Natvarlal Amarshibhai Devani vs State Of Gujarat & on 18 January, 2017

[Cites 144, Cited by 15]

Gujarat High Court

Natvarlal Amarshibhai Devani vs State Of Gujarat & on 18 January, 2017

HC-NIC Page 1 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT 1 By this writ application under Article 226 of the Constitution of India, the writ applicant - original accused has prayed for the following reliefs:

24(A) Be pleased to admit this petition (B) Be pleased to issue a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus, and direct the respondent No.2 to not to call the petitioner for undergoing Voice Spectrographic Test in connection with the FIR lodged with Kachchh (West) ACB Police Station, Bhuj, being C.R. No.I1/15;

(C) Pending admission and final disposal of the present petition, be pleased to restrain the respondent No.2 from compelling and/or calling the petitioner fro undergoing Voice Spectrographic Test in connection with the FIR lodged with Kachchh (West), ACB Police Station, Bhuj, being C.R. No.I1/15;

(D) Be pleased to pass such other and further orders as may be deemed fit and proper."

2 In the case in hand, the writ applicant is charged with the offence punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act. The allegations are that while serving as a Superintendent of the Prohibition and Excise Directorate, the writ applicant demanded an amount of Rs.4,000/ towards illegal gratification for the purpose of renewing the permit issued in favour of the original complainant. It appears that there was a telephonic talk between the two which was recorded. The Investigating Agency prepared a transcript of the taperecorded conversation between the accused and the complainant, in which, according to the case of the prosecution, there is an illegal demand at the end of the writ applicant. The Investigating Agency thought fit to subject the writ applicant to a Voice Spectrography Test, which was opposed by the writ applicant.



         3      At the outset, I may state that Mr. Mangukiya, the learned counsel 


                                                  Page 2 of 119

HC-NIC                                          Page 2 of 119     Created On Sat Aug 12 13:49:02 IST 2017
                   R/SCR.A/5226/2015                                                   JUDGMENT

appearing for the writ applicant submitted that he has instructions from his client not to press this writ application and withdraw the same unconditionally. He submitted that although this writ application raises an important question relating to the right of the Investigating Agency to conduct the Voice Spectrography Test of an accused and also the right of the accused to deny lending his voice sample for the purpose of identification of his voice so as to compare the same with the tape recorded telephonic conversation, yet as his client does not want to press this application, the Court may permit the writ applicant to withdraw and leave the question to be decided in any other appropriate matter. Mr. Mangukiya submitted that the petitioner is a dominus litus and if he files the petition, he has a right to withdraw the same. According to him, he could not have made such a request if the mater is argued and the judgment is reserved. However, since without any effective hearing, his client wants to withdraw the writ application, he may be permitted to do so.

4 Mr. Mangukiya, the learned counsel further submitted that this Court may differ the adjudication of the issue in light of the conflicting views expressed by the two learned Judges of the Supreme Court in the case of Ritesh Sinha vs. State of U.P. and another reported in 2013(2) SCC 357. Mr. Mitesh Amin, the learned Public Prosecutor appearing for the State submitted that the writ applicant may not be permitted to withdraw this writ application and the issue as regards the Voice Spectrography Test may be decided by this Court being resintegra as on date, many important investigations are affected relating to corruption, etc in the State. The learned Public Prosecutor submitted that it is within the discretion of this Court whether the writ applicant should be permitted to withdraw the writ application or not. Even if the writ applicant is not interested to pursue his writ application, the Court on its Page 3 of 119 HC-NIC Page 3 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT own can decide a neat question of law of public importance.

5 The questions of law falling for my consideration are framed as under:

(1) Whether calling upon the accused to lend his voice sample tantamounts "to be a witness against himself"? To put in other words, whether the Voice Spectrography Test of an accused amounts to testimonial compulsion within the meaning of Article 20(3) of the Constitution of India and whether such test should be put at par with the tests, like Brain Mapping, Lie Detector Test, Narco Analysis Test, etc. (2) Whether, in the absence of any provision in the Criminal Procedure Code, can a Magistrate authorise the Investigating Agency to record the voice sample of the person accused of an offence?

6 Before I proceed to answer the main issues, I would like to deal with the two preliminary submissions of Mr. Mangukiya as regards the right of his client not to press this writ application and deferment of the hearing of the two issues since the very same issues are pending before the Larger Bench of the Supreme Court.

7 I am of the view that once any petition is filed before the Court, its withdrawal is not absolute in the hands of the litigant and it could be only done with the permission of the Court. In appropriate cases, the Court may exercise its discretion to reject the prayer of withdrawal of the petition. If the issue raised in the writ petition needs to be tackled or answered having regard to the public importance, then it is always upon for the Court to do so and decline the request of the petitioner to Page 4 of 119 HC-NIC Page 4 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT withdraw the petition. In taking such view, I am supported by a Division Bench decision of the Rajasthan High Court in the case of Sunil Safety Glass Industries vs. RIICO and another reported in 2002 (5) WLN (Rajasthan) 557. A.R. Lakshmanan, C.J. (as His Lordship then was), speaking for the Bench, took the view that withdrawal of a petition is not absolute in the hands of the litigant.

8 So far as the submission as regards deferring the hearing of this matter is concerned since the very same issues raised in this petition are pending before the Larger Bench of the Supreme Court, I am of the view that as such there is no legal embargo in deciding the matter. I take support from the following observations made by the Supreme Court in the case of Ashok Sadarangani and another vs. Union of India and others reported in [(2012) 11 SCC 321]. I may quote the observations as contained in para 29 as under:

"As was indicated in Harbhajan Singh vs. State of Punjab, (2009) 13 SCC 608 : (2010) 1 SCC (Cri) 1135, the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh vs. CBI, (2010) 15 SCC 118 need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field."

9 I shall now proceed to look into the two questions of law referred to above.

● SUBMISSIONS ON BEHALF OF THE WRIT APPLICANT:

10 Mr. Mangukiya, the learned counsel appearing for the writ applicant submitted that although there is no conflict of opinion between the two Honourable Judges' of the Supreme Court as regards Article Page 5 of 119 HC-NIC Page 5 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT 20(3) of the Constitution, yet he would like to develop the argument that if the Voice Spectrography Test falls within the ambit of "Psychiatric Examination", then the decision of the Supreme Court in the case of Selvi vs. State of Karnataka [AIR 2010 SC 1974] would apply on all the fours. According to the learned counsel, the matter has not been examined by the Supreme Court from this angle i.e. from the angle of "Psychiatric Examination".

11 Mr. Mangukiya submitted that without prejudice to his first submission, the view taken by Justice Aftab Alam holding that as there is no specific provision in the Code of Criminal Procedure, 1973, either empowering the Court to direct an accused to lend his voice sample or the Investigating Agency to conduct the Voice Spectrography Test, the same if conducted would be illegal is more commendable than the view taken by Justice Ranjana Desai holding to the contrary and this Court should follow the view taken by His Lordship Justice Aftab Alam.

12 Mr. Mangukiya submitted that in the judgment rendered by Justice Aftab Alam, there is a reference to a earlier decision of the Supreme Court in the case of State of U.P. vs. Ram Babu Mishra [1980 (2) SCC 343] and also the suggestions made by the Law Commission of India, in its 87th Report. According to Mr. Mangukiya, the ratio propounded in the decision of the Supreme Court in the case of Ram Babu Mishra (supra) clinches the issue. Mr. Mangukiya placed strong reliance on the following observations made by the Supreme Court in the case of Ram Babu Mishra (supra):

"2. Shri O. P. Rana, learned counsel for the appellant, contended that S. 73 of the Evidence Act conferred ample power on the Magistrate to direct the accused to give his specimen writing even during the course of investigation. He also urged that it would be generally in the interests of the administration of justice for the Magistrate to direct the accused to Page 6 of 119 HC-NIC Page 6 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT give his specimen writing when the case was still under investigation, since that would enable the investigating agency not to place the accused before the Magistrate for trial or enquiry, if the disputed writing, as a result of comparison with the specimen writing was found not to have been made by the accused. While we agree with Mr. Rana that a direction by the Magistrate to the accused to give his specimen writing when the case is still under investigation would surely be in the interests of the administration of justice, we find ourselves unable to agree with his submission that S. 73 of the Evidence Act enables the Magistrate to give such a direction even when the case is still under investigation.

3. S. 73 of the Evidence Act is as follows :

"73. 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 fingerimpressions".

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 S. 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, S. 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 S. 73 of the Evidence Act on the plea that it would Page 7 of 119 HC-NIC Page 7 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT help him to decide whether to institute a Civil suit in which the question would be whether certain alleged writings are those of the other persons or not ? Obviously not. If not, why should it make any difference if the investigating agency seeks the assistance of the Court under S. 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?

5. We may also refer here to S.5 of the Identification of Prisoners Act, 1920, which provides :

"5. If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Cr. P. C. 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that 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 public officer :

Provided that no order shall be made directing any person to be photographed except by a Magistrate of the first class:

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 proceeding."

Section 2 (a) of the Act defines 'measurements' as including 'finger impressions and footprint impressions'.

6. There are two things to be noticed here. First, signature and writing are excluded from the range of S. 5 of the Identification of Prisoners Act and, second, 'finger impressions' are included in both S.73 of the Evidence Act and S. 5 of the Identification of prisoners Act. A possible view is that it was thought that S.73 of the Evidence Act would not take in the stage of investigation and so S.5 of the Identification of Prisoners Act made special provision for that stage and even while making such provision, signature and writings were deliberately excluded. As we said, this is a possible view but not one on which we desire to rest our conclusion. Our conclusion rests on the language of S.73 of the Evidence Act.

7. S.73 of the Evidence Act was considered by us in State (Delhi Administration) v. Pali Ram, AIR 1979 SC 14 where we held that a Court holding an enquiry under the Criminal Procedure Code was entitled under S. 73 of the Evidence Act to direct an accused person appearing before it to give his specimen handwriting to enable the Court by which he may be tried to compare it with disputed writings. The present question whether such a direction, under S. 73 of the Evidence Act, can be given when the Page 8 of 119 HC-NIC Page 8 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT matter is still under investigation and there is no proceeding before the Court was expressly left open. The question was also not considered in State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808, where the question which was actually decided was that no testimonial compulsion under Art. 20 (3) of the Constitution was involved in a direction to give specimen signature and handwriting for the purpose of comparison.

8. The view expressed by us in the earlier paragraphs on the construction of S. 73, Evidence Act was the view taken by the Madras High Court in T. Subbiah v. S. K. D. Ramaswamy Nadar, AIR 1970 Mad 85, the Calcutta High Court in Farid Ahmed v. The State, AIR 1960 Cal 32 (Mitter J., at page 32), and Priti Ranjan Ghosh v. The State, (1973) 77 Cal WN 865, the High Court of Punjab and Haryana in Dharamvir Singh v. State, 1975 Cri LJ 884, the High Court of Madhya Pradesh in Brij Bhushan Raghunandan Prasad v. The State AIR 1957 Madhya Pradesh 106, the Orissa High Court in Srikant v. State of Orissa, (1972) 2 Cut WR 1332, and the Allahabad High Court in the judgment under appeal. A contrary view was taken by the Patna High Court in Gulzar Khan v. State, AIR 1962 Pat 255 and the High Court of Andhra Pradesh in B. Rami Reddy v. State of Andhra Pradesh, 1971 Cri LJ 1591. We do not agree with the latter view. We accordingly dismiss the appeal and while doing so we would suggest that suitable legislation may be made on the analogy of S. 5 of the Identification of Prisoners Act, to provide for the investiture of Magistrates with the power to issue directions to any person, including an accused person, to give specimen signatures and writings."

13 Mr. Mangukiya submitted that in the judgment rendered by Justice Ranjana Desai, Her Ladyship placed strong reliance on the provisions of the Identification of Prisoners Act, 1920, more particularly, the term "measurements" defined therein under Section 2(a). According to the learned counsel, the provisions of the Identification of Prisoners Act, 1920 will not be applicable for the purpose of asking an accused to lend his voice sample.

14 Mr. Mangukiya submitted that under Section 5 of the Identification of the Prisoners Act, 1920, it is specifically provided that if a Magistrate is satisfied that, for the purposes for any investigation of proceeding under the Code of Criminal Procedure, it is expedient to Page 9 of 119 HC-NIC Page 9 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT direct any person to allow his measurements or photograph to be taken, he may make an order to that effect. It also provides that 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. The word "measurements" mentioned in the said provision will include fingerprints and footprints, but not the handwriting or the signature. According to Mr. Mangukiya, the taking of handwriting or signature from a person by a Magistrate is now permissible under the provisions of Section 311A of the Code of Criminal Procedure, 1973. Section 311A came to be inserted by Act 25 of 2005, Section 27 (w.e.f.

23rd June 2006). According to Mr. Mangukiya, when the Parliament made this enactment, it must have had in its mind not only that Section 73 of the Evidence Act does not give power to the Court to take fingerprints, signature and handwriting from a person in the course of investigation by the police, but also it must have thought that it might not be necessary to include the taking of handwriting or signature of a person in the course of investigation by the police. According to the learned counsel, otherwise there is no tangible reason for the Parliament to exclude, under the Identification of Prisoners Act, the taking of handwriting or signature. The Parliament must have probably thought that though the taking of the handwriting or the signature of a person is one of the modes of identification, it was not an infallible one and that the better mode of proving the handwriting or signature is what is provided under Section 47 of the Evidence Act, namely, the evidence of that person who is acquainted with the signature of the person concerned.



         15     Mr. Mangukiya submits that the Act, 1920 came to be enacted for 



                                                Page 10 of 119

HC-NIC                                        Page 10 of 119     Created On Sat Aug 12 13:49:02 IST 2017
                   R/SCR.A/5226/2015                                                   JUDGMENT

altogether a different purpose or object and the same has nothing to do so far as the power of the police to investigate the offence is concerned. To put it in other words, according to Mr. Mangukiya, the provisions of the Act, 1920 are meant only the purpose of identification i.e. the physical measurements of the body or parts of the body. This would not include voice sample of an accused or a suspect.

16 Mr. Mangukiya submitted that although the definition of the term "measurements", at the first blush, appears to be inclusive and not exhaustive, yet it connotes a specific meaning, that is as "means and includes" or "comprises of" or "consist of". According to the learned counsel, reading voice sample in Section 2(a) of the Act, 1920 will amount to rewriting of the definition by the Court which is not permissible in law. The learned counsel laid much emphasis on the observations made by His Lordship Aftab Alam that if the term "measurements" is to be read to include voice sample, then many other medical tests, for instance, blood tests such as lipid profile, kidney function test, liver function test, thyroid function test, etc, would equally qualify as "measurements" within the meaning of the Identification of Prisoners Act.

17 Mr. Mangukiya, thereafter, invited the attention of the Court to the decision of the Supreme Court in the case of Selvi and others vs. State of Karnataka [2010(7) SCC 263]. According to Mr. Mangukiya, the Voice Spectrography Test would fall within the ambit of a "Psychiatric Examination" and as held by the Supreme Court in Selvi (supra), any psychiatric examination, without the consent of the accused, will offend Article 20(3) of the Constitution.



         18     In the writ application, five issues have been raised by the writ 


                                               Page 11 of 119

HC-NIC                                        Page 11 of 119    Created On Sat Aug 12 13:49:02 IST 2017
                   R/SCR.A/5226/2015                                                    JUDGMENT



         applicant. They are as under:


                (a)      Despite the recommendations of the 87th Report of the Law

Commission of India, the spectrographic test for voice sample has not been included in the newly added Section 311A of the Code of Criminal Procedure. Can permission be granted for conducting the spectrographic test of the accused against his consent?

(b) Whether the Special Judge can entertain such application?

(d) Whether such direction violates the right of the accused to remain silent as enshrined under Article 20(3) of the Constitution of India?

(e) In view of the Apex Court's judgment reported in AIR 2013 SC 1132, whether the impugned order can sustain?

19 In such circumstances referred to above, Mr. Mangukiya would submit that this Court may lean in favour of the view taken by His Lordship Justice Aftab Alam and hold that it is not permissible for the Investigating Officer to ask the accused to lend his voice sample without his consent.

● SUBMISSIONS ON BEHALF OF THE STATE RESPONDENT:

20 On the other hand, Mr. Mitesh Amin, the learned Public Prosecutor appearing for the State submitted that the issue as regards violation of Article 20(3) of the Constitution of India does not arise in Page 12 of 119 HC-NIC Page 12 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT the present case, because there is no dissent between the two learned Judges of the Supreme Court in this regard. Mr. Amin invited my attention to the fact that Justice Desai, in her judgment, framed two questions viz. (1) whether the protection under Article 20(3) of the Constitution extends to the protection from being compelled to give a voice sample during the course of investigating into an offence, and (2) if no, whether in the absence of any provision in the Cr.P.C., a Magistrate can authorise the Investigating Agency to record the voice sample of the person accused of an offence. Mr. Amin, thereafter, invited my attention to the observations of Justice Aftab Alam in para 68 of the judgment. The observations are as under:

"As regards the first question, relying primarily on the elevenJudge Bench decision of this Court in State of Bombay v. Kathi Kalu Oghad and others [1962] 3 SCR 10 : (AIR 1961 SC 1808) which was followed in the more recent decision in Selvi and others v. State of Karnataka (2010) 7 SCC 263 : (AIR 2010 SC 1974 : 2010 AIR SCW 3011), Desai, J held that "taking voice sample of an accused by the police during investigation is not hit by Article 20 (3) of the Constitution." I am broadly in agreement with the view taken by her on Article 20 (3) but, since I differ with her on the second question, I think the issue of constitutional validity in compelling the accused to give his/her voice sample does not really arise in this case."

21 Thus, according to Mr. Amin, the dissent between the two learned Judge was on the second question of law i.e. whether in the absence of any provision in the Cr.P.C., a Magistrate can authorise the Investigating Agency to record the voice sample of the person accused of an offfence.

22 In the aforesaid context, Mr. Amin has placed strong reliance on a decision rendered by a learned Single of the Allahabad High Court in the Page 13 of 119 HC-NIC Page 13 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT case of Smt. Leena Katiar vs. State of U.P. and others [Criminal Miscellaneous Application No.540 of 2015 decided on 16th February 2015].

23 Mr. Amin would submit that the voice recorded in the audio C.D. is admissible under Section 65B of the Evidence Act, hence, if the said evidence is to be proved by the prosecution, then taking of voice sample of the accused by the trial Court becomes essential to arrive at the just decision of a case, otherwise, the said audio C.D., in which there is recording of the conversation between the accused and the complainant regarding demand of illegal gratification will be of no help to the police to ascertain the complicity of the accused. He would submit that Section 165 of the Evidence Act empowers the trial Judge to order for taking of voice sample of the accused for being compared to the recorded voice in the audio C.D. 24 Mr. Amin, the learned Public Prosecutor submitted that the definitions are generally of two types: (1) inclusive - i.e. providing what all is covered by inclusive while leaving the scope open to others also to be covered within the ambit of the provision, (2) exclusive ("means" definition) - i.e. those providing an exhaustive meaning to the term and not other meaning is permissible. According to Mr. Amin, the term "measurements" as defined under Section 2(a) of the Act, 1920 is inclusive and not exhaustive. Voice sample is one of the modes of identification of an accused or a suspect. The learned Public Prosecutor would submit that voice sample can be included in the exclusive definition of the "measurements" appearing in Section 2(a) of the Prisoners Act. He would submit that the voice prints are like fingerprints, and therefore, would be covered by the term "measurements". The learned Public Prosecutor submitted that purposive interpretation to the Page 14 of 119 HC-NIC Page 14 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT provisions of the Prisoners Act and Section 53 of the Code should be given considering that crime has changed its voice.

25 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the accused can object to lending of his voice sample for the purpose of Voice Spectrography Test.

26 Before adverting to the rival submissions canvassed on either side, I should look into the caselaw available as on date.

27 In Ritesh Sinha (supra), Her Ladyship Justice Ranjana Desai held as under:

"28 The next question which needs to be answered is whether there is any provision in the Code, or in any other law under which a Magistrate can authorize the investigating agency to record voice sample of a person accused of an offence. Counsel are ad idem on the point that there is no specific provision either in the Code or in any other law in that behalf. In its 87th Report, the Law Commission suggested that the Prisoners Act should be amended inter alia to include voice sample within the ambit of Section 5 thereof. Parliament however has not amended the Prisoners Act in pursuance to the recommendation of the Law Commission nor is the Code amended to add any such provision therein. Resultantly, there is no specific legal provision under which such a direction can be given. It is therefore, necessary to see whether such power can be read into in any of the available provisions of law.

29 A careful study of the relevant provisions of the Code and other relevant statutes discloses a scheme which aims at strengthening the hands of the investigator. Section 53, Section 54A, Section 311A of the Code, Section 73 of the Evidence Act and the Prisoners Act to which I shall soon refer reflect Parliament's efforts in that behalf. I have already noted that in Kathi Kalu Oghad (AIR 1961 SC 1808), while considering the expressions "to be a witness" and "furnishing evidence", this Court clarified that "to be a witness" is not equivalent to "furnishing evidence" in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused for the purpose of identification because Page 15 of 119 HC-NIC Page 15 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT such interpretation would not have been within the contemplation of the Constitution makers for the simple reason that though they may have intended to protect an accused person from the hazards of self incrimination, they could not have intended to put obstacles in the way of efficient and effective investigation into crime and bringing criminal to justice. Such steps often become necessary to help the investigation of crime. This Court expressed that it is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and law courts with legitimate powers to bring offenders to justice. This, in my opinion, is the basic theme and, the controversy regarding taking of voice sample involved in this case will have to be dealt with keeping this theme in mind and by striking a balance between Article 20(3) and societal interest in having a legal framework in place which brings to book criminals.

30 Since we are concerned with the stage of investigation, it is necessary to see how the Code defines 'investigation'. Section 2 (h) of the Code is material. It reads thus:

"Investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf."

