Allahabad High Court
Ritesh Sinha vs State Of U.P. And Another on 9 July, 2010
Author: Ravindra Singh
Bench: Ravindra Singh
1
Reserved
Criminal Misc. Application No. 3272 of 2010
Ritesh Sinha .......Applicant
Vs.
State of U.P. ........................... Opp.Party.
Hon'ble Ravindra Singh, J.
Heard Sri G.S.Chaturvedi, learned Sr. Advocate, assisted by Sri Samit Gopal, learned counsel for the applicant, Sri D.R.Chaudhary, learned Government Advocate for the State of U.P. This application has been moved by the applicant Ritesh Sinha with a prayer to quash the order dated 8.1.2010 passed by learned Chief Judicial Magistrate, Saharanpur in Case Crime No. 864 of 2009 under sections 420, 417, 468/34 I.P.C., Police Station Sadar Bazar, District Saharanpur, by which the notice has been issued to the applicant to appear and give sample of his voice to the Investigating Officer of the above mentioned case.
It is contended by learned counsel for the applicant that the applicant is an accused in Case Crime No. 864 of 2009 under sections 420, 417, 468/34 I.P.C., Police Station Sadar Bazar, District Saharanpur, the FIR has been lodged against the applicant on 7.12.2009 at 3.30 p.m. by O.P.No.2 in respect of the alleged incident occurred on 7.12.2009 at about 1.15 P.M. The applicant filed a criminal Misc. Writ Petition No. 26040 of 2009, in which vide order dated 18.12.2009, the arrest of the applicant has been stayed till the submission of the police report under section 173(2) Cr.P.C. or till the next date of listing, which ever is earlier. No counter affidavit has been filed by any of the respondents in the above mentioned writ petition but during pendency of the investigation, the I.O. moved the application before the learned C.J.M. Saharanpur with the prayer that appropriate order may be passed directing to appear before the court and to give a sample of his voice, on that application, the order dated 8.1.2010 has been passed by C.J.M.Saharanpur whereby the notice has been issued to the applicant to appear in the court to give sample of his voice for 2 comparison with the recorded conversation between the applicant Ritesh Sinha and Dhoom Singh. The order dated 8.1.2010 is illegal, because no accused can be compelled to give the evidence against himself/herself and there is no provision permitting the I.O.for summoning the accused for taking his voice sample. The learned Magistrate concerned has passed the impugned order dated 8.1.2010 illegally and without going through the provisions of the Code of Criminal Procedure, the impugned order is infringing the fundamental right under sections 19(1)(f) and 19(1)(g)(5) of the Constitution of India. The article 20(3) embodies the principle of protection against compulsion of self-incrimination which is one of the fundamental canons of the British system of criminal jurisprudence which has been adopted by American system and incorporated as an article of its Constitution. So far as the Indian Law is concerned, it may be taken that the protection against self incrimination continues more or less as in the English common law. Analysing the terms in which this fundamental right has been declared in our Constitution, it may be said to consist of the following components : (1) It is a right pertaining to a person "accused of an offence" ( 2) It is a protection against " compulsion to be a witness" and (3) It is a protection against such compulsion resulting in his giving evidence " against himself" .
In support of his submission, the learned counsel for the applicant cited the case of M.P.Sharma & others Vs. Satish Chandra and others, 1954 S.C.300 Vol. 41.
In reply of the above contention, it is submitted by learned Government Advocate that the learned Magistrate concerned has not committed any error in passing the impugned order because the arrest of the applicant has been stayed, in such circumstances, the only option before the I.O. to move the application before the learned C.J.M. concerned to summon the applicant for taking the sample of his voice because in this case, the conversation of the applicant with Dhoom Singh has been recorded for the purpose of making comparison, the sample of the voice of the applicant is necessarily 3 required, it is one of the modes of investigation for ascertaining the credibility of the conversation collected by the I.O. There is no infringement of fundamental right of the accused, the applicant is an accused for doing the fair investigation, the I.O.has moved an application for summoning the applicant for the purpose of taking sample of his voice to compare with the recorded conversation of the applicant with Dhoom Singh. The Code of Criminal Procedure has not specified the mode of investigation, the present application is devoid of merits, the same may be dismissed. In support of this submission, the learned Government Advocate cited the case of Central Bureau of Investigation , New Delhi vs. Adbdul Karim Ladsab Telgi and others 2005 CRI.L.J. 2868.
