Delhi High Court
Rakesh Bisht vs Central Bureau Of Investigation [Along ... on 3 January, 2007
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed
JUDGMENT Badar Durrez Ahmed, J.
Page 0341
1. These revision petitions are taken up together as they arise out of the same FIR as well as the same impugned order dated 19.06.2006 passed by the learned Special Judge (CBI), Delhi. By virtue of the impugned order, an application moved on behalf of the CBI to take voice samples of the petitioners was allowed.
2. Briefly stated, the case is that during investigations of a scam known as 'The Cooperative Group Housing Society Scam', it was found that the petitioner (Yoginder Kumar), who was an Inspector of CBI and who was an investigating officer in respect of one of the scam cases, was utilising the services of the other petitioner, namely, Rakesh Bisht, who was acting as a tout of the accused (Yoginder Kumar) to contact private persons involved in the scam cases to extort illegal gratification from them. Apparently, the investigating agencies had obtained a tape recorded conversation between the petitioners, i.e., Yoginder Kumar and Rakesh Bisht. When the investigating officer requested the petitioners to give their voice samples for the purposes of comparison with the tape recorded conversation, the petitioners refused to lend their voice samples on 28.04.2006. It is clear that the investigation is still going on and the charge-sheet is yet to be filed. It is during this stage of investigation that an application was filed before the learned Special Judge (CBI) with the prayer that the petitioners be directed to give their voice samples for the purposes of comparison with the tape recorded conversation which had already been recorded by the CBI. The learned Special Judge, after examining the submissions made by the counsel for the petitioners as well as the counsel on behalf of the CBI and after noticing various judgments of the Supreme Court as also of the Bombay High Court, came to the conclusion that the lending of voice samples for the limited purpose of identification so as to compare the same with the tape recorded telephonic conversation would not be in violation of the provisions of Article 20(3) of the Constitution of India. For this proposition, the learned Special Judge relied upon the decision of the Supreme Court in the case of State of Bombay v. Kathi Kalu Oghad as well as the decision of the Bombay High Court in the case of Central Bureau of Investigation v. Abdul Karim Ladsab Telgi and Ors. 2005 CRI. L.J. 2868. Considering these decisions, the learned Special Judge allowed the application moved on behalf of the CBI and directed the Jail Superintendent to allow the prosecution to take the voice specimens of the accused persons (the petitioners herein).
Page 0342
3. Being aggrieved by this order, the present revision petitions have been filed by the accused (petitioners herein). The only point raised by the learned Counsel for the petitioner is that the court (i.e., the Special Judge, CBI) did not have any jurisdiction or power to allow the application of the CBI directing the taking of voice samples at the stage of investigation. He submitted that the investigation is entirely within the province of the investigating agencies and the courts have no role to play in the investigation. He referred to the decision of the Supreme Court in the case of State of Haryana v. Jagbir Singh and Anr. 2003 Cri. L.J. 5054. The reference to this decision was made in the context of the provisions of Section 73 of the Indian Evidence Act, 1872 which, according to the learned Counsel for the petitioner, was possibly the only provision under which the court could have acted. However, with regard to Section 73 also, the Supreme Court clearly and categorically indicated that before an order under Section 73 could be passed, the pendency of the proceedings before the court was the sine qua non. It would definitely not be available at the stage of investigation. He also referred to the decision in the case of State of Uttar Pradesh v. Ram Babu Misra wherein the same conclusion was arrived at by the Supreme Court and the decision of the Supreme Court in the case of Kathi Kalu (supra) was distinguished. The learned Counsel for the petitioner also referred to a decision of Calcutta High Court in the case of Dwijadas Banerjee and etc. v. The State of West Bengal 2005 Cri. L.J. 3151. The court declined directing the investigating agencies to record voice samples because the matter was at the stage of investigation. The Calcutta High Court decision was based on the Supreme Court decisions in State of Uttar Pradesh v. Ram Babu Misra (supra) as well as State of Haryana v. Jagbir Singh (supra).
4. Therefore, the short submission of the learned Counsel for the petitioner is that the Special Judge did not have any power to issue the direction for recording of the voice samples, particularly when the matter was at the stage of investigation and was not before the court.