31 It is the duty of a Police Officer or any person (other than a Magistrate) authorized by a Magistrate to collect evidence and proceedings under the Code for the collection of evidence are included in 'Investigation'. Collection of voice sample of an accused is a step in investigation. It was argued by learned counsel for the State that various steps which the police take during investigation are not specifically provided in the Code, yet they fall within the wider definition of the term 'investigation' and investigation has been held to include measures that had not been enumerated in statutory provisions and the decisions to that effect of the Rajasthan High Court in Mahipal Maderna vs. State of Rajasthan (1971 Cri LJ 1405) and Allahabad High Court in Jamshed vs. State of U.P. (1976 Cri LJ 1680) have been noticed by this Court in Selvi vs. State of Karnataka (AIR 2010 SC 1974 : AIR SCW 3011) and, therefore, no legal provision need be located under which voice sample can be taken. I find it difficult to accept this submission. In the course of investigation, the police do use force. In a country governed by rule of law police actions which are likely to affect the bodily integrity of a person or likely to affect his personal dignity must have legal sanction. That prevents possible abuse of the power by the police. It is trite that every investigation has to be conducted within the parameters of the Code. The power to investigate into a cognizable offence must be exercised strictly on the condition on which it is granted. (State of West Bengal v. Swapan Guha (AIR 1982 SC 949)). The accused has to be dealt with strictly in accordance with law. Even Page 16 of 119 HC-NIC Page 16 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT though, taking of physical evidence which does not amount to communicating information based on personal knowledge to the investigating officer by the accused which may incriminate him, is held to be not violative of protection guaranteed by Article 20(3), the investigating officer cannot take physical evidence from an accused unless he is authorized by a Magistrate to do so. He cannot assume powers which he does not possess. He can only act on the strength of a direction given to him by a Magistrate and the Magistrate must have power to issue such a direction. In Bindeshwari Prasad Singh v. Kali Singh(1977) 1 SCC 57 : (AIR 1977 SC 2432), this Court has clarified that subordinate criminal courts have no inherent powers. Similar view has been taken by this court in Adalat Prasad vs. Rooplal Jindal (AIR 2004 SC 4674 :

2004 AIR SCW 5174). Our attention was drawn to Sakiri Vasu vs. State of U.P. (AIR 2008 SC 907 : 2008 AIR SCW 309) in support of the submission that the Magistrate has implied or incidental powers. In that case, this Court was dealing with the Magistrate's powers under Section 156(3) of the Code. It is observed that Section 156(3) includes all such powers as are necessary for ensuring a proper investigation. It is further observed that when a power is given to an authority to do something, it includes such incidental or implied powers which would ensure proper doing of that thing. It is further added that where an Act confers jurisdiction, it impliedly also grants power of doing all such acts or employ such means as are essentially necessary for execution. If we read Bindeshwar Prasad, Adalat Prasad and Sakiri Vasu together, it becomes clear that the subordinate criminal courts do not have inherent powers. They can exercise such incidental powers as are necessary to ensure proper investigation. Against this background, it is necessary to find out whether power of a Magistrate to issue direction to a police officer to take voice sample of the accused during investigation can be read into in any provisions of the Code or any other law. It is necessary to find out whether a Magistrate has implied or ancillary power under any provisions of the Code to pass such order for the purpose of proper investigation of the case.

32 In search for such a power, I shall first deal with the Prisoners Act.

As its short title and preamble suggests it is aimed at securing identification of the accused. It is an Act to authorize the taking of measurements and photographs of convicts and others. Section 2(a) defines the term 'measurements' to include fingerimpressions and foot print impressions. Section 3 provides for taking of measurements, etc., of convicted persons and Section 4 provides for taking of measurements, etc., of nonconvicted persons. Section 5 provides for power of a Magistrate to order a person to be measured or photographed. Section 6 permits the police officer to use all means necessary to secure measurements etc. if such person puts up resistance. Section 7 states that all measurements and photographs taken of a person who has not been previously convicted shall be destroyed unless the court directs otherwise, if such person is acquitted or discharged. In Kathi Kalu Oghad, this Court referred to the Prisoners Page 17 of 119 HC-NIC Page 17 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT Act as a statute empowering the law courts with legitimate powers to bring offenders to justice.

33 In Amrit Singh v. State of Punjab(2006) 12 SCC 79 the appellant was charged for offences under Sections 376 and 302 of the Indian Penal Code (for short "the IPC") and an application was filed by the investigating officer for obtaining the appellant's hair sample. He refused to give hair sample. It was argued that hair sample can be taken under the provisions of the Prisoners Act. This Court held that the Prisoners Act may not be ultra vires the Constitution, but it will have no application to the case before it because it cannot be said to be an area contemplated under it.

34 In CBI v. Abdul Karim Ladsab Telgi (2005 Cri LJ 2868), the Bombay High Court was dealing with a challenge to the order passed by the Special Judge, Pune, rejecting application filed by the investigating agency praying that it may be permitted to record the voice samples of the accused. The High Court relying on Kathi Kalu Oghad (AIR 1961 SC 1808) rejected the contention that requiring the accused to lend their voice sample to the investigating officer amounts to testimonial compulsion and results in infringement of the accused's right under Article 20(3) of the Constitution. The High Court held that measuring frequency or intensity of the speech sound waves falls within the ambit of the scope of the term "measurement" as defined in Section 2(a) of the Prisoners Act. The High Court also relied on Sections 5 and 6 of the Prisoners Act as provisions enabling the court to pass such orders.

35 In Rakesh Bisht vs. CBI (2007 Cri LJ 1530), the Delhi High Court disagreed with the view taken by the Bombay High Court in Telgi. The Delhi High Court held that if after investigation, charges are framed and in the proceedings before the court, the court feels that voice sample ought to be taken for the purposes of establishing identity, then such a direction may be given provided the voice sample is taken only for the purposes of identification and it does not contain inculpatory statement so as to be hit by Article 20(3) of the Constitution.

36 Having carefully perused the provisions of the Prisoners Act, I am inclined to accept the view taken by the Bombay High Court in Telgi as against the view taken by the Delhi High Court in Rakesh Bisht. Voice sample stands on a different footing from hair sample with which this Court was concerned in Amrit Singh because there is no provision express or implied in the Prisoners Act under which such a hair sample can be taken. That is not so with voice sample.

37 The purpose of taking voice sample which is nontestimonial physical evidence is to compare it with tape recorded conversation. It is a Page 18 of 119 HC-NIC Page 18 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT physical characteristic of the accused. It is identificatory evidence. In R.M. Malkani vs. State of Maharashtra (AIR 1973 SC 157), this Court has taken a view that tape recorded conversation is admissible provided the conversation is relevant to the matters in issue; there is identification of the voice and the tape recorded conversation is proved by eliminating the possibility of erasing the tape recorded conversation. It is a relevant fact and is admissible under Section 7 of the Evidence Act. In view of this legal position, to make the tape recorded conversation admissible in evidence, there must be provision under which the police can get it identified. For that purpose, the police must get the voice sample of the accused.

38 The dictionary meaning of the term 'measurement' is the act or process of measuring. The voice sample is analysed or measured on the basis of time, frequency and intensity of the speechsound waves. A voice print is a visual recording of voice. Spectrographic Voice Identification is described in Chapter 12 of the Book "Scientific Evidence in Criminal Cases"

written by Andre A. Moenssens, Ray Edward Moses and Fred E. Inbau. The relevant extracts of this chapter could be advantageously quoted.

"Voiceprint identification requires (1) a recording of the questioned voice, (2) a recording of known origin for comparison, and (3) a sound spectrograph machine adapted for 'voiceprint' studies."

12.02 Sound and Speech In order to properly understand the voiceprint technique, it is necessary to briefly review some elementary concepts of sound and speech.

Sound, like heat, can be defined as a vibration of air molecules or described as energy in the form of waves or pulses, caused by vibrations. In the speech process, the initial wave producing vibrations originate in the vocal cords. Each vibration causes a compression and corresponding rarefications of the air, which in turn form the aforementioned wave or pulse. The time interval between each pulse is called the frequency of sound; it is expressed generally in hertz, abbreviated as hz., or sometimes also in cycles persecond, abbreviated as cps. It is this frequency which determines the pitch of the sound. The higher the frequency, the higher the pitch, and vice versa .

Intensity is another characteristic of sound. In spe ech, intensity is the characteristic of loudness. Intensity is a function of the amount of energy in the sound wave or pulse. To perceive the difference between frequency and intensity, two activities of air molecules in an atmosphere must be considered. The speed at which an individual vibrating molecule bounces back and forth between the Page 19 of 119 HC-NIC Page 19 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT other air molecules surrounding it is the frequency. Intensity, on the other hand, may be measured by the number of air molecules that are being caused to vibrate at a given frequency."

"12.03 The Sound Spectrograph The sound spectrograph is an electromagnetic instrument which produces a graphic display of speech in the parameters of time, frequency and intensity. The display is called a sound spectrogram."

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 speechsound waves falls within the ambit of inclusive definition of the term 'measurement' appearing in the Prisoners Act.

40 There is another angle of looking at this issue. Voice prints are like finger prints. Each person has a distinctive voice with characteristic features. Voice print experts have to compare spectrographic prints to arrive at an identification. In this connection, it would be useful to read following paragraphs from the book "Law Enforcement and Criminal Justice an introduction" by BennettSandler, Frazier, Torres, Waldron:

"Voiceprints. The voiceprint method of speaker identification involves the aural and visual comparison of one or more identified voice patterns with a questioned or unknown voice. Factors such as pitch, rate of speech, accent, articulation, and other items are evaluated and identified, even though a speaker may attempt to disguise his or her voice. Through means of a sound spectrograph, voice signals can be recorded magnetically to produce a permanent image on electrically sensitive paper. This visual recording is called a voiceprint.

A voiceprint indicates resonance bars of a person's voice (called formants), along with the spoken word and how it is articulated. Figure 9.7 is an actual voiceprint sample. The loudness of a voice is indicated by the density of lines; the darker the lines on the print, the greater the volume of the sound. When voiceprints are being identified, the frequency and pitch of the voice are indicated on the vertical axis; the time factor is indicated on the horizontal axis. At least ten matching sounds are needed to make a positive identification, while fewer factors lead to a probable or highly probable conclusion.

Voiceprints are like fingerprints in that each person has a distinctive voice with characteristic features dictated by vocal cavities and articulators. Oral and nasal cavities act as resonators for energy expended by the vocal cords. Articulators are generated Page 20 of 119 HC-NIC Page 20 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT by the lips, teeth, tongue, soft palate, and jaw muscles. Voiceprint experts must compare spectrographic prints or phonetic elements to arrive at an identification. These expert laboratory technicians are trained to make subjective conclusions, much as fingerprint or criminalistic experts must make determinations on the basis of evidence." (Emphasis supplied.) Thus, my conclusion that voice sample can be included in the inclusive definition of the term "measurements" appearing in Section 2(a) of the Prisoners Act is supported by the abovequoted observation that voice prints are like finger prints. Section 2(a) states that measurements include finger impressions and foot impressions. If voice prints are like finger prints, they would be covered by the term 'measurements'. I must note that the Law Commission of India in its 87th Report referred to the book "Law Enforcement and Criminal Justice an introduction". The Law commission observed that voice prints resemble finger prints and made a recommendation that the Prisoners Act needs to be amended. I am, therefore, of the opinion that a Magistrate acting under Section 5 of the Prisoners Act can give a direction to any person to give his voice sample for the purposes of any investigation or proceeding under the Code.

41 I shall now turn to Section 73 of the Indian Evidence Act to see whether it empowers the court to give such a direction. It reads thus:

"Section 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 fingerimpressions."

42 In State of U.P. vs. Ram Babu Misra vs. (AIR 1980 SC 791), the investigating officer made an application to the Chief Judicial Magistrate, Lucknow seeking a direction to the accused to give his specimen writing for the purpose of comparison with certain disputed Page 21 of 119 HC-NIC Page 21 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT writings. Learned Magistrate held that he had no power to do so when the case was still under investigation. His view was upheld by the High Court. This Court held that:

"4. The second paragraph of Section 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."

This Court further observed that 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. While dismissing the appeal, this Court expressed that a suitable legislation may be made on the analogy of Section 5 of the Prisoners Act to provide for the investiture of Magistrates with the power to issue directions to any person including an accused person to give specimen signatures and writings. Thus Section 73 of the Evidence Act does not empower the court to direct the accused to give his specimen writings during the course of investigation. Obviously, Section 73 applies to proceedings pending before the court. They could be civil or criminal. In view of the suggestion made by this Court by Act 25 of 2005 with effect from 23.6.2006, Section 311A was added in the Code empowering the Magistrate to order a person to give specimen signature or handwriting during the course of investigation or proceeding under the Code.

43 Section 311A of the Code reads thus:

"311A. Power of Magistrate to order person to give specimen signatures or handwriting:

If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that 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 such order and shall give his specimen signatures or handwriting:

Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding."

Page 22 of 119

HC-NIC Page 22 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT A bare reading of this Section makes it clear that Section 311A cannot be used for obtaining a direction from a Magistrate for taking voice sample.

44 Section 53 of the Code pertains to examination of the accused by medical practitioner at the request of a police officer. Section 53A refers to examination of person accused of rape by medical practitioner and section 54 refers to examination of arrested person by a medical officer. Section 53 is material. It reads as under:

"Section 53 Examination of accused by medical practitioner at the request of police officer (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of subinspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.

*Explanation: In this section and in sections 53A and 54

(a) "examination" shall include the 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;

(b) "registered medical practitioner" means a medical practitioner who possess any medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register.

*Substituted by the Code of Criminal Procedure (Amendment) Act, 2005. Earlier the text was as under:

Explanation. In this section and in section 54, "registered medical practitioner" means a medical practitioner who possesses any Page 23 of 119 HC-NIC Page 23 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT recognized medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956), and whose name has been entered in a State Medical Register."

In short, this section states that if a police officer feels that there are reasonable grounds for believing that an examination of the person of the accused will afford evidence as to commission of the offence, he may request a registered medical practitioner to make such examination of his person as is reasonably necessary. For such examination, it is permissible to use such force as may be reasonably necessary. Explanation (a) to Section 53 states what is 'examination'. It is an inclusive definition. It states that the examination shall include the 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. This explanation was substituted by the Code of Criminal Procedure (Amendment) Act, 2005. The question is whether with the aid of the doctrine 'ejusdem generis' voice sample test could be included within the scope of the term 'examination'.

45 I am not impressed by the submission that the term "such other tests" mentioned in Explanation (a) is controlled by the words "which the registered medical practitioner thinks necessary". It is not possible to hold that Explanation (a) vests the discretion to conduct examination of the accused in the registered medical practitioner and not in the investigating officer and therefore the doctrine of 'ejusdem generis' cannot be pressed into service. Under Section 53(1) the registered medical practitioner can act only at the request of a police officer. Obviously, he can have no say in the process of investigation. The decision to get the accused examined is to be taken by the investigating officer and not by the medical practitioner. It is the expertise of the medical practitioner which the investigator uses to decide the method of the test. It would be wrong, therefore, to state that the discretion to get the accused examined vests in the medical practitioner. This submission must, therefore, be rejected.

46 It is argued that voice sample test cannot be included in the definition of 'examination' because in Selvi, this Court has held that Section 53 needs to be given a restrictive interpretation. I must, therefore, revisit Selvi vs. State of Karnataka (AIR 2010 SC 1974).

47 In Selvi vs. State of Karnataka (AIR 2010 SC 1974 : 2010 AIR SCW 3011), it was contended that the phrase "modern and scientific techniques including DNA profiling and such other tests" should be liberally construed to include narcoanalysis test, polygraph examination and the BEAP test. These tests could be read in with the help of the words "and such other tests", because the list of "modern and scientific Page 24 of 119 HC-NIC Page 24 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT techniques" contemplated was illustrative and not exhaustive. This Court observed that it was inclined to take the view that the results of the impugned tests should be treated as testimonial acts for the purpose of invoking the right against selfincrimination and, therefore, it would be prudent to state that the phrase "and such other tests" appearing in Explanation (a) to Section 53 of the Code should be read so as to confine its meaning to include only those tests which involve the examination of physical evidence. This Court accepted the submission that while bodily substances such as blood, semen, sputum, sweat, hair and finger nail clippings can be characterized as physical evidence, the same cannot be said about the techniques in question. This Court reiterated the distinction between physical evidence and testimonial acts and accepted the submission that the doctrine of 'ejusdem generis' entails that the meaning of general words which follow specific words in a statutory provision should be construed in light of commonality between those specific words. This Court acknowledged that the substances mentioned in Explanation

(a) to Section 53 are examples of physical evidence and, hence, the words "and such other tests" mentioned therein should be construed to include the examination of physical evidence but not that of testimonial acts. This Court made it clear that it was not examining what was the legislative intent in not including the tests impugned before it in the Explanation.

48 Our attention was drawn to the observation of this Court in Selvi that the dynamic interpretation of the amended Explanation to Section 53 is obstructed because the general words "and such other tests" should ordinarily be read to include tests which are of the same genus as the other forms of medical examination which are examinations of bodily substances. It is argued that voice sample is not a bodily substance like blood, sputum, finger nail clippings etc. 49 Voice emanates from the human body. The human body determines its volume and distinctiveness. Though it cannot be touched or seen like a bodily substance, being a bodily emanation, it could be treated as a part of human body and thus could be called a bodily substance. But, I feel that there is no need to stretch the meaning of the term 'bodily substance' in this case. I have already expressed my opinion that voice sample is physical nontestimonial evidence. It does not communicate to the investigator any information based on personal knowledge of the accused which can incriminate him. Voice sample cannot be held to be conceptually different from physical nontestimonial evidence like blood, semen, sputum, hair etc. Taking of voice sample does not involve any testimonial responses. The observation of this Court in Selvi that it would not be prudent to read Explanation (a) to Section 53 of the Code in an expansive manner is qualified by the words "so as to include the impugned techniques". What must be borne in mind is that the impugned techniques were held to be testimonial and hit by Article 20(3) of the Constitution. This Court emphasized that Explanation (a) to Section 53 does not enumerate certain Page 25 of 119 HC-NIC Page 25 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT other kinds of medical examination that involve testimonial acts, such as psychiatric examination among others and this demonstrates that the amendment made to this provision was informed by a rational distinction between the examination of physical substances and testimonial acts. If this Court wanted to interpret Explanation (a) as referring only to bodily substances there was no reason for it to draw such distinction. Pertinently, this distinction was employed while applying the doctrine of 'ejusdem generis' to Section 53. The tenor of this judgment makes it clear that tests pertaining to physical nontestimonial evidence can be included in the purview of the words "and such other tests" with the aid of the doctrine of 'ejusdem generis'. In my opinion, Selvi primarily rests on the distinction between physical evidence of nontestimonial character as against evidence involving testimonial compulsions. The tests mentioned in Explanation (a) are of bodily substances, which are examples of physical evidence. Even if voice sample is not treated as a bodily substance, it is still physical evidence involving no transmission of personal knowledge. On the reasoning of Selvi which is based on Kathi Kalu Oghad, I find no difficulty in including voice sample test in the phrase "such other tests" appearing in Explanation (a) to Section 53 by applying the doctrine of 'ejusdem generis' as it is a test pertaining to physical nontestimonial evidence like blood, sputum etc. In my opinion, such interpretation of Selvi would be in tune with the general scheme of the Code which contains provisions for collection of evidence for comparison or identification at the investigation stage in order to strengthen the hands of the investigating agency.

50 It was argued that Section 53 of the Code only contemplates medical examination and taking of voice sample is not a medical examination. Section 53 talks of examination by registered medical practitioner of the person of the accused but, does not use the words "medical examination". Similarly, Explanation (a) to Section 53 does not use the words "medical examination". In my opinion, Section 53 need not be confined to medical examination. It is pertinent to note that in Selvi, this court was considering whether narcoanalysis, polygraph examination and the BEAP tests violate Article 20(3) of the Constitution. While examining this question, this Court analyzed Section 53 and stated that because those tests are testimonial in nature, they do not fall within the ambit of Section 53 of the Code but this Court did not restrict examination of person contemplated in Section 53 to medical examination by a medical practitioner even though the tests impugned therein were tests that were clearly not to be conducted by the medical practitioner. It must be remembered that Section 53 is primarily meant to serve as aid in the investigation. Examination of the accused is to be conducted by a medical practitioner at the instance of the police officer, who is in charge of the investigation. On a fair reading of Section 53 of the Code, I am of the opinion that under that Section, the medical practitioner can conduct the examination or suggest the method of examination.





                                             Page 26 of 119

HC-NIC                                     Page 26 of 119     Created On Sat Aug 12 13:49:02 IST 2017
            R/SCR.A/5226/2015                                                       JUDGMENT



         51      I   must   also   deal   with   the   submission   of   learned   counsel   for   the

appellant that noninclusion of voice sample in Explanation (a) displays legislative intent not to include it though legislature was aware of such test. In Selvi, this court has made it clear that it was not examining the question regarding legislative intent in not including the test impugned before it in Explanation (a). Therefore, Selvi does not help the appellant on this point. On the contrary, in my opinion, by adding the words 'and such other tests' in the definition of term contained in Explanation (a) to Section 53 of the Code, the legislature took care of including within the scope of the term 'examination' similar tests which may become necessary in the facts of a particular case. Legislature exercised necessary caution and made the said definition inclusive, not exhaustive and capable of expanding to legally permissible limits with the aid of the doctrine of 'ejusdem generis'. I, therefore, reject this submission.

52 Section 54A of the Code makes provision for identification of arrested persons. It states that where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the court having jurisdiction, may on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the court may deem fit. Identification of the voice is precondition for admission of tape recorded conversation in evidence (R.M. Malkani vs. State of Maharashtra (AIR 1973 SC 157)). Since Section 54A of the Code uses the words "the Court,.... may .....direct the person so arrested to subject himself to identification by any person or persons in such manner as the court may deem fit", voice sample can be identified by means of voice identification parade under Section 54A or by some other person familiar with the voice.

53 I may usefully refer to the judgment of this Court in Nilesh Paradkar v. State of Maharashtra (2011) 4 SCC 143 : (AIR 2011 SC (Cri) 911) where the voice test identification was conducted by playing cassette in the presence of panchas, police officers and prosecution witnesses. This Court rejected the voice identification evidence because precautions similar to the precautions which are normally taken in visual identification of suspects by witnesses were not taken. But this court did not reject the evidence on the ground that voice identification parade is not contemplated under Section 54A of the Code. It is important to note that in Mohan Singh v. State of Bihar(2011) 9 SCC 272 : (AIR 2011 SC 3534 : 2011 AIR SCW 5120), after noticing Nilesh Paradkar, this Court held that where the witnesses identifying the voice had previous acquaintance with the caller i.e. the accused, such identification of voice can be relied upon; but identification by voice has to be considered carefully by the court. This, however, is no answer to the question of availability of a legal provision to pass an order directing the accused to Page 27 of 119 HC-NIC Page 27 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT give voice sample during investigation. The legal provision, in my opinion, can be traced to the Prisoners Act and Section 53 of the Code.

54 I am mindful of the fact that foreign decisions are not binding on our courts. But, I must refer to the judgment of the Supreme Court of Appeal of South Africa in Levack, Hamilton Caesar and Ors. v. Regional Magistrate, Wynberg and Anr. [2003] 1 All SA 22 (SCA) (28th November, 2002) because it throws some light on the issue involved in the case. In that case, the Magistrate had granted an order under Section 37(3) of the Criminal Procedure Act 51 of 1977 (for short, "South African Act") directing the accused to give voice samples as specified by a named 'voice expert' in the presence of the legal representatives of the accused. The object was to compare the samples with tape recordings of telephone conversations in the State's possession, for possible later use during the trial. The accused were unsuccessful in the High Court in their challenge to the said order of the lower court. Hence, they appealed to the Supreme Court of South Africa.

