Sections 9 and 10 of Prevention of Corruption Act, 1988 and Sections 468, 471 and 120(B) r/w. Section 34 of IPC,= seeking permission to record the voice samples of A.1, in directing to submit voice samples of A.1 so as to enable the Investigating Agency to send the same to the Forensic Science Laboratory, Hyderabad, for comparison to determine the voice of A.1. = During the course of investigation, it is revealed that A.1 rang up from his phone to the defacto-complainant Sri R.G. Bhaskar Reddy, District Inspector, Legal Metrology; and one Sri Uppala Nagarjuna, Commercial Tax Officer, O/o. C.T.O., Special Commodities Circle, Saroornagar Division, demanding money on the name of ACB and the said conversation was recorded by them in their respective phones and the same were handed over to the Investigating Officer for further action =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: (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. The Report as noted was submitted in 1980. The Code of Criminal Procedure was amended in 2005 when the Explanation was added to 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. 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. In light of the above discussion, I respectfully differ from the judgment proposed by my sister Desai J. I would allow the appeal and set aside the order passed by the Magistrate and affirmed by the High Court. Let copies of this judgment be sent to the Union Law Minister and the Attorney General and their attention be drawn to the issue involved in the case. In view of the difference of opinion between us, let this case be listed for hearing before a bench of three Judges after obtaining the necessary direction from the Honourable the Chief Justice of India.

THE HONBLE DR. JUSTICE B. SIVA SANKARA RAO        

CRIMINAL REVISION CASE No.3208 of  2016    

20-02-2017

Mr. Amit Khetawat  Petitioner

State of Telangana  Respondent


Counsel for the petitioner:Sri B. Chandrasen Reddy

Counsel for Respondent: Sri V. Ravi Kiran Rao

<Gist:

>Head Note:


? Cases referred:

01.  AIR 1961 SC 1808
02.  2007 CRI.L.J. 1530
03.  1973 SCC (Cri) 399 : 1973 Cri LJ 228
04.  AIR 1980 SC 791
05.  (2003) 6 SCC 195 : 2003 Cri.LJ 3117
06.  2003 CriLJ 5054
07.  2005 CriLJ 2868
08.  (2013) 2 SCC 357 : AIR 2013 SC 1132
09.  (2012) 11 SCC 321
10.  (2015) 1 SCC 365
11.  (2010) 8 SCC 633
12.  (2014) 2 SCC 576
13.  (1993) 3 SCC 418
14.  (2003) 4 SCC 493
15.  (2016) 8 SCC 307 (3JB)
16.  1994 SCC (Crl.) 1376
17.  (1997) 7 SCC 110
18.  (2006) 12 SCC 79
19.  1997 (1) ALT (Crl.) AP 719
20.  (2010) 7 SCC 263



HONBLE Dr. JUSTICE B. SIVA SANKARA RAO      


CRIMINAL REVISION CASE No.3208 of 2016    


ORDER :


        The present Criminal Revision Case, under Sections 397 and
401 of Cr.P.C., is filed by the petitioner-AO.No.1 of Crime
No.7/ACB-CIU-Hyd/2015, dated 02.12.2015, aggrieved by the
order dated 05.12.2016 in Crl.M.P.No.50 of 2016 in Crime
No.7/ACB-CIU-Hyd/2015 passed by the learned I Additional
Special Judge for SPE and ACB Cases-cum-V Additional Chief
Judge, City Civil Court, Hyderabad, allowing the petition/Memo
filed by the Prosecution under Sections 9 and 10 of Prevention of
Corruption Act, 1988 and Sections 468, 471 and 120(B) r/w.
Section 34 of IPC, seeking permission to record the voice samples of
A.1, in directing to submit voice samples of A.1 so as to enable the
Investigating Agency to send the same to the Forensic Science
Laboratory, Hyderabad, for comparison to determine the voice of
A.1.

2.      The contentions in the grounds of revision vis-a-vis the oral
submissions in the course of hearing by the learned counsel for
revision petitionerA.1 are that the impugned order of the Court
below is contrary to law, with no requirement of such a test and
that too for no enabling provision and also for no reason or just
cause much less to intrude into the personal liberty and to compel
petitionerA.1 against his will by testimonial compulsion and
thereby sought for setting aside the impugned order of the Court
below.

3.      Whereas, it is the contention of the learned Standing Counsel
for SPE and ACB Cases representing the respondent State in
support of the impugned order of the Court below that the same
does not amount to testimonial compulsion to stand as a witness
against himself, but only comes within the broader meaning of
furnishing of information other than within the exclusive knowledge
of accused for same is only a voice sampling for comparision and
opinion and comes within the meaning of such other tests
mentioned in Explanation (a) of Section 53 of Cr.P.C., and thus, the
same is well within its scope contemplated by law and also
necessary for the effective adjudication of the criminal lis and once
it is a procedure established by law and will not come within the
purview of testimonial compulsion of to be a witness against
himself, but for furnishing evidence in larger sense, there is
nothing to interfere with the impugned order of the Court below. It
is also submitted that it cannot be stated as intruding into the
privacy or affecting the qualified Fundamental Right of Right to Life,
that too the same when subject to due process of law to obey the
orders of the Court below in submitting to the requirement of voice
sample for analysis and hence to dismiss the revision.

4.      Heard the submissions of both sides, at length, in the course
of hearing referred above, which no way require repetition herein
and also perused the material on record with reference to the
provisions and propositions.

