Delhi District Court
Sudhir Chaudhary vs State on 7 July, 2014
1
IN THE COURT OF SH. BHARAT PARASHAR,
ASJ-01, NEW DELHI DISTRICT, PATIALA HOUSE
COURTS,NEW DELHI.
In Re:
CR No. 254/13
Samir Ahluwalia
R/o K-1, Tara Apartments
Alaknanada, New Delhi-19
Sudhir Chaudhary
S/o Sh. R. L. Chaudhary
R/o D-GF1, Pearls Gateway Towers,
Sector-44, Noida, UP ..... Petitioners
Versus
State
Through: Prosecution agency
Saket Courts
New Delhi .... Respondent
APPEARANCES
Present : Mr. Vijay Aggarwal, Ld. Counsel for the petitioners.
Mr. Rajiv Mohan, Ld. Special PP for the State.
Mr. Mohit Mathur, Ld. Counsel for the complainant.
07.07.2014
ORDER
1. Vide this order I propose to dispose of a very short issue qua right against self incrimination raised by the petitioners in the present revision petition. Facts in brief which are Samir Ahluwalia & Anr v. State Page 1 of 17 2 required to dispose of the present revision petition are as under.
2. A sting operation was allegedly carried out by certain representatives of Jindal Steel Company against certain representatives of Zee News (the two petitioners herein). The need for sting operation arose as the officers of Zee News were allegedly demanding a business to the tune of Rs.100 Crores from the Jindal Group of Companies by way of advertisement revenue and in lieu thereof assuring them of not telecasting any news pertaining to allocation of certain coal blocks to the companies of Sh. Naveen Jindal. I am not delving into the detailed circumstances in which telecast of some news with respect to alleged illegal allocation of coal blocks to the companies of Sh. Naveen Jindal, the then, Member of Parliament took place or as to how a meeting came to be arranged between the representatives of the two parties or what was the nature of assurance given during the course of the said meeting as the same is not warranted over here. It will be suffice to state that after carrying out a sting operation an FIR for the offences u/s 420/511 IPC came to be registered with Crime Branch, New Delhi and the present two petitioners namely, Samir Ahluwalia & Anr v. State Page 2 of 17 3 Samir Ahluwalia and Sudhir Chaudhary (the two officials of Zee News) even came to be arrested.
3. During the course of investigation the investigating agency moved an application before Ld. Trial Court for seeking consent of the two accused persons for obtaining their voice samples as it was stated that the same needs to be compared with the voice recorded during the course of the alleged sting operation. Admittedly the accused persons consented to give their voice samples and the Ld. Trial Court vide order dated 13.12.2012 observed that as the accused persons have voluntarily out of their own free will and after due consultation with their counsel have consented to give the voice sample allowed the application moved by the State. Subsequently when the two accused persons were released on bail they received a notice from the investigating officer asking them to appear before him for collection of their voice samples. The two accused persons accordingly went to the investigating officer who asked them to read out a paper which was a reproduction of the inculpatory material itself as was there in the questioned recording. The accused persons accordingly moved an application before the Ld. Trial Court requesting Samir Ahluwalia & Anr v. State Page 3 of 17 4 for monitoring of the investigation and directing the investigating officer for providing matter for collection of voice sample which does not contain any inculpatory material and that the voice sample may be collected in the presence of a Judicial Magistrate. Ld. Trial Court however vide order dated 04.02.2013 dismissed the application observing that the voice sample has to be given as per the instructions of the investigating officer or scientific officer.
4. Feeling aggrieved from the said order dated 04.02.2013 the present revision petition has been filed and it has been stated while relying upon a number of case law that the accused persons cannot be compelled to read the material which contain inculpatory statement for the purposes of taking their voice samples as it infringes their right against self incrimination as available to them under Article 20 (3) of the Constitution of India.
5. Before I advert on to the contentions of both the parties it will be worthwhile to mention that during the course of hearing of arguments on the present revision petition the State agreed to provide a text which was not exact reproduction of the earlier text given to the accused persons but was stated to be a mixture of some sentences Samir Ahluwalia & Anr v. State Page 4 of 17 5 from the questioned inculpatory material besides some general statements. Ld. Counsel for petitioner however after going through the said draft text also objected to the same stating that the draft text contains the portions of the said questioned recording only except that the position of various sentences have been changed in the text. It was thus stated that such a text can also be misused by the investigating agency and it also infringes their right against self incrimination under Article 20 (3) of the Constitution of India.
