrate cannot direct an accused to join in investigation. The petitioner has right of silence which cannot be broken by any order of Magistrate.
8. Mr. Abhra Mukherjee, learned advocate for the petitioner Pritimoy Panda in CRR No. 2074 of 2004 adopted the arguments submitted by Mr. Sekhar Basu for the petitioner Dwijadas Banerjee in CRR No. 1942 of 2004.
9. Mr. Kazi Safiullah, appearing for the State of West Bengal contended that from Santiniketan some antiques of Kabiguru Rabindra Nath Tagore were stolen which includes the manuscript containing literary work of Rabindra Nath Tagore in Japanese script with its Bengali translation. The conversation between two accused persons relating to disposal of the said manuscript were recorded by electronics instrument, namely, tape-recorder. Now recording of voice of the said accused persons requires to be tape-recorded for comparison or for identification of the voice already recorded. The learned SDJM after considering all aspects allowed the prayer of prosecution considering the importance of the case and challenging the order of the learned SDJM dated 4.6.04 the accused petitioners preferred two separate criminal motions before the learned Sessions Judge, and the learned Sessions Judge, South 24-Parganas at Alipore affirmed the order of the learned SDJM with some modification making it clear that the I.O. shall not compel the accused persons to give their voice for recording. Section 39 of the Evidence Act has been amended and after amendment method of electronics record has been added and tape-recorder is electronics method. In several decisions also it has been upheld by High Courts and even by the Supreme Court that tape-recorded version is admissible in evidence.
10. Mr. Safiullah further contended that Sections 3, 4 and 5 of the Identification of Prisoners Act, 1920 are important. Section 3 of the said Act provides taking of measurements etc. of convicted persons. Section 4 deals with taking of measurements etc. of non-convicted persons. Section 5 lays down the power of Magistrate to order a person to be measured or photographed. Section 6 prescribes that if any person who under this Act is required to allow his measurements or photograph to be taken resists or refuses to allow the taking of the same, it shall be lawful to use all moans necessary to secure the taking thereof. It indicates that, if the person who has been ordered by the learned Magistrate to be measured or photographed refuses to allow taking of the same force may also be used for the purpose of such taking. The Constitutional Bench of eleven Judges of the Supreme Court in State of Bombay v. Kathi Kalu Oghad, by a majority view of eight Judges considered the scope of Article 20(3) of the Constitution relating to statement by accused in police custody and the meaning 'to be a witness' against himself and made the following observations:
"In view of these considerations, we have come to the following conclusions:-
(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law. Lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.
(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.
(3) To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showings parts of the body by way of identification are not included in the expression 'to be a witness'.
(5) To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.
(6) To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expressions which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.
(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made."
11. The decision of the Constitutional Bench is still binding and this decision has not been overruled by any larger Bench. The Constitutional Bench observed that, giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness'. Giving of specimen writing or impressions of foot, palm or fingers, therefore, does not come within the purview of 'to be a witness' and accordingly giving of voice also does not come within purview of 'to be a witness'. In Nandini Satpathy's case (supra) the minority view of the aforesaid Constitutional Bench decision in Kathi Kalu's case was considered and accordingly that decision is not applicable in the instant matter. In para 59 of the decision in Nandini Satpathy's case the minority view of the Supreme Court in Kathi Kalu's case (supra) has been adopted. The accused persons are now on bail and recording of voice and its comparison may even go in favour of the accused. Therefore, there is no ground to set aside the order of the learned Magistrate or the learned Sessions Judge and the revisional applications are liable to be dismissed.
12. I have carefully considered the submissions made by the learned advocates of the parties and perused the revisional applications and annexures including the orders passed by the learned SDJM, Alipore and the learned Sessions Judge, South 24-Parganas at Alipore.
