IN THE HIGH COURT OF JUDICATURE AT MADRAS Judgment Reserved on : 14.11.2017 Judgment Pronounced on: 28.11.2017 CORAM:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN Criminal Revision Case Nos.808, 816 and 823 of 2015 and M.P.No.1 of 2015 (3 petitions) Shri Rabindra Kumar Bhalotia .. Petitioner in Crl.R.C.808/2015 N.Balamurugan .. Petitioner in Crl.R.C.816/2015 V.Venkatesan .. Petitioner in Crl.R.C.No.823/2015 Vs
1. State rep.,by Inspector of Police, Central Bureau of Investigation, Anti-Corruption Branch, Chennai. .. 1st Respondent/Complainant
2. Sri V.Venkatesan, Chief Depot Material Superintendent, Electric Loco Stores Depot Southern Railway,Arakkonam. .. 2nd Respondent/Accused
3. Sri N.Balamurugan Depot Material Superintendent Electric Loco Stores Depot, Southern Railway, Erode. .. 3rd Respondent/Accused Criminal Revisions filed under Sections 397 and 401 of Criminal Procedure Code against the order dated 01.08.2015 passed by the Principal Special Judge for CBI Cases, Chennai, in M.P.No.2053 of 2015 in RC.MA.12014 A 0026 (CBI/ACB/Chennai).
For Petitioner : Mr.Vishnu Mohan (Crl.R.C.808/2015) Mr.N.Ramesh (Crl.R.C.816/2015) Mrs.R.Vetriselvi (Crl.R.C.823/2015) For Respondent : Mr.K.Srinivasan, Special Public Prosecutor (CBI cases)
ORDER
These Criminal Revision petitions are directed against the order passed by the trial court, allowing the petition filed by the prosecution to draw voice sample of the accused persons for comparison with that of the questionable voice recorded in the course of intercepted telephonic conversion between the Accused (A1, A2 and A3).
2. The petition filed by the prosecution was contested by the accused persons on the ground that the accused cannot be compelled to give voice sample. The statutory provision which enables medical examination of accused persons through investigation in certain cases. However, Explanation to Section 53A and 54 of the Code does not enable the prosecution to draw voice sample of the accused person against their wish. Neither Section 5 of the Identification of Prisoners Act, 1920 nor Section 53-A and 311-A of Criminal Procedure Code empowers the court to direct the accused persons to give their voice sample. In the absence of specific legal provision the trial Court ought not to have allowed the application filed by the prosecution directing the accused persons to give voice sample.
3. The background of the facts of the case is that after obtaining due permission from the Union Home Secretary, telephonic conversation between A3 and A1 and A3 and A2 were intercepted by the investigation agency and on such interception the demand of illegal gratification by the public servant and private individual had been come to light. Hence, the prosecution has launched criminal case against the Revision Petitioners.
4. In the course of the investigation request has been made to the trial court for drawing voice sample of the accused persons for comparison with that of the questionable voice recorded in the course of intercepted telephonic conversion between the Accused. The trial court after going through the provisions of law and the pronouncements of the High Courts and the Hon'ble Supreme Court also considering the judgment of the Supreme Court in Ritish Sinha v. State of U.P reported in (2013 (2) SCC 357), has concluded pending decision of the Larger Bench in Ritish Sinha, that the accused persons are to be directed to give their voice sample directly to the investigating officer.
5. Aggrieved by the order passed by the trial court, the present Revision Petitions have been filed on the ground that compelling the accused persons to give their voice sample to compare with that of the questionable voice recorded in the course of intercepted telephonic conversion between them is violative of Article 20(3) of the Indian Constitution. There is no provision in the Code for any other law for authorizing the prosecution to make application for an order directing the accused persons to give their voice sample for comparison with that of the questionable voice recorded in the course of intercepted telephonic conversion between them. The Judicial Magistrate has no inherent power to pass an order issuing such direction when he is not empowered to do so in any of the provisions of law. The word 'measurement' as defined under Section 2(a) of the Identification of Prisoners Act does not cover voice measurement and it is only pertaining physical measurement namely finger impressions and foot print impressions. Similarly the Amendment to the Code by insertion of Section 311-A includes only handwriting but no voice samples.
