Kerala High Court
Daisy M.P vs State Of Kerala on 5 March, 2020
Author: Sunil Thomas
Bench: Sunil Thomas
O.P(Crl.) No.74/2020 1
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
THURSDAY, THE 5TH DAY OF MARCH 2020/15TH PHALGUNA, 1941
OP(Crl.).No.74 OF 2020
AGAINST THE ORDER/JUDGMENT IN CRMP 33/2020 IN VC NO.5/2019/KTM
OF ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM
CRIME NO.5/2019 OF VACB, KOTTAYAM , Kottayam
PETITIONER/ACCUSED:
DAISY M.P.,
AGED 52 YEARS
W/O. DEN V. PAUL, RESIDING AT JIJO BHAVAN,
POOYAPPALLY P.O., PANGODE BHAGOM, KOLLAM DISTRICT-
691537. (ASSISTANT ENGINEER, UNDER SUSPENSION,
KOTTAYAM MUNICIPALITY, KOTTAYAM P.O., PIN-686001)
BY ADVS.
SRI.K.GOPALAKRISHNA KURUP (SR.)
SMT.ANIMA M.
SMT.UMA S.NAIR
SMT.ANUROOPA JAYADEVAN
SHRI.ASHRUTH NASER
RESPONDENT/RESPONDENT:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031.
2 DEPUTY SUPERINTENDENT OF POLICE,
VACB KOTTAYAM UNIT.
PUBLIC PROSECUTOR SRI.A.RAJESH
THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 27-02-
2020, THE COURT ON 5-03-2020 DELIVERED THE FOLLOWING:
O.P(Crl.) No.74/2020 2
JUDGMENT
Dated this the 5th day of March 2020 Petitioner herein is the sole accused in VC No.5/2019 registered by the VACB, Kottayam Unit for offence punishable under section 7 of the Prevention of Corruption Act.
2. The Defacto Complainant had filed a complaint to the Municipality alleging that his neighbour had raised the level of a pathway. Pursuant to it, the petitioner, who was the assistant engineer of the Municipality, conducted a site inspection. Alleging that after completion of the local inspection the assistant engineer allegedly demanded a bribe of Rs.2,000/-, Ext.P1 complaint was laid before the VACB. Complaint was recorded on 17/6/2019 and a trap was arranged. When the officers of the VACB reached the office of the petitioner, she was not available there. When she came to the office, tainted money was allegedly recovered from the drawer of the table in the cabin of the petitioner. Pursuant to the registration of the crime arraying the petitioner as accused, she was placed under suspension.
3. While so, the second respondent filed Crl.M.P.No.33/2020 in VC No.5/19/KTM before the Enqury Commissioner and Special Judge O.P(Crl.) No.74/2020 3 Kottayam seeking a direction to the petitioner to appear before Chitranjali Studio, Thrikkakara, for collecting her voice sample. It was stated in the application by the VACB that the voice of the petitioner demanding bribe was recorded by the complainant with his gadget and the voice clip was copied by a computer expert. The learned Special Judge allowed the above application without issuing notice to the petitioner, directing her to appear at Chitranjali Studio, Thrikkakara, on 22/1/2020 for recording her voice sample. This order is under challenge in this original petition.
4. Heard the learned senior counsel for the petitioner and the learned counsel for the VACB.
5. The contention of the learned senior counsel for the petitioner was that, the petitioner has been falsely implicated in the crime. Even though trap was arranged, it was not successful. Neither in the pre trap mahazar nor in the post trap mahazar, there was any reference to the electronic gadget or the voice clip, which now seems to have been produced for the first time on 14/1/2020 before the Special Court. It was also contended that the court below was not justified in not granting an opportunity to the accused to raise her objection. The impugned order was passed behind her back. It was further contended that the Studio mentioned above was not a notified institution, as contemplated under the statute, and consequently the court could not have ordered O.P(Crl.) No.74/2020 4 that the sample shall be taken in that studio. The main argument advanced by the petitioner was that the impugned order was passed by the learned Special Judge relying on the decision in Ritesh Sinha v. State of Uttar Pradesh and another [(2019) 8 SCC 1],which according to the learned senior counsel, did not lay down the correct law. It was contended that the Supreme Court, in Selvi v. State of Karnataka[(2010) 7 SCC 263] had considered the larger question as to whether involuntary administration of narco analysis, polygraph and BEAP tests violates the rights against self-incrimination enumerated under Article 20(3) of the Constitution of India and whether the result so derived by the impugned techniques amounts to testimonial compulsion. The Apex Court also considered the question whether such techniques would fall within the ambit of "such other tests" as contemplated under section 53-A of Cr.P.C. It was held that such tests conducted against the will of a person were legally not permissible and were violative of the Constitutional and statutory protection.