5. Mr Tiwari, the learned Counsel appearing on behalf of the CBI, straightway pointed out that the provisions of Section 73 of the Indian Evidence Act, 1872 did not apply at all in the present case inasmuch as Section 73 fell under Chapter V of the Evidence Act which dealt with documentary evidence and, as he rightly pointed out, evidence starts only after framing of charges. That stage has obviously not been reached and the reliance placed by the learned Counsel for the petitioner on the decision which pertains to Section 73 of the Indian Evidence Act, 1872 would be of no avail.
6. Mr Tiwari also referred to the provisions of Section 311A of CrPC as amended on 23.06.2006 which provision permits the court to direct taking of handwriting samples even in the course of investigation. Therefore, he drew a parallel and said that in the same measure, voice samples could Page 0343 also be directed to be taken even though the matter was at the stage of investigation and not before the court.
7. Mr Tiwari then referred to the case of Abdul Karim Telgi (supra) and in particular, he referred to paragraphs 11 and 12 to indicate that in similar circumstances, the Bombay High Court had directed the taking of voice samples. He also referred to certain English decisions, namely, R v. Robson R v. Harris 1972 [2] All ER 699 and R v. Stevenson R v. Hulse R v. Whitney 1971 [1] All ER 678.
8. Mr Tiwari also referred to the Constitution Bench judgment in the case of Kathi Kalu (supra) to indicate that the taking of voice samples would definitely not infringe the provisions of Article 20(3) of the Constitution of India. Mr Tiwari also referred to the decision of the Supreme Court in the case of R. M. Malkani v. State of Maharashtra 1973 SCC (Cri) 399 for the proposition that the tape recorded conversation is admissible in evidence provided the conversation is relevant to the matters in issue. He referred to this decision only to submit that tape recorded conversations were both relevant and admissible for the purposes of ascertaining the authenticity of the tape recorded conversation already recorded. It would be necessary to take the voice samples of the petitioners for the purposes of identification. Accordingly, it was the contention of Mr Tiwari that there was no error committed by the learned Special Judge in directing the taking of voice samples of the petitioners and, therefore, no interference with the impugned order was called for.
9. The learned Counsel for the petitioner submitted in rejoinder that the provisions of Section 311A of CrPC came into operation only on 23.06.2006, whereas the impugned order had already been passed on 19.06.2006. Secondly, he submits that the provisions of Section 311A only refer to handwriting and have no reference to the voice samples or voice recordings. Therefore, the said provisions cannot be pressed into service by the CBI.
10. Two separate issues have been raised by the counsel for the parties. One is whether the taking of voice samples would infringe the provisions of Article 20(3) of the Constitution of India ? The other is - whether in the course of investigation, the court would have any jurisdiction directing an accused to give his voice samples ? A third issue which has arisen is consideration of the provisions of Section 311A of the Code, which has recently come into operation on 23.06.2006 and which permits the Magistrates to order a person to give a specimen signature or handwriting for the purposes of any investigation or proceeding under the Code.
11. With regard to the first issue, the law relating to taking handwriting samples and whether it violates the provisions of Article 20(3) of the Constitution has been set at rest by a decision of 11 Judges of the Supreme Court in the case of Kathi Kalu (supra). The Supreme Court clearly held that "to be a witness" may be equivalent to "furnishing evidence" in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm Page 0344 or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification". The Supreme Court further observed that "the giving of finger impression or of specified signature or of handwriting, strictly speaking, is not "to be a witness". The expression "to be a witness" was held by the Supreme Court to mean imparting knowledge in respect of the relevant facts, by means of oral statements or statements in writing by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. The court further observed that "a person is said 'to be a witness' to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or 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". The court further observed that "clause 3 of Article 20 of the Constitution 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 cannot 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". The court cited an example in the following words:
...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....