55 Under Section 37(1) of the South African Act, any police officer may take the fingerprints, palmprints and footprints or may cause any such prints to be taken, inter alia, of any person arrested upon any charge. Sections 37(1)(a)(i) and (ii) and Section 37(1)(c) of the South African Act read thus:

"37. Powers in respect of prints and bodily appearance of accused.(1) Any police official may

(a) take the fingerprints, palmprints or footprints or may cause any such prints to be taken

(i) of any person arrested upon any charge;

(ii) of any such person released on bail or on warning under section 72;

(iii) xxx xxx xxx

(iv) xxx xxx xxx

(v) xxx xxx xxx

(b) xxx xxx xxx

(c) take such steps as he may deem necessary in order to ascertain whether the body of any person referred to in paragraph (a) (i) or

(ii) has any mark, characteristic or distinguishing feature or shows any condition or appearance:

Provided that no police official shall take any blood sample of the person concerned nor shall a police official make any examination of the body of the person concerned where that person is a female and the police official concerned is not a female;"

Page 28 of 119

HC-NIC Page 28 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT 56 The first question which fell for consideration was whether voice of a person is a characteristic or distinguishing feature of the body. The Supreme Court of South Africa considered the Oxford Dictionary meaning of 'voice' as '1. Sound formed in larynx etc. and uttered by mouth, especially human utterance in speaking, shouting, singing, etc. 2. Use of voice, utterance. 3. (Phonetic) Sound uttered with resonance of vocal chords, not with mere breath'. It observed that voice is thus a sound formed in the larynx and uttered by the mouth and emanates from and is formed by the body. Therefore, there can be no doubt that it is a 'characteristic' (in the sense of a distinctive trait or quality) of the human body. Though voice sample was not specifically mentioned in Section 37, it was held that it fell within the scope of Section 37. It was observed that Section 37 does not expressly mention the voice because it is one of the 'innumerable' bodily features that the wording expressly contemplates. Section 37 merely contemplates bodily appearance of the accused.

57 It was further observed in Levack vs. Regl. Magistrate, Wynberg (2003) 1 All SA 229SCA) that it is true that the voice, unlike palm or other prints, is not itself part of the body. It is a sound. But, the sound is a bodily emanation. And the body from which it emanates determines its timbre, volume and distinctive modulations. It was further observed that nothing in the provision suggests that the 'distinguishing features' it envisages should be limited to those capable of apprehension through the senses of touch and sight (or even taste or smell). Relevant observation of the Supreme Court of South Africa could be quoted.

"14. Hearing is as much a mode of physical apprehension as feeling or seeing. For the sight impaired it is indeed the most important means of distinguishing between people. It would therefore be counterliteral to interpret the section as though the ways of 'ascertaining' bodily features it contemplates extend only to what is visible or tangible."

58 The Supreme Court of South Africa then considered the question of selfincrimination. It observed that it is wrong to suppose that requiring the accused to submit voice samples infringes their right either to remain silent in the court proceedings against them or not to give self incriminating evidence. It was further observed that voice falls within the same category as complexion, stature, mutilations, marks and prints i.e. 'autoptic evidence' evidence derived from the accused's own bodily features. It was held that there is no difference in principle between the visibly discernible physical traits and features of an accused and those that under law can be extracted from him through syringe and vial or through the compelled provision of a voice sample. In neither case is the accused required to provide evidence of a testimonial or communicative nature, and in neither case is any constitutional right violated.





                                            Page 29 of 119

HC-NIC                                    Page 29 of 119     Created On Sat Aug 12 13:49:02 IST 2017
            R/SCR.A/5226/2015                                                       JUDGMENT



         59       The Supreme Court of South Africa in Levack vs. Rgl. Magistrate,

Wynberg, then examined as to under which provision a Magistrate could issue a direction to the accused to supply his voice samples. It observed that Section 37(1)(a)(i) and (ii) permit any police officer to take the fingerprints, palmprints or footprints or may cause any such prints to be taken of any person arrested upon any charge. Section 37(1)(c) states that any police officer may take such steps as he may deem necessary in order to ascertain whether the body of any person referred to in paragraph

(a) (i) or (ii) has any mark, characteristic or distinguishing feature or shows any condition or appearance. Though 'voice sample' was not specifically mentioned anywhere, on a conjoint reading of the two provisions, the Supreme Court of South Africa held that the police retained the power under Section 37(1)(c) to take steps as they might deem necessary to ascertain the characteristic or distinguishing features of the accused's voice. That included the power to request the accused to supply voice samples. The court further observed that this power, in turn, could properly be supplemented by a court order requiring the accused to do so.

60 In the ultimate analysis, therefore, I am of the opinion that the Magistrate's power to authorize the investigating agency to record voice sample of the person accused of an offence can be traced to Section 5 of the Prisoners Act and Section 53 of the Code. The Magistrate has an ancillary or implied power under Section 53 of the Code to pass an order permitting taking of voice sample to aid investigation. This conclusion of mine is based on the interpretation of relevant sections of the Prisoners Act and Section 53 of the Code and also is in tune with the concern expressed by this court in Kathi Kalu Oghad that it is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to justice.

61 The principle that a penal statute should be strictly construed is not of universal application. In Murlidhar Meghraj Loya v. State of MaharashtraAIR 1976 SC 1929, this court was dealing with the Prevention of Food Adulteration Act, 1954. Speaking for this court, Krishna Iyer, J. held that any narrow and pedantic, literal and lexical construction of Food Laws is likely to leave loopholes for the offender to sneak out of the meshes of law and should be discouraged and criminal jurisprudence must depart from old canons defeating criminal statutes calculated to protect the public health and the nation's wealth. Similar view was taken in Kisan Trimbak Kothula and Ors. v. State of Maharashtra AIR 1977 SC 435. In State of Maharashtra v. Natwarlal Damodardas Soni AIR 1980 SC 593, while dealing with Section 135 of the Customs Act and Rule 126H(2)(d) of the Defence of India Rules, a narrow construction given by the High Court was rejected Page 30 of 119 HC-NIC Page 30 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT on the ground that that will emasculate these provisions and render them ineffective as a weapon for combating gold smuggling. It was further held that the provisions have to be specially construed in a manner which will suppress the mischief and advance the object which the legislature had in view. Therefore, whether the penal statute should be given strict interpretation or not will depend on facts of each case. Considerations of public health, preservation of nation's wealth, public safety may weigh with the court in a given case and persuade it not to give a narrow construction to a penal statute. In the facts of this case, I am not inclined to give a narrow construction to the provisions of the Prisoners Act and Section 53 of the Code. Judicial note can be taken of the fact that there is a great deal of technological advance in means of communication. Criminals are using new methodology in committing crimes. Use of landlines, mobile phones and voice over internet protocol (VoIP) in the commission of crimes like kidnapping for ransom, extortion, blackmail and for terrorist activities is rampant. Therefore, in order to strengthen the hands of investigating agencies, I am inclined to give purposive interpretation to the provisions of the Prisoners Act and Section 53 of the Code instead of giving a narrow interpretation to them. I, however, feel that Parliament needs to bring in more clarity and precision by amending the Prisoners Act. The Code also needs to be suitably amended. Crime has changed its face. There are new challenges faced by the investigating agency. It is necessary to note that many local amendments have been made in the Prisoners Act by several States. Technological and scientific advance in the investigative process could be more effectively used if required amendments are introduced by Parliament. This is necessary to strike a balance between the need to preserve the right against self incrimination guaranteed under Article 20(3) of the Constitution and the need to strengthen the hands of the investigating agency to bring criminals to book."

28 His Lordship Justice Aftab Alam held as under:

"68 As regards the first question, relying primarily on the eleven (11) Judges' Bench decision of this Court in State of Bombay v. Kathi Kalu Oghad and others [1962] 3 SCR 10 : (AIR 1961 SC 1808) which was followed in the more recent decision in Selvi and others v. State of Karnataka (2010) 7 SCC 263 : (AIR 2010 SC 1974 : 2010 AIR SCW 3011) she held that "taking voice sample of an accused by the police during investigation is not hit by Article 20 (3) of the Constitution." I am broadly in agreement with the view taken by her on Article 20 (3) but, since I differ with her on the second question, I think the issue of constitutional validity in compelling the accused to give his/her voice sample does not really arise in this case.

Page 31 of 119

HC-NIC Page 31 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT 69 Coming to the second question, as may be seen, it has the recognition that there is no provision in the Criminal Procedure Code to compel the accused to give his voice sample. That being the position, to my mind the answer to the question can only be in the negative, regardless of the constitutional guarantee against selfincrimination and assuming that in case a provision in that regard is made in the law that would not offend Article 20 (3) of the Constitution. Desai J., however, answers the question in the affirmative by means of a learned and elaborate discourse. She has navigated the arduous course to the conclusion at which she arrived very painstakingly and skillfully.

70 First, Desai, J. firmly rejects the submission advanced on behalf of the State that in the absence of any express provision in that regard, it was within the inherent and implied powers of the Magistrate to direct the accused to give his/her voice sample to ensure a proper investigation. In this regard, she observes as follows: "31...In the course of investigation, the police do use force. In a country governed by rule of law police actions which are likely to affect the bodily integrity of a person or likely to affect his personal dignity must have legal sanction. That prevents possible abuse of the power by the police. It is trite that every investigation has to be conducted within the parameters of the Code. The power to investigate into a cognizable offence must be exercised strictly on the condition on which it is granted. (State of West Bengal v. Swapan Guha (AIR 1982 SC 949)). The accused has to be dealt with strictly in accordance with law. Even though, taking of physical evidence which does not amount to communicating information based on personal knowledge to the investigating officer by the accused which may incriminate him, is held to be not violative of protection guaranteed by Article 20(3), the investigating officer cannot take physical evidence from an accused unless he is authorized by a Magistrate to do so. He cannot assume powers which he does not possess. He can only act on the strength of a direction given to him by a Magistrate and the Magistrate must have power to issue such a direction."

I am fully in agreement with what is said above.

71 However, having rejected the submission based on the inherent and implied powers of the Magistrate she makes a "search" for the power of the Magistrate to ask the accused to give his/her voice sample. She shortlists for that purpose (i) the provisions of the Identification of Prisoners Act, 1920, (ii) Section 73 of the Evidence Act and (iii) Sections 311A and 53 of the Code of Criminal Procedure. She finds and holds that Section 73 of the Evidence Act and Section 311A of the Code of Criminal Procedure are of no help and those two provisions cannot be used for obtaining a direction Page 32 of 119 HC-NIC Page 32 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT from the Magistrate for taking voice sample and finally rests her conclusion on the provisions of the Identification of Prisoners Act, 1920 and Section 53 of the Code of Criminal Procedure.

72 Section 53 of the Code of Criminal Procedure originally reads as under: "53. Examination of accused by medical practitioner at the request of police officer. (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of subinspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose. (2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner."

73 In the year 2005, a number of amendments were made in the Criminal Procedure Code by Act 25 of 2005. Those amendments included the addition of an explanation to Section 53 and insertion of Sections 53 A and 311A. The explanation added to Section 53 reads as under: "[Explanation. In this section and in sections 53A and 54,

(Emphasis added.)

74 Desai J. rejects the submission made on behalf of the appellant that "the term 'such other tests' mentioned in Explanation (a) is controlled by the words 'which the registered medical practitioner thinks necessary'" and relying heavily upon the decision of this Court in Selvi holds:

"51...by adding the words 'and such other tests' in the definition of term contained in Explanation (a) to Section 53 of the Code, the Page 33 of 119 HC-NIC Page 33 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT legislature took care of including within the scope of the term 'examination' similar tests which may become necessary in the facts of a particular case. Legislature exercised necessary caution and made the said definition inclusive, not exhaustive and capable of expanding to legally permissible limits with the aid of the doctrine of 'ejusdem generis'."

75 I am completely unable to see how Explanation (a) to Section 53 can be said to include voice sample and to my mind the ratio of the decision in Selvi does not enlarge but restricts the ambit of the expressions 'such other tests' occurring in the Explanation. In my opinion the Explanation in question deals with material and tangible things related to the human body and not to something disembodied as voice.

76 Section 53 applies to a situation where the examination of the person of the accused is likely to provide evidence as to the commission of an offence. Whether or not the examination of the person of the accused would afford evidence as to the commission of the offence undoubtedly rests on the satisfaction of the police officer not below the rank of sub inspector. But, once the police officer makes a request to the registered medical practitioner for the examination of the person of the accused, what other tests (apart from those expressly enumerated) might be necessary in a particular case can only be decided by the medical practitioner and not the police officer referring the accused to him. In my view, therefore, Mr. Dave, learned counsel for the appellant, is right in his submission that any tests other than those expressly mentioned in the Explanation can only be those which the registered medical practitioner would think necessary in a particular case. And further that in any event a registered medical practitioner cannot take a voice sample.

77 Apart from Section 53 of the Code of Criminal Procedure, Desai J. finds another source for the power of the Magistrate in Section 5 of the Identification of Prisoners Act, 1920. Referring to some technical literature on voice print identification, she holds:

"39. Thus, it is clear that voice print 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 'measurement' appearing in the Prisoners Act"

And further:

"40...Thus, my conclusion that voice sample can be included in the inclusive definition of the term "measurements" appearing in Section 2(a) of the Prisoners Act is supported by the above quoted observation that voice prints are like finger prints. Section 2(a) Page 34 of 119 HC-NIC Page 34 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT states that measurements include finger impressions and foot impressions. If voice prints are like finger prints, they would be covered by the term 'measurements'."

She finally concludes:

"40...I am, therefore, of the opinion that a Magistrate acting under Section 5 of the Prisoners Act can give a direction to any person to give his voice sample for the purposes of any investigation or proceeding under the Code."

I am unable to agree.

78 In order to clearly state my views on the provisions of the Identification of Prisoners Act, I may refer to the object and the scheme of the Act. The principal object of the Act is to sanction certain coercive measures (which would otherwise invite criminal or tortuous liability) in order to facilitate the identification of (i) convicts, (ii) persons arrested in connection with certain offences, and (iii) persons ordered to give security in certain cases. The scheme of the Act is as follows. The first section relates to the short title and the extent of the Act. The second section has the definition clauses and defines 'measurements' and 'prescribed' in clauses (a) and (c) respectively which are as under:

"2. Definitions. (1) In this Act, unless there is anything repugnant in the subject or context,

(iii) "measurements" include finger impressions and footprint impressions;

(iv) xxx xxx xxx

(c) "prescribed" means prescribed by rules made under this Act."

79 Then there are the three substantive provisions of the Act. Section 3 deals with taking of measurements, etc. of convicted persons. It is as under:

"3. Taking of measurements, etc., of convicted persons. Every person who has been

(a) convicted of any offence punishable with rigorous imprisonment for a term of one year or upwards, or of any offence which would render him liable to enhanced punishment on a subsequent conviction; or

(b) ordered to give security for his good behaviour under section 118 of the Code of Criminal Procedure, 1898 (5 of 1898), shall, if so required, allow his measurements and photograph to be taken by a police officer in the prescribed manner."

Page 35 of 119

HC-NIC Page 35 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT 80 Section 4 deals with taking of measurement, etc. of nonconvicted persons. It is as under:

"4. Taking of measurements, etc., of nonconvicted persons. Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner."

81 Section 5 deals with the power of Magistrate to order a person to be measured or photographed. It is as under:

"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 (5 of 1898), it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that 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 a Magistrate of the First Class:

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 proceeding."

82 The rest of the provisions from Section 6 to Section 9 deal with incidental or consequential matters. Section 6 deals with resistance to the taking of measurements, etc. and it is as under:

"6. Resistance to the taking of measurements, etc. (1) 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 the taking of measurements or photograph under this Act shall be deemed to be an offence under section 186 of the Indian Penal Code (45 of 1860)."

83 Section 7 deals with destruction of photographs and records of measurements, etc., on acquittal and it is as under:

Page 36 of 119

HC-NIC Page 36 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT "Destruction of photographs and records of measurements, etc., on acquittal. Where any person who, not having been previously convicted of an offence punishable with rigorous imprisonment for a term of one year or upwards, has had his measurements taken or has been photographed in accordance with the provisions of this Act is released without trial or discharged or acquitted by any court, all measurements and all photographs (both negatives and copies) so taken shall, unless the court or (in a case where such person is released without trial) the District Magistrate or Sub Divisional Officer for reasons to be recorded in writing otherwise directs, be destroyed or made over to him."

84 Section 8 gives the State Governments the power to make rules and it is as under:

"8. Power to make rules. (1) The State Government may, [by notification in the Official Gazette,] make rules for the purpose of carrying into effect the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing provision, such rules may provide for

(a) restrictions on the taking of photographs of persons under section 5;

(b) the places at which measurements and photographs may be taken;

(c) the nature of the measurements that may be taken;

(d) the method in which any class or classes of measurements shall be taken;

(e) the dress to be worn by a person when being photographed under section 3; and

(f) the preservation, safe custody, destruction and disposal of records of measurements and photographs.

[(3) Every rule made under this section shall be laid, as soon as may be after it is made, before State Legislature.]"

85 Section 9 finally lays down the bar of suits.

86 A careful reading of Sections 3, 4 and 5 would make it clear that the three provisions relate to three categories of persons. Section 3 relates to a convicted person. Section 4 relates to a person who has been arrested in connection with an offence punishable with rigorous imprisonment for term of 1 year or upwards. Section 5 is far wider in amplitude than Sections 3 and 4 and it relates to any person, the taking of whose measurements or photographs might be expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure. In the case of the first two categories of persons, the authority to take Page 37 of 119 HC-NIC Page 37 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT measurements vests in a police officer but in the case of Section 5, having regard to its much wider amplitude, the power vests in a Magistrate and not in any police officer.

87 It is to be noted that the expression "measurements" occurs not only in Section 5 but also in Sections 3 and 4. Thus, if the term "measurements" is to be read to include voice sample then on arresting a person in a case relating to an offence punishable with rigorous imprisonment for a term of 1 year or upwards (and voice sample would normally be required only in cases in which the punishment is one year or upward!) it would be open to the police officer (of any rank) to require the arrested person to give his/her voice sample on his own and without seeking any direction from the Magistrate under Section 5. Further, applying the same parameters, not only voice sample but many other medical tests, for instance, blood tests such as lipid profile, kidney function test, liver function test, thyroid function test etc., brain scanning etc. would equally qualify as "measurements" within the meaning of the Identification of Prisoners Act. In other words on arresting a person in a case relating to an offence punishable with rigorous imprisonment for a term of 1 year or upwards it would be possible for the police officer (of any rank) to obtain not only the voice sample but the full medical profile of the arrested person without seeking any direction from the Magistrate under Section 5 of the Identification of Prisoners Act or taking recourse to the provisions of Sections 53 or 53A of the Code of Criminal Procedure. I find it impossible to extend the provisions of the Identification of Prisoners Act to that extent.

88 It may not be inappropriate here to point out that in exercise of the rulemaking powers under Section 8 of the Identification of Prisoners Act some of the State Governments have framed rules. I have examined the rules framed by the States of Maharashtra, Madhya Pradesh, Orissa, Pondicherry and Jammu and Kashmir. From a perusal of those rules it would appear that all the State Governments understood "measurements" to mean the physical measurements of the body or parts of the body. The framing of the rules by the State Government would not be binding on this Court in interpreting a provision in the rules. But it needs to be borne in mind that unless the provision are incorporated in the Act in regard to the manner of taking voice sample and the person competent to take voice sample etc. there may be difficulty in carrying out the direction of the Court.

89 For arriving at her conclusion regarding the scope of Section 5 of the Identification of Prisoners Act, Desai J. has considered two High Court judgments. One is of the Bombay High Court in Central Bureau of Investigation, New Delhi v. Abdul Karim Ladsab Telgi and others 2005 Cri LJ 2868 and the other by the Delhi High Court in Rakesh Bisht v. Central Bureau of Investigation 2007 Cri LJ 1530, she has Page 38 of 119 HC-NIC Page 38 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT approved the Bombay High Court decision in Telgi's case and disapproved the Delhi High Court decision in Bisht's case. The Bombay decision is based on exactly the same reasoning as adopted by Desai, J. that the definition of "measurements" in Section 2(a) is wide enough to include voice sample and hence a Magistrate is competent to order a person to give his voice sample. The relevant passage in the decision is as under: "Be that as it may, the expression "measurements" occurring in Section 5 has been defined in Section 2(a), which reads thus:

2. Definitions. In that Act ....

(a) "measurements include fingerimpressions and footprint impressions".

90 For the reasons discussed above, I am unable to accept the views taken in the Bombay decision and to my mind the decision in Telgi (2005 Cri LJ 2668) is not the correct enunciation of law.

91 The Delhi High Court decision in the case of Bisht pertains to the period prior to June 23, 2006, when the amendments made in the Code of Criminal Procedure by Act 25 of 2005 came into effect. It, therefore, did not advert to Sections 53 or 311A and considered the issue of taking voice sample of the accused compulsorily, primarily in light of Section 73 of the Indian Evidence Act, 1872. Though the decision does not refer to the provisions of the Criminal Procedure Code that came into force on June 23, 2006, in my view, it arrives at the correct conclusions.

92 At this stage, I may also refer to the decision of this Court in State of Uttar Pradesh v. Ram Babu Misra (1980) 2 SCC 343 : (AIR 1980 SC 791) where the Court considered the issue whether the Magistrate had the authority to direct the accused to give his specimen writing during the course of investigation. The first thing to note in regard to this decision is Page 39 of 119 HC-NIC Page 39 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT that it was rendered long before the introduction of Section 311A in the Code of Criminal Procedure which now expressly empowers the Magistrate to order a person to give specimen signature or handwriting for the purposes of any investigation or any proceeding under the Code. In Ram Babu Misra the Court noted that signature and writing are excluded from the range of Section 5 of the Identification of Prisoners Act, though finger impression was included therein. In that decision the Court made a suggestion to make a suitable law to provide for the investiture of Magistrates with the power to issue directions to any person, including an accused person, to give specimen signatures and writings. The suggestions made by the Court materialized 25 years later when Section 311A was introduced in the Code of Criminal Procedure.

93 The decision in Ram Babu Misra was rendered by this Court on February 19, 1980 and on August 27, the same year, the Law Commission of India submitted its 87th Report which was aimed at a complete revamp of the Identification of Prisoners Act, 1920 and to update it by including the scientific advances in the aid of investigation. In paragraph 3.16 of the Report it was observed as under:

"3.16 Voiceprints furnish one example of physical evidence not dealt with by the Act Often, it becomes desirable to have an accused person speak for the purposes of giving to the police an opportunity to hear his voice and try to identify it as that of the criminal offender ? However, if the accused refuses to furnish such voice, there is no legal sanction for compelling him to do so, and the use of force for that purpose would be illegal." (Emphasis added.) Further, in paragraph 5.26 it was stated as under:

"5.26 Identification of voice - Present position The scope of section 5 needs to be expanded in another respect. The general power of investigation given to the police under the Criminal Procedure Code may not imply the power to require the accused to furnish a specimen of his voice. Cases in which the voice of the accused was obtained for comparison with the voice of the criminal offender are known but the question whether the accused can be compelled to do so does not seem to have been debated so far in India.