6. In Selvi's case(cited supra), the three Judges Bench of the Supreme Court considered the question whether conducting of narcoanalysis, polygraph and BEAP tests against the will of a person was legally permissible and was violative of the Constitution. It was held that, though conducting of certain medical tests on the accused were permissible under Explanation(a) to Section 53, under Section O.P(Crl.) No.74/2020 5 53A and Section 54 Cr.P.C.,yet narcoanalyis test, polygraph test and BEAP test were not included in those tests. It was held that the general expression "such other tests" in explanation(a) to section 53 cannot be construed as covering these three tests because they were not of the same category to which tests specified in Explanation(a) belonged. Interpretational principle of ejusdem generis does not permit their inclusion, it was held. The Supreme Court held that legislative intent was clear from the fact that while amending the said Explanation(a) in 2005, the Parliament in its wisdom did not include those tests despite the fact that those tests were in existence at that time. It was further held that the above tests violate Articles 20(3) and 21 of the Constitution of India and Section 161(2) of Cr.P.C., since it amounts to suspects and witnesses being compelled to make self- incriminating statements.
7. In Ritesh Sinha's case(cited supra), Supreme Court examined the scope of sections 53, 53-A and 311-A of Cr.P.C. After a detailed evaluation of the legal principles, the court concluded that until explicit provisions are engrafted in the Code of Criminal Procedure by the Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in O.P(Crl.) No.74/2020 6 this Court under Article 142 of the Constitution of India, it was held. This decision was relied on by the court below for directing the petitioner to give her voice sample.
8. The learned senior counsel for the petitioner contended that the Hon'ble Supreme Court in Selvi's case considered threadbare the question of legality of the various tests, which fall within the connotation of "such other tests" as provided under sections 53 Cr.P.C.and on the broad spectrum of Constitutionality, Fundamental Rights and the protection against self incrimination. However, the above decision being the binding precedent, was neither referred to nor followed in Ritesh Sinha's case and to that extent, Ritesh Sinah's case was bad in law. It was contended that in Ritesh Sinha's case, the Apex Court did not follow the binding precedent in Selvi's case and to that extent, the decision was per incurium. It was further contended that courts are bound to follow the ratio in Selvi's case.
9. To support the above contention, learned senior counsel for the petitioner referred to a decision of the Andhra Pradesh High Court in B.Eswaraiah v. Presiding Officer [2014(4)ALT 118]. The learned Single Judge, after evaluating the legal position in relation to decisions of the co-equal Benches passing conflicting judgments, had held that when the subsequent co-equal Bench renders a judgment in ignorance of the earlier pronouncement of co-equal Bench, the O.P(Crl.) No.74/2020 7 judgment of the previous Bench will have binding effect. On the other hand, if the latter Bench refers to the earlier one and distinguishes it, to that extent of distinction, the latter one binds.
10. In State of U.P. and others v. Ajay Kumar Sharma and Another[(2016) 15 Supreme Court Cases 289], Supreme Court held that time and again this Court has emphatically restated the essentials and principles of "precedent" and of "stare decisis, which were cardinal features of the hierarchical character of all common law judicial systems. The doctrine of precedent mandates that an exposition of law must be followed and applied even by coordinate or co-equal Benches and certainly by all smaller Benches and Subordinate Courts, it was held.