13. It appears that the learned SDJM, Alipore before passing the impugned order dated 4.6.04 placed reliance over the decision . Going through the said decision, namely, Dial Singh Narain Singh (supra) I find that the learned Magistrate failed to appreciate under which circumstances the Punjab and Haryana High Court directed that fresh tape-recording for comparison of earlier recorded voice is admissible. The aforesaid Punjab and Haryana High Court decision was passed concerning power of Court to compare recording of voice in trial. The powers which a Court can exercise during trial, cannot be exercised by I.O. during the stage of investigation. Section 73 of the Evidence Act gives wide power to Court to compare handwriting, finger print, voice recording etc. in trial. Power of Court to compare during trial under Section 73 of the Evidence Act cannot be equated with the power of comparison by the I.O. during pendency of investigation of a case. A Magistrate cannot interfere into the matter of investigation and cannot take part in the matter of investigation. The manner and method of conducting investigation should be left entirely to the Officer-in-Charge of the police station or subordinate officers deputed by him. Investigation is exclusively power of police and the Magistrate by his order cannot become a party to the investigation. The present case is now pending at the stage of investigation and accordingly the decision of the aforesaid Punjab and Haryana High Court is not applicable as the said decision was concerning power of Court to admit tape-recording and directing fresh tape-recording for comparison of earlier recorded voice. What a Trial Court can do for ends of justice and to arrive at just decision of a case, cannot bo done by a Magistrate helping the I. O. passing order for fresh recording of voice of accused during stage of investigation of a case. The aforesaid decision of the Punjab and Haryana High Court is, therefore, not at all applicable at the present stage of the case which is pending for investigation and that decision may become relevant in the trial. Learned SDJM, therefore, erred in law by relying on this decision.
14. Learned Sessions Judge placed reliance on the Full Bench decision of Patna High Court in the case of Gulzar Khan v. State, . The learned Sessions Judge did not realise that the said decision was overruled by the Supreme Court in State of Uttar Pradesh v. Ram Babu Misra, . The Full Bench decision of Patna High is, therefore, not at all applicable in the present case.
15. Learned Sessions Judge also relied upon a decision . The said decision is in the case of R. M, Malkani v. State and the Supreme Court observed that under Section 8 of the Evidence Act tape-recorded conversation is admissible provided that the conversation is relevant to the matters in issue, that there is identification of the voice and that the accuracy of the conversation is proved by eliminating the possibility of erasing the tape-record. It was also observed that the conversation is a relevant fact and is admissible under Section 7 of the Evidence Act. The said decision was passed concerning appeal after full trial and accordingly the power of Court during trial is definitely wider than the power of I.O. at the stage of investigation. Learned Sessions Judge, therefore, made mistake by placing reliance on this decision which is not at all connected with the matter in issue for the present when the case is pending for investigation.
16. It further appears from the order of the learned Sessions Judge that he also considered the decision in Yusufalli Esmail Nagree v. State of Maharashtra, . In the said decision it was held that tape-recorded statement is admissible in evidence. That decision was also concerning appeal after trial. In this reported decision conversation between accused and complainant was tape-recorded and the accused was not aware that the said conversation was recorded through tape-record. It was held that conversation was not hit by Section 162 of Cr. PC and was admissible and it was further held that under Section 63 of the Evidence Act, if a statement is relevant an accurate tape-record of the statement is also relevant and admissible. However, the Supreme Court deprecated police practice of tapping of telephone wires and setting up hidden microphones for the purpose of tape-recording. This decision is also not applicable at all this stage for the purpose of comparison of the voice of accused persons with their voice earlier recorded. Power of comparison only lies with the Court, and during stage of investigation I.O. cannot be permitted by either the learned Magistrate or the learned Sessions Judge to record fresh voice of accused in tape-record for the purpose of comparison. Power of comparison and giving direction for fresh voice recording can be done by the Court if required at all during trial. No direction can be given to I. O. for fresh recording of voice of accused persons during stage of investigation as it would be against provisions of Section 162(2) of Cr. PC and Article 20(3) of the Constitution.