After considering the submission made by learned counsel for the applicant, learned Government Advocate and from the perusal of the record it appears that in the present case, the applicant is an accused in Case Crime No. 864 of 2009 under sections 420, 417, 468/34 I.P.C., Police Station Mandi, District Saharanpur, in which the arrest of the applicant has been stayed by a Divison Bench of this court by passing the order dated 18.12.2009 in Criminal Misc. Writ Petition No. 26040 of 2009, till the next date of listing or till submission of the police report under section 173(2) Cr.P.C., whichever is earlier. The conversation between the applicant and Dhoom Singh has been collected by the I.O. to ascertain its genuineness, the comparison of the alleged conversation with the voice of the applicant is necessarily required, for which the application was moved before the learned C.J.M. Saharanpur for summoning the applicant to give the sample of his voice. The learned Magistrate concerned has issued notice to the applicant to appear in his court to give sample of his voice. The order dated 8.1.2010 passed by learned C.J.M.Saharanpur is not infringing any fundamental right, it is not coming in the record of giving evidence 4 against himself because the evidence has already been collected by the I.O., the applicant was summoned by the court to give sample for the purpose of ascertaining the genuineness of the recorded conversation of the applicant with Dhoom Singh. The facts of the present case are entirely distinguishable with the facts of the case of M.P.Sharma vs. Satish Chandra, District Magistrate, Delhi and others, reported in AIR 1954 SC 300 Vol. 41.
According to the provisions of section 27 of Evidence Act, self incriminatory information given by the accused without compulsion does not infringe Article 20(3) of the Constitution of India. In the present case, the applicant is not compelled to give evidence against himself but the order has been passed by learned Magistrate concerned to appear before the court concerned to give sample of his voice so that the evidence collected by the I.O. against the applicant as of conversation of the applicant with Dhoom Singh may be compared.
The issue involved in the case was involved in the case of Central Bureau of Investigation vs. Abdul Karim Ladsab Telgi and others, has been considered by the Single Hon'ble Judge of Bombay High Court reported in 2005 CRI.L.J. 2868. in which the provisions of Article 20(3) of the Constitution and section 5 of Identification of Prisoners Act ( 33 of 1920) have been considered.
The relevant paragraphs of the above mentioned Judgement are quoted below :-
9. Having considered the rival submissions........
11.The matter may be looked at from another point of view. The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not "to be a witness."
" To be a witness" means imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the fact to be communicated to a Court or to a person holding an enquiry or investigation. A person is said ' to be a witness' to a certain state of facts which has to be determined by a Court or authority, authorities to come a decision , by testifying to what he has seen, or 5 something he has heard which is capable of being heard and is not hit by the rule excluding hearsay, or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by text writers into three categories, namely ( 1) oral testimony; (2) evidence furnished by documents; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision in Sharma's case, 1954 SCR 1077 :
AIR 1954 SC 300 that the prohibition in Cl. (3) of Art. 20 covers not that oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. The accused may have documentary evidence in his possession which may throw some light on the controversy. If it is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the Court to produce that document in accordance with the provisions of S.139 of the Evidence Act, which, in terms, provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it; and therefore, he cannot be cross examined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if he has given his statement in Court otherwise than by reference to the contents of the documents. In our opinion, therefore, the observation of this Court in Sharma's case, 1954 SCR 1077 : AIR 1954 SC 300 that S.139 of the Evidence Act has no bearing on the ' connotation of the word ' witness' is not entirely well founded in law. It is well established that Cl. ( 3) of Art. 20 is directed against self-incrimination by an accused person. Self-incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannnot include merely the mechanical process of producing documents in Court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a ' personal testimony'. The giving of a 'personal testimony' must depend upon his volition, he can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting in spite of efforts at concealing the true nature 6 of it by dissimulation cannot change their intrinsic character. This, the giving of finger impression or of specimen writing or of signatures by any accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness' (12) In order that a testimony by an accused person may be said to have been self incriminatory , the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itslef it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself. A specimen handwring or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable .
They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of testimony."
14. That takes me to the technical plea raised on behalf of the respondents that the application as filed before the Court below makes no reference to any express provision of the Law under which such relief could be granted. As held earlier, it is open to the investigating agency for the purpose of ascertaining identification of the voice of accused to require the accused to lend his sample voice. Moreover, reference can be usefully made to the provisions of the Identification of Prisoners Act, 1920. This Act was especially intended to make provisions regarding authorizing the taking of measurements and photographs of convicts and others, so as to record or make note of the identity of such persons. Section 5 of the Act as applicable to the State of Maharashtra, reads thus :
"5. Power of Magistrate to order a person to be measured or photographed- If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, be may make an order to the effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer :-
Provided that no order shall be made directing any person to be photographed except by the District Magistrate, Sub-Divisional Magistrate, a Magistrate of the First Class and Metropolitan Magistrate.
Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or 7 proceedings. "
It provides that when the Magistrate is satisfied, for the purpose of any investigation or proceeding under the Code of Criminal Proecedure, it is expedient to direct any person to allow his "measurement" or " photographs" to be taken. Such a direction can be issued by the concerned Court, if pressed on behalf of the investigating agency, In the first place, as held by the Apex Court in Malkani's case ( 1973 Cri L.J. 228) (supra) tape recorded conversation is comparable to photograph of the relevant incident. Be that as it may, the express "on measurements" occurring in Section 5 has been defined in Section 2(a), which reads thus :
2. Definitions- in that Act ....
3. (a) "measurements include finger-impressions and foot print impressions "
The said expression is an inclusive term, which also includes finger- impressions and foot print impressions. Besides, the term measurement, as per the dictionary meaning is the act or an instance of measuring an amount determined by measuring: detailed dimensions. With the development of Science and Technology, the voice sample can be alalysed or measured on the basis of time, frequency, and intensity of the speech-sound waves so as to compare and identify the voice of the person who must have spoken or participated in recorded telephonic conversation. The expression " measurements" occurring in Section 5, to my mind, can be construed to encompass even the act undertaken for the purpose of identification of the voice in the tape - recorded conversation. Such construction will be purposive one without causing any violence to the said enactment, the purpose of which was to record or make note of the identity or specified persons. On this reasoning the Court below could have legitimately granted the relief as prayed by the investigating agency so as to enable the investigating agency to make further investigation in the case as desired. So understood, even if the subject application as filed by the then investigating agency before the lower Court makes no reference to any specific provision of law even so it is not a case of no jurisdiction to consider such application or to grant the said relief. If such direction were to be granted and the respondents resisted or refused to co-operate, the consequence there for is provided under section 6 of the Act of 1920. This obviously may in addition to the adverse inference that can be drawn against the obstinate accused. Section 6 of the said Act said thus:
"6"Resistance to the taking of measurements, etc. -
(i) 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 means necessary to secure the taking thereof. (2) Resistance to or refusal to allow taking of measure-
ments or photograph under this Act shall be deemed to be 8 an offence under Section 186 of the Indian Penal Code 1860.
16. Even the other technical objection taken on behalf of the respondents that the earlier order passed by the lower Court on the application preferred by the Assistant Commissioner of Police and Investigating Officer, Stampit, Bangalore would bind the petitioner, as it was allowed to become final, does not commend to me. In the first place , the earlier application was undisputedly filed by some other agency, engaged in investigation of case pending in another State, and nor for and on behalf of the investigating agency of State of Maharashtra or Central Bureau of Investigation. Therefore, that cannot be the basis to non-suit the petitioner, At any rate, assuming the said order will bind the Special Judge,but as the matter is in appeal before the superior Court, it is always open to the superior Court to examine the correctness of such a decision ( see 1977 ( 2) SCC 155 ( Para 15): ( AIR 1977 SC 1011, Para 14), Jasraj Inder Singh's case). It is seen that in the earlier order dated 30th September,2003 the lower Court merely observed that the accused were not willing to give sample voice. I have already dealt with this aspect in the earlier part of this Order that willingness of the accused is of no consequence.
18. In so far as the reasons recorded by the lower Court in the impugned order, the same cannot be sustained. The first reason that similar application filed by Karnataka Police is already dealt with in the earlier part of this Order. The second reason that there are voice experts who can easily concoct or tamper the voice of any person, or the third reason that the accused can also change their voice, if they are compelled to give voice sample or the fourth reason that it will be difficult for the expert to record the voice sample under compulsion, all these reasons are not germane to consider the limited relief claimed in the subject application exhibit 156. Those matters may be relevant at the trial, depending upon the nature of evidence adduced before the Court so as to rule on the admissibility of that evidence. The next reason weighed with the trial Court that as the accused were unwilling to give their voice samples, adverse inference can be drawn. It is rightly pointed out by the counsel for the petitioner that the said observation is made to the context of provision specified in the Prevention of Terrorists Activities Act, 2002, which is absent in the special enactment under which the accused are being tried. Indeed, the question of adverse inference will arise only when the investigating agency in the first place, was permitted to take the sample voice of the accused as prayed by them and the accused, in turn, were to resist or refuse. Taking any view of the matter the impugned decision of the lower Court cannot be sustained.
In view of the above mentioned case also for the purpose of comparison of recorded conversation of the applicant with Dhoom Singh, learned C.J.M. concerned has not committed any error in summoning the applicant and to give sample of his voice, it does not infringe the Article 23 of the Constitution of India for the purpose of 9 provisions of section 45 of the Evidence Act, it is necessarily required in any case, it is not compulsion to give the evidence against himself. The learned C.J.M.Saharanpur has not committed any error in passing the impugned order dated 8.1.2010 on the application filed by the I.O. by which the applicant has been summoned to give sample of his voice for the purpose of comparing the same with the recorded conversation of the applicant with Dhoom Singh. The impugned order dated 8.1.2010 does not require any interference, therefore, the prayer for quashing the impugned order dated 8.1.2010 is refused. The interim order dated 16.2.2010 keeping the operation of the impugned order dated 8.1.2010 in abeyance, is hereby vacated.
Accordingly, this application is dismissed.
Dated : July 9, 2010 SU