There is no specific statutory provision in India which expressly gives power to a police officer or a court to require an accused person to furnish a specimen of his voice ."(Emphasis added)

94 I am not suggesting for a moment that the above extracts are in any way binding upon the Court but they do indicate the response of a Page 40 of 119 HC-NIC Page 40 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT judicial mind while reading the provisions of the Indian Prisoners Act normally, without any urge to give the expression 'measurements' any stretched meaning.

95 The Report then discussed where a provision for taking voice sample can be appropriately included; whether in the Identification of Prisoners Act or in the Evidence Act or in the Code of Criminal Procedure. It concluded that it would be appropriate to incorporate the provision by amending Section 5 of the Identification of Prisoners Act as follows:

"5.32 (1) If a Magistrate is satisfied that, for the purpose of any investigation or proceeding under the Code of Criminal Procedure, 1973, it is expedient to direct any person

(a) to allow his measurements or photograph to be taken, or

(b) to furnish a specimen of his signature or writing, or

(c) to furnish a specimen of his voice by uttering the specified words or making the specified sounds.

the Magistrate may make an order to that effect, recording his reasons for such an order.

(2) The person to whom the order relates

(a) shall be produced or shall attend at the time and place specified in the order, and

(b) shall allow his measurements or photograph to be taken by a police officer, or furnish the specimen signature or writing or furnish a specimen of his voice, as the case may be in conformity with the orders of the Magistrate before a police officer.

(3) No order directing any person to be photographed shall be made except by a Metropolitan Magistrate or a Magistrate of the first class.

(4) No order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.

(5) Where a court has taken cognizance of an offence a Magistrate shall not under this section, give to the person accused of the offence any direction which could, under section 73 of the Indian Evidence Act 1872, be given by such Magistrate."

96 The Report as noted was submitted in 1980. The Code of Criminal Procedure was amended in 2005 when the Explanation was added to Page 41 of 119 HC-NIC Page 41 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT Section 53 and Sections 53A and 311A were inserted into the Code. Voice sample was not included either in the Explanation to Section 53 or Section 311A.

97 Should the Court still insist that voice sample is included in the definition of "measurements" under the Identification of Prisoners Act and in the Explanation to Section 53 of the Code of Criminal Procedure? I would answer in the negative."

29 A learned Single Judge of the Allahabad High Court in the case of Leena Katiar (supra) held as under:

"29. The question as to whether the trial court can order for taking the voice sample of accused, who are facing trial for being compared to the voice recorded in the audio C.D. Ex. Ka. 2 during investigation. Section 165 of the Evidence Act becomes relevant to be considered in this context which reads as follows: Section 165. Judge's power to put questions or order production. The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to crossexamine any witness upon any answer given in reply to any such question: Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under Section 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted."

30. Taking into account the powers of trial Judge as has been laid down in Section 165 of the Evidence Act, it is clear that the trial Judge is well within its jurisdiction in order to discover or to obtain proper proof of relevant facts call upon the accused persons to give their voice sample in the Court in order to determine their involvement in the crime and also to arrive a just decision of the case. It will be relevant to mention here that the accused is not being asked by the trial court about any fact which within his knowledge and if he compel to answer the same prejudice would Page 42 of 119 HC-NIC Page 42 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT be caused to him. In other words, the accused is not being asked by the trial court to be a witness against himself. In my opinion the voice sample is physical nontestimonial evidence, hence taking of voice sample cannot be held to be conceptually different from physical non testimonial evidence like DNA, semen, sputum, hair, blood, finger nails etc. Taking of voice sample does not involve any testimonial responses. In this regard Section 65B of the Evidence Act is relevant which is quoted hereinbelow: "Section 65B Admissibility of electronic records: (1)Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.(2) The conditions referred to in subsection (1) in respect of a computer output shall be the following, namely:

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) 'throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of subsection (2) was regularly performed by computers, whether

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period;

                or 


                                           Page 43 of 119

HC-NIC                                   Page 43 of 119     Created On Sat Aug 12 13:49:02 IST 2017
          R/SCR.A/5226/2015                                                        JUDGMENT

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in the section to a computer shall be construed accordingly. (4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c)dealing with any of the matters to which the conditions mentioned in subsection (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a mailer to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.]"

Page 44 of 119

HC-NIC Page 44 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT

31. Thus, from the above, it is clear that the voice recorded in the audio C.D. Ex. Ka. 2 is admissible under Section 65B of the Evidence Act, hence if the said evidence is to be proved by the prosecution then taking of voice sample of the accused by the trial court becomes essential to arrive at just decision of a case otherwise the said audio C.D. in which there is recording of conversation between the accused and applicant regarding demand of ransom of money for release of abductee/kidnapee would be a futile effort by the police to ascertain the complicity of the accused, hence the trial court was right in ordering to take voice sample of the accused persons. Hence, it appears from Section 165 of the Evidence Act that the trial Judge is empowered to order for taking of voice sample of accused for being compared to the recorded voice in audio C.D. Ex. Ka. 2 to ascertain the complicity of the accused persons in the present crime and once the trial court has ordered for the same it was not correct in dropping the idea for getting voice sample of the accused be taken and send for testing simply because of lack of facility in the district as well as in the State for getting the voice sample tested, hence the impugned order passed by the trial court is not sustainable in the eyes of law. Thus, the impugned order dated 7.1.2015 passed by the trial court is illegal and the orders dated 8.10.2014 and 31.10.2014 directing for taking of voice sample of accused persons was correct.

33. These days the manner in which the crime is being committed by the accused persons by adopting high materialized techniques and there is a great deal of technological advanced in means of communication and criminals are using new methodology in committing crimes. Use of landlines, mobile phone and voice over internet protocol (VOIP) in the commission of crimes like kidnapping for ransom, extortion, blackmail and for terrorist activities is rampant. The present case also falls in one of the such categories of crimes which has been committed by adopting advance means of communication and to ascertain the complicity of the accused persons in the crime and to do justice it is essential that the voice sample of the accused persons should be taken by the trial court and be sent for testing to the authorized laboratory with the recorded voice in audio C.D. by the police which is marked as Ex. Ka. 2. With utmost regard to Hon'ble Mr. Justice Aftab Alam, this Court in its humble opinion also agrees with the view taken by Hon'ble Mrs. Justice Ranjana Desia in the case of Ritesh Sinha vs. State of U.P. (Supra)."

30 I find reference in the judgment delivered by Her Ladyship Justice Ranjana Desai to a decision delivered by the Bombay High Court, in the case of Central Bureau of Investigation vs. Abdul Karim Ladsab Telgi Page 45 of 119 HC-NIC Page 45 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT [2005 Criminal Law Journal 2868], His Lordship A.M. Khanwilkar, J. (as His Lordship then was), in the said judgment, held as under:

"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 authorising 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, SubDivisional Magistrate, a Magistrate of the First Class and Metropolitan Magistrate."

Provided further, that no no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceedings."

It provides that when the Magistrate is satisfied, for the purpose of any investigation or proceeding under the Code of Criminal Procedure, 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 LJ 228) (supra), taperecorded conversation is comparable to photograph of the relevant incident. Be that as it may, the expression "measurements" occurring in Section 5 has been defined in Section 2(a), which reads thus :

2. Definitions. In that Act.........

Page 46 of 119

HC-NIC Page 46 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT

(a) "measurements include fingerimpressions and footprint impressions".

The said expression is an inclusive term, which also includes finger impressions and footprint 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 analysed or measured on the basis of time, frequency, and intensity of the speechsound 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 taperecorded 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 of 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 cooperate, the consequence therefor 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 reads 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 measurements or photograph under this Act shall be deemed to be an offence under Section 186 of the Indian Penal Code, 1860."

15. It is appropriate to advert to the dictum of the Apex Court in State of Bombay v. Kathi Kalu Oghad (1961 (2) Cri LJ 856) (supra). In Paragraph 10 of this decision, it is observed that no obstacles can be put in efficient and effective investigation into crime and of bringing criminals to justice. It is further observed that it is as such necessary to protect an accused person against being compelled to incriminate himself, as to arm Page 47 of 119 HC-NIC Page 47 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT the agents of Law and the law Courts with legitimate powers to bring offenders to justice. To my mind, therefore, the petitioner cannot be non suited merely because no specific provision has been referred to in the subject application filed before the lower Court. Any other approach would defeat the ends of justice.

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 not for and on behalf of the investigating agency of State of Maharashtra or Central Bureau of Investigation. Therefore, that cannot be the basis to nonsuit 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.

17. Even the last argument canvassed on behalf of the respondents that the stated telephonic tape conversation has been recorded during the investigation in relation to another offence registered in State of Karnataka and cannot be relied does not commend to me. As presently advised, I find substance in the argument of the petitioner that such evidence can be used in both the cases being common to both. However, I refrain from expressing any final opinion on this plea as, to my mind, the question of admissibility thereof, can be appropriately considered by the trial Court as and when the occasion arises. Suffice it to observe that this ground is not relevant to consider the limited relief claimed by the investigating agency at this stage of the proceedings in the subject application Exhibit 156.

18. Insofar 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.




                                             Page 48 of 119

HC-NIC                                      Page 48 of 119    Created On Sat Aug 12 13:49:02 IST 2017
                 R/SCR.A/5226/2015                                                      JUDGMENT

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."

31 A learned Single Judge of the Delhi High Court, in the case of Sudhir Chaudhary vs. State [2015(2) JCC 1447] held as under:

"13. The right against selfincrimination is an essential safeguard, both under the Constitution of India and Cr.P.C. The underline rationale behind it corresponds with two objectives - firstly that of ensuring that the statements made by the accused are reliable and secondly ensuring that such statements are voluntarily made. In several instances, a person suspected or accused of a crime may be compelled through methods of coercion, threats or inducement to testify on his/ her behalf. In such a case, there is a higher likelihood of such a testimony being false. A false testimony is undesirable because it impedes the integrity of a trial and subsequent verdict of the case. Involuntary or compelled testimony is more likely to mislead a Judge and a prosecutor thereby resulting in miscarriage of justice. Even during an investigation, false statement is likely to cause delay and obstruction in an investigation effort. If involuntary statements were readily given weightage during trial, investigator would have a strong incentive to compel such statements through methods involving coercion, threats, inducement or deception. It is for this reason the right guaranteed under Article 20(3) of the Constitution of India is considered as a "Fundamental Right‟. It serves as a check on police behavior during the course of investigation. Exclusion of compelled testimony is important otherwise investigators will be more inclined to extract information through compulsion as a matter of course. However, what is prohibited under Article 20(3) of Constitution of India is furnishing of information based on personal knowledge likely to lead to incrimination by itself or furnishing a link in the chain of evidence. The rule against self incrimination does not, however, prohibit (i) collection of material evidence such as bodily substances and other physical objects; and (ii) statement used for comparison with the facts already known to the investigator.



                                                Page 49 of 119

HC-NIC                                         Page 49 of 119    Created On Sat Aug 12 13:49:02 IST 2017
           R/SCR.A/5226/2015                                                      JUDGMENT

15. In Selvi and Ors. vs. State of Karnataka, (2010) 7 SCC 263, the Apex Court held: "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. The relevant consideration for extending the protection of Article 20(3) is whether the materials are likely to lead to incrimination by themselves or "furnish a link in the chain of evidence" which could lead to the same result. Hence, reliance on the contents of compelled testimony comes within the prohibition of Article 20(3) but its use for the purpose of identification or corroboration with facts already known to the investigators is not barred.

xxxx xxxx xxxx

153. Since the majority decision in Kathi Kalu Oghad [AIR 1961 SC 1808 : (1961) 2 Cri LJ 856 : (1962) 3 SCR 10] is the controlling precedent, it will be useful to restate the two main premises for understanding the scope of "testimonial compulsion".

The first is that ordinarily it is the oral or written statements which convey the personal knowledge of a person in respect of relevant facts that amount to "personal testimony" thereby coming within the prohibition contemplated by Article 20(3). In most cases, such "personal testimony" can be readily distinguished from material evidence such as bodily substances and other physical objects. The second premise is that in some cases, oral or written statements can be relied upon but only for the purpose of identification or comparison with facts and materials that are already in the possession of the investigators. The bar of Article 20(3) can be invoked when the statements are likely to lead to incrimination by themselves or "furnish a link in the chain of evidence" needed to do so. We must emphasise that a situation where a testimonial response is used for comparison with facts already known to the investigators is inherently different from a situation where a Page 50 of 119 HC-NIC Page 50 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT testimonial response helps the investigators to subsequently discover fresh facts or materials that could be relevant to the ongoing investigation."

16. A voice sample is like a finger print impression, signature or specimen handwriting. Like giving of fingerprint impression or specimen handwriting by an accused for the purpose of investigation, giving of voice sample for the purpose of investigation cannot be included in the expression "to be a witness". By giving a voice sample, the accused does not convey any information based upon his personal knowledge which can incriminate him. A voice sample by itself is fully innocuous. It is only used for the purpose of comparing it with the recorded conversation but it „by itself‟ is not a testimony at all. By giving a voice sample an accused, merely gives an „identification data‟. When an accused is asked to furnish a voice sample he is neither asked nor expected to furnish any statement based on his personal knowledge as would be barred under Article 20(3) of the Constitution of India. The only thing that is required of him while giving a sample is to read from a given text which gets recorded for comparative purpose. It is as, I have already observed, an identification data record which when compared with the previous recorded conversation with the help of mechanical process, may throw some light on the point in controversy.

17. The voice sample is not, in itself, a substantive piece of evidence. The use of such a sample is limited to the purpose for which it was collected. It cannot be considered in isolation and what is stated therein cannot be admitted as evidence before any Court on its own footing. The only use of such a sample is for comparison and no other.

18. In the instant case the petitioners are aggrieved by the order of learned Additional Sessions Judge whereby the trial court directed the CFSL Experts at CBI to prepare a "text intermixed with sufficient sentences from questioned text". Observed in the light of the decisions of the Hon'ble Supreme Court in 'Selvi & Ors.' (supra) and „Kathi Kalu Oghad' (supra), the contention of the petitioners that such a direction is violative of Article 20(3) of the Constitution of India does not find favour with this Court Firstly, because the petitioners are not forced to give their voice sample. On the other hand they have volunteered to give such a sample. Secondly, as I have already observed, that a voice sample is not "evidence‟, which can be used in isolation from the main recording to which it is to be compared with. Its use is only comparative. What is contained in such a sample is not based on the „personal information‟ of accused. It is merely a reading of material given to him.

19. Furthermore, an expert carrying out scientific analysis and the process of comparison is the best Judge to decide the sample which he needs for such an analysis. Where the CFSL experts at CBI have opined that best Page 51 of 119 HC-NIC Page 51 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT result would be obtained when sufficient common sentences to the questioned voice recording are present in the sample for spectrographic examination, it would be unfair to provide altogether a different text, devoid of such "common sentences‟, and to expect accuracy in their result. However, not delving into the question of evidentiary value of opinions/ results of such experts, it would be sufficient to state at this stage, even at the cost of repetition, that merely because the text provided to the petitioners contain some inculpatory statements, it would not mean that the petitioners are forced to be witness in their own case.

20. The apprehension of the petitioners of a possible misuse of the voice recorded was also taken into consideration by learned Additional Sessions Judge. It is for this reason that the Revisional Court directed the CFSL experts at CBI to prepare a text containing parts from both questioned text and other text.

21. The petitioners have also relied upon the judgment of this Court in 'Sayeed Ahmad v. State' 2010 (2) JCC 1416. The observations in 'Sayeed Ahmad case' (Supra) were given in a context where the handwriting specimen was obtained by the officer when the accused therein were in custody without complying with the provisions of the Identification of Prisoners Act 1920. In this context it was observed by this Court after considering the judgments in 'Sukhvinder Singh & Ors. v. State of Punjab' 1994 (5) SCC 152, 'State of U.P. v. Rambabu Mishra' AIR 1980 SC 791 and 'State of Haryana v. Jagbir Singh & Ors.' AIR 2003 SC 4377, that anything personal to an accused obtained for the purpose of comparison with the suspected sample if obtained without the permission of the competent court and without accused being identified as required by the provisions of the Identification of Prisoners Act 1920 has to be ignored. The provisions of law stated in this judgment are not disputed."

32 The decision of the Delhi High Court referred to above in the case of Sudhir Chaudhary (supra) was challenged before the Supreme Court. The Supreme Court held that the process for drawing the voice sample must be fair and reasonable having due regard to the mandate of Article 21 of the Constitution. The Court observed that it is not open to an accused to dictate the course of investigation. I may quote the relevant observations as under:

"7 The order of the ACMM was questioned before the Delhi High Page 52 of 119 HC-NIC Page 52 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT Court. By a judgment and order dated 11 February 2015, a learned Single Judge held that the purpose of a voice sample is to facilitate the process of comparing it with a recorded conversation. The voice sample is not a testimony in itself since it only constitutes what was described as 'identification data'. A voice sample, in the view of the High Court is not a substantive piece of evidence. The High Court rejected the submission that the direction to furnish a voice sample was in violation of the fundamental right under Article 20(3) of the Constitution since firstly, the Appellants had not been forced or coerced into furnishing such a sample since it was they who had furnished their consent; secondly, a voice sample is not evidence since its purpose is only to compare it with the questioned text. In the view of the High Court, once the Appellants had furnished their consent to furnishing their voice samples, it was not open to them to dictate the course of investigation. This order is called into question.

8 Learned senior counsel appearing on behalf of the Appellants submitted that while it is true that the Appellants have consented to the drawing of their voice samples (a concession which was reiterated before this Court in the course of the submissions) yet the process of drawing the samples must be fair, so as to be consistent with the right of the Appellants under Article 21 of the Constitution. The requirement of a fair investigation, it was urged, is implicit in Article 21 and the procedure which is adopted for drawing a voice sample must be fair and reasonable.

9 The Appellants expressly consented to a voice sample being drawn, in their response to the application that was filed by the Investigating officer before the Court of Metropolitan Magistrate. This was reiterated before the High Court. In the submissions which have been urged in these proceedings, learned counsel has specifically stated that the Appellants would abide by the consent which they had furnished to their voice samples being drawn. That being the position, the only surviving issue for this Court is to ensure that the underlying process for drawing the voice samples is fair and reasonable, having due regard to the mandate of Article 21. On the one hand, it is not open to the accused to dictate the course of investigation. Hence, we do not find substance in the submission that the text which is to be read by the Appellants in the course of drawing their voice samples should contain no part of the inculpatory words which are a part of the disputed conversation. A commonality of words is necessary to facilitate a spectrographic examination.

10 By our order dated 17 November 2015, this Court allowed an adjournment to the Respondent to seek instructions from the expert concerned whether or not a sample of words in such number as the expert may suggest would suffice for the experts to give their opinion by scientific voice sampling methods. Accordingly, a brief note has been filed on the record stating that:

Page 53 of 119

HC-NIC Page 53 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT "That the experts of the Central Forensic Science Laboratory (CFSL) have informed that two separate texts/scripts have been prepared in the laboratory from each Speaker/Accused, which are different from the received transcripts. That the text/script prepared by the CFSL experts cannot be provided to the petitioners in advance as there is apprehension that the petitioner may practice the texts/scripts thereby adversely affecting the voice sampling examination. Accordingly it is submitted that the sample/modal text/script can only be supplied to the speakers/Accused if this Hon'ble Court deems it appropriate."

11 By an Order of this Court dated 1 July 2016, the Investigating officer was directed to file a transcript of the disputed conversation in a sealed cover. The Director CFSLCBI, was called upon to file in a sealed cover a proposed passage of a written text which the Appellants shall be required to read out for the purpose of giving their voice samples using words, but not the sentences, appearing in the disputed conversation in such number as the Director/Scientific Officer may consider necessary for the purpose of comparison."

33 Let me now look into the decisions which are in tune with the view expressed by His Lordship Justice Aftab Alam that in the absence of any specific provision empowering the Magistrate to order the accused to lend his voice for the purpose of identification, no such order can be passed or it will not be permissible for the Investigating Officer to subject the accused to the Voice Spectrography Test. A learned Single Judge of the Delhi High Court, in the case of Rakesh Bisht vs. Central Bureau of Investigation [2007 Criminal Law Journal 1530] has held that there is no provision in the Cr.P.C. or in any other law which empowers the Court to order the accused to lend his voice. I may quote the relevant observations as under:

"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 Page 54 of 119 HC-NIC Page 54 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT recently come into operation on 2362006 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 (1961 (2) Cri LJ 856) (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 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 fingers 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 "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. Selfincrimination 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.




                                             Page 55 of 119

HC-NIC                                     Page 55 of 119     Created On Sat Aug 12 13:49:02 IST 2017
            R/SCR.A/5226/2015                                                        JUDGMENT

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 (1961 (2) Cri LJ 856) (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" alleged to have been in his handwriting and said to have been given by him. In order to prove that Exhibit5 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, Exhibit5 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 19, in view of the provisions of Article 20(3) of the Constitution. So, it is clear that in 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 figure 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 Page 56 of 119 HC-NIC Page 56 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT to taking of voice samples.

13. An examination of the decision in Kathi Kalu (1961 (2) Cri LJ 856) (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 "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 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 :

2003 (6) SCC 195 : (2003 Cri LJ 3117) 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 by the officer in charge of the police station in Court under Section 173 (2), Cr. P.C., 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 (AIR 1980 SC 791) (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 Page 57 of 119 HC-NIC Page 57 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT 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 S. 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, S. 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 S. 73 of the Evidence Act on the plea that it would help him to decide whether to 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 S. 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 (2003 Cri LJ 5054) (supra), the Supreme Court, following the decision of Ram Babu Misra (AIR 1980 SC 791) (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 proceedings 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 Page 58 of 119 HC-NIC Page 58 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT 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 (AIR 1980 SC 791) (supra) and Jagbir Singh (2003 Cri LJ 5054) (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 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 (2003 Cri LJ 3117) (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 (2005 Cri LJ 2868) (supra) because there the Court directed the taking of voice samples even at the stage of investigation.




                                              Page 59 of 119

HC-NIC                                      Page 59 of 119     Created On Sat Aug 12 13:49:02 IST 2017
            R/SCR.A/5226/2015                                                        JUDGMENT

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 : (2007 Cri LJ 298) 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, an 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 62006, whereas the impugned order was passed on 1962006. 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 of 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 Magistrate 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 Page 60 of 119 HC-NIC Page 60 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT Babu Misra (AIR 1980 SC 791) (supra). It is amply clear that dehors 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 1962006 is set aside. These revision petitions are allowed."

