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7. Mr. Dash, learned counsel for the State of Uttar Pradesh submitted that the definition of the term ‘investigation’ appearing in the Code is inclusive. It means collection of evidence for proving a particular fact. A conjoint reading of the definition of the term ‘investigation’ and Sections 156 and 157 of the Code would show that while investigating a crime, the police have to take various steps (H.N. Rishbud & Anr. v. State of Delhi[13]). Counsel pointed out that in Selvi, meaning and scope of the term ‘investigation’ has been held to include measures that had not been enumerated in the statutory provisions. In this connection, in Selvi, this Court took note of Rajasthan High Court judgment in Mahipal Maderna & Anr. v. State of Rajasthan[14] and Allahabad High Court judgment in Jamshed v. State of U.P.[15] Relying on Kathi Kalu Oghad & Ors., counsel submitted that taking of thumb impressions, 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 is not furnishing evidence in the larger sense because Constitution makers never intended to put obstacles in the way of effective investigation. Counsel also relied on State of U.P. v. Boota Singh[16] where the contention that taking specimen signatures of the respondents by police during investigation was hit by Section 162 of the Code was rejected. Counsel submitted that the question of admissibility of tape recorded conversation is relevant for the present controversy. In this connection, he relied on R.M. Malkani v. State of Maharashtra[17]. Counsel submitted that under Section 5 of the Prisoners Act, a person can be directed to give voice sample. In this connection, he relied on the Bombay High Court’s judgment in Telgi. Counsel submitted that a purposive interpretation needs to be put on the relevant sections to strengthen the hands of the investigating agency to deal with the modern crimes where tape recorded conversations are often very crucial.

18. Applying the test laid down by this court in Kathi Kalu Oghad which is relied upon in Selvi, I have no hesitation in coming to a conclusion that if an accused person is directed to give his voice sample during the course of investigation of an offence, there is no violation of his right under Article 20(3) of the Constitution. Voice sample is like finger print impression, signature or specimen handwriting of an accused. Like giving of a finger print impression or specimen writing by the accused for the purposes of investigation, giving of a voice sample for the purpose of investigation cannot be included in the expression “to be a witness”. By giving voice sample the accused does not convey information based upon his personal knowledge which can incriminate him. A voice sample by itself is fully innocuous. By comparing it with tape recorded conversation, the investigator may draw his conclusion but, voice sample by itself is not a testimony at all. When an accused is asked to give voice sample, he is not giving any testimony of the nature of a personal testimony. When compared with the recorded conversation with the help of mechanical process, it may throw light on the points in controversy. It cannot be said, by any stretch of imagination that by giving voice sample, the accused conveyed any information based upon his personal knowledge and became a witness against himself. The accused by giving the voice sample merely gives ‘identification data’ to the investigating agency. He is not subjected to any testimonial compulsion. Thus, taking voice sample of an accused by the police during investigation is not hit by Article 20(3) of the Constitution.

27. 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.

28. The purpose of taking voice sample which is non-testimonial physical evidence is to compare it with tape recorded conversation. It is a physical characteristic of the accused. It is identificatory evidence. In R.M. Malkani, 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.

“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 finger-impressions and foot-print impressions”.

The said expression is an inclusive term, which also includes finger- impressions and foot-print impressions. Besides, the term measurement, as per the dictionary meaning is the act or an instance of measuring; an amount determined by measuring; detailed dimensions. With the development of Science and Technology, the voice sample can be analysed or measured on the basis of time, frequency, and intensity of the speech-sound waves so as to compare and identify the voice of the person who must have spoken or participated in recorded telephonic conversation. The expression “measurements” occurring in Section 5, to my mind, can be construed to encompass even the act undertaken for the purpose of identification of the voice in the tape-recorded conversation. Such construction will be purposive one without causing any violence to the said enactment, the purpose of which was to record or make note of the identity of specified persons.”