Karnataka High Court
National Investigation Agency vs Mr. Dalim Mia on 27 November, 2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE ASHOK G.NIJAGANNAVAR
WRIT PETITION NO.24925/2018 (GM-RES)
BETWEEN:
NATIONAL INVESTIGATION AGENCY,
MINISTRY OF HOME AFFAIRS,
GOVERNMENT OF INDIA,
CGO COMPLEX, LODHI ROAD,
NEW DELHI-110 003.
REPRESENTED BY ITS
DY. SUPERINTENDENT OF POLICE,
SRI NIRAJ RAI
PRESENTLY WORKING AT
CUMBALLA HILLS TELEPHONE EXCHANGE
BUILDING, 7TH FLOOR, PODDAR ROAD,
MUMBAI - 400 026. ... PETITIONER
(BY SRI. PRASANNA KUMAR.P., SPECIAL P.P.)
AND:
1. MR. DALIM MIA,
S/O. NUHUL ISLAM,
MAJOR,
RESIDENT OF CHAK DEONAPUR,
SABDALPUR, MALDA,
WEST BENGAL - 732 201.
2. ASHOK MAHADEV KUMBAR,
S/O. MAHADEV KUMBAR,
MAJOR,
RESIDENT OF HOUSE NO.2264/C,
PRABHUWADI VILLAGE, CHIKODI,
2
DISTRICT BELGAVI,
KARNATAKA-591 201.
3. RAJENDRA PATIL,
S/O. BAPU PATIL,
MAJOR,
RESIDENT OF RAIBAG,
VILLAGE - GUNDWAD,
BELAGAVI DISTRICT,
KARNATAKA-591 311.
RESPONDENT NO.1 TO 3 ARE NOW
LODGED IN CENTRAL PRISON,
PARAPPANA AGRAHARA,
BENGALURU-560 100. ... RESPONDENTS
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 &
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION
482 Cr.P.C. PRAYING TO QUASH THE ORDER DATED
11.05.2018 PASSED BY THE LEARNED XLIX ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE (SPECIAL COURT FOR
TRIAL OF NIA CASES) AT BENGALURU IN NIA CASE IN RC
NO.12/2018 (PRODUCED VIDE ANNEXURE-G TO THE WRIT
PETITION) AND CONSEQUENTLY ALLOWING THE
APPLICATION FILED BY THE PETITIONER/NIA ON 27.04.2018
IN NIA CASE IN R.C.NO.12/2018/NIA/DLI (PRODUCED VIDE
ANNEXURE-F TO THE WRIT PETITION) BY PERMITTING THE
PETITIONER TO OBTAIN SPECIMEN VOICE SAMPLES OF
RESPONDENTS AND ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner has filed this petition under Articles 226 and 227 of the Constitution of India read with Section 3 482 of Cr.P.C. for quashing of the order dated 11.05.2018 passed by the XLIX Additional City Civil & Sessions Judge(Special Court for Trial of NIA Cases) at Bengaluru, in NIA case in R.C.No.12/2018 at annexure-G and consequently to issue a writ or direction in the nature of mandamus allowing the application filed by the petitioner/NIA dated 27.04.2018 in NIA Case in RC No.12/2018/NIA/DLI (produced at annexure-F) by permitting the petitioner to obtain specimen voice samples of respondents.
2. Inspite of service of notice, the respondents have not appeared through their counsel.
3. Heard learned counsel for the petitioner.
4. The facts leading to this petition are that, the petitioner - NIA had filed an application before the trial Court with a prayer to permit the petitioner-NIA to obtain specimen voice samples of respondents in the presence of two independent witnesses at Central Prison, Bengaluru. 4 The said application was rejected by the learned Sessions Judge (Special Court for Trial of NIA cases). Hence, the present petition is filed before this Hon'ble Court seeking the aforesaid reliefs.
