Delhi District Court
Kuldeep Mansukhani vs . State Of Nct Of Delhi on 30 November, 2015
IN THE COURT OF : MS. ANU GROVER BALIGA :
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
In the matter of :
Criminal Revision No. 19/15
dated 26.10.2015
Kuldeep Mansukhani Vs. State of NCT of Delhi
PS Dwarka Sector 23
1. Kuldeep Mansukhani
R/o 97, First Floor,
Sai Enclave, Sector 23,
Dwarka, New Delhi110075
2. Bhupinder Mann
R/o Flat No. 57, MIG DDA,
Sector19, Pocket 3,
Dwarka, New Delhi 110075
................................. Petitioners
Versus
State of NCT of Delhi
.................................. Respondent
Date of Institution : 26.10.2015.
Date of conclusion of arguments : 28.11.2015.
Date of Order : 30.11.2015.
C.C. No: 19/ 2015 Page No. 1 of 10
ORDER:
1. The short question raised in the present revision petition is whether a Metropolitan Magistrate can, during the investigation of a criminal case, direct the suspect to give his voice samples to the investigating official. Admittedly, in the present case, the investigating officer had filed an application before the Court of Ld. MM Dwarka praying therein that the petitioners herein be directed to give their voice sample as the same is required to be compared with the voices appearing in a CD, already in possession of the investigating agency. The petitioners herein refused to give their voice samples and raised a contention before the Ld. MM that they cannot be forced to give their voice samples not only because the CD in question is fabricated but also because the same infringes their fundamental right under Article 20 (3) of the Constitution of India. The Ld. MM vide the impugned order dated 17.10.2015 rejected the contentions raised by the petitioners herein and directed them to provide their voice samples to the investigating agency.
2. The grievance of the petitioners herein therefore is that the Ld. MM did not have any powers to allow the application of the IO and direct C.C. No: 19/ 2015 Page No. 2 of 10 taking of voice samples of the petitioners at the stage of investigation for the same violated their fundamental right under Article 20 (3) of the Constitution and that even otherwise the provisions of the Cr.P.C do not clothe a Magistrate with any jurisdiction to give such directions.
3. In support of the aforementioned contentions, Ld. Sr. Counsel Sh. Vivek Sood for the petitioners as relied upon the judgment of the Hon'ble Delhi High Court pronounced in a case titled and reported as Rakesh Bisht Vs. CBI (2007) ILR I Delhi 223.
4. Ld PP for the State, on the other hand, has contended that now it has been well settled by the catena of judgments that asking for a voice sample from a suspect cannot be stated to be infringing his fundamental right under Article 20 (3) of the Constitution of India. He has further submitted that the Hon'ble Delhi High Court in its recent judgment pronounced on 11.2.2015 in a Crl. M.C 3094/2014 in a case titled as Samir Ahluwalia Vs. State has reaffirmed it that there cannot be stated to be any infringement of Article 20 (3) of the Constitution when an accused is asked to furnish a voice sample for he is neither being asked nor expected to furnish any statement based on his C.C. No: 19/ 2015 Page No. 3 of 10 personal knowledge as would be barred under Article 20 (3) of the Constitution. He has also submitted that the said judgment makes it clear that a voice sample stands on the same footing as that of a fingerprint impression or a specimen handwriting and that therefore by virtue of section 311 A of the Cr.P.C., a Magistrate can pass directions to an accused to furnish his voice sample. Therefore the contention of Ld. PP is that in view of the said judicial dicta there is no illegality in the order of Ld. MM.
5. In rebuttal, the submissions of Ld. Sr. Counsel Sh. Vivek Sood is that the facts of Sameer Ahluwalia's case are entirely different from the facts of the present case in as much as in the said case, the accused persons had consented to give their voice samples but their only objection was that the investigating agency could not insist that while giving their voice samples they should read a text containing inculpatory statements. According to Ld. Counsel Sh. Vivek Sood, it is in the background of such facts that Hon'ble Delhi High Court held that the accused persons had no such right to insist that they would give voice samples only if the text is suitable to them.
6. I have given careful consideration to the submissions made by C.C. No: 19/ 2015 Page No. 4 of 10 both the Ld. Counsels. In the considered opinion of this Court, it is being rightly submitted by the Ld. PP for State that it is no longer resintegra that the lending of voice samples for a limited purpose of identification so as to compare the same with another voice, in the possession of investigating agency cannot be stated to be in violation of the provisions of Article 20 (3)of the Constitution of India.
7. In the considered opinion of this Court, the judgments pronounced by the Hon'ble Supreme Court in the cases titled and reported as State of Bombay Vs. Kathi Kalu Oghad & Ors., (1962) 3 SCR 10 AIR 1961 SC 1808 and Selvi & Ors. Vs. State of Karnataka (2010) 7 SCC 263, have made it clear that even though acts such as compulsorily obtaining specimen signatures and handwriting samples are testimonial in nature, they are not incriminating by themselves if they are used for the purpose of identification or corroboration with facts or materials that the investigators are already acquainted with. Even the Hon'ble Delhi High Court in its judgments pronounced in Sameer Ahluwalia's and Rakesh Bisht's Cases has taken note of the said legal proposition and has come to a conclusion that taking of the voice sample cannot be stated to be infringing the fundamental right of a C.C. No: 19/ 2015 Page No. 5 of 10 person enshrined in Article 20 (3) of the Constitution of India. In the former case, the Hon'ble High Court has interalia observed " A voice sample is like a finger print impression, signature or specimen handwriting. Like giving of fingerprint impression or specimen handwriting by an accused for the purpose of investigation, giving of voice sample for the purpose of investigation cannot be included in the expression "to be a witness". By giving a voice sample, the accused does not convey any information based upon his personal knowledge which can incriminate him. A voice sample by itself is fully innocuous. It is only used for the purpose of comparing it with the recorded conversation but it, by itself" is not a testimony at all".