While the framers of the statute had consciously omitted the drawing of voice sample within the meaning of 'measurement' or within the meaning of 'such other tests' by registered medical practitioner, the order of the trial court is illegal and it has to be set aside.
6. Further, it has been contended by the learned counsel for the petitioners that taking note of this anomaly, the Hon'ble Supreme Court had referred the matter for the Larger Bench to decide. Therefore, the trial court even after placing the order to reference passed by the Hon'ble Supreme Court in Ritish Sinha case had passed the impugned order which is unconstitutional, illegal and liable to be set aside.
7. This Court had an opportunity of hearing the learned counsels for the accused persons in a identically similar case. The judgment of the Supreme Court which is now under consideration for Larger Bench in Ritish Sinha case was referred and pleaded to interfere the trial Court Order directing the accused persons to give their voice sample. However, this Court has held that directing the accused person to give his voice sample for comparison is neither violation of Article 20(3) of the Indian Constitution nor beyond the scope of Section 53 or 311-A of the Code.
8. In the Judgment of P.Kishore vs. State represented by the Additional Superintendent of Police, SPE/CBI/ACB, Chennai, Crl.R.C.No.1752 of 2011 dated 16.11.2017, similar plea has been raised. Therefore, this Court is of the opinion extract from the said order is suffice to this Revision Petition:-
3. This Criminal Revision Case is filed, challenging the trial court order permitting the prosecution to compel the accused to undergo voice spectrograph test. The prime submission made in this revision petition is that, compelling an accused to give his voice sample for comparison is unconstitutional. Ultra vires to Article 20(3) of the Constitution of India. No law provides for drawing samples. In such circumstances, without any authority of law, Magistrate directing the prosecution to record voice sample of the accused person is illegal. Further, In view of the judgment rendered by the Hon'ble Supreme Court in the Ritish Sinha case, wherein, the learned Judges due to difference of opinion regarding the constitutional validity of drawing voice sample had referred the matter to the Larger Bench of the Hon'ble Supreme Court and pending. In such circumstances, the order passed by the trial court granting permission to the investigating officer to take voice sample is ultra- vires to the constitution.
4. The learned counsel for the petitioner submitted that even though law does empowers the Magistrate to grant direction to give voice sample of the accused, unmindful of that, the trial Court referring the judgment of the Hon'ble Supreme Court in State of Karnataka v. Selvi reported in (2010 (7) SCC 263 ) (hereinafter referred to as “the Selvi case”) had allowed the petition on the ground that the judgment in Selvi case pertains to Narco Analysis, polygraph test, and brain mapping. Drawing voice sample was not the subject matter, hence, it is not applicable to the facts of this case. Further, the trial court relying upon R.M.Malkani -vs- State of Maharahtra reported in (AIR 1973 SC 157) had allowed the petition erroneously holding that, the nature of obtaining the voice samples is nothing but obtaining specimen signatures, as contemplated under Section 311 A of the Code of Criminal Procedure. Pursuant to to this impugned order, the accused was forced to give his voice sample and the same has been recorded against his consent.
5. According to the learned counsel for the petitioner, subsequent to this impugned order ( 12.09.2011) , the Hon'ble Supreme Court in Ritish Sinha v. State of U.P reported in (2013 (2) SCC 357) (hereinafter referred to as “the Ritish Sinha case”), the Constitutional validity of compelling the accused to give voice sample came up for consideration, the learned Judge disagreed with each other and had referred the matter for larger Bench and the same is pending. In the said circumstances, the order passed by the trial Court in Crl.M.P.No.5647 of 2011, dated 12.09.2011 is liable to be set aside.