34 A learned Single Judge of the Calcutta High Court in the case of Dwijadas Banerjee and Pritimoy Panda @ Pitu Panda vs. State of West Bengal [2005 Criminal Law Journal 3151] held as under:

"17. The decision of Kathi Kalu Oghad reported in AIR 1961 SC 1808 :

(1961(2) Cri LJ 856) is not properly applicable as in the said decision it was not considered by the Constitutional Bench whether a direction for giving specimen handwriting or voice can be given when the matter is still under investigation. In this connection I rely upon a decision of the Supreme Court in State of Uttar Pradesh v. Ram Babu Misra reported in AIR 1980 SC 791. In this decision the Supreme Court has observed that, "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 of Evidence Act 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." In the said decision the Supreme Court distinguished the decision of Kathi Kalu Oghad (supra) and made it clear that in Kathi Kalu Oghad (supra) the question which was actually decided was that no testimonial compulsion under Article 20 (3) of the Constitution was involved in a direction to give specimen signature and handwriting for the purpose of comparison. In Kathi Kalu Oghad's case it was not considered by the Supreme Court whether such a direction under Section 73 of the Evidence Act can be given when the matter is still under investigation and there is no proceeding before the Court.





                                                 Page 61 of 119

HC-NIC                                          Page 61 of 119    Created On Sat Aug 12 13:49:02 IST 2017
           R/SCR.A/5226/2015                                                      JUDGMENT

18. The Identification of Prisoners Act referred to by the learned Public Prosecutor are not applicable in the present case. Section 3 of the said Act deals with taking of measurement of convicted persons and accordingly not applicable. Section 4 deals with taking of measurement of non convicted persons and Section 5 deals with power of Magistrate to order a person to be measured or photographed. These two sections cannot come in relation to order directing rendition of voice as rendition of voice is to some extent different from measurement and photograph.

19. In the case of Smt. Nandini Satpathy (1978 Cri LJ 968) (supra) the Supreme Court considered the constitutional bar under Section 161(2) of Cr. P. C. and Article 20(3) of the Constitution and made it clear that during the stage of investigation the accused has a right to keep silence and an accused cannot be compelled to break his silence. It was observed by the Supreme Court that the accused is entitled to keep his mouth shut if answer sought has a reasonable prospect of exposing him to guilt in some other accusation actual or imminent, even though the investigation under way is not with reference to that.

20. In a recent decision in State of Haryana v. Jagbir Singh reported in 2004 SCC (Cri) 126 : (2003 Cri LJ 5054) the Supreme Court again reiterated the same view that the Court has no power to direct accused to give specimen signature for comparison during investigation. The observation of the Supreme Court in connection with the above stated case are as follows :

"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 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 investigation 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."

21. The above discussion signifies that during stage of investigation direction to accused for giving specimen writing cannot be given.




                                          Page 62 of 119

HC-NIC                                   Page 62 of 119    Created On Sat Aug 12 13:49:02 IST 2017
                   R/SCR.A/5226/2015                                                     JUDGMENT

Similarly, during the stage of investigation in this mater the Court cannot direct the accused for rendition of his voice to the I. O. for comparison. Power of comparison lies with Court only and such power cannot be exercised by I. O. and a Magistrate or Sessions Judge by their order cannot vest or delegate such power to I. O. during stage of investigation.

22. The aforesaid discussions makes it clear that the power of comparison either handwriting, or finger print or voice lies with the Court, if it is required by the Court in any trial or proceeding for just decision of the case. Power of comparison cannot be exercised by I. O. during the stage investigation and accused cannot be put under compulsion to give statement or voice again for the purpose of comparison by the I. O. during stage of investigation when already earlier statement, i.e. voice has been recorded. Power of comparison of voice of these two accused petitioners through tape record may be done only by Court in any proceeding or trial and the Court or a Magistrate cannot direct the I. O. to use such power during the stage of investigation. The order of the learned SDJM, Alipore as well as the order of the learned Sessions Judge, South 24 Parganas at Alipore was, therefore, not in accordance with law and are accordingly set aside."

         ●       ANALYSIS: 

         35     Of  all   the  functions   of   the   police,   the  investigation  is   the   most

important and vital one. In the constantly evolving socioeconomic scenario the criminals using sophisticated tools and techniques commit more and more crimes. In order to overcome these complexities the police all over the world are depending more and more on the scientific methods of investigation. A wide range of scientific techniques are now available for the analysis of varied nature of objects and materials encountered in the process of commission of crime by the culprit in and around the crime scene, on the suspect and victim. The study of such material evidence also known as the objective evidence or physical evidence applying the latest scientific tools and techniques for proving the guilt or innocence of the accused by the courts of law is broadly known as the Forensic Science.





                                                 Page 63 of 119

HC-NIC                                         Page 63 of 119     Created On Sat Aug 12 13:49:02 IST 2017
                   R/SCR.A/5226/2015                                                  JUDGMENT



         36     The   applications/aid   of   science   to   the   crime   investigation   is

fundamentally one of reconstruction, that is, trying to assist in determining what happened, where it happened, when it happened, and who was involved. It is not concerned with, and cannot determine, why something happened. Forensic analysis is performed on evidence to assist the police and the court in establishing the physical facts so that the criminal or civil disputes can be resolved. It is the job of the forensic scientist to translate the legal inquiry into appropriate scientific questions, and to advice the Investigating Officer and / or the judiciary on the capabilities, limitations and results of the analytical techniques.

37 In forensic science, the laws of various facets of science are applied in conducting an analysis to determine the nature and characteristics of Physical Evidence collected in the process of crime or civil investigation. Using the scientific methods, inferences are drawn about how the evidence can be linked to the crime and criminal. These inferences are thus connected to the events that may or may not have taken place in connection with the said evidence. The law defines elements of a crime; science contributes information to assist in determining whether an element is present or absent.

38 It is an established fact that the criminals while committing crimes either due to carelessness or due to anxiety, or due to contact with other objects leave traces at the scenes and these are the basis for scientifically exploiting their culpability. This physical evidence when located, collected, preserved and forwarded for scientific evaluation the report is bound to have enormous potential in linking the criminal to the crime scene, victim or any other circumstances leading to the crime. Moreover the evidence collected and based on scientific evolution and report is unbiased, universally acceptable and also stands the test of time.



                                              Page 64 of 119

HC-NIC                                       Page 64 of 119    Created On Sat Aug 12 13:49:02 IST 2017
                   R/SCR.A/5226/2015                                                    JUDGMENT




         39     The   traditional   evidence   against   an   accused   is   in   the   form   of

eyewitnesses, confession and statement of approval. The eyewitnesses have now become a rare species, the reason being due to the technological development the modus operandi of committing a crime has changed. Crimes are now committed wellplanned. In the recent past, the Supreme Court had to observe that the culture of settlement has led to the witnesses turning hostile and not supporting the case of the prosecution.

40 In the recent world of technology, there are many methods to determine the individuality of a person. One of them is the voice - unique individual characteristic. Each person's voice is different because the anatomy of the vocal cords, vocal cavity, oral and nasal cavities is specific to the individual. The comparing of two recorded speech by means of spectrogram or voice prints is essential and important for the purpose of criminal cases such as murder, rape, drug dealing, bomb threats, corruption and terrorism. The Investigator has two complementary ways of making the identification through voice analysis. First, he or she will listen to the evidence sample and the sample taken from the suspect, comparing accent, speech habits, breath patterns and inflections. Then a comparing of the corresponding voice prints is made. Sometimes, voice is the only clue for the police and Forensic Scientists to identify the criminal. Especially in cases of telephoned bomb threat, demand of money in corruption and kidnapping cases etc. Speech sounds come from the vibration of the vocal cords inside the larynx or voice box. The cavities of the mouth, nose, and throat act as resonators, making the sounds louder. The teeth, lips, tongue, hard and soft palate are the articulators that shape the sounds into speech.



                                                Page 65 of 119

HC-NIC                                        Page 65 of 119     Created On Sat Aug 12 13:49:02 IST 2017
                   R/SCR.A/5226/2015                                                  JUDGMENT




              ●  SPECTROGRAPHIC ANALYSIS: 

         41     Spectrographic analysis is the technique of voice identification (or

elimination) by means of "voiceprints." A voiceprint may be defined as "a pictorial representation of the acoustical energy output of a speaker, as a function of time, frequency and amplitude." [K. Thomas, "Voiceprint - Myth or Miracle," in Imwinkelried, supra, note 28, 1015 at p. 1020] Essentially, there are two types of voiceprint that may be produced for analysis in this technique: (1) bar spectrograms, " showing the resonance bars of the voice with dimensions of time, frequency and loudness"

(most useful in matching known and unknown voice samples); [Moenssens and Inbau, supra, note 28, at p. 571] and (2) contour spectrograms, "measuring levels of loudness, time and frequency in a shape much like a topographical map" (most useful in computerized spectrographic classification). [ibid] Voice identification is accomplished by subjective visual comparison of voiceprints from known and unknown sources in much the same way as the fingerprints are compared. As Tosi has noted, "any method of identification or elimination has to be based on parameters that vary differently or less within the individual than among different persons." [O. Tosi, "Voice Identification," in Imwinkelried, supra, note 28, 971 at p. 973.] Spectrographic analysis is accordingly premised on the theory (1) that the anatomical characteristics of people's speech organs differ significantly, and (2) that the habit patterns with regard to the way a given individual uses his or her speech organs are different but consistent. [Thomas, supra, note 108, at p.1025]. The validity of this theory is, however, a hotly debated issue. [According to one of its detractors (Thomas, supra, note 108, at p.1026].



                                              Page 66 of 119

HC-NIC                                      Page 66 of 119     Created On Sat Aug 12 13:49:02 IST 2017
                   R/SCR.A/5226/2015                                                        JUDGMENT

Spectrographic voice identification requires nothing of the suspect beyond the furnishing of a voice sample, either in the presence of a tape recorder or, depending on the circumstances, over a telephone line to which a recording device has been connected. The suspect is required to repeat sentence by sentence (perhaps several times) the words that have been transcribed from the recording of the known voice with which his or her voice is to be compared. [Tosi, supra, note 113, at pp. 110111] 42 In a decision rendered by the Supreme Court of California in the case of the People vs. Kelly [Criminal No.19028 decided on 28th May 1976], Justice Richardson has explained in his own words 'the Voice print Technique'. I may quote the same:

"Voice print analysis is a method of identification based on the comparison of graphic representations or "spectrograms" made of human voices. The method utilizes a machine known as a spectrograph which separates the sounds of human voices into the three component elements of time, frequency and intensity. Using a series of lines or bars, the machine plots these variables across electronically sensitive paper. The result is a spectrogram of the acoustical signal of the speaker, with the horizontal axis representing time lapse, the vertical axis indicating frequency, and the thickness of the lines disclosing the intensity of the voice. (See generally, People v. Law (1974) 40 Cal. App. 3D 69, 7576 [114 Cal. Rptr. 708]; People v. King (1968)266 Cal. App. 2D 437, 447449 [72 Cal. Rptr. 478]; Comment, Evidence: Admissibility of Spectrographic Voice Identification (19711972) 56 Minn.L.Rev. 1235, 1239; Comment, The Voiceprint Dilemma: Should Voices be Seen and not Heard? (1975) 35 Md.L.Rev. 267.) Spectrograms are taken of certain cue words, such as "the," "me," "on," "is," "I," and "it," spoken by a known voice and an unknown voice. An examiner then visually compares the spectrograms of the same words, as spoken, and also listens to the two voices. Based upon these visual and aural comparisons, the examiner states his opinion whether or not the voices, known and unknown, are the same. (Comment, supra, 35 Md.L.Rev. at p. 270, fns. 13, 16.) Since the identification process is essentially an exercise in pattern matching, the examiner's opinion is to a large extent a subjective one based upon the relative aural similarity or dissimilarity of the two voices and visual [17 Cal. 3d 30] comparison of their spectrograms. (People v. Law, supra, at p. 79, fn. 10.) Page 67 of 119 HC-NIC Page 67 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT In some instances, the examiner is unable to declare positively either that there is a match or nonmatch of the sample tests, in which event no opinion is rendered. (Comment, supra, at p. 270.)"

● PSYCHIATRIC EXAMINATION:

43 A thorough psychiatric examination is generally comprised of three elements: physical examination; psychological testing; and personal psychiatric interview [Schiffer, supra, note 70, at p. 23] .

Physical testing is aimed generally at detecting organic abnormality which may be relevant to the accused's alleged criminal behaviour. It involves such procedures as: blood tests (i.e., for detecting possible lead or alcohol poisoning, anemia, syphilis, etc.); urinalysis (useful in detecting diabetes or hypoglycemia); routine chest and skull Xrays; and perhaps such special organic and neurological tests as pneumoencephalography, electroencephalography and spinal fluid examination (useful in the diagnosis of neurological and organic brain disorders such as meningitis, tumours, epilepsy, brain injury and neurosyphilis)."

Psychological tests (administered by clinical psychologists) fall generally into three categories : [ibid., at pp.2425] intelligence tests (in which the subject is required to solve problems or answer quizlike questions [£.#.: the StanfordBinet test or WechslerBellevue Intelligence Scale for Adolescents and Adults (WAIS)]; personality and behavioural questionnaires (in which the subject is required to answer questions about him or herself [E.g.: the Minnesota Multiphasic Personality Inventory (MMPI)]; and projective tests (in which the subject may be required to do various things, such as interpret the meaning of a picture, [i.e., the Thematic Apperception Test (TAT)] tell what a series of ink blots look like to him or her, i.e., the Rorschach Test Page 68 of 119 HC-NIC Page 68 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT or draw a picture of a person). [i.e., the DrawAPerson (DAP) Test] Additional tests may be given to measure intellectual impairment. [E.g.:

the BenderGestalt, GoldsteinScheerer, ShipleyHartford, Graham Kendall Memory for Designs or Wechsler Memory Scale Tests.] The personal psychiatric interview, as one would expect, takes the form of a conversation between the psychiatrist and the subject. Though it is not easily defined, Sullivan has enumerated its general characteristics, describing it in part as:

...a situation of primarily vocal communication in a two group, more or less voluntarily integrated, on a progressively unfolding expert client basis for the purpose of elucidating characteristic patterns of living of the subject person, the patient or client, which patterns he experiences as particularly troublesome or especially valuable.... [H. S. Sullivan, The Psychiatric Interview (New York: W. W. Norton, 1970) at p. 4 (emphasis included). See also CD. Webster, R. J. Menzies and M. A. Jackson, Clinical Assessment Before Trial: Legal Issues and Mental Disorder (Toronto: Butterworths, 1982) at pp. 2427] As Stevenson has further noted, the interview need not conform to any specific format. As he has written:

Formerly a questionandanswer type of interview satisfied the requirements of psychiatric interviewing, as it did and still does satisfy those of medical historytaking with regard to exclusively physical illnesses. But the modern psychiatric interview, though it includes questions, puts much more emphasis on a freeflowing exchange between the psychiatrist and the patient. [I. Stevenson, "The Psychiatric Interview," in S. Arieti, ed., American Handbook of Psychiatry, 2nd ed., vol. 1 (New York: Basic Books, 1974) 1138 at p. 1138] Page 69 of 119 HC-NIC Page 69 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT This is not to say, however, that the goals of any psychiatric interview and the factors being assessed are not clearly defined. In their outline of a typical psychiatric examination, Stevenson and Sheppe have enumerated several key areas on which the psychiatrist is trained to focus. These include: the subject's emotions; his or her behaviour (including the potential for destructive behaviour); intelligence (including vocabulary, range of information, memory and judgment); thought processes (including speed, accuracy and clarity of thought, capacity for higher forms of thinking and rigidity of thought processes); thought content (including central themes, abnormalities of thought content, selfconcept and insight) and perceptions (including misperceptions, illusions, hallucinations, attention and orientation). [I. Stevenson and W. M. Sheppe, Jr., "The Psychiatric Examination," in Arieti, supra, note 127, 1157 at pp. 11621170]. In conducting his or her evaluation, moreover, the psychiatrist may pay as much attention to nonverbal indicia (for example, facial expressions, gestures, postures, and so forth) as to the information verbally communicated by the subject. [Ibid., Sit p. 1172] In forensic examinations, the psychiatrist may or may not directly question the subject concerning the offence he or she is suspected or alleged to have committed. As Davidson has written:

In Britain it is considered unsporting for the doctor to ask the accused whether he has committed the crime, but American psychiatrists often find it impossible to conduct a thorough mental examination without somehow touching on that point. [H. A. Davidson, Forensic Psychiatry, 2nd ed. (New York: Ronald Press, 1965) at p. 36] 44 I am of the view having regard to the above that the Voice Page 70 of 119 HC-NIC Page 70 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT Spectrography Test will not fall within the ambit of psychiatric treatment. I have no hesitation in arriving at the conclusion that the principles explained by the Supreme Court in the case of Selvi (supra) would not apply to the Voice Spectrography Test, and therefore, the contention of the learned counsel as regards violation of Article 20(3) of the Constitution of India i.e. testimonial compulsion should fail.

45 In Selvi (Supra), the legality of the three scientific tests namely (i) Narcoanalysis, (ii) Polygraph test (Lie Detector Test) and (iii) BEAP (Brain Electrical Activation Profile) Test were challenged inter alia on the grounds that a direction to the accused to undergo those tests violate the rights guaranteed to the accused under Articles 20 and 21 of the Constitution of India and under Section 161(2) of Cr.P.C. It is undisputed that for conducting Narcoanalysis test intravenous injection of Sodium Pentothal will be given to the subject of the test and due to which the subject of the test goes into hypnotic trance. In polygraph test, some instruments like cardiographs, pneumographs, cardiocuffs, sensitive electrodes etc. would be attached to the subject's body before measuring physiological responses. In BEAP test, electrical waves emitted from the subject's brain would be recorded by attaching electrodes to his scalp. Considering the nature of the three tests, the entire technical processes involved in the conduct of the said techniques/tests and the legal position, the Supreme Court held as follows:

"The National Human Rights Commission had published Guidelines for the Administration of Polygraph Test (Lie Detector Test) on an accused in 2000. These Guidelines should be strictly adhered to and similar safeguards should be adopted for conducting the "narcoanalysis technique"

and the "Brain Electrical Activation Profile" test. The text of these Guidelines has been reproduced below :

Page 71 of 119

HC-NIC Page 71 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT

(i) No lie detector tests should be administered except on the basis of consent of the accused. An option should be given to the accused whether he wishes to avail such test.

(ii) If the accused volunteers for a lie detector test, he should be given access to a lawyer and the physical, emotional and legal implication of such a test should be explained to him by the police and his lawyer.

(iii) The consent should be recorded before a Judicial Magistrate.

(iv) During the hearing before the Magistrate, the person alleged to have agreed should be duly represented by a lawyer.

(v) At the hearing, the person in question should also be told in clear terms that the statement that is made shall not be a "confessional"

statement to the Magistrate but will have the status of a statement made to the police.

(vi) The Magistrate shall consider all factors relating to the detention including the length of detention and the nature of the interrogation.

(vii) The actual recording of the lie detector test shall be done by an independent agency (such as a hospital) and conducted in the presence of a lawyer.

(viii) A full medical and factual narration of the manner of the information received must be taken on record."

In paragraphs 263, 263 and 264 while concluding, the Supreme Court recorded findings only in regard to the impugned three techniques referred to above. So far taking of voice sample is concerned, the body of the subject will not be subjected to any scientific processes or techniques as required in the other three scientific techniques namely, (i) Narcoanalysis, (ii) Polygraph Test (Lie Detector Test) and (iii) BEAP (Brain Electrical Activation Profile), and therefore, it cannot be said that directing the accused to undergo the Voice Spectrography Test subjects him to any involuntary process violating the privacy and further compels to a witness against himself.



         46     Article   20(3)   of   the   Constitution   has   been   borrowed   from   the 

                                                    Page 72 of 119

HC-NIC                                             Page 72 of 119    Created On Sat Aug 12 13:49:02 IST 2017
                  R/SCR.A/5226/2015                                                      JUDGMENT

United States of America. The Fifth Amendment of America constitution provides that no person shall be compelled in any criminal case to be a witness against himself. In Vol. 22 A Corpus Juris Secundum Para 649, the law on the subject has been stated as under :

"Under the common law principle condemning compulsory self incrimination and constitutional provisions declaratory thereof, incriminating evidence produced by the accused under compulsion is inconsistent; but the protection is generally confined to evidence produced by testimonial compulsion.

........................

The more general view is that the constitutional guarantee renders incompetent only such evidence as is furnished or produced by accused under "testimonial compulsion" such as disclosures obtained by legal process against him as a witness. As otherwise stated, the rule against self incrimination extends only to communications, written or oral, on which reliance is to be placed as involving accused's consciousness of the facts and the operation of his mind in expressing it. The test of admissibility under the majority rule has been said to be whether the proposed evidence depends for its probative force on the testimonial responsibility of accused, or has such force in itself unaided by any statement of accused."

In para 651(a) of the same volume :

"Generally, the constitutional guarantee against selfincrimination does not preclude the admission of real evidence produced by a reasonable examination of the body of accused; and the admission in evidence of the findings of experts of a physical or mental examination of the accused does not ordinarily violate his privilege, at least where the examination is without any compulsion.

......................

In State v. Green, 86 SE 2nd 596 : 227 SC 1, it was held by Supreme Court that such evidence is admissible even where the examination is compulsory and imposed on accused against his Will, provided accused is not compelled to answer any question propounded to him by those making the examination."

And in para 651(b) :

"The admission in evidence of the results of a scientific examination of a Page 73 of 119 HC-NIC Page 73 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT substance taken from the body of the accused does not violate his privilege against selfincrimination where the substance was taken without his consent under circumstances not amounting to a physical invasion of his body in violation of due process.

.................

Such rule applies with respect to the taking of a blood sample from accused, and the testing of accused's blood, breath, or urine for alcoholic content and consequent intoxication; and this is the rule even though accused was not warned at the time of giving a specimen that it might be used against him in a prosecution."

In Wigmore's Classic Commentary on Evidence (Vol. VIII 1961 Ed) in para 2265 the law on 'SelfIncrimination Privilege' has been stated as follows :

"The limit of the privilege should be plain. From the general principles it results that an inspection of the bodily features by the Tribunal or by witness does not violate the privilege because it does not call upon the accused as a witness i.e. upon his testimonial responsibility. That he may in such cases be required sometimes to exercise muscular as when he is required to take off his shoes or roll up his sleeve is immaterial unless all bodily action were synonymous with testimonial utterance, for as already observed, not compulsion alone is the component idea of the privilege, but testimonial compulsion. What is obtained from the accused by such action is not testimony about his body, but his body itself. Unless some attempt is made to secure a communication written, oral or otherwise upon which reliance is to be placed as involving his consciousness of the facts and the operation of his mind in expressing it, the demand made upon him is not a testimonial one......."