12. The said decision, therefore, is an authority for the proposition that taking of handwriting samples for the purposes of establishing identity or comparison with the documents in issue would not amount to a violation of the fundamental right of an accused enshrined in Article 20(3) of the Constitution. But, it must not be lost sight that the said decision was rendered in the context of Section 73 of the Indian Evidence Act, 1872. The necessity of requiring an accused to give handwriting samples arose during the course of trial and not in the course of investigation. In Kathi Kalu (supra), in the course of trial, the identification of the respondent therein, as one of the two alleged culprits was the most important question to be decided by the court. Besides other evidence, the prosecution adduced in evidence a receipt-Exhibit-5-alleged to have been in his handwriting and said to have been given by him. In order to prove that Exhibit-5 was in the handwriting of the accused, the police had obtained from him during the investigation three handwriting specimens on three separate sheets of paper which were marked as Exhibits 27, 28 and 29. The disputed document, namely, Exhibit-5 was compared with the admitted handwriting in Exhibits-27, 28 and 29 by the handwriting expert whose evidence was to the effect that they were all written by the same person. In the trial and in the High Court, the question was raised as to the admissibility of the specimen writings contained in Exhibits-27, 28 and 29, in view of the provisions of Article 20(3) of the Constitution. So, it is clear that in Page 0345 Kathi Kalu (supra), the question was not whether the court could direct an accused in the course of the investigation to provide handwriting samples, but whether the handwriting samples already obtained in the course of investigation would be admissible in view of Article 20(3) of the Constitution. The Supreme Court held that it would be as the taking of handwriting samples did not amount to the accused being a witness against himself. The said decision was rendered in the context of the Section 73 of the Indian Evidence Act which specifically speaks of comparison of signature, writing or seal with others admitted or proved. Section 73 of the Indian Evidence Act, 1872 reads as under:
73. Comparison of signature, writing or seal with others admitted or proved.- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
This section applies also, with any necessary modifications, to finger-impressions.
A reading of the above provision makes it clear that it pertains to a signature, writing or seal as also to finger impressions. It does not pertain to taking of voice samples.
13. An examination of the decision in Kathi Kalu (supra), as well as other decisions on the subject of an accused being a witness against himself makes it clear that the taking of an handwriting sample in the course of a trial to establish the identity of a person would not be hit by Article 20(3) of the Constitution of India. However, it may be mentioned that if an accused is asked to give a handwriting sample and the matter which he writes contains inculpatory statements, then the same would be hit by Article 20(3) of the Constitution, as then he would be a witness against himself. For example, if an accused in a car theft case is compelled to write "I stole the car", although it would constitute a handwriting sample, it would be hit by Article 20(3) of the Constitution because the accused was compelled to be a witness against himself. On the other hand, if the accused were asked to give a handwriting sample by copying some known classical work in his handwriting, that would not be hit by Article 20(3) of the Constitution as then he would not be a witness against himself and his handwriting specimen would only be for the purposes of identification.
14. This is with regard to handwriting samples. The present case concerns itself with the voice samples. There is no specific provision under the Indian Page 0346 Evidence Act, 1872 to deal with the taking of voice samples. In my view, the court may permit the taking of voice samples only for the purposes of identification. But these voice samples would not be admissible if they contain inculpatory statements. That is so because, in that eventuality, the accused would have been compelled to be a witness against himself. However, this does not mean that the court can pass an order directing an accused to give samples of his voice even during the pendency of investigation. The position with regard to the scope of judicial interference in the course of investigation has been clearly stated by the Supreme Court in the case of Union of India v. Prakash P. Hinduja as under:
20. Thus the legal position is absolutely clear and also settled by judicial authorities that the court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report till the submission of the report by the officer in charge of the police station in court under Section 173(2) Cr PC, this field being exclusively reserved for the investigating agency.
15. In the same light the decisions rendered by the Supreme Court in the cases of Ram Babu Misra (supra) and Jagbir Singh (supra) indicate that the provisions of Section 73 of the Indian Evidence Act, 1872 can only be invoked when there are proceedings pending before the court and not when the matter is still under investigation. In Ram Babu Misra (supra), the Supreme Court held:
4. The second paragraph of Sec. 73 enables the Court to direct any person present in Court to give specimen writings 'for the purpose of enabling the Court to compare' such writings with 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 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 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. Further, Section 73 of the Evidence Act makes no distinction between a Civil Court and a Criminal Court. Would it be open to a person to seek the assistance of the Civil Court for a direction to some other person to give sample writing under Section 73 of the Evidence Act on the plea that it would help him to decide whether to Page 0347 institute a Civil Suit in which the question would be whether certain alleged writings are those of the other person or not? Obviously not. If not, why should it make any difference if the investigating agency seeks the assistance of the Court under Section 73 of the Evidence Act on the plea that a case might be instituted before the Court where it would be necessary to compare the writings?
16. In Jagbir Singh (supra), the Supreme Court, following the decision of Ram Babu Misra (supra), held as under:
18. The second paragraph 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 with 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 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 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.
19. In order to enable the exercise of power under Section 73, the pendency of a proceeding before the court is the sine qua non. Therefore, the comparison of the signature on the alleged ransom note in no way helps the prosecution.