6. This Court is concerned about the nagging issue not only to this State but to the entire country, since the larger Bench of the Hon'ble Supreme Court has not yet passed for the reference made in Ritish Sinha case, whether the trial Court should entertain to permit the petitions for drawing voice samples of the accused or not. Some of the High Courts have made it clear that reference of the issue to the Larger Bench of the Hon'ble Supreme Court is no bar for the trial Court to order recording of voice sample of the accused. Whereas, some of the High Courts has taken a different view. This Court ventures to analyse both the views and also the principle of 'precedent' which is the back bone of Indian judiciary to ensure consistency.
7. The learned counsel for the petitioner pointed out the area of operation of Sections 53 and 311A of Cr.P.C., are different and one cannot replace the other. Section 53 Cr.P.C., in the course of investigation, while a person is examined by medical practitioner at the request of police officer and whereas Section 311A Cr.P.C., is at the instance of the Magistrate who orders a person to give specimen signature or handwriting.
8. In this context, it is to be noted that Section 311A Cr.P.C., was inserted based on the judgment of the Hon'ble Supreme Court in State of Uttar Pradesh v. Ram Babu Misra (AIR 1980 SC 791) and suggested the legislators to bring suitable amendment analogous to Section 5 of the Identification of Prisoners Act, 1920 to provide for the accused to give specimen signature and handwriting. Pointing out the non-inclusion of voice test in Section 311A Cr.P.C. the learned counsel pleaded that conscious omission by the legislators cannot be substituted by judicial pronouncement.
9. According to the learned counsel for the petitioner, Section 311A Cr.P.C., is an insertion based on the suggestion of the Hon'ble Supreme Court to incorporate a provision analogous to Section 5 of Identification of Prisoners Act, which empowers the Magistrate of Class I to direct the person to allow his photographs or measurements taken by the prosecution. By way of an inclusive definition, the word 'measurement' brought under its fold, finger prints or foot prints. Non inclusion of voice sample either in Section 311A Cr.P.C., or within the meaning of 'measurement' in Identification of Prisoners Act, will have a statutory prohibition on the Investigating Agency or to the Magistrate from directing the accused to give his voice sample on the ground that such a direction will be invasive of the fundamental right and right of silence available to the accused.
10. This Court is of the opinion that while analyzing the legal provisions in the light of individual liberty, one cannot loose sight of the fact that modern scientific techniques available should be made use in the investigation and unnecessary fetters on investigation will lead to miscarriage of justice. Comparison of voice is a supplementary factor to enhance the conclusion of investigation to support the final report.
11. Any person, accused of a crime can defend his right by disproving the questionable voice by various means. However, refusal to give voice sample will not fall within the ambit of right of silence. While drawing voice sample no physical invasion takes place. It is yet another mode of measurement. Measurement of voice frequency. right of silence is available to the accused person if any question posed to him and answered it must have incriminating effect. Recording of voice sample does not involves any question inviting incriminating answer. The vibrations or waves caused in the speech process alone is going to be taken for analysis for comparison and not the dialog or the transcript. In this aspect, this Court like to borrow the explanation given by the Hon'ble Judge in Natvarlal Amarshibhai Devani v. State of Gujarath (CDJ 2017 GHC 028) while dealing legality of voice sampling since, it carries all technical information about the voice test.
“38 The dictionary meaning of the term 'measurement' is the act or process of measuring. The voice sample is analyzed or measured on the basis of time, frequency and intensity of the speech sound 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. "Voice print 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 'voice print' studies." 12.02 Sound and Speech In order to properly understand the voice print 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 viz., or sometimes also in cycles per-second, 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 speech, 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 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 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.”
12. As pointed out earlier, since, drawing voice sample involves only physical examination, omission of non inclusion of voice sample in Section 311A Cr.P.C., has no prohibitive effect on the prosecution to seek direction of the Magistrate under Identification of Prisoners Act, to direct the accused person to give his voice sample which falls within the meaning of measurement for the purpose of interpreting Section 5 of Identification of Prisoners Act.