8. Even in Rakesh Bisht's case, the Hon'ble Delhi High Court has reaffirmed the said proposition. I am unable to agree with the Ld. Senior Counsel Sh. Vivek Sood that the Hon'ble Delhi High Court in the said judgment has held to the contrary. In para 19 of its judgment, the Hon'ble Delhi High Court has clearly held that the Court may permit taking of voice sample for the purposes of identification. The only limitation imposed in this regard by the Hon'ble Delhi High Court is that these voice samples would not be admissible if they contain inculpatory statements. Thus, the only inference that C.C. No: 19/ 2015 Page No. 6 of 10 can be drawn from the observations made by the Delhi High Court in the aforementioned paragraph is that taking of voice sample of accused cannot be hit by Article 20 (3) of the Constitution unless it contains inculpatory statements.
9. It will also be relevant to mention herein that in a case titled and reported as Ritesh Sinha Vs. State of UP & Anr., a bench of two Hon'ble Supreme Court judges on 7.12.2012 pronounced a split verdict on the following questions of law: (i) whether the protection granted by Article 20 (3) of the Constitution of India extends to protect the accused from being compelled to give his voice sample during the course of investigating into an offence (ii) and whether assuming that there is no such violation, can a Magistrate authorize the investigating agency to record the voice sample of the person accused of the offence. Hon'ble Justice (Smt) Ranjana Prakash answered both the aforementioned questions in the affirmative while Hon'ble Justice Sh. Aftab Alam though agreed that taking voice sample of accused by the police during investigation is not hit by Article 20 (3) of the Constitution, he held that the court of Magistrate has no jurisdiction under the Criminal Procedure Code to give directions to compel an accused to give his voice sample during C.C. No: 19/ 2015 Page No. 7 of 10 investigation. Though this Court completely agrees with the Ld. Sr. Counsel Sh. Vivek Sood that the aforementioned judgment of the Hon'ble Supreme Court cannot be binding law in view of the subclause (5) of Article 141 of the Constitution of India in as much as it is a split verdict and not the majority view and the issues have been referred to the bench of three Hon'ble Judges, it is to be taken note of that both the Hon'ble Supreme Court judges were id idem that taking of voice sample of the accused by the police during investigation is not hit by Article 20 (3) of the Constitution.
10. In view of the discussion hereinabove, this Court is of the considered opinion that the petitioners cannot succeed on this ground at all. However having said so, this court does agree with the petitioners that in view of the judgment pronounced by Delhi High Court in Rakesh Bisht's case it will have to be held that there is no provision in the Criminal Procedure Code enabling a Magistrate to compel the accused to give his voice sample during investigation. It is being rightly contended by Ld. Sr. Counsel Sh. Vivek Sood that the judgment pronounced by Hon'ble Delhi High Court in Sameer Ahluwalia's case cannot come to the aid of the investigating agency in the present case for admittedly in Sameer Ahluwalia's case the accused persons C.C. No: 19/ 2015 Page No. 8 of 10 had given their consent for lending their voice samples. In the said case, the investigating agency had filed an application before the Court of Ld. ACMM that the accused persons be directed to give their voice samples and in reply thereto the accused persons had given their consent for the same. Later on, however, they objected to provide their voice samples as the paper that they were asked to read contained inculpatory statements and they therefore, filed an application before the Court of Ld. ACMM seeking directions that the text given to them for reading be changed, which was dismissed and the accused then approached the Hon'ble Delhi High Court. It is in the context of such facts that the Hon'ble Delhi High Court held that once the accused had given their consent for furnishing their voice samples, there was nothing illegal done by the court of Metropolitan Magistrate directing them to give the samples as per the instructions of the investigating officer and the scientific experts. In the considered opinion of this court, this judgment cannot be relied upon to lay down a proposition that a court of Magistrate has the jurisdiction during investigation to force an accused to give his voice sample, for the said issue was not before the Hon'ble Delhi High Court in Samir's case. I am also unable to agree with the Ld. PP that since in Samir's case the giving of a voice sample has been considered similar to giving of a specimen handwriting or a thumb C.C. No: 19/ 2015 Page No. 9 of 10 impression, the provisions of 311 A clothe a Magistrate to give directions to an accused to furnish his voice samples, for no such interpretation has been given to the provisions of section 311 A of the Cr.P.C., in the said case.
11. It is infact the judgment in Rakesh Bisht's case which is directly dealing with the aforementioned issues and wherein it has been clearly held that in the course of an investigation the court does not have any jurisdiction to direct an accused to give his voice sample to investigating agency. It is clearly held in the said judgment that it is only if after investigation, the court feels that voice samples ought to be taken for the purposes of establishing identity, then such a direction may be given. Further, in para 19 of the said judgment the Hon'ble High Court has clearly held that the section 311 A Cr.P.C has been introduced only recently and, therefore, it cannot even be urged that the expression "specimen signatures or handwriting" should also include voice samples because the legislature, when it introduced this provision, was well aware of the technology of tape recording and taking of voice samples.
12. In view of the aforementioned judicial dicta and discussion hereinabove, this court is of the considered opinion that the Ld. Magistrate did not have the jurisdiction at this stage in directing the petitioners to furnish their C.C. No: 19/ 2015 Page No. 10 of 10 voice samples to the investigating agency and therefore the impugned order suffers from illegality and is hereby set aside. A copy of this order be sent to the court of the Ld. MM immediately. This file be consigned to recordroom. Announced in the Open Court On the 30th November, 2015 (ANU GROVER BALIGA) SPECIAL JUDGE : C.B.I. (P.C.ACT) DWARKA COURTS, NEW DELHI.
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