5. The learned counsel for the petitioner contended that, even though accused Nos.1 & 2 had given no objection for collecting the voice samples, the learned Special Judge has rejected the application only on the ground that the accused No.3 has orally objected for collecting the samples and for the reason that the accused cannot be compelled to give the specimen voice samples as it amounts to compulsion and also violates the rights guaranteed under Article 20(3) of the Constitution of India. Further, it is submitted that the learned Special Judge has rejected the application on the basis of the judgment passed in Ritesh Sinha V. State of Uttar Pradesh and another reported in (2013) 2 SCC 357. When the decision relied on by the learned Special Judge is referred to larger Bench of the Apex Court, that itself is 5 not a basis for rejection of the application. The Hon'ble Apex Court and various other High Courts have held that the voice spectrographic test is in no manner violative of the fundamental right of a citizen, as guaranteed under Article 20(3) of the Constitution of India. The voice sample itself is not a substantive piece of evidence and that can only be used for the purpose of comparing with tape recorded conversation. The respondents - accused are not at all compelled to give any information based on personal knowledge which can incriminate them. Thus the question of collecting the voice samples would fall beyond the scope of the right guaranteed Article 20(3) of the Constitution of India.
6. In support of his contention, the learned Special Public Prosecutor for NIA has relied on the following decisions:
1. Selvi V. State of Karnataka - (2010) 7 SCC 263
2. State of Bombay V. Kathi Kalu - AIR 1961 SC 1808.6
3. Sudhir Chaudhary V. State (NCT Delhi) -
(2016) 8 SCC 307.
4. Ritesh Sinha V. State of U.P. - (2013) 2 SCC 357.
5. State of Rajastan V Vikramjeet Singh - Crl.M.P.No.780/2018
6. Ashok Sadarangani V. Union of India -
(2012) 11 SCC 321.
7. Harbajan Singh V. State of Punjab -
(2009) 13 SCC 608.
8. Siva Vallabhneni V. State of Karnataka
- (2015) 2 SCC 90.
9. P. Kishore V. CBI - Crl.R.1752/2011 & M.P.1/2011 - Madras HC.
10. Rabindra Kumar Bhalotia & Ors. V. CBI & Ors.-Crl.R.808, 816 & 823/2015 -
Madras HC.
7. The first and foremost contention of the learned counsel for the petitioner, namely the Special Public Prosecutor for NIA is that, the reference of the decision reported in Ritesh Sinha's Case to a larger bench cannot be a ground for rejection of the application. 7
8. In a decision reported in 2012-11 SCC 321 Ashok Sadarangani V. Union of India, the Hon'ble Apex Court has held in para 39 as follows:
"39. Thus, it is clear that voiceprint identification of voice involves measurement of frequency and intensity of sound waves. In my opinion therefore, measuring frequency or intensity of the speech sound waves falls within the ambit of inclusive definition of the term "measurements" appearing in the Prisoners Act."
9. In another decision reported in Harbajan Singh V. State of Punjab - (2009 ) 13 SCC 608, in para 15 the Hon'ble Apex Court has held as under::
"Only because the correctness of a portion of the judgment in Mohd. Shafi has been doubted by another Bench, the same would not mean that we should wait for the decision of the larger Bench, particularly when the same instead of assisting the appellants runs counter to their contention."
10. In a decision reported in (2013) 2 SCC 357, Ritesh Sinha vs. State of U.P. and another, it is observed as under :
"39. Thus, it is clear that voiceprint identification of voice involves measurement 8 of frequency and intensity of sound waves. In my opinion, therefore, measuring frequency or intensity of the speech sound waves falls within the ambit of inclusive definition of the term "measurements" appearing in the Prisoners Act.
40. There is another angle of looking at this issue. Voiceprints are like fingerprints. Each person has a distinctive voice with characteristic features. Voiceprint experts have to compare spectrographic prints to arrive at an identification. ......."
11. In the present case the order passed by the Special Judge discloses that the Accused Nos.1 & 2 have not objected for collecting the samples. It is only Accused No.3 has orally objected for collecting the voice samples.