11. Ritesh Sinha's case was challenged on yet another ground by the learned senior counsel for the petitioner. According to the senior counsel, the decision in Ritesh Sinha's case was rendered by the Supreme Court in exercise of Article 142 of the Constitution of India and hence it did not lay down a binding precedent. To support the contention, learned senior counsel relied on the decision reported in State of Punjab and Others v . Rafiq Masih(Whitewasher) [(2014) 8 Supreme Court Cases 883]. In that case, it was held that directions issued by the Supreme Court to give full justice in a particular case in the particular facts and circumstances thereof invoking Article 142 of O.P(Crl.) No.74/2020 8 the Constitution of India do not become a binding precedent. It was held that the decisions under Article 136 of the Constitution of India declare Law having binding effect as provided under Article 141 of the Constitution, but a direction issued under Article 142 in any case or matter in the peculiar facts and circumstances thereof cannot be considered as law laid down by the Supreme Court. Power conferred on the Supreme Court under Article 142, though wide and not limited by substantive provisions in any statute, is supplementary in nature and cannot supplant substantive provisions of law.
12. Learned Senior counsel for the petitioner also relied on the decisions of the Supreme Court in Indian Bank v. ABS Marine Products Private Ltd. [(2006) 5 SCC 72 at paras 25,26], State of U.P.Vs. Neeraj Awasthi and Others [(2006) 1 Supreme Court Cases 667] and Ram Pravesh Singh and Others v. State of Bihar and Others [(2006) 8 Supreme Court Cases 381] which supplemented the view expressed in State of Punjab's case (supra). Relying on the above decisions, it was contended by the learned senior counsel that in Ritesh Sinha's case, the direction was issued by the Hon'ble Supreme Court under Article 142 of the Constitution of India and consequently not binding on the court below under Article 141 of the Constitution of India. Hence, the decision cannot be considered as a binding precedent, it was contended.
O.P(Crl.) No.74/2020 9
13. Generally, when conflicting views are expressed in the judgments of two Benches of equal strength, the decision later in point of time will prevail over the earlier one. This was the view taken by the Full Bench of this court in Raman Gopi v. Kunju Raman Uthaman [(2011) 4 KLT 458 (FB]. It is true that in Ritesh Sinha's case, on a finding that there was no corresponding provision in relation to recording of voice sample under Cr.P.C., The Hon'ble Supreme Court invoked the power under Article 142 of the Constitution of India and declared the Law. Directions were issued to the judicial Magistrates. Though Supreme Court exercised its jurisdiction by invoking Article 142 of the Constitution of India, in the light of the declaration of Law and directions given to the Lower courts to follow such direction, it was evidently a direction given by the Supreme Court and hence a binding precedent applicable to all the courts under Article 141 of the Constitution of India. Consequently, the decision in State of Punjab and others (cited supra) does not apply to the facts in Ritesh Sinha's case.
14. The challenge made to Ritesh Sinha's case on the basis that the above judgment is also per incuriam should fail, for more reasons than one. In Selvi's case, Hon"ble Supreme Court was specifically called upon to decide the question whether the three specific tests O.P(Crl.) No.74/2020 10 referred to therein viz. Narco analysis, polygraph and BEAP tests conducted against the will of a person amounted to Constitutional and statutory violations. The court, inter alia, relied on the decision of the larger Bench of the Supreme Court in State of Bombay v . Kathi Kalu Oghad [1961 KHC 343]. In that it was held that specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous. They were only materials for comparison in order to lend assurance to the Court that its inference based on pieces of evidence was reliable. Relying on the binding law in State of Bombay's case (supra), the Supreme Court held in Selvi's case that three specific tests referred to in Selvi's case did not fall within the scope of Sections 53, 53-A and 54 of Cr.P.C. and were unconstitutional. The Supreme Court was specifically considering the legality of above three tests alone. Further, It made a broad distinction between the three tests involved in Selvi's case and other categories of tests. It was held that three tests involved in Selvi's case cannot be accorded same treatment as was given to collection of specimen signatures and handwriting samples for the reason that specimen signatures and handwriting samples were not used as testimony against test subject, but were used for identification or corroboration of facts already known to investigators.
15. In the above circumstances, Selvi's case did not consider the O.P(Crl.) No.74/2020 11 question which was directly involved in Ritesh Sinha's case. Hence, it was not binding as far the specific issues involved in Ritesh Sinha's case. Again Selvi's case and Ritesh Sinha Case both have its reference to the binding precedent of the Larger Bench in Kathi Kalu's case.
16. Having considered the above facts, I find no basis in the contention set up by the learned Senior counsel for the petitioner relying on the decisions in State of U.P.and others(supra) as well as in B.Eswaraiah case(supra) and other cases. Rithesh Sinhia's case stands distinct from Selvi's case.