17. Mr Tiwari, the learned Counsel for the CBI, submitted that these two decisions, i.e., Ram Babu Misra (supra) and Jagbir Singh (supra) were not relevant for the controversy at hand inasmuch as they pertain to Section 73 of the Indian Evidence Act, 1872 and since the stage of Section 73 had not been reached, no useful purpose would be served by referring to these decisions. While it is true that Section 73 falls under Chapter V of the Indian Evidence Act which deals with documentary evidence and that stage of leading evidence has not been reached in this case, as the matter is still under investigation, reference to the said decisions on Section 73 would, in my view, be apposite inasmuch as even where a specific provision for taking handwriting samples is made under Section 73 of the Indian Evidence Act, 1872, the Supreme Court has held that that would operate only when there is a proceeding pending before the court and not in the course of investigation. There is no specific provision for directing the giving of voice samples under the Indian Evidence Act, 1872. Therefore, even if the analogy of Section 73 is brought to the fore for the purposes of directing an accused to give his voice samples, that would also have to wait till there is a proceeding before the court. It is in this context that the said two decisions of the Supreme Court Page 0348 in Ram Babu Misra (supra) and Jagbir Singh (supra) are relevant for the purposes of this case. In any event, as observed in Prakash P. Hinduja (supra), the court has no jurisdiction to interfere in the investigative process which is left entirely to the investigating agency. It is, therefore, clear that the CBI could not have moved an application before the court during the pendency of the investigation directing the petitioners to give their voice samples and, the court ought not to have entertained such an application because it was not within its jurisdiction to have interfered in the course of investigation. It is another matter if, after investigation, charges are framed and in the course of proceedings before the court, the court feels that voice samples ought to be taken for the purposes of establishing identity, then such a direction may be given provided the voice sample taken is only for the purposes of identification and does not contain any inculpatory statement so as to be hit by Article 20(3) of the Constitution of India. In this context, I am unable to agree with the decision of a learned single Judge of the Bombay High Court in the case of Abdul Karim Telgi (supra) because there the court directed the taking of voice samples even at the stage of investigation.
18. The accused, at the stage of investigation, cannot be compelled to give his voice sample just as he cannot be compelled to undergo a test identification parade. It is for him to give or not to give his voice sample in the course of investigation and the court cannot, during investigation, direct the accused to give his voice sample. It would be interesting to note a recent decision of the Supreme Court in the case of Amrit Singh v. State of Punjab 2006 AIR SCW 5712 wherein the question of obtaining a hair specimen of the accused was in issue. An application was filed by the investigating officer in the court of the Judicial Magistrate for obtaining a specimen of the hair of the accused, but he refused to give any such specimen of hair. He made a statement before the court which was recorded, but he did not assign any reason for refusing to give samples of his hair. It was contended on behalf of the State of Punjab before the Supreme Court that an adverse inference, in the least, ought to have been drawn against him. In repelling this contention, the Supreme Court in para 19 of the said decision held as under:
Appellant had a right to give or not to give sample of his hair. He could not have been made a witness against himself against his will.
This decision indicates that in the course of investigation, a accused cannot be compelled to provide a sample of his hair. The same would equally apply to the giving of a voice sample. This decision is also a clear endorsement of the view taken by me that the petitioners could not be directed to give their voice samples in the course of investigation.
19. Lastly, I come to the issue of introduction of Section 311A in the Code of Criminal Procedure, 1973. This provision would not apply to the facts of the present case inasmuch as the same came into operation only on 23.06.2006, Page 0349 whereas the impugned order was passed on 19.06.2006. In any event, the provisions of Section 311A only refer to the handwriting and bears no reference to voice samples or voice recordings. The said provision was 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.
20. The legislature has consciously referred to taking of specimens of signatures or handwriting for the purposes of any investigation or proceeding under this Code. It is for the first time that the Code has empowered the Magistrates to carve out an exception of passing an order directing a person to give specimen signatures of handwriting even in the course of investigation. It appears that this provision was introduced because of the recommendations suggested by the Supreme Court in Ram Babu Misra (supra). It is amply clear that de hors this provision, the court did not have any power to direct any accused in the course of an investigation to give specimens of his signatures or handwriting. The argument advanced by Mr Tiwari, who appeared on behalf of the CBI with regard to the applicability of Section 311A of the Code cannot be accepted because of these grounds, namely, it has no reference to voice samples and, secondly, it came into operation after the impugned order had been passed.
21. In view of this discussion, the impugned order dated 19.06.2006 is set aside. These revision petitions are allowed.