47 In the same paragraph the learned author has noticed large number of decisions given by the Courts in America where examination of the body of the suspect for identifying characteristics or examination of the body of a suspect, including his private parts for evidence of disease, or crime or extraction of substance from inside the body of a suspect for purposes of analysis and use in evidence, has been ruled as not covered by the privilege. Reference to some of them is being given Page 74 of 119 HC-NIC Page 74 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT below.

(1) Murder Specimen of blood obtained from accused admitted. Davis v. State, 189 Md 640, 57 A 2d 289 (1948); State v. Alexander, 7 NJ 585, 83 A 2d 441 (1951).

(2) Death by driving automobile while intoxicated, sample of blood taken from defendant who was unconscious result of test admitted. Kallanbach v. People, 125 Colo 144, 242 P. LE 2d 222 (1952).

(3) Blood specimen obtained without defendants knowledge or consent doctors testimony about alcoholic content admitted. People v. Tucker, 105 Cal App 2d 333, 193 P. 2d 941 (1948). Schacht v. State, 154 Neb 858; 50, NW 2d 78 (1951).

(4) Homicide evidence as to defendants blood type, blood taken while he was in jail awaiting trial, without consent admitted. State v. Alexander 7 NJ 585, 83A. 2d 441 (1951).

(5) Murder no denial of constitutional privilege to use scrapings from under fingernails taken against the Will.

State v. Mc Laughlin, 138 La 958, 70 So 925 (1961).

48 It may be mentioned here that due to Phenominal increase in crime and highly sophisticated methods adopted by the criminals, the State is confronted with overwhelming difficulties in detection and prosecution of crime. In the case of a large number of offences the proof is difficult, if not impossible, of ascertainment without the testimony of individuals accessory to the act. Eminent Jurists even in U.S.A. are divided in their opinion as to whether the privilege against self Page 75 of 119 HC-NIC Page 75 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT incrimination should be retained. Cardozo, J. in Palko v. Connecticut, 302 U.S. 319 (1937) said as follows :

"Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without......the immunity from compulsory self incrimination. This too might be lost, and justice still done. Indeed, today as in the past there are students of our penal system who look upon the immunity as a mischief rather than a benefit, and who would limit its scope, or destroy it altogether. No doubt there would remain the need to give protection against torture, physical or mental. Justice, however, would not perish if the accused were subject to a duty to respond to orderly inquiry."

49 Some Jurists have said that the privilege is a hiding place of crime and only the guilty have use for the privilege.

50 It may be mentioned here that the crime scenario in the country has undergone a sea change in the recent times. Criminals are using the most sophisticated weapons and highly specialised means to achieve their objective. Highly sophisticated devices like blasting of land mines by remote control are being used to thwart the law enforcement machinery from doing its duty. The change in the pattern of crime and mode of its commission requires modern scientific methods of crime detection so that the criminals may not move about with impunity holding the entire community at ransom.

51 The above takes me to consider the provisions of the Identification of Prisoners Act, 1920. In the statement of Objects and Reasons attached to the Bill which eventually became the Identification of Prisoners Act, XXXIII (33) of 1920, the necessity for the law relating to the identification of prisoners has been explained as follows :

"The object of the Bill is to provide legal authority for the taking of Page 76 of 119 HC-NIC Page 76 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT measurements, finger impressions, footprints and photographs of persons convicted of or arrested in connection with certain offences. The value of the scientific use of finger impressions and photographs as agents in the detection of crime and the identification of criminals is well known, and modern developments in England and other European countries render it unnecessary to enlarge upon the need for the proposed legislation.

The existing system by which the Police in India take finger impressions, photographs etc., of criminals and suspected criminals is void of legal sanction, except as regards registered members of criminal tribes, in whose case provision exists for the taking of finger impressions in Section 9 of Criminal Tribes Act, 1911 (III (3) of 1911). The need for legalising the practice has long been recognised, but it was not thought expedient to take the matter up so long as no practical difficulties arose. Instances have recently been reported to the Government of India where prisoners have refused to allow their finger prints or photographs to be taken. With a view to prevent such refusals in future it is considered necessary without further delay to place the taking of measurements etc., which is a normal incident of police work in India as elsewhere, on a regular footing."

52 Sections 3, 4 and 5 of the Identification of Prisoners Act read as follows :

"3. Taking of measurements, etc., of convicted persons. Every person who has been,

(a) convicted of any offence punishable with rigorous imprisonment for a term of one year or upwards, or of any offence which would render him liable to enhanced punishment on a subsequent conviction; or

(b) ordered to give security for his good behaviour under Section 118 of the Code of Criminal Procedure, 1898 (5 of 1898).

shall, if so required, allow his measurements and photograph to be taken by a Police Officer in the prescribed manner.

STATE AMENDMENTS Gujarat In clause (b) of Section 3, add the following at the end:

"or under Section 93 of the Bombay Prohibition Act, 1949".

[Bombay Act 58 of 1953].

Maharashtra For Section 3, substitute the following namely, "3. Taking of measurements, etc., of convicted persons. Every person who has been Page 77 of 119 HC-NIC Page 77 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT

(a) convicted of any offence punishable with rigorous imprisonment for a term of one year or upwards or of any offence punishable under Section 19 of the Dangerous Drugs Act, 1930, or of any offence which would render him liable to enhanced punishment on a subsequent conviction, or

(b) ordered to give security for his good behaviour under Section 118 of the Code of Criminal Procedure, 1898, or under Section 93 of the Bombay Prohibition Act, 1949, or to give security for abstaining from commission of certain offences under Section 18 of the Dangerous Drugs Act, 1930. Shall if so required allow his measurements and photographs to be taken by a police officer in the prescribed manner."

[Maharashtra Act 35 of 1970]

4. Taking of measurement, etc., of nonconvicted persons. Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner.

STATE AMENDMENTS Gujarat : (i) In its application to the State of Gujarat for Section 4, the following substituted, namely :

"4. Taking of measurements or photographs of nonconvicted persons. Any person

(a) who has been arrested

(i) under Section 55 of the Code of Criminal Procedure, 1898, or under Section 4 of the Bombay Beggars Act, 1945;

(ii) in connection with an offence punishable under Section 122 of the Bombay Police Act, 1951, or under Section 6 or 9 of the Bombay Beggars Act, 1945, or in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards, or

(b) in respect of whom a direction or order under Section 55 or 56 of the Bombay Police Act, 1951, or under subsection (1) or (2) of section 23 of the Bombay Beggars Act, 1945, or under Section 2 of the Bombay Public Security Measures Act, 1947, has been made, shall, if so required by a police officer, allow his measurements or photograph to be taken in the prescribed manner."

Karnataka In its application to the State of Karnataka, for Section 4 substitute the following :

Page 78 of 119

HC-NIC Page 78 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT "4. Taking of measurements or photographs of nonconvicted persons. Any person

(a) who has been arrested in connection with an offence punishable under Section 96 of the Karnataka Police Act, 1963, or in connection with an offence punishable of the Karnataka Police Act, 1963, or in connection with an offence punishable with rigorous imprisonment for a term of one year or upward or in connection with an offence for the commission of which on a second or subsequent occasion enhanced penalties have been provided for under any law for the time being in force; or

(b) in respect of whom direction or order under Section 54 or 55 of the Karnataka Police Act, 1963, has been made, shall if so required by a police officer, allow his measurements or photographs to be taken in the prescribed manner.

"4A. Taking of measurements, etc. of habitual offenders against whom restriction order is made. Any person against whom an order of restriction has been made under the provisions of the Karnataka Habitual Offenders Act, 1961, shall if so required by a Police Officer, allow his measurements or photograph to be taken in the prescribed manner."

[Karnataka Act 29 of 1975].

(ii) After Section 4A as inserted in Karnataka insert the following:

"4B. Taking of measurement, etc., of beggars under the Karnataka Prohibition of Beggary Act, 1975. Any person who has been arrested and not released under subsection (2) of Section 11 of the Karnataka Prohibition of Beggary Act, 1975 (Karnataka Act 27 of 1975) or against whom an order of detention has been made under subsection (1) of Section 12 of the said Act, shall, if so required by an officerincharge of a receiving centre or relief centre allow his measurements and photographs to be taken in the prescribed manner."

[Karnataka Act 1 of 1987].

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, he 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 a Magistrate of the first class :

Page 79 of 119

HC-NIC Page 79 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT 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 proceeding."

53 Section 3 deals with taking of measurement of the convicted persons. The photographs and measurements and photographs can be taken by the police officer in the manner prescribed. Section 4 deals with taking of measurement etc. of nonconvicted persons. It is taken if the police officer so requires it and it has to be done in the prescribed manner.

54 So far as Section 5 is concerned it deals with the power of the Magistrate to direct any person for measurement or photographs to be taken if he is satisfied that for the purpose of any investigation or proceedings under the Court the same is necessary.

55 Although the Act does not specify the reasons and objects of taking such measurements or photographs of the convicts, habitual offenders or suspects, yet evidently it is not for mere preservation. It must evidently be for being used, for some permissible purposes. What could be such purposes? According to Mr. Mangukiya, the true object of the Act, 1920 is to take care of the contingencies like to avoid any set back to the prosecution case regarding identification of the accused, for the purpose of service of summons and warrants for arresting the absconding accused persons, etc., but not for the purpose of investigation as regards the complicity of the accused in the alleged offence.

56 In the aforesaid context, Mr. Mangukiya has drawn my attention to a decision of the Supreme Court in the case of State of Madhya Page 80 of 119 HC-NIC Page 80 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT Pradesh vs. Devendra [(2009) 14 SCC 80]. The challenge in the said case was to the order passed by a learned Single Judge of the Madhya Pradesh High Court, which gave certain directions to the State Government in the matter of identification of prisoners and methodology in investigation. The respondent therein had filed an application for grant of bail in terms of Section 439 of the Cr.P.C. During the hearing of the petition, the respondent 1 who was the applicant before the High Court did not press the application for bail as the same had become infructuous. The High Court, however, thought fit to issue directions to the concerned authorities. The stance of the State of Madhya Pradesh before the High Court was that there were no many cases where impersonation was involved, and therefore, the desirability of taking the photographs in all cases would be an additional burden on the State Exchequer. The High Court issued the following directions:

"1. That the State shall make suitable amendments in the Police Regulations about taking and filing photographs of the complainant, material witnesses and accused persons along with the charge sheet in all criminal cases, sessions trials, except in minor/petty offences and non cognizable offence.

2. In a case where there is no dispute of identification of the accused, the photograph of such person should invariably be taken at the time of arrest of any person for crime, while noting his identification marks to avoid any set back on the prosecution case regarding identification and when identification is doubtful then the photograph should be taken at the time of filing charge sheet.

3. In all criminal cases and sessions trials, except in non cognizable and minor / petty offences, at the time of filing of the challan /charge sheet the State should also file the photographs of complainant, material witnesses and all the accused persons and the same should be part of the papers of the trial. The State may also retain copy of photographs with the case diary or at the police station for the purposes of service of summons and warrants for arresting the absconding accused persons.

4. The photographs should be of enough number to show the accused clearly from his front pose and may include a photograph of the accused in standing position.

Page 81 of 119

HC-NIC Page 81 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT

5. The photographs of the accused persons should be duly authenticated by the concerned officer, who arrested the accused persons.

6. In all sessions trials and criminal cases when warrants of arrest are issued the photographs and mark of identification should be checked with the accused.

7. In all sessions trials and criminal cases at the time of arrest the identity of the accused should be properly verified and care should be taken to ascertain his correct name and address.

8. The officer arresting the accused must certify the photographs and the particulars of his identity with a certificate which should accompany the chargesheet, which is sent to the Court.

9. In all appeals against acquittal the photographs should also form part of record of the trial Court and whenever notices and warrants are issued by the appellate Court or High Courts the photographs and marks of identification should be cross checked by the office with the accused and when the notices are returned duly served and warrants executed, they should accompany a certificate by the officer that the accused has been duly served after verifying the identify, name and address with the photograph."

57 It was submitted by the State before the High Court that most of the directions referred to above were impracticable and few ran counter to the statute mandate of the Prisoners Act. The Supreme Court disposed of the appeal with the necessary modification and clarifying that the directions were subject to the provisions of the Act, regulations and the Code. In case of any conflict, the statute would prevail.

58 Reliance on the decision of the Supreme Court referred to above by the learned counsel, in my view, is thoroughly misplaced or misconceived. I find it extremely difficult to accept the submission of Mr. Mangukiya in this regard, as noted above. A Division Bench of this Court in the case of P.C. Vyas vs. State of Gujarat [2001 (3) G.L.R. 2755] had the occasion to consider the provisions of the Act, 1920. In the case before the Division Bench of this Court, the challenge was to the two Page 82 of 119 HC-NIC Page 82 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT circulars issued by the Police Commissioner, Rajkot asking the police officer to submit the report giving reasons with regard to cases wherein a person is produced before the Magistrate or released on bail within sixteen hours of arrest. The challenge was on the ground that the indirect effect of the circulars was that such person would be detained by the police for sixteen hours even when it was not necessary. It was also argued before the Division Bench that the right of such person to be released on bail could not have been curtailed by such executive instructions. The Division Bench, while quashing the circulars, observed as under:

"14. There is great substance in the statement made by the Police Commissioner on affidavit that even in cases of bailable offences, some kind of preliminary inquiry and interrogation of the accused is necessary. Many times, recording of identification marks, taking of finger prints and photographs are found desirable to make further investigation into the crime and connected crimes. It may also happen that accused released on bail in bailable offence absconds. In that eventuality, not only that the said accused escapes unpunished, but other offenders connected with the same crime go beyond the clutches of police. In the circulars, it is rightly stated that in bailable offences, police is not expected to just mechanically and without making preliminary inquiry, release the arrested person forthwith on bail. Some reasonable period is justifiably required for interrogation and for completing necessary formalities of recording identification marks, finger prints, photographs etc.."

I may also quote the observations as contained in para 18:

"As has been noted by us above, even in bailable offence, requirement of the investigating agency for bringing to book the alleged offender and others connected with it, cannot be disregarded. Effective investigation is necessary in general interest of society. In our view, therefore, it is open to the investigating agency to utilise minimum possible time to interrogate the accused and to take his identification marks, finger prints, photographs, etc., which would help the police not only to bring the arrested person to book, but also furnish clue or linkage of the offence with other offenders and offences. If such a need is found necessary by the investigating officer even in bailable offence, the officer can resort to the provisions contained in Sections 4 and 5 of the Identification of Prisoners' Page 83 of 119 HC-NIC Page 83 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT Act, 1920 and for the limited purpose mentioned therein, he has to approach the Magistrate..."

59 The word "document" is defined in Section 3 of the Indian Evidence Act, 1872 as under:

"'Document' means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

Illustration A writing is a document;

Words printed, lithographed or photographed are documents; A map or plan is a document;

An inscription on a metal plate or stone is a document; A caricature is a document."

60 In R.M. Malkani vs. State of Maharashtra [(1973) 1 SCC 471], the Supreme Court observed that the tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record.

61 In Ziyauddin Barhanuddin Bukhari v. Brijmohan Ramdass Mehra and others [(1976) 2 SCC 17 ], the Supreme Court held that taperecords of speeches were "documents", as defined by Section 3 of the Evidence Act, which stood on no different footing than photographs, and that they were admissible in evidence on satisfying the following conditions:

"(a) The voice of the person alleged to be speaking must be duly identified by the maker of the record or by others who know it.

Page 84 of 119

HC-NIC Page 84 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT

(b) Accuracy of what was actually recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record.

(c) The subjectmatter recorded had to be shown to be relevant according to rules of relevancy found in the Evidence Act."

62 As held by the Supreme Court in Shamsher Singh Verma vs. State of Haryana [2015 AIR SCW 6434], a compact disc is a document having regard to the definition of the term "document" in the Evidence Act. Thus, the provisions of the Act, 1920 are not just meant for taking care of the evidence as submitted by the learned counsel Mr. Mangukiya, but they are equally meant for the purpose of effective investigation of the offence.

63 The idea that someone could be identified by the sound of his voice had its origins in the work of Alexander Melville Bell (father to Alexander Graham Bell). Over one hundred years ago, he developed a visual representation of what the spoken word would look like. It was based on pronunciation and he showed that there were subtle differences among different people who said the same things. Then in 1941, the laboratories of Bell Telephone in New Jersey produced a machine -- the sound spectrograph -- for mapping a voice onto a graph. It analyzed sound waves and produced a visual record of voice patterns that were based on frequency, intensity, and time. Acoustic scientists used it during World War II to identify enemy voices on telephones and radios. However, with the end of the war, the urgency for this technology diminished and little came of it until later.

The forensic science of voice identification has come a long way from when it was first introduced in the American courts back in the Page 85 of 119 HC-NIC Page 85 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT mid 1960's. In the early days of this identification technique there was little research to support the theory that human voices are unique and could be used as a means for identification. There was also no standardization of how identification was reached, or even training or qualifications necessary to perform the analysis. Today voice identification analysis has matured into a sophisticated identification technique, using the latest technology science has to offer. The research, which is still continuing today, demonstrates the validity and reliability of the process when performed by a trained and certified examiner using established, standardized procedures. Voice identification experts are found all over the world. 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.

64 However, the moot question still remains whether I should read voice sample in the definition of the term "measurements" as defined under Section 2(a) of the Act, 1920, treating the definition of the term "measurements" as inclusive and not exhaustive.

65 A lot was argued before me as regards the nature of the definition of the term "measurements" as defined in Section 2(a) of the Prisoners Act. What should be the meaning applicable to a particular term in a particular statute is one of constant debate and most of them owe their origin to the manner in which the definition provision is worded.

66 Based on their character, the definitions are generally of two types:

(i) inclusive i.e. providing what all is covered by specification while leaving the scope open to others also to be covered within Page 86 of 119 HC-NIC Page 86 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT the ambit of the provision, (ii) exclusive (or 'means' definition) i.e. those providing an exhaustive meaning to the term and no other meaning is permissible.

67 The Supreme Court recently in West Bengal State Warehousing Corporation vs. M/s. Indrapuri Studio Pvt. Ltd. [AIR 2011 SC 47] inter alia explained the difference between the two in the following terms;

"13. Section 3(b) of the 1894 Act, which also contains definition of the expression 'person interested' and which was interpreted by the Constitution Bench in U.P. Awas Evam Vikas Parishad v. Gyan Devi (AIR 1995 SC 724) (supra), reads as under :

"3(b). the expression "person interested" includes all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land."

14. A comparative study of the two definitions of expression 'person interested', one contained in Section 3(b) of the 1894 Act and the other contained in Section 2(d) of the Act shows that while the first definition is inclusive, the second definition is exhaustive. The difference between exhaustive and inclusive definitions has been explained in P. Kasilingam v. P.S.G. College of Technology (1995) Supp 2 SCC 348 : (AIR 1995 SC 1395) in the following words :

"A particular expression is often defined by the Legislature by using the word 'means' or the word 'includes'. Sometimes the words 'means and includes' are used. The use of the word 'means' indicates that "definition is a hardandfast definition, and no other meaning can be assigned to the expression than is put down in definition".

(See : Gough v. Gough; Punjab Land Development and Reclamation Corpn. Ltd. v. Presiding Officer, Labour Court.) The word 'includes' when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import but also those things which the clause declares that they shall include. The words "means and includes", on the other hand, indicate "an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions". (See : Dilworth v. Commissioner of Stamps (Lord Watson); Mahalakshmi Oil Mills v. State of A.P. (AIR 1984 SC 335). The Page 87 of 119 HC-NIC Page 87 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT use of the words "means and includes" in Rule 2(b) would, therefore, suggest that the definition of 'college' is intended to be exhaustive and not extensive and would cover only the educational institutions falling in the categories specified in Rule 2(b) and other educational institutions are not comprehended. Insofar as Engineering Colleges are concerned, their exclusion may be for the reason that the opening and running of the private Engineering Colleges are controlled through the Board of Technical Education and Training and the Director of Technical Education in accordance with the directions issued by the AICTE from time to time."

In Bharat Cooperative Bank (Mumbai) Ltd. v. Employees Union (2007) 4 SCC 685 : (AIR 2007 SC 2320), this Court again considered the difference between the inclusive and exhaustive definitions and observed :

"When in the definition clause given in any statute the word "means"

is used, what follows is intended to speak exhaustively. When the word "means" is used in the definition it is a "hardandfast"

definition and no meaning other than that which is put in the definition can be assigned to the same. On the other hand, when the word "includes" is used in the definition, the legislature does not intend to restrict the definition : it makes the definition enumerative but not exhaustive. That is to say, the term defined will retain its ordinary meaning but its scope would be extended to bring within it matters, which in its ordinary meaning may or may not comprise. Therefore, the use of the word "means" followed by the word "includes" in the definition of "banking company" in Section 2(bb) of the ID Act is clearly indicative of the legislative intent to make the definition exhaustive and would cover only those banking companies which fall within the purview of the definition and no other."

In N.D.P. Namboodripad v. Union of India (2007) 4 SCC 502 : (AIR 2007 SC 1782), the Court observed :

"The word "includes" has different meanings in different contexts. Standard dictionaries assign more than one meaning to the word "include". Webster's Dictionary defines the word "include" as synonymous with "comprise" or "contain". Illustrated Oxford Dictionary defines the word "include" as : (i) comprise or reckon in as a part of a whole; (ii) treat or regard as so included. Collins Dictionary of English Language defines the word "includes" as: (i) to have as contents or part of the contents; be made up of or contain; (ii) to add as part of something else; put in as part of a set, group or a category; (iii) to contain as a secondary or minor ingredient or element. It is no doubt true that generally when the word "include" is used in a definition clause, it is used as a word of enlargement, that is to make the definition extensive and not Page 88 of 119 HC-NIC Page 88 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT restrictive. But the word "includes" is also used to connote a specific meaning, that is, as "means and includes" or "comprises" or "consists of."

In Hamdard (Wakf) Laboratories v. Dy. Labour Commissioner (2007) 5 SCC 281 : (AIR 2008 SC 968), it was held as under :

"When an interpretation clause uses the word "includes", it is prima facie extensive. When it uses the word "means and includes", it will afford an exhaustive explanation to the meaning which for the purposes of the Act must invariably be attached to the word or expression."

