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The Code of Criminal Procedure, 1973
State Of Haryana vs Jagbir Singh And Anr on 26 September, 2003
3. Being aggrieved by this order, the present revision petitions have been filed by the accused (petitioners herein). The only point raised by the learned Counsel for the petitioner is that the court (i.e., the Special Judge, CBI) did not have any jurisdiction or power to allow the application of the CBI directing the taking of voice samples at the stage of investigation. He submitted that the investigation is entirely within the province of the investigating agencies and the courts have no role to play in the investigation. He referred to the decision of the Supreme Court in the case of State of Haryana v. Jagbir Singh and Anr. 2003 Cri. L.J. 5054. The reference to this decision was made in the context of the provisions of Section 73 of the Indian Evidence Act, 1872 which, according to the learned Counsel for the petitioner, was possibly the only provision under which the court could have acted. However, with regard to Section 73 also, the Supreme Court clearly and categorically indicated that before an order under Section 73 could be passed, the pendency of the proceedings before the court was the sine qua non. It would definitely not be available at the stage of investigation.
State Of U.P vs Ram Babu Misra on 19 February, 1980
17. Mr Tiwari, the learned Counsel for the CBI, submitted that these two decisions, i.e., Ram Babu Misra (supra) and Jagbir Singh (supra) were not relevant for the controversy at hand inasmuch as they pertain to Section 73 of the Indian Evidence Act, 1872 and since the stage of Section 73 had not been reached, no useful purpose would be served by referring to these decisions. While it is true that Section 73 falls under Chapter V of the Indian Evidence Act which deals with documentary evidence and that stage of leading evidence has not been reached in this case, as the matter is still under investigation, reference to the said decisions on Section 73 would, in my view, be apposite inasmuch as even where a specific provision for taking handwriting samples is made under Section 73 of the Indian Evidence Act, 1872, the Supreme Court has held that that would operate only when there is a proceeding pending before the court and not in the course of investigation. There is no specific provision for directing the giving of voice samples under the Indian Evidence Act, 1872. Therefore, even if the analogy of Section 73 is brought to the fore for the purposes of directing an accused to give his voice samples, that would also have to wait till there is a proceeding before the court.
Amrit Singh vs State Of Punjab on 10 November, 2006
18. The accused, at the stage of investigation, cannot be compelled to give his voice sample just as he cannot be compelled to undergo a test identification parade. It is for him to give or not to give his voice sample in the course of investigation and the court cannot, during investigation, direct the accused to give his voice sample. It would be interesting to note a recent decision of the Supreme Court in the case of Amrit Singh v. State of Punjab 2006 AIR SCW 5712 wherein the question of obtaining a hair specimen of the accused was in issue. An application was filed by the investigating officer in the court of the Judicial Magistrate for obtaining a specimen of the hair of the accused, but he refused to give any such specimen of hair. He made a statement before the court which was recorded, but he did not assign any reason for refusing to give samples of his hair. It was contended on behalf of the State of Punjab before the Supreme Court that an adverse inference, in the least, ought to have been drawn against him. In repelling this contention, the Supreme Court in para 19 of the said decision held as under:
R. M. Malkani vs State Of Maharashtra on 22 September, 1972
Mr Tiwari also referred to the decision of the Supreme Court in the case of R. M. Malkani v. State of Maharashtra 1973 SCC (Cri) 399 for the proposition that the tape recorded conversation is admissible in evidence provided the conversation is relevant to the matters in issue. He referred to this decision only to submit that tape recorded conversations were both relevant and admissible for the purposes of ascertaining the authenticity of the tape recorded conversation already recorded. It would be necessary to take the voice samples of the petitioners for the purposes of identification. Accordingly, it was the contention of Mr Tiwari that there was no error committed by the learned Special Judge in directing the taking of voice samples of the petitioners and, therefore, no interference with the impugned order was called for.
Union Of India vs Prakash P. Hinduja & Anr on 7 July, 2003
14. This is with regard to handwriting samples. The present case concerns itself with the voice samples. There is no specific provision under the Indian Page 0346 Evidence Act, 1872 to deal with the taking of voice samples. In my view, the court may permit the taking of voice samples only for the purposes of identification. But these voice samples would not be admissible if they contain inculpatory statements. That is so because, in that eventuality, the accused would have been compelled to be a witness against himself. However, this does not mean that the court can pass an order directing an accused to give samples of his voice even during the pendency of investigation. The position with regard to the scope of judicial interference in the course of investigation has been clearly stated by the Supreme Court in the case of Union of India v. Prakash P. Hinduja as under:
The State Of Bombay vs Kathi Kalu Oghad And Others on 4 August, 1961
12. The said decision, therefore, is an authority for the proposition that taking of handwriting samples for the purposes of establishing identity or comparison with the documents in issue would not amount to a violation of the fundamental right of an accused enshrined in Article 20(3) of the Constitution. But, it must not be lost sight that the said decision was rendered in the context of Section 73 of the Indian Evidence Act, 1872. The necessity of requiring an accused to give handwriting samples arose during the course of trial and not in the course of investigation.
Article 20 in Constitution of India [Constitution]
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