13. The contention of the petitioner is that voice spectrograph test of the accused amongst to testimonial compulsion within the meaning of Article 20(3) of the Constitution of India and it fall par with the test like narco-analysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) tests, therefore, impermissible under law. Further, despite recommendation of the Law Commission, the parliamentarian in the meanwhile inserting Section 311A Cr.P.C., has specifically omitted to include voice spectrograph test whereas, it has empowered the Magistrate Class - I if he satisfied for the purpose of any investigation to direct any person including the accused person to give specimen signatures or handwriting.
14. In the absence of specific power to direct the accused person to give voice sample, Court cannot compel an accused against his wish to give voice sample. While this view has been expressed by one of the learned Judge who has authored the Ritish Sinha case and referred the matter to the Larger Bench of the Hon'ble Supreme Court, the other learned judge has emphasised purposive interpretation of the statute instead of narrow interpretation and has held that, there is no constitutionals infringement in directing the accused person to give his voice sample.
15. Apart from relying upon the views expressed by the Hon'ble Mr.Justice Aftab Alam in Ritish Sinha case, the learned counsel for the petitioner also relied upon the following judgments of the other high Courts:
(i) Naveen Krishna Bothireddy v. State of Telengana (CDJ 2017 APHC 143) and
(ii) Natvarlal Amarshibhai Devani v. State of Gujarat (cited supra).
16. The question of testimonial compulsion in Independent India in the light of Article 20(3) of the Constitution of India came for scrutiny, before 11 Judges Bench of the Hon'ble Supreme Court in State of Bombay v. Kathi Kalu Oghad (cited supra). Thereafter, in view of modern technology which has developed in the recent past, the crime detective agencies which were earlier adopting certain methodology such as identifying the person through eyes (test identification), collecting fingerprints or foot prints of suspected person, drawing blood samples, compelling to give specimen signature or handwriting have now equipped with other methodology such as polygraph test, narcotic test and brain mapping. When use of these technology on accused person was challenged on the ground of privacy and testimonial compulsion, in 2005 (11) SCC 600, the Hon'ble Supreme Court held that drawing of blood samples, pubic hair, etc., in the offence of rape where the prosecution has to establish the guilt of the accused beyond reasonable doubt is not violative of Article 20(3) of the Constitution of India.
17. In CBI -vs- Abdul Karim Ladsab Telgi reported in 2005 Crl.LJ 2868, the Hon'ble Bombay High Court, reversed the order of the trial Court allowing the Investigating Agency to record the voice sample of the accused. The Bombay High Court in the said judgment, held that lending voice sample to the Investigating Officer amounts to the testimonial compulsion and infringement of the accused right under Article 20(3) of the Constitution of India. The Delhi High Court in Rakesh Bisht etc v. Central Breau of Investigation reported in (2007 Crl.L.J 1530) has held that, if after investigation, charges are framed and in the proceedings before the court. The Court opines that voice sample ought to be given for the purposes of establishing identity, then such a direction may be given if the voice sample is taken only for the purposes establishing the identity. Provided it does not contain any inculpatory statement so as to be hit by Article 20(3) of the Constitution of India.
18. Later, in Selvi -vs- State of Karnataka reported in (2010 (7) SCC 263) when whether engaging modern and scientific techniques like, DNA mapping, Narcotic Analysis Test, Polygraph examination etc., should be liberally used by the prosecution, the Hon'ble Supreme Court, had clarified that Explanation to Section 53 Cr.P.C., permits examination of the person includes examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests, which the registered medical practitioner thinks necessary in a particular case.
19. Following the three judges decision in Selvi case, Hon'ble Mr. Justice Ranjan Desai in Ritesh Sinha case, has held the phrase, “such other test” appearing in Explanation for Sub Clause (a) to Section 53 of Cr.P.C., should include examination of voice sample, by applying the principle of Ejusdem Generis. Thus, in the light of the three Judges Bench in Selvi case, which has distinguished the physical evidence and testimonial act, and by liberal interpretation of the words such other test found in the explanation to Section 53 Cr.P.C., by applying the doctrine of Ejusdem Generis directing the accused to give voice sample is legally permissible and constitutionally valid, since the three Judges Bench have clearly distinguished the examination of physical evidence and testimonial act.