17. The Law laid down in Rithesh Sinha's case was preceded by decisions of other courts which expressed similar view. In the decision reported in Natvarlal Amarshibhai Devani v. State of Gujarat and another [2017 (Crl.L.J.1911] Gujarat High Court had occasion to consider the question of furnishing voice sample by the accused, for voice Spectrography test. It was held that furnishing of voice sample cannot be included in term "examination" or "such other test" as explained in Section 53 of the Code.
18. The Madras High Court in Rabindra Kumar Bhalotia v. State and Others[2018 KHC 4305] had held that directing the accused to give their voice sample for comparison with that of the questionable voice recorded in the course of intercepted telephonic conversion will O.P(Crl.) No.74/2020 12 not fall within the mischief of testimonial compulsion. It was held to be not ultra vires to Constitution. Giving an extended meaning to Section 53, it was held that wording "examination by medical practitioner" in Section 53,was not restricted to examinations provided therein. Words "such other tests" must be interpreted purposively to include "voice test"
also, it was held.
19. The above view was shared by this court in Pratap v. Central Bureau of Investigation[2017(3) KLT 458]. It was held that a mere direction to provide specimen voice for comparison will never amount to testimonial compulsion as meant under Article 20(3) of the Constitution of India, in view of the law settled by the larger Bench of the Hon'ble Supreme Court in Kathi Kalu' s case. The above consistent view has been affirmed by the Supreme Court in Ritesh Sinha's case.
20. The next contention of the learned senior counsel for the petitioner was that notice was not issued to the petitioner before directing her to furnish the voice sample. Since the direction of the court below was on a request made by the investigating agency in the course of investigation and in the absence of any legal bar, the court below was not expected to issue notice to the petitioner. It was also contended that in the pre mahazar trap and the post mahazar trap, there was no reference to the voice of the petitioner being recorded. O.P(Crl.) No.74/2020 13 The above contention is to be considered at the time of appreciation of evidence. Further, even though it was vehemently contended by the learned senior counsel that studio, where the petitioner was directed to give voice sample, was not a notified studio under the statute, being a question of fact and that no such objection was raised in the original petition, I feel that the petitioner is not entitled to advance such a contention at this stage.
Having evaluated the legal principles involved, I find no merit in the various contentions advanced by the petitioner. Accordingly, the original petition fails and is dismissed. Court below shall now fix a new date for appearance of the petitioner in the studio for recording voice sample.
Sd/-
SUNIL THOMAS
dpk JUDGE
O.P(Crl.) No.74/2020 14
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF FIR IN VC NO.5/2019 OF VACB,
KOTTAYAM.
EXHIBIT P2 TRUE COPY OF LETTER ADDRESSED TO
MUNICIPAL SECRETARY DATED 17/06/2019.
EXHIBIT P3 TRUE COPY OF LETTER TO CHIEF ENGINEER,
LOCAL SELF GOVERNMENT DATED 17/06/2019.
EXHIBIT P4 TRUE COPY OF THE SUSPENSION ORDER ISSUED
TO THE PETITIONER DATED 18/06/2019.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 03/01/2020
ISSUED BY THE CHIEF ENGINEER LOCAL SELF
GOVERNMENT RECOMMENDING THE GOVERNMENT TO
REINSTATE THE PETITIONER.
EXHIBIT P6 TRUE COPY OF THE PETITION DATED
15/01/2020 IN CRL MP NO.33/2020 IN VC
NO.5/19/KTM FILED BEFORE THE ENQUIRY
COMMISSIONER AND SPECIAL JUDGE, KOTTAYAM
SEEKING DIRECTION TO PETITIONER TO APPEAR
FOR VOICE SAMPLE TEST.
EXHIBIT P7 TRUE COPY OF THE COMMON ORDER DATED
20/01/2020 IN CRL. MP NO.32/2020 IN VC
NO.3/2019/KTM AND CRL MP NO.33/2020 IN VC
NO.5/2019/KTM.
EXHIBIT P8 NOTICE DATED 20/01/2020 ISSUED FROM THE
OFFICE OF THE ENQUIRY COMMISSIONER AND
SPECIAL JUDGE TO THE PETITIONER.