6. During the course of arguments Ld. Counsel Sh. Vijay Aggarwal for the petitioner while placing strong reliance upon the case Rakesh Bisht v. CBI, 2007 (1) JCC 482 argued that even in the case of taking of handwriting samples the Hon'ble High Court of Delhi had observed that if an accused is asked to give a handwriting sample and the matter which he writes contains inculpatory statement then the same would be hit by Article 20 (3) of the Constitution of India as then he would be a witness against himself. He also placed reliance upon the case Selvi and Ors. v. State of Karnataka (2010) 7 SCC 263 where the Hon'ble Supreme Court of India while deciding about the legality or Samir Ahluwalia & Anr v. State Page 5 of 17 6 admissibility of Narco analysis polygraph test (right tetcho test) and BEAP (frame electrical activation profile) observed that the same cannot be permitted without the consent of the person concerned as they violates the right of an individual under Article 20 (3) of the Constitution of India. He also placed reliance on the case Nandini Satpathy v. P. L. Dani and another, 1978 (2) SCC 424.
7. It was further submitted that as the conduct of investigating agency has not been above board during the course of entire investigation so any proceedings of taking voice sample may be conducted only before a Judicial Magistrate. He also placed on record a comparative chart of the proposed draft text given by the State viz a viz the transcription of the alleged sting operation filed alongwith the charge sheet to show that there was not much difference in the proposed draft text vis-a-vis the questioned recording as it contained almost the entire inculpatory statement.
8. On the other hand Sh.Rajiv Mohan, Ld. Special PP for the state duly assisted by Sh. Mohit Mathur, Ld. Counsel for complainant argued that the accused cannot be permitted to dictate the nature and manner of investigation to be Samir Ahluwalia & Anr v. State Page 6 of 17 7 conducted against him. It was also submitted that as per the opinion of the CFSL experts as obtained by them the material which is to be read by the accused persons for the purposes of obtaining voice samples must have the words which are found in the transcription of the sting operation I.e the questioned material. It was also submitted that the petitioners are in fact now trying to avoid giving their voice samples and are thus coming up with frivolous pleas. It was also stated that the petitioners have not approached this court with clean hands. The petition was thus prayed to be dismissed. Reliance was also placed upon the following case law in support of their arguments i.e. Kishore Samrite v. State of UP and Ors., 2013V AD (S.C.) 594 and Palvinder Kaur v. The State of Punjab, AIR 1952 SC 354.
9. I have carefully perused the record.
10. As mentioned earlier the only issue which is left to be decided is as to whether giving of the same text as that of the questioned transcription or a text inter mixed with phrases from the questioned transcription violates the right of accused against self incrimination as provided under Article 20 (3) of the Constitution of India or not. In other Samir Ahluwalia & Anr v. State Page 7 of 17 8 words whether the accused persons are justified in refusing to give their voice sample while reading the questioned transcription itself or a text inter mixed with phrases from the questioned transcription.
11. Ld. Counsel for petitioner has placed on record a comparative chart of the draft text as provided during the course of arguments by the prosecution vis-a-vis the questioned transcription to show that except for changing the places of various sentences in the draft text it is primarily the reproduction of the questioned transcription. I may however state that at this stage of the matter this court is not required to go into the issue as to whether the draft text given by the prosecution contains major portion of the questioned transcription or not as it is only the larger issue as to whether the accused persons have a right to refuse to read the questioned transcription itself while giving their voice sample or a text inter mixed with portions of questioned transcription is to be looked into. In other words whether prosecution should give a general text to the accused persons to read so as to collect their voice sample.
12. The fundamental right available to the accused under Samir Ahluwalia & Anr v. State Page 8 of 17 9 Article 20 (3) of the Constitution of India i.e. right against self incrimination does not require any reiteration over here as its availability to the accused persons cannot be questioned. I am thus also not inclined to enter into any doctoral thesis qua the right against self incrimination as provided under the Constitution as what is required to be examined is as to whether the fundamental right under Article 20 (3) of the Constitution of India stands violated if they are made to read the questioned transcription itself or a text inter mixed with major portion of questioned transcription.