20. The judgments cited by the learned counsel for the petitioner as well as the judgments submitted by the prosecution, no doubt, had gone at length about the legality or otherwise of drawing voice sample from the accused person. Finally, in the light of Article 20(3) of the Constitution of India, provisions under the Prisoners Identification Act, Sections 53 and 311A of Cr.P.C., and the litmus test as laid down by the three Bench Judges in Selvi case, it is amply clear that drawing voice sample fall within the meaning of physical evidence of non- testimonial character and not within the meaning of testimonial compulsion.
21. In the opinion of this Court, the voice test is done by spectrograph method, where the waves emanating from the human body voice is recorded.
Since it emanates from the body, though not visible but audible, it has to be termed as bodily substance. It cannot be considered as testimonial evidence. Only the Investigating Officer asked the accused person to speak the questionable passage verbatim sought to be compared with the specimen sample. Taking of voice sample does not involve any physical or psychiatric extortion upon the accused person. Therefore, as long as the law on this point is settled through the interpretation of the Constitution Bench as well as three Judges Bench dissent the voice of one each other in the judgment and referred to larger bench cannot put on hold, the investigations pending in the country. There are judgments delivered by the other high Courts, which in support of the views expressed by this Court and contra either of them only have a persuasive value and not binding the law of precedent is mandates Courts below to follow the judgment of the Hon'ble Supreme Court, till it is reversed.
9. Requesting the accused persons to give their voice sample for comparison with that of the questionable voice recorded in the course of intercepted telephonic conversion between them by no stretch of imagination fall within the mischief of testimonial compulsion. Therefore, the plea that the direction to the accused persons to give their voice sample for comparison with that of the questionable voice recorded in the course of intercepted telephonic conversion between them, is ultra vires to Constitution has no legs to stand. Regarding the wordings used in Section 53 of the Code which permits the investigating officer to examine the accused person through medical practitioner is not restricted to the examinations, referred in Explanation (A) for Sections 53, 53A, and 54 alone. Since the word 'such other tests' has been consciously inserted, it cannot be interpreted narrowly to say that 'such other tests' does not include “voice test”.
10. As held by the Hon'ble Supreme Court the phrase 'such other tests' found in the Explanation to Section 53 and 53A of the Code should be given broad and purposive interpretation. In the era of fast scientific development, narrow interpretation for the phrase 'such other tests' will be detrimental to the society.
11. Similarly, while looking at Section 311(A) of the Code non inclusion of voice test in the said Section which was inserted through Amendment Act, 2005 does not give an impression that the Parliamentarians had consciously omitted the voice test. Drawing of voice sample is only a measurement of waves emanating through vocal cord. It is only a measurement and fall within the meaning of physical examination and not testimonial compulsion. While so, it is incorrect to plead that in the absence of express provision enabling the investigation agency to draw the voice sample prohibits them to do so. Any methodology which does not have the trappings of invasiveness is permissible in law. Therefore, this Court finds no merit in these Revision Petitions. Hence all these Criminal Revision Petitions are liable to be dismissed.
12. In the result, all these Criminal Revision Petitions are dismissed and the order passed by the learned Principal Special Judge for CBI cases, Chennai in in M.P.No.2053 of 2015 is confirmed. Consequently, connected miscellaneous petitions are closed.
28.11.2017
gr.
Index: Yes/No Speaking Order/non speaking order To
1. The Additional Superintendent of Police, SPE/CBI/ACB/Chennai.
2. The Special Public Prosecutor (CBI cases), High Court, Madras.
Dr.G.JAYACHANDRAN.J.,
gr.
Crl.R.C.Nos.808, 816 and 823 of 2015 28.11.2017