17. The decision of Kathi Kalu Oghad, is not properly applicable as in the said decision it was not considered by the Constitutional Bench whether a direction for giving specimen handwriting or voice can be given when the matter is still under investigation. In this connection I rely upon a decision of the Supreme Court in State of Uttar Pradesh v. Ram Babu Misra, . In this decision the Supreme Court has observed that, "The clear implication of the words 'for the purpose of enabling the Court to compare' is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The directions is to be given for the purpose of 'enabling the Court to compare' and not for the purpose of enabling the investigating or other agency 'to compare'. If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of Section 73 of Evidence Act does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court." In the said decision the Supreme Court distinguished the decision of Kathi Kalu Oghad (supra) and made it clear that in Kathi Kalu Oghad (supra) the question which was actually decided was that no testimonial compulsion under Article 20(3) of the Constitution was involved in a direction to give specimen signature and handwriting for the purpose of comparison. In Kathi Kalu Oghad's case it was not considered by the Supreme Court whether such a direction under Section 73 of the Evidence Act can be given when the matter is still under investigation and there is no proceeding before the Court.
18. The Identification of Prisoners Act referred to by the learned Public Prosecutor are not applicable in the present case. Section 3 of the said Act deals with taking of measurement of convicted persons and accordingly not applicable. Section 4 deals with taking of measurement of non-convicted persons and Section 5 deals with power of Magistrate to order a person to be measured or photographed. These two sections cannot come in relation to order directing rendition of voice as rendition of voice is to some extent different from measurement and photograph.
19. In the case of Nandini Satpathy (supra) the Supreme Court considered the Constitutional bar under Section 161(2) of Cr. PC and Article 20(3) of the Constitution and made it clear that during the stage of investigation the accused has a right to keep silence and an accused cannot be compelled to break his silence. It was observed by the Supreme Court that the accused is entitled to keep his mouth shut if answer sought has a reasonable prospect of exposing him to guilt in some other accusation actual or imminent, even though the investigation under way is not with reference to that.
20. In a recent decision in State of Haryana v. Jagbir Singh, reported in 2004 SCC (Cri) 126 the Supreme Court again reiterated the same view that the Court has no power to direct accused to give specimen signature for comparison during investigation. The observation of the Supreme Court in connection with the abovestanted case are as follows:
The second paragrapli of Section 73 enables the Court to direct any person present in the Court to give specimen writings "for the purpose of enabling the Court to compare" such writings alleged to have been written by such person. The clear implication of the words "for the purpose of enabling the Court to compare" is that there is some proceeding before the Court in which or as a consequence of which it might be necessary for the Court to compare such writings. The direction id to be given for the purpose of enabling the Court to compare and not for the purpose of enabling the investigation or other agency "to compare". If the case is still under investigation there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings. The language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may. later be instituted in the Court."
21. The above discussion signifies that during stage of investigation direction to accused for giving specimen writing cannot be given. Similarly, during the stage of investigation in this mater the Court cannot direct the accused for rendition of his voice to the I.O. for comparison. Power of comparison lies with ' Court only and such power cannot be exercised by I.O; and a Magistrate or Sessions Judge by their order cannot vest or delegate such power to I.O. during stage of investigation.
22. The aforesaid discussions makes it clear that the power of comparison either handwriting, or finger print or voice lies with the Court, if it is required by the Court in any trial or proceeding for just decision of the case. Power of comparison cannot be exercised by I.O. during the stage of investigation and accused cannot be put under compulsion to give statement or voice again for the purpose of comparison by the I.O. during stage of investigation when already earlier statement, i.e. voice has been recorded. Power of comparison of voice of these two accused petitioners through tape-record may be done only by Court in any proceeding or trial and the Court or a Magistrate cannot direct the I.O. to use such power during the stage of investigation. The order of the learned SDJM, Alipore as well as the order of the learned Sessions Judge, South 24-Parganas at Alipore was, therefore, not in accordance with law and are accordingly set aside.
23. The revisional applications are accordingly allowed and the orders of both the learned Courts below are set aside.
24. The revisional applications are disposed of in the light of the observations made above.
25. This order will govern both the criminal revisional applications bearing Nos. CRRNo. 1942 of2004 and CRRNo. 2074 of 2004.
26. Send a copy of this order to the learned Sessions Judge, South 24-Parganas at Alipore and learned SDJM, Alipore for information and necessary action.
27. Urgent xerox certified copy be given to the parties, if applied for, expoditiously.