13. Admittedly as regards the handwriting specimen to be taken from the accused the law has been laid down clearly in the Rakesh Bisht's case (supra) by Hon'ble High Court of Delhi. However no case law has been produced which lays down the procedure to be followed or precaution to be taken as regards the collection of voice sample.
14. Before adverting further it will be also worthwhile to refer to the opinion given by the CFSL expert in this regard as produced by the prosecution during the course of hearing. The same reads as follows:-
(A) It is not mandatory to have vis-a-vis same text to be read by a suspect. However, sufficient common Samir Ahluwalia & Anr v. State Page 9 of 17 10 sentences/words should be present in the sample voice recording with respect to the questioned voice recording for spectrographic examination.
(B) In case there are sufficient common sentences/words in between questioned & specimen voice recording, then a complete opinion could be offered. However, in case of complete different text and sufficient common sentences/words are not available;
opinion could be offered based on auditory examination only.
(C) For auditory comparison, the whole recording/text is used. For spectrographic examination, some selected sentences/words are taken for comparison. (D) Text could be selected prior to examination. However, those sentences/words are taken for spectrographic comparison, which are of similar sound among the verbatim. An alternative text could be prepared containing sufficient common sentences/words taken from the questioned recording but at least two utterances of the prepared text has to be recorded for each speaker. The text could be prepared by the investigating agency on suggestion of CFSL expert. (E) Opinion on auditory examination could only be offered in case of completely different text but language should be same.
(F) Positive identification opinion is offered under "Probable" heading, in case of similar text and accuracy in this case would be more than 90%. Exact percentage of accuracy could not be ascertained for auditory opinion in case of completely different text.
15. A perusal of the aforesaid opinion shows that Dr. Rajinder Singh, Director CFSL, CBI expert intends to do the voice analysis by spectrography examination and if the same is not feasible than by auditory examination. It will be thus worthwhile to understand as to what is spectrography analysis.
16. The spectrographic analysis is carried out by a sound spectrograph which is a device producing visual graph Samir Ahluwalia & Anr v. State Page 10 of 17 11 (spectrogram) of speech as a function of time (horizontal axis), frequency (vertical axis), and voice energy (gray scale or color differences). It is a well-accepted research tool that is used to study individual vowel characteristics, physiological speech anomalies, etc. Thus, the sound spectrograph, an automatic sound wave analyzer, is a basic research instrument used in many laboratories for research studies of sound, music and speech. The instrument produces a visual representation of a given set of sounds in the parameters of time, frequency and amplitude. Proponents of the aural and spectrographic technique of voice identification base their decisions on the theory that all human voices are different due to the physical uniqueness of the vocal track, the distinctive environmental influences in the learning process of speech development, and the unique development of neurological faculties which are responsible for the production of speech. Voice identification is no longer limited to the visual comparison of a few words, the comparison of human voices now focuses on every aspect of the words spoken; the words themselves, the way the words flow together, and the pauses between them. Both aural and spectrographic Samir Ahluwalia & Anr v. State Page 11 of 17 12 analysis are combined to form the conclusion about the identity of the voices in question.
17. The method by which the voice is identified is thus a multifaceted process requiring the use of both oral and visual senses. In the typical voice identification case the examiner is given some recordings ; one or more recordings of the voice to be identified and one or more recorded voice samples of one or more suspects. It is from these recordings the examiner must make the determination about the identity of the unknown voice. The first step is to evaluate the recording of the unknown voice, checking to make sure the recording has a sufficient amount of speech with which to work and that the quality of the recording is of sufficient clarity in the frequency range required for analysis. Once the unknown voice sample has been determined to be suitable for analysis, the examiner then turns his attention to the voice samples of the suspects. Here also, the recordings must be of sufficient clarity to allow comparison, although at this stage, the recording process is usually so closely controlled that the quality of recording is not a problem.