68 Justice G. P. Singh in his treatise 'Principles of Statutory Interpretation', (Tenth Edition, 2006), has noticed that where a word defined is declared to 'include' such and such, the definition is prima facie extensive, but the word 'include' when used while defining a word or expression, may also be construed as equivalent to 'mean and include' in which event, it will afford an exhaustive explanation of the meaning which for the purposes of the Act must invariably be attached to the word or expression, [vide pages 173 and 175 referring to and relying on the decisions of the Supreme Court in The Municipal Council, Raipur vs. State of Madhya Pradesh 1970 Cri LJ 1656 : (AIR 1970 SC 1923) South Gujarat Roofing Tile Manufacturers Association vs. State of Gujarat [1977] 1 SCR 878 : (AIR 1977 SC 90), Hindustan Aluminum Corporation vs. State of Uttar Pradesh 1983 (13) ELT1656 (SC), : (AIR 1981 SC 1649) and Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd. [1987] 2 SCR 1 : (AIR 19987 SC 1023). It is, therefore, evident that the word "includes" can be used in the interpretation clauses either generally in order to enlarge the meaning of any word or phrase occurring in the body of a Statute, or in the normal standard sense, to mean 'comprises' or 'consists of' or 'means and includes', depending on the context.





                                                 Page 89 of 119

HC-NIC                                         Page 89 of 119     Created On Sat Aug 12 13:49:02 IST 2017
                  R/SCR.A/5226/2015                                                       JUDGMENT



         69    Mr.   Mangukiya,   the   learned   counsel   submitted   that   the   word

"includes" must be read as "means". In this regard, the learned counsel placed reliance upon two decisions of the Supreme Court namely; (1) The South Gujarat Roofing Tiles Manufacturers Association and another vs. The State of Gujarat and Anr. [(1976) 4 SCC 601] (2) Reserve Bank of India vs. Peerless General Finance and Investment Co. Ltd. and Ors. [(1987) 1 SCC 424)].

70 Lord Watson in Dilworth vs. Commissioner of Stamps (1899) AC 99 made the following classic statement :

"...The word "include" is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word "include" is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to "mean and include", and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions."

71 Dilworth (supra) and few other decisions came up for consideration in Peerless General Finance and Investment Co. Ltd. [(1987) 1 SCC 424] and the Supreme Court summarized the legal position that inclusive definition by the Legislature is used;

"32...(1) to enlarge the meaning of words or phrases so as to take in the ordinary, popular and natural sense of the words and also the sense which the statute wishes to attribute to it; (2) to include meaning about which there might be some dispute; (3) to bring under one nomenclature all transactions possessing certain similar features but going under different names."

Page 90 of 119

HC-NIC Page 90 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT 72 It goes without saying that the interpretation of a word or expression must depend on the text and the context. The resort to the word 'includes' by the Legislature often shows the intention of the Legislature that it wanted to give extensive and enlarged meaning to such expression. Sometimes, however, the context may suggest that the word 'includes' may have been designed to mean "means". The setting, context and object of an enactment may provide sufficient guidance for the interpretation of word 'includes' for the purposes of such enactment.

73 I have reached to the conclusion that the view taken by Justice Aftab Alam appears to be more commendable. It is difficult to read voice sample as inclusive in the definition of the term "measurements". It deserves to be noted that in the definition of the term "measurements", the handwriting or the signature is also not included. The word "measurements" includes only the fingerprints and footprint. It is significant to note that taking of handwriting or signature from a person by a Magistrate in the course of the investigation by the police was specifically excluded until 2006. It is for the first time, by virtue of Section 311A of the Cr.P.C., inserted by Act 25 of 2005, Section 27 (w.e.f. 23rd June 2006) that the Magistrate has been empowered to order a person to give his specimen signature or handwriting. When the Parliament enacted Act, 1920, it must have had in its mind not only that Section 73 of the Evidence Act does not give power to the Court to take fingerprints, signature and handwriting from a person in the course of investigation by the police, but also it must have thought that it might not be necessary to include the taking of handwriting or signature of a person in the course of investigation by the police. Otherwise, there is no tangible reason for the Parliament to exclude, under the Act, 1920, the taking of handwriting or signature. To put it in other words, if it was Page 91 of 119 HC-NIC Page 91 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT the intention of the legislature to allow the police to take specimen handwriting or signature of a person in the course of investigation or to empower a Magistrate to give necessary directions to a person to give his specimen handwriting or signature to the police in the course of the investigation, then all that was necessary was to include the word "specimen handwriting and signature" in the definition of "measurements" in Section 2(a) of the Act, 1920.

74 For such reason, as noted above, I find it difficult to take the view that the definition of the word "measurements" is inclusive and not exhaustive. The line of reasoning assigned by Justice Aftab Alam that if a voice sample is to be read in the definition of the word "measurements", then many other medical tests would equally qualify as "measurements" within the meaning of the Act, 1920 is worth taking note of . I do not undermine the importance of the Voice Spectrography Test, but the difficulty is that there is no provision of law in this regard so as to give effect to the same. It is not the question of giving a purposive interpretation or giving a narrow construction to the provisions of the Act, 1920 and Section 53 of the Cr.P.C. What is important is whether there is any scope of giving any construction to the provisions of the Prisoners Act. The rule stated by Tindal, C.J. in Sussex Peerage case, (1844) 11 Cl and F 85, still holds the field. The aforesaid rule is to the effect :

"If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do alone in such cases best declare the intent of the lawgiver."

It is a cardinal principle of construction of statute that when language of the statute is plain and unambiguous, then the court must Page 92 of 119 HC-NIC Page 92 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. In Kirkness v. John Hudson and Co. Ltd., 1955 (2) All ER 345, Lord Reid pointed out as to what is the meaning of "ambiguous" and held that "a provision is not ambiguous merely because it contains a word which in different context is capable of different meanings and it would be hard to find anywhere a sentence of any length which does not contain such a word. A provision is, in my judgment, ambiguous only if it contains a word or phrase which in that particular context is capable of having more than one meaning." It is no doubt true that if on going through the plain meaning of the language of statutes, it leads to anomalies, injustices and absurdities, then the court may look into the purpose for which the statute has been brought and would try to give a meaning, which would adhere to the purpose of the statute. Patanjali Sastri, C.J. in the case of Aswini Kumar Ghose v. Arabinda Bose, 1953 SCR 1 had held that it is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. In Quebec Railway Light Heat and Power Co. v. Vandray, AIR 1920 PC 181 , it had been observed that the Legislature is deemed not to waste its words or to say anything in vain and a construction which attributes redundancy to the legislature will not be accepted except for compelling reasons. Similarly, it is not permissible to add words to a statute which are not there unless on a literal construction being given a part of the statute becomes meaningless. But before any words are read to repair an omission in the Act, it should be possible to state with certainty that these words would have been inserted by the draftsman and approved by the legislature had their attention been drawn to the omission before the Bill had Page 93 of 119 HC-NIC Page 93 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT passed into a law. At times, the intention of the legislature is found to be clear but the unskilfulness of the draftsman in introducing certain words in the statute results in apparent ineffectiveness of the language and in such a situation, it may be permissible for the court to reject the surplus words, so as to make the statute effective. [See: Union of India and another vs. State of Tripura and another, AIR 2002 SC 3240]. Having regard to the importance of the test, the Parliament could have easily included voice sample along with the specimen signature and handwriting in Section 311A of the Cr.P.C. However, the Parliament, in its wisdom, has thought fit not to include the Voice Spectrography Test or voice sample in Section 311A of the Cr.P.C. despite being aware of the technology of tape recording and taking of voice samples.

75 The above takes me to consider whether Section 53 of the Cr.P.C. can be invoked. Her Ladyship Justice Desai has also considered Section 53 of the Cr.P.C. at length and held that purposive construction should be given to the said provisions. Section 53 of the Cr.P.C. reads as under:

"53. Examination of accused by medical practitioner at the request of police officer (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of subinspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.

Page 94 of 119

HC-NIC Page 94 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT *[Explanation.In this section and in sections 53A and 54,

(a) "examination" shall include the examination of blood; blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clipping 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;

(b) "registered medical practitioner" means a medical practitioner who possesses any medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 and whose name has been entered in a State Medical Register.

*Substituted by the Code of Criminal Procedure (Amendment) Act (25 of 2005), S. 8 (2362006).

NOTE:Law Commission in para. 5.1 of its 41st Report has said thus in respect of this new provision: ". . . . . . . . .the Commission has considered at length the question as to how far the physical examination of the arrested person is legally and constitutionally permissible and what provision, if any, should be made in the Code for the purpose. It came to the conclusion that a provision on the subject was needed and recommended a new section authorising, in certain circumstances and subject to certain safeguards, the examination of person of the accused by a qualified medical practitioner. We agree that such a provision is necessary for effective investigation and will not offend against Art. 20(3) of the Constitution".

76 Section 53 of the Code was introduced for the first time in the 1974 Code. The purpose of introducing this section was to facilitate effective investigation. If, from the nature of the alleged offence or the circumstances under which it is alleged to have been committed, there was reasonable ground for believing that the examination of the person will afford the evidence, examination of the arrested person by a medical practitioner was authorised. The provision made under Section 54 of the Code for the examination of an arrested person by a medical practitioner at the request of the arrested person, will also show that the object of the lawmaker was to provide a facility during the investigation by a scientific approach, which may either benefit the prosecution or the accused. This scientific approach during the Page 95 of 119 HC-NIC Page 95 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT investigation is thus under the protective eye of the law. The constitutional mandate does not say that no person shall be deprived of his right or personal liberty under any circumstances. On the contrary, if such deprivation of right or personal liberty is in accordance with the procedure established by law, it does not get protected by Article 21. The function of deciding as to whether certain procedure of life or personal liberty was reasonable or not was not of the Court, since it was an exclusively legislative function. This view was expressed by a Division Bench of the Bombay High Court in State vs. Sheshappa, AIR 1964 Born 253 : (1964 (2) Cri LJ 523) while considering a similar provision for medical examination, in the Bombay Prohibition Act.

77 The word "examination" used in the Section obviously means medical examination and therefore, it should be given the same meaning as is understood in the medical world. In New Lexicon Webster's Dictionary 1987 Edition in Chapter MD1 relating to Medical Dictionary the meaning of the word 'examination' is given as under :

"The process of inspecting the body and its products as a means of diagnosing a disease or as to physical fitness."

In the same chapter the meaning of the word 'diagnosis' is given as under :

"Recognition of diseases based on examination and microscopic and chemical results of laboratory findings".

A conjoint reading of the two words would, therefore, show that medical examination would mean the process of inspecting the body and its products as a means of recognition of diseases based on examination and microscopic and chemical results of laboratory Page 96 of 119 HC-NIC Page 96 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT findings. Medical science has made great strides in recent times and highly sophisticated scientific tools have been developed in order to diagnose ailments or disorders in human body. In my opinion, it will not be proper to give a restricted meaning to the word "examination" used in Section 53 of the Code. The examination of the accused should mean a complete examination which a medical practitioner may like to have by all modern and scientific tools available in order to give his opinion and it should not be confined to a superficial examination by merely having a look at the body of the accused. In fact a doctor who is trained and is used to employing modern day technic for diagnosis may refuse to give his opinion unless he performs the necessary scientific tests in this regard. The legislature was also conscious of this and has, therefore, made a specific provision permitting use of force while enacting Section 53 in the Code of 1974 which was previously not there in the 1898 Code. It is not necessary to give examples where the provisions of Section 54 may be of great use in bringing on record valuable evidence which may help the court in deciding the point in issue. In a case involving accident an immediate blood test of the accused may produce the evidence which may show whether he had consumed alcohol. Instances are known where smugglers have swallowed gold, pearls and diamonds and xray examination or use of permissible chemicals by which these objects are ejected outside the body would lead valuable evidence regarding the commission of crime. The result of medical examination may also give clinching evidence which may prove the innocence of the accused.

78 Mr. Amin, the learned Public Prosecutor very strenuously submitted that the examination contemplated by Section 53 of the Code is by a registered medical practitioner and not by a laymen, which is to be done at the request of a responsible police officer not below the rank Page 97 of 119 HC-NIC Page 97 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT of SubInspector. The medical officer or person authorised is empowered to use such force as is necessary for carrying out such an examination. The examination of a "person of the accused" many times provides clue to establish his innocence also. Section 53 is a new provision incorporated in new Criminal Procedure Code which confers a power upon the investigating machinery to get the person of the accused examined and Section 54 confers such a right on the accused. Mr. Amin submits that the examination used in Section 53 i.e. "examination of his person" should be given a wider meaning and the provisions of Sections 53 and 54 of the Code cannot be construed in isolation torn from its context. In support of his submissions, Mr. Amin has placed reliance on the decision of the Supreme Court in the case of Sheikh Gulfan vs. Sanat Kumar [AIR 1965 SC 1839], wherein the Supreme Court observed thus:

"normally, the words used in a statute have to be construed in their ordinary meaning but in many cases, Judicial approach finds that the simple device of adopting the ordinary meaning of words does not meet the ends of a fair and a reasonable construction. Exclusive reliance on the bare dictionary meaning of words may not necessarily assist a proper construction of the statutory provision in which the words occur. Often enough, in interpreting a statutory provision, it becomes necessary to have regard to the subjectmatter of the statute and the object which it is intended to achieve. That is why in deciding the true scope and effect of the relevant words in any statutory provision, the context in which the words occur, the object of the statute in which the provision is included, and the policy underlying the statute assume relevance and become material. As Halsbury has observed, the words "should be constructed in the light of their context rather than what may be either their strict etymological sense or their popular meaning apart from that context."

79 It is equally wellsettled that the literal construction should not obsess the Court because it has only prima facie preference, the real object of interpretation being to find out the true intent of the law maker and that can be done only be reading the statute as an organic Page 98 of 119 HC-NIC Page 98 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT whole, with each part throwing light on the other and bearing in mind the rule in Heydon's case (1854) 76 ER 637 which requires four things to be 'discerned and considered' in arriving at the real meaning : (1) what was the law before the Act was passed; (2) what was the mischief or defect for which the law had not provided; (3) what remedy Parliament has appointed; and (4) the reason of the remedy. Mr. Amin very fervently urged this Court to consider the true meaning and effect of the expression used in Section 53 of the Code of Criminal Procedure bearing in mind the principles referred to above.

80 On the other hand, Mr. Mangukiya, the learned counsel submitted that Section 53 of the Code refers to a "registered medical practitioner". He pointed out that the term "registered medical practitioner" has been explained and is very specific. If the Investigating Officer wants the voice sample of the accused, then he cannot be taken to a registered medical practitioner. A registered medical practitioner will not be able to take the voice sample for the purpose of Voice Spectrography Test. In such circumstances, according to Mr. Mangukiya, in the term "examination" it is not possible to read voice sample. He further submitted that the term "such other test" means the test which the registered medical practitioner may think necessary in a particular case. It is not permissible to include Voice Spectrography Test in the term "such other test". Mr. Amin, the learned Public Prosecutor has a reply to this submission of Mr. Mangukiya. Mr. Amin submitted that the term "examination" includes semen. According to Mr. Amin, semen is never examined or tested by a registered medical practitioner, but after the sample of semen is collected by the registered medical practitioner, the same is forwarded to the Forensic Science Laboratory and the test will be carried out by a Chemical Analyzer. To put it in other words, according to Mr. Amin, it is the Serologist who will test the Page 99 of 119 HC-NIC Page 99 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT sample of semen and will prepare the serological test report.

81 It comes to this that if the police officer wants the voice sample of the accused for the purpose of Voice Spectrography Test, he will have to be taken to a registered medical practitioner and the registered medical practitioner will have to call an expert for the purpose of collecting the voice sample and thereafter, the Voice Spectrography Test would be conducted. Having given my thoughtful consideration in this regard, I find it extremely difficult to read voice sample also in the term "examination" or "such other test", as explained in Section 53 of the Cr.P.C.

82 The above takes me to consider whether Section 73 of the Indian Evidence Act is, in any manner, helpful to the prosecution so far as the Voice Spectrography Test is concerned. Section 73 of the Indian Evidence Act reads as under:

"73. Comparison of signature, writing or seal with others admitted or proved (1) In order to ascertain whether a signature, writing or seal is that of the person by whom it is alleged 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 by the Court or under its orders with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

(2) The Court may direct any person present in Court to write any words or figures for the purpose of comparison of the words or figures so written with any words or figures alleged to have been written by such person.

(3) This section applies also, with any necessary modifications, to finger impressions, palm impressions, footprints and typewriting.

(4) Without prejudice to the provisions of any other law for the time being in force, nothing in this section shall apply to a criminal Court before it has taken cognizance of an offence."

Page 100 of 119

HC-NIC Page 100 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT 83 It is thus clear that the section permits the Court to direct the accused persons to write words and figure for the purpose of comparing and such comparing is to be instituted with a view to enabling the Court to form its own conclusion and in an order, it might to complete justice between the two parties. It entitles the Court to assist itself to a proper conclusion in the interest of justice. Mr. Amin invited the attention of this Court to the observations made by the Delhi High Court in the case of Rakesh Bisht (supra). I may quote the relevant observations:

"17. Mr. Tiwari, the learned counsel for the CBI, submitted that these two decisions, i.e., Ram Babu Misra (AIR 1980 SC 791) (supra) and Jagbir Singh (2003 Cri LJ 5054) (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 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 (2003 Cri LJ 3117) (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 Page 101 of 119 HC-NIC Page 101 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT 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 (2005 Cri LJ 2868) (supra) because there the Court directed the taking of voice samples even at the stage of investigation."

84 Mr. Amin submitted that if not at the stage of investigation, at least at the postcognizance stage, the Court concerned has the power to direct an accused to give his voice sample for the purpose of the Voice Spectrography Test. The Delhi High Court has cursorily observed that even if the analogy of Section 73 of the Evidence Act is brought to the fore for the purpose of directing an accused to give his voice sample, that would also have to wait till there is a proceeding before the Court. My reading of the decision of the Delhi High Court is that it does not lay down as a proposition of law that under Section 73 of the Evidence Act, the Court is empowered to direct an accused to give his voice sample.

85 It is difficult for me to consider Section 73 of the Evidence Act as an instrument or a device to be used for the advancement of any party either prosecution or the accused. Sections 73 is one of those sections where wide powers are given to the Court with the obvious object of enabling the Court to find out the truth to do complete justice between the two parties. If the section is proposed to be put in other use, such use will be wholly unjustified.

86 The above takes me to consider the last contention canvassed by Mr. Amin, the learned Public Prosecutor as regards the provisions of Section 165 of the Evidence Act. Mr. Amin, by placing reliance on the Allahabad High Court in the case of Smt. Leena Katiar (supra), Page 102 of 119 HC-NIC Page 102 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT submitted that the trial Judge is well within its jurisdiction in order to discover or to obtain proper proof of the relevant facts call upon the accused to give his voice sample in the Court in order to determine his involvement in the crime and also to arrive at a just of the decision of the case.

87 Section 165 of the Evidence Act reads thus:

"165. Judge's power to put question or order production (1) Subject to the provisions of subsections (2), the Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing:Provided that the parties or their agents shall not be entitled

(a) to make any objection to any such question or order, or,

(b) without the leave of the court, to crossexamine any witness upon any answers given in reply to any such question.

(2) Nothing in subsection (1) shall authorize a Judge to(a) ask or compel a witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce, under the provisions of this Act or under any other law for the time being in force, if the questions were asked or the documents were called for by the adverse party; or

(b) dispense with primary evidence of any document, except in the cases hereinbefore excepted.

(3) Notwithstanding anything contained in this section, the judgment of the Court must be based upon facts declared relevant under this Act and duly proved."

88 The power of the Court under Section 165 of the Evidence Act is in a way of complementary to its power under Section 311 of the Code. Mr. Amin invited my attention to the observations made by the Page 103 of 119 HC-NIC Page 103 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT Supreme Court as regards the true scope and object in the case of Ram Chandar vs. State of Haryana [AIR 1981 SC 1036]. I may quote the observations as under:

"1 What is the true role of a judge trying a criminal case? Is he to assume the role of a referee in a football match or an umpire in a cricket match, occasionally answering, as Pollock and Maitland [Pollock and Maitland : The history of English law] point out, the question 'How is that' or, is he to, in the words of Lord Denning 'drop the mantle of a judge and assume the role of an advocate'? [Jones v. National Coal Board :

(1957) 2 All ER 155.], Is he to be a spectator or a participant at the trial? Is passivity or activity to mark his attitude? If he desires to question any of the witnesses, how far can he go? Can he put on the gloves and 'have a go' at the witness who he suspects is lying or is he to be soft and suave? These are some of the questions which we are compelled to ask ourselves in this appeal on account of the manner in which the judge who tried the case put questions to some of the witnesses.

2 The adversary system of trial being what it is, there is an unfortunate tendency for a judge presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence with the inevitable distortions flowing from combative and competitive elements entering the trial procedure. If a Criminal Court is to be an effective instrument in dispensing justice the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. As one of us had occasion to say in the past :

"Every Criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice. For that purpose he is expressly invested by Section 165 of the Evidence Act with the right to put questions to witnesses. Indeed the right given to a Judge is so wide that he may ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact, relevant or irrelevant. Section 172 (2) of the Code of Criminal Procedure enables the Court to send for the policediaries in a case and use them to aid it in the trial. The record of the proceedings of the committing Magistrate may also be perused by the Sessions Judge to further aid him in the trial". (Sessions Judge, Nellore v. Intna Ramana Reddy, ILR (1972) Andh Pra 683).

3 With such wide powers the Court must actively participate in the Page 104 of 119 HC-NIC Page 104 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT trial, to elicit the truth and to protect the weak and the innocent. It must, of course, not assume the role of a prosecutor in putting questions. The functions of the counsel, particularly those of the Public Prosecutor, are not to be usurped by the judge, by descending into the arena as it were. Any questions put by the judge must be so as not to frighten, coerce, confuse or intimidate the witnesses. The danger inherent in a judge adopting a much too stern an attitude towards witnesses has been explained by Lord Justice Birkett :

"People accustomed to the procedure of the Court are likely to be overawed or frightened, or confused. or distressed when under the ordeal of prolonged questioning from the presiding, judge. Moreover, when the questioning takes on a sarcastic or ironic tone as it is apt to do, or when it takes on a hostile note as is sometimes almost inevitable, the danger is not only that witnesses will be unable to present the evidence as they may wish, but the parties may begin to think quite wrongly it may be, that the judge is not holding the scales of justice quite eventually". Extracted by Lord Denning in Jones v. National Coal Board. ((1957) 2 All ER 155) (supra).

In Jones v. National Coal Board, Lord Justice Denning observed :

"The Judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If lie goes beyond this, he drops the mantle of the Judge and assumes the robe of an advocate; and the change does not become him well".

We may go further than Lord Denning and say that it is the duty of a judge to discover the truth and for that purpose he may "ask any question, in any form, at any time, of any witness or of the parties, about any fact, relevant or irrelevant" (Sec. 165, Evidence Act). But this he must do, without unduly trespassing upon the functions of the public prosecutor and the defence counsel, without any hint of partisanship and without appearing to frighten or bully witnesses. He must take the prosecution and the defence with him. The Court the prosecution and the defence must work as a team whose goal is justice, a team whose captain is the judge. The judge, 'like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue the raucous. encourage the timid, conspire with the young, flatter the old".