12. In an unreported decision rendered by Madras High Court, relied on by the Special Public Prosecutor, several decisions are relied on and it is observed that drawing of the voice samples from the accused person, finally in the light of Article 20(3) of the Constitution of India, the provision under Identification of Prisoner's Act under Section 50, Section 53 & Section 311(A) of Cr.P.C. and ratio lead with the Hon'ble Apex Court in Selvi's Case, 9 it is amply clear that drawing of voice samples falls within the meaning of physical evidence of non-testimonial character and not within the meaning of testimonial compulsion.
13. In a case reported in (2010) 7 SCC 263 reported in Selvi & others V. State of Karnataka, the Hon'ble Apex court has held as under:
`"145. The next issue is whether the results gathered from the impugned tests amount to "testimonial compulsion" thereby attracting the prohibition of Article 20(3). For this purpose, it is necessary to survey the precedents which deal with what constitutes "testimonial compulsion" and how testimonial acts are distinguished from the collection of physical evidence. Apart from the apparent distinction between evidence of a testimonial and physical nature, some forms of testimonial acts lie outside the scope of Article 20(3). For instance, 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........
155. In addition to citing John Wigmore's position that " the privilege is limited to testimonial disclosures" the Court in Schmerber also took note of other examples where it had been held that the privilege did not apply to physical evidence, which included "compulsion to submit to fingerprinting, 10 photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. .......".
"18. whether engaging modern and scientific techniques like, DNA mapping, Narcotic Analysis Test, Polygraph examination etc., should be liberally used by the prosecution, the Hon'ble Supreme Court, had clarified that Explanation to Section 53 Cr.P.C., permits examination of the person includes examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests, which the registered medical practitioner thinks necessary in a particular case.
19. Following the three judges decision in Selvi case, Hon'ble Mr. Justice Ranjan Desai in Ritesh Sinha case, has held the phrase, "such other test" appearing in Explanation for Sub Clause (a) to Section 53 of Cr.P.C. should include examination of voice sample, by applying the principle of Ejusdem Generis. Thus, in the light of the three Judges Bench in Selvi case, which has distinguished the physical evidence and testimonial act, and by liberal interpretation of the words such other test found in the explanation of Section 53 Cr.P.C., by applying the doctrine of Ejusdem Generis directing the accused to give voice sample is legally permissible and constitutionally valid, since the three Judges Bench have clearly distinguished the 11 examination of physical evidence and testimonial act."
14. In the present case, the application is filed for seeking permission of the Special Judge for collecting voice samples for comparison with that of questionable voice recorded in the course of intercepted telephonic conversation between them. That itself by no stretch of imagination falls within the testimonial compulsion. The decision of the Hon'ble Apex Court reported in Selvi's Case clarified that voice samples can be collected. Therefore, the plea that the direction to the accused person to give the voice samples for comparison with that of questionable voice recorded in the course of intercepted telephonic conversation is not violative of Article 20(3) of the Constitution and relevant provisions of Identification of Prisoner's Act. As held by the Hon'ble Supreme Court, the phrase 'such other tests' found in the explanation to Section 53 and 53A of the Code should be given broad and purposive interpretation. In the era of fast scientific 12 development, narrow interpretation for the phrase 'such other tests' will be detrimental to the society.
15. In the above circumstances the order passed by the learned Special Judge rejecting the application submitted by the NIA for collecting the voice samples is erroneous and not justified. As such the said order calls for interference. Hence, I proceed to pass the following:
ORDER The petition is allowed.
The order dated 11.05.2018 passed by the learned XLIX Additional City Civil & Sessions Judge (Special Court for Trial of NIA Cases) at Bengaluru, is quashed.
Consequently the application dated 27.04.2018 in NIA case in RC No.12/2018 (Annexure-F) seeking permission to obtain the specimen voice samples of respondents-
accused is allowed.
Sd/-
JUDGE Mgn/-