18. Certainly the expert of CFSL must be will versed in these Samir Ahluwalia & Anr v. State Page 12 of 17 13 techniques but the reason I am discussing some outlines of the said process is as to whether the examiner will be in a position to give an opinion which is ultimately found to be reliable during the course of trial by the court or not. Coming now to the opinion given by the CFSL experts of CBI Laboratory where the investigating agency intends to get the voice samples of the accused persons compared with the questioned voice, it will be worthwhile to point out that the expert themselves have opined that it is not mandatory to have vis-a-vis same text to be read by a suspect. However sufficient common sentences/words should be present in the sample voice recording with respect to the questioned voice recording for the spectrographic examination.
19. It has been further stated by the experts in their opinion that in case there are sufficient common sentences/words in between questioned & specimen voice recording, then a complete opinion could be offered. However, in case of complete different text and sufficient common sentences/words are not available; opinion could be offered based on auditory examination only. It has also been stated that positive identification opinion is offered under Samir Ahluwalia & Anr v. State Page 13 of 17 14 "Probable" heading, in case of similar text and accuracy in this case would be more than 90%. Exact percentage of accuracy can not be ascertained for auditory opinion in case of completely different text.
20. In the aforesaid circumstances I am of the considered opinion that though it will not be appropriate if the accused persons are made to read the very text as that of the questioned text but at the same time it will not be justified for proper investigation of the matter and for obtaining a reliable voice sample report if a completely different text is given to the suspect to read. The text which should be given to the accused persons for collection of their voice sample should be such which besides having some general sentences should also have some sentences from the questioned text.
21. I once again reiterate that as accused persons themselves have consented to give their voice sample so the question of violation of their right against self incrimination as provided under Article 20 (3) of the Constitution of India no longer comes into picture. It is only the apprehension of the accused persons that if they are made to read the same text as that of the questioned Samir Ahluwalia & Anr v. State Page 14 of 17 15 recording then the investigating agency might misuse it. The accused persons have thus an apprehension that the investigating agency might replace the questioned recording with their recording obtained while collecting their voice sample. Though it will not be appropriate to presume that the investigating agency might resort to any such act, for it will amount to casting un-necessary aspersions upon the investigating agency without any basis for the same but at the same time the rights of accused cannot be ignored. It is also well known that if the pre trial event managed mainly by the police, are not subjected to the control of the Constitution or other regulatory mechanism which may be enforced or developed by the court of law then it may render fair trial almost impossible. However the question arises as to what extent should the right of an accused needs to be protected vis-a-vis right of the society which demands that a person guilty of commission of an offence should be brought to book though certainly by way of a fair and speedy trial. Thus the collection of voice sample of the accused persons or its subsequent comparison with the questioned recording cannot be made subject to the unfounded apprehensions or Samir Ahluwalia & Anr v. State Page 15 of 17 16 whims and fancies of the accused persons. Undoubtedly the investigating agency is under a duty to follow the principles of natural justice in the process. As already mentioned since there are no rules or procedure laid down in this regard either in any case law or Act so such a procedure has to be devised while striking a fine balance between the rights of accused persons and the rights of the state to carry out a fair and proper investigation.
22. I am certainly not delving into the aspect as to whether the voice identification evidence is a valid, reliable identification process or not or what weight it carries as the said issue will certainly be argued by the parties during the course of trial and the court at that stage will certainly give its finding on this issue.
23. In these circumstances I am of the considered opinion that in order to strike a fine balance between the right of the accused persons and that of the State in carrying out a proper and fair investigation with respect to the offence in question it will be appropriate if the CFSL experts at CBI Laboratory are directed to prepare a text inter-mixed with sufficient sentences from the questioned text which may facilitate the examination of voice sample identification by Samir Ahluwalia & Anr v. State Page 16 of 17 17 them. The said text shall be prepared by the CFSL experts themselves only after the investigating agency first provides them with the questioned recording. The collection of voice sample of the accused persons shall also be done in the CFSL Laboratory in presence of the experts as not only it will provide them a controlled environment to suitably collect the samples but it will also clear the apprehension of the accused persons that the investigating agency may play some mischievous role while collecting the voice samples.
24. The present criminal revision petition is accordingly disposed of.
25. A copy of this order along with Trial Court Record be sent back to the court concerned.
26. Revision file be consigned to Record Room. ANNOUNCED IN THE OPEN COURT (BHARAT PARASHAR) TODAY i.e 07.07.2014 ASJ-01/PHC/NEW DELHI Samir Ahluwalia & Anr v. State Page 17 of 17