                                           Page 105 of 119

HC-NIC                                    Page 105 of 119    Created On Sat Aug 12 13:49:02 IST 2017
                   R/SCR.A/5226/2015                                                       JUDGMENT



         89     Mr. Amin, thereafter, invited my attention to the observations of

the Supreme Court in the case of Zahira Habibulla H. Sheikh vs. State of Gujarat [2004 (4) SCC 158]. I may quote the observations as under:

"The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Courts cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands to such prosecuting agency showing indifference or adopting an attitude of total aloofness."

90 Mr. Amin also placed reliance on a Kerala High Court decision in the case of Kuriland (P) Ltd vs. P.J. Thomas [2009 Criminal Law Journal 763]. In this decision, a learned Single Judge of the Kerala High Court considered the distinction between Section 91 of the Code and Sections 131, 139 and 165 of the Evidence Act. It was argued before the Kerala High Court that in exercise of power under Section 165 of the Evidence Act, a summon cannot be issued to the accused or to an agent of the accused to produce a document. The learned Judge held that mere production of a document without compelling the accused to be a witness as such would not amount to testimonial compulsion within the meaning of Article 20(3) of the Constitution, even if it was assumed that the direction to the Accountant of the accusedcompany to attend and produce the document would amount Page 106 of 119 HC-NIC Page 106 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT to a direction to the accused to produce the document, because they were actually, in law, deemed to be in custody of the document. Mr. Amin submitted that applying the same principle, the accused can be asked in the course of the trial to give his voice sample for the purpose of the Voice Spectrography Test. The observations of the learned Single Judge are as under:

"12. There is a substantial difference between the power exercisable by a court under S. 91 of the Code and Section 165 of the Evidence Act. There is a difference in the terminology as well. Section 91 of the Code comprehends even a police officer. Section 165 of the Evidence Act is a power which is exercisable only by a court. An analogy from Shyamlal (AIR 1965 SC 1251) : (1965 (2) Cri LJ 256) would therefore be inappropriate in considering the scope of Section 165 of the Evidence Act, he contends.

13. The first and foremost issue to be considered in the context of the contentions raised by the parties is whether, even if a direction issued by the court is construed as a direction to the accused to produce the document, whether the same by itself will amount to testimonial compulsion prohibited under Article 20(3) of the Constitution. The concept of testimonial compulsion is relatable to the protection given to an accused from being a witness against himself. The larger Bench of the Supreme Court in Kathi Kalu (1961 (2) Cri LJ 856) considered this aspect elaborately. One of the aspects considered by the larger bench was the correctness of the reasoning given by the Supreme Court in an earlier judgment in M. P. Sharma v. Sathish Chandra, District Magistrate, Delhi [AIR 1954 SC 300 : (1954 Cri LJ 865)]. The scope and ambit of Article 20(3) of the Constitution was considered by the Supreme Court in M. P. Sharma (AIR 1954 SC 300) : (1954 Cri LJ 865) and the same merits reproduction :

"Broadly stated the guarantee in Article 20 (3) is against "testimonial compulsion". It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witnessstand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in Article 20(3) is "to be a witness". A person can "be a witness" not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (see Page 107 of 119 HC-NIC Page 107 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT Section 119 of the Evidence Act) or the like". "To be a witness" is nothing more than "to furnish evidence", and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. So far as production of documents is concerned, no doubt, Section 139 of the Evidence Act says that a person producing a document on summons is not a witness. But that Section is meant to regulate the right of crossexamination. It is not a guide to the connotation of the word "witness", which must be understood in its natural sense, i.e., as referring to a person who furnishes evidence. Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the Court room. The phrase used in Article 20(3) is "to be a witness" and not to "appear as a witness": It follows that the protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the Court room, but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case."

14. The court then went on to find that the guarantee against testimonial compulsion is also extended to a statement in writing which incriminated a witness when figuring as an accused person. In the words of the court "put a witness" means "to furnish evidence". After referring to the said view taken by the Supreme Court in M. P. Sharma [AIR 1954 SC 300 :

(1954 Cri LJ 865)], the Larger Bench said that the substantial view taken by the court earlier seems to be correct, but went on to find in paragraph 11 of the judgment as follows :

"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 facts 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 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 Page 108 of 119 HC-NIC Page 108 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT 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) : (1954 Cri LJ 865) that the prohibition in Clause (3) of Article 20 covers not only 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 Section 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. Of course, he can be crossexamined 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 statements 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] : (1954 Cri LJ 865) that Section 139 of the Evidence Act has no bearing on the connotation of the word 'witness' is not entirely wellfounded in law. It is well established that Clause (3) of Article 20 is directed against selfincrimination by an accused person. Selfincrimination must mean conveying information based upon the personal knowledge of the persons 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."

15. In effect, therefore, the Larger Bench of the Supreme Court specifically referred to the Section to hold that a person summoned to court does not become a witness by the mere fact that he produces a document and cannot be examined or crossexamined unless and until he is called as a witness. Therefore, if the accused is called upon to produce a document, he does not become a witness by reason of the same. Obviously, the accused cannot be compelled to testify against himself, and therefore, the order passed by the court directing the accused to produce a document does not by reason of the said order impute the status of a witness and consequently, mere production of the document will not amount to testimonial compulsion within the meaning of Article 20(3) of the Page 109 of 119 HC-NIC Page 109 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT Constitution. The conclusions of the larger bench in paragraph 16 of the judgment is relevant and with respect, merits reproduction :

"'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance, that is to say, as including not merely making of oral or written statements, but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused."

16. Once this position is accepted, mere production of a document without compelling the accused to be a witness as such, will not amount to testimonial compulsion within the meaning of Article 20(3) of the Constitution, even if it is assumed that the direction to the Accountant of the 1st accused company to attend and produce the documents would amount to a direction to the accused to produce the documents because they are actually, in law, deemed to be in custody of the documents. The direction to the Accountant to produce the documents by itself cannot be considered as illegal.

17. This brings me to the next question urged by the learned counsel for the petitioner. The power available to the court to summon the witnesses in criminal proceedings is expressly conferred by Section 91 of the Code and Section 91 of the Code has been construed as excluding an accused therefrom {State of Gujarat v. Shyamlal [AIR 1965 SC 1251]} :

(1965 (2) Cri LJ 256). It is true that the Supreme Court has in Shyamlal's case considered the scope of Section 94(1) of Code of Criminal Procedure, 1898 [in pari materia with Section 91 of the present Code] and has held that Section 94 should exclude the accused from its purview. With utmost respect, to an extent, the view taken by the Supreme Court in the latter decision, would be inconsistent with the view taken in the judgment of the majority of the Judges in State of Gujarat v. Shyamlal {AIR 1965 SC 1251} : (1965 (2) Cri LJ 256) and to that limited extent, there is a conflict, as has been held by the Supreme Court in V.S.Kuttan Pillai v. Ramakrishnan {1980 (1) SCC 264} : (1980 Cri LJ 196). Assuming that there is such a conflict, this court is obviously bound by the view taken by the larger bench in State of Bombay v. Kathi Kalu {AIR 1961 SC 1808} : (1961 (2) Cri LJ 856) which was decided by a bench consisting of 11 learned Judges whereas the latter decision was by a Constitution Bench of 5 Judges. Further, even if Section 91 is considered as excluding the accused from the purview as such, the present direction is only to the Accountant and not to the accused as such.

18. Mr. Santhosh then referred to the judgment of the Bombay High Court in State of Maharashtra v. Nagpur E.L. and P. Co. {AIR 1961 Bombay 242}: (1961 (2) Cri LJ 200) to contend for the position that summons to an employee of an accused to produce a document will have to be treated as summons to the accused himself and such summons Page 110 of 119 HC-NIC Page 110 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT would , therefore, be comprehended by the bar of testimonial compulsion under Article 20(3) of the Constitution. No doubt, the Division Bench judgment supports this contention. But with respect, I am unable to agree with the said reasoning for more than one reason. Firstly, mere production of a document itself has been construed as not amounting to testimonial compulsion under Article 20(3) of the Constitution and secondly, if an Accountant of a Company, by himself is not an accused in a criminal proceedings, but he is only cited as a witness, there is nothing in Article 20(3) of the Constitution or Section 91 of the Code or any other provision of law which would entitle him to claim a privilege of being an accused or for that matter be burdened with the responsibility of defending himself in a criminal case. After all, the protection against testimonial compulsion is a fundamental right adumbrated in Part III of the Constitution and it operates qua a person who is identifiable in the context of his specific status that is attributed to him viz., that he is an accused in a criminal proceedings. A company is a juristic entity, and an employee in a company would not be an accused merely because the company is an accused. The employee may be responsible for the conduct of the affairs of the company. But obviously, he cannot be imputed with the status of an accused unless he is arrayed as an accused in a criminal proceedings. Therefore, the fundamental right which could be claimed by an individual or even by an incorporeal person like an incorporated company always operates as a shield qua an accused person and this is specifically attributable to the status of the person as an accused in the criminal proceedings as such. In such circumstances, the direction to the Accountant of an accused company to produce the documents which are stated to be in his custody would not be comprehended by Article 20(3) of the Constitution. I am afraid, I am unable to agree with the Division Bench of the Bombay High Court in this regard.

19. Sri. Santhosh then contended that essentially the direction issued by the court to the Accountant of the Company to produce the documents will have to be treated as unenforceable firstly because the documents should be deemed, under law, to be in the custody of the company or at least the Directors of the company, who are responsible for the conduct of the affairs of the company viz., accused 2 to 13 that such persons would be, in law, entitled to refuse to hand over the documents; and in such circumstances the order issued by the court would be in contravention of Section 131 of the Act, which reads as follows :

"Production of documents or electronic records which another person, having possession, could refuse to produce : No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession, or control, unless such lastmentioned person consents to their production."

Page 111 of 119

HC-NIC Page 111 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT

20. The submission would rest on the premise that the Accountant, any way, will have to ask the Managing Director or other Directors of the first accused company and they are entitled to refuse to produce the same, inasmuch as they are entitled to take up the stand that production of the documents, as such, would amount to testimonial compulsion as far as they are concerned. I am not inclined to accept this submission for more than one reason. Firstly, the question as to whether the witness will be in a position to produce the document as such when he is summoned to attend the court is not really a matter which arises for consideration at this stage. But it is open to the Accountant, as a witness to come and say that he is not in possession of the document and the accused are in possession of the same. It is open to him to come to the court and say that he is not in possession of the document and the accused have taken the stand that they cannot be compelled to produce the document before the court. If that be the stand taken by the accused and here I am really speculating as to what could be the stand taken by the witness in this regard; is the court powerless to direct the accused to produce the document as such? The question of inability of the witness shall be dealt with at the next stage. But, with regard to the question as to whether it will be competent for the court to direct the production of the document, I am inclined to answer in the affirmative. If mere production of the documents by itself does not amount to testimonial compulsion, as has been held by the Larger Bench in Kathi Kalu's case {AIR 1961 SC 1808} : (1961 (2) Cri LJ 856), then the latter part of Section 131 of the Evidence Act cannot be cited as a reason to stultify what otherwise would legitimately be possible for the court. The latter part of Section 131 would be applicable to a person who is legitimately entitled to refuse to produce the document in court as such.

21. This possibly would apply in the case of a person who would be entitled to claim a privilege in terms of Sections 121 to 131 of the Evidence Act. No doubt, the right of the accused against testimonial compulsion under Article 20(3) of the Constitution is a greater right, in content, then the right of a person, who is entitled to claim privilege. But in circumstances where mere production will not amount to testimonial compulsion, it may not be open to the accused to resist a direction to a witness to attend the court and produce the documents and say that Section 131 stands in the way of the court in summoning the witness and requiring the production of the document.

22. It takes me to the next aspect regarding the power of the court to issue a direction to the accused to produce the document as such. Sri. Santhosh points out in State of Gujarat v. Shyamlal {AIR 1965 SC 1251} :

(1965 (2) Cri LJ 256), the Supreme Court has construed Section 91 of the Code as an exclusive source of power to summon the accused and sans Section 91 of the Code, there is no provision in the Code which enables Page 112 of 119 HC-NIC Page 112 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT the court to summon a document to be produced by a party as such."

91 Mr. Amin, by placing reliance on the Kerala High Court decision noted above, submitted that there is nothing in Section 165 of the Act, on an exfacie reading, as to necessarily suggest the exclusion of an accused from its purview. He submitted that a direction to give a voice sample could be issued under Section 165 of the Evidence Act if the trial Judge is of the opinion that voice sample is necessary to discover the relevant facts. Mr. Amin placed reliance on the following observations made by the learned Judge as contained in para 23:

"23. Sri. John, on the other hand, submits that Section 91 may have been construed as excluding an accused, but there are still powers available to the court under Section 165 of the Evidence Act to issue summons to any party for production of a document. I am inclined to accept the submission made by Sri. John in this regard. There is nothing in Section 165 of the Act, on an ex facie reading, as to necessarily suggest exclusion of an accused from its purview. But, it is obvious that a direction to produce a document could be issued under Section 165 of the Act only if the Judge is of the opinion that the production of the document is necessary to discover the relevant facts and such opinion could be arrived at by the Judge by reference to the materials already on record. I may also hasten to make it clear that if the Judge is called upon to direct the accused to produce the document by invoking the power under Section 165 of the Evidence Act, it is always open to the accused, even at that stage, to raise a contention that the document the production of which is sought for, would be selfincriminatory and in that circumstance the production of the document will amount to testimonial compulsion within the meaning of Article 20(3) of the Constitution. In such circumstances, it is open to the court to pass a reasoned order by invoking the power under Section 165 of the Act. But, this safeguard which the court will have to adopt, is no reason to adopt an interpretation that Section 165 of the Evidence Act should be construed as to exclude an accused from its purview."

92 The powers vested under Section 165 of the Act, in the trial Courts has been explained by the Supreme Court in the case of Ritesh Tiwari vs. State of U.P. [2010 (10) SCC 677] in the following words:

Page 113 of 119

HC-NIC Page 113 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT "37...It is an extraordinary power conferred upon the court to elicit the truth and to act in the interest of justice. A wide discretion has been conferred on the court to act as the exigencies of justice require. Thus, in order to discover or obtain proper proof of the relevant facts, the court can ask the question to the parties concerned at any time and in any form. "Every trial is voyage of discovery in which truth is the quest".

Therefore, power is to be exercised with an object to subserve the cause of justice and public interest, and for 1 getting the evidence in aid of a just decision and to uphold the truth..."

93 The legislative philosophy behind Section 165 of the Act has been succinctly explained by J.R. Midha, J, in the case of Sky Land International Pvt Ltd vs. Kavita Lalwani, RFA 697 of 2010 decided by the Delhi High Court on 25th May 2012 in the following words:

"26.21...... Section 165 casts a duty on the Judge to discover truth to do complete justice and empowers him to summon and examine or recall and reexamine any such person if his evidence appears to be essential to the just decision of the case. The Judge has to play an active role to discover the truth. He is expected, and indeed it is his duty, to explore all avenues open to him in order to discover the truth and, to that end, question witnesses on points which the lawyers for the parties have either overlooked or left obscure or willfully avoided. The Court can also invoke Section 30 of the Code of Civil Procedure to ascertain the truth."

94 Section 165 of the Act is intended to arm the Judge with the most extensive power possible for the purpose of getting at the truth. The effect of this section is that in order to get to the bottom of the matter before it, the Court will be able to look at and inquire into every fact whatever. Each party in a case is interested in settingup his own case and demolishing the one setup by his adversary. There is danger in some cases that the whole truth would not come out before the Court. The Judge, in order to discover, or to obtain proper proof and the relevant facts, may exercise very wide powers indeed; but they all pivot Page 114 of 119 HC-NIC Page 114 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT upon the ascertainment of the relevant facts. The Court may approach the cases from any point of view, and is not tied down to the ruts marked out by the parties. The Court can ask (i) any question he pleases; (2) in any form; (3) at any time; (4) of any witness; (5) or of the party; (6) about any fact relevant or irrelevant. No party is entitled to object to any such question or order, or to crossexamine the witness without the leave of the Court. Therefore, under Section 165 of the Evidence Act, the Court has a right to ask the parties even relevant or irrelevant questions and the party or their counsel cannot raise any objection to any such question. But out of the evidence so brought out, the Judge can only use that which is relevant and duly proved. There are three exceptions to the very wide powers given to the Judge. The witness cannot be compelled to include (i) any question or to produce any document contrary to Sections 121 to 131; or (ii) any question contrary to Section 148 or 149; and (3) the Judge shall not dispense that the primary evidence of any document, except as provided before.

95 The object underlying the provisions of Section 165 of the Act is that if a Criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligent active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth and administer justice with fairness and impartiality both to the parties and to the community it serves. Section 165 of the Evidence Act confers vast and wide powers on Presiding Officer of Court to elicit all necessary materials by playing an active role in the evidence collecting process, but the question is whether such vast and wide powers would include the power to call upon the accused and ask him to give his voice sample for the purpose of the Voice Spectrography Test. The answer is Page 115 of 119 HC-NIC Page 115 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT emphatic "No". If it would have been so easy for a Judge to do so, then there was no need for the Supreme Court as well as this Court to undertake this laborious exercise as regards the Voice Spectrography Test of an accused. When there is no provision in law for collecting voice sample of an accused for the purpose of the Voice Spectrography Test, then how can the Judge, in exercise of his power under Section 165 of the Evidence Act, ask the accused to give such voice sample. The words, "may order the production of any document of thing", by any stretch of imagination, cannot be construed as one conferring power upon a Judge to ask the accused to give his voice sample.

96 The decision of the Kerala High Court referred to above and relied upon by Mr. Amin takes the view that Section 91 of the Code may exclude an accused, but there are still powers to the Court under Section 165 of the Evidence Act to issue summons to any party for production of a document and that would include an accused or an agent of the accused. I find it extremely difficult to subscribe to the view taken by the Kerala High Court that Section 165 of the Act would apply even to an accused. Section 165 of the Act, like Section 73 of the Act is one of those sections where wide powers are given to the Court with the obvious object of enabling the Court to find out the truth to do complete justice between the two parties, but like Section 73 of the Act, Section 165 of the Evidence Act cannot be considered an instrument or a device to be used for the advancement of any party either prosecution or the accused. To put the provisions of Section 165 of the Act for such purpose, then such use or purpose is wholly unjustified. Thus, in my view, Section 165 of the Evidence Act will have no application so far as the issue at hand is concerned.



         97     I could lay my hands on a decision of the Supreme Court in the 


                                               Page 116 of 119

HC-NIC                                        Page 116 of 119    Created On Sat Aug 12 13:49:02 IST 2017
                   R/SCR.A/5226/2015                                                      JUDGMENT

case of Pritam Singh and another vs. State of Punjab [AIR 1956 SC 415] throwing some light on this issue. In the said case, the appellants were convicted and sentenced to death by the Additional Sessions Judge, Amritsar, and confirmed by the High Court of Punjab at Simla. The prosecution relied upon track evidence. The argument before the Supreme Court was that the track evidence was quite unsatisfactory and should not have been relied upon by the Court below. The Supreme Court noticed that the shoes found in the search at the house of one of the coaccused had not been established to belong to him and in the absence of any satisfactory evidence as to their ownership in comparing of the impression made by those shoes with the moulds prepared from the footprints on the spot could not establish the identity of Pritam Singh as one of the culprits. The shoes had been recovered in the search of the house of the accused and the result of the search was proved by calling the search witnesses whose evidence was believed by both the Courts with the result that those shoes, having been recovered from the house of the accused, the ownership of the shoes was prima facie established. The learned trial Judge, however, in order to derive further assurance attempted, in the examination of the accused under Section 342, Criminal Procedure Code (new Section 313 Cr.P.C.) to see if those shoes which had been recovered from the house of the accused fitted his feet. The Supreme Court took the view that the Court could not have done so. I may quote the observations as under:

"The learned Additional Sessions Judge, however, in order to derive further assurance attempted, in the examination of the accused under Section 342. Criminal P. C. to see if these shoes which had been recovered from the house of the accused fitted his feet. If the accused had refused to accede to this suggestion of the learned Additional Sessions Judge he would have been justified in doing so and there is no provision in law by which this demonstration could have been made."

Page 117 of 119

HC-NIC Page 117 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT 98 Thus, having viewed the matter from all possible angles, I find it extremely difficulty to take the view that by virtue of the provisions of the Act, 1920, Section 53 of the Cr.P.C. and Sections 73 and 165 of the Evidence Act, an accused can be compelled or asked to give his voice sample for the purpose of Voice Spectrography Test. I have explained in details the importance of the Voice Spectrography Test, and therefore, it is now for the Parliament to look into this issue and effect the necessary amendment in both, the Act, 1920 as well as in the Code of Criminal Procedure.

99 Let me invite the attention of the State Government to Section 8 of the Act, 1920. Section 8 of the Act, 1920 reads as under:

"8. Power to make rules (1) The State Government may [by notification in the Official Gazette,] make rules for the purpose of carrying into effect the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing provision, such rules may provide for

(a) restrictions on the taking of photographs of persons under Section 5;

(b) the places at which measurements and photographs may be taken;

(c) the nature of the measurements that may be taken;

(d) the method in which any class or classes of measurements shall be taken;

(e) the dress to be worn by a person when being photographed under Section 3; and

(f) the preservation, safe custody, destruction and disposal of records of measurements and photographs.

Page 118 of 119

HC-NIC Page 118 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT [(3) Every rule made under this section shall be laid, as soon as may be after it is made, before the State legislature.]"

100 Section 8 of the Act, 1920 empowers the State Government to frame rules which would include the nature of the measurements that may be taken. The State Government should consider framing appropriate rules in this regard and explore the possibility of including voice sample as one of the measurements that can be done of an accused in the course of the investigation. The State Government should consider this at the earliest.

101 My conclusions are as under:

[a] The Voice Spectrography Test does not fall within the ambit of a psychiatric treatment. The Voice Spectrography Test is in no manner violative of Article 20(3) of the Constitution of India.

[b] However, in the absence of any specific provision empowering the police officer or the Court in law, it is not permissible to subject an accused to the Voice Spectrography Test.

102 With the above, this writ application is disposed of.

103 The Registry is directed to forward one copy each of this judgment to the Law Secretary, Legal Department, Union of India, New Delhi and the Law Secretary, Legal Department, State of Gujarat, Gandhinagar.

(J.B.PARDIWALA, J.) chandresh Page 119 of 119 HC-NIC Page 119 of 119 Created On Sat Aug 12 13:49:02 IST 2017

Unlock Advanced Research with PRISMAI

Gujarat High Court