5.      Now, in deciding the revision lis on the correctness of the
impugned order of the Court below, the factual background
necessary to mention, in nutshell, is that the petitioner-A.1 along
with A.2 was arrested and subsequently enlarged on bail. During
the course of investigation, it is revealed that A.1 rang up from his
phone to the defacto-complainant  Sri R.G. Bhaskar Reddy,
District Inspector, Legal Metrology; and one Sri Uppala Nagarjuna,
Commercial Tax Officer, O/o. C.T.O., Special Commodities Circle,
Saroornagar Division, demanding money on the name of ACB and  
the said conversation was recorded by them in their respective
phones and the same were handed over to the Investigating Officer
for further action. Basing on the same, pending investigation of
Crime No.7/ACB-CIU-Hyd/2015, the Prosecution has filed the
aforesaid Memo/Petition in Crl.M.P.No.50 of 2016 seeking the
aforesaid relief and the same was allowed by the Court below by
order dated 05.12.2016. It is impugning the same with the
contentions referred supra, the revision is maintained.

6.      Coming to the provisions relevant for the purpose, Sections
53, 53A, 54 and Section 2(h), (i) & (y) of the Code of Criminal
Procedure, 1973, as amended from time to time, and  Articles 20
and 21 of the Constitution of India read as under:-
(a).     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 sub-inspector, 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.

       {N.B: 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 311-A.}

       The explanation added to Section 53 reads as under:-

       [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;
(emphasis added)

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.]

(b).   53A. Examination of person accused of rape by medical
practitioner.

                (1) When a person is arrested on a charge of committing an
offence of rape or an attempt to commit rape and there are
reasonable grounds for believing that an examination of his person
will afford evidence as to the commission of such offence, it shall be
lawful for a registered medical practitioner employed in a hospital
run by the Government or by a local authority and in the absence of
such a practitioner within the radius of sixteen kilometres from the
place where the offence has been committed by any other registered
medical practitioner acting at the request of a police officer not below
the rank of a Sub-Inspector, and for any person acting in good faith
in his aid and under his direction, to make such an examination of
the arrested person and to use such force as is reasonably necessary
for that purpose.

                (2) The registered medical practitioner conducting such
examination shall, without delay, examine such person and prepare
a report of his examination giving the following particulars, namely:--

(i) the name and address of the accused and of the person by whom
he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused
for DNA profiling, and
(v) other material particulars in reasonable detail.

                (3) The report shall state precisely the reasons for each
conclusion arrived at shall also be noted in the report,

                (4) The exact time of commencement and completion of the
examination shall also be noted in the report,

                (5) The registered medical practitioner shall, without delay,
forward the report of the investigating officer, who shall forward it to
the Magistrate referred to in Section 173 as part of the documents
referred to in clause (a) of sub-section (5) of that section.

     (c).     54. Examination of arrested person by medical officer:--

                (1) When a person is arrested, he shall be examined by a
medical officer in the service of Central or State Governments and in
case the medical officer is not available by a registered medical
practitioner soon after the arrest is made:

                Provided that where the arrested person is a female, the
examination of the body shall be made only by or under the
supervision of a female medical officer, and in case the female medical
officer is not available, by a female registered medical practitioner.

                (2) The medical officer or a registered medical practitioner so
examining the arrested person shall prepare the record of such
examination, mentioning therein any injuries or marks of violence
upon the person arrested, and the approximate time when such
injuries or marks may have been inflicted.

                (3) Where an examination is made under sub-section (1), a
copy of the report of such examination shall be furnished by the
medical officer or registered medical practitioner, as the case may be,
to the arrested person or the person nominated by such arrested
person.


       (d).    Section 2(h), (i) and (y) of Cr.P.C.:

       In this Code, unless the context otherwise requires,
       (h)"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;

       (i) "judicial proceeding" includes any proceeding in the course of
which evidence is or may be legally taken on oath;

       (y) words and expressions used herein and not defined but defined
in the Indian Penal Code (45 of 1860) have the meanings respectively
assigned to them in that Code.

(e)        Article 20: Protection in respect of conviction for offences:-- (1)
No person shall be convicted of any offence except for violation of a law in
force at the time of the commission of the act charged as an offence, nor
be subjected to a penalty greater than that which might have been
inflicted under the law in force at the time of the commission of the
offence.

        (2) No person shall be prosecuted and punished for the same offence
more than once.

        (3) No person accused of any offence shall be compelled to be a
witness against himself.

(f)        Article 21:  Protection of life and personal liberty:-- No person
shall be deprived of his life or personal liberty except according to
procedure established by law.


7.              Coming to the propositions, on the scope of Article 20
of the Constitution of India, the Eleven Judges Bench of the
Supreme Court in the majority expression in STATE OF
BOMBAY v. KATHI KALU OGHAD  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.
      It is further observed that "the giving of fingers
impression or of specified signature or of handwriting etc.,
strictly speaking, is not "to be a witness". The expression "to
be a witness" was held 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.
      It is 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 Supreme Court further observed that "clause 3
of Article 20 of the Constitution is directed against self-
incrimination by an accused person. Self-incrimination
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".
8.      No doubt, in RAKESH BISHT ETC. v. CENTRAL BUREAU OF        
INVESTIGATION , a learned single Judge of Delhi High Court vide
order dated 03.01.2007 in Criminal Revision Petition Nos.461 and
462 of 2006, observed that by virtue of Section 73 of the Indian
Evidence Act, at the stage of investigation, the accused cannot be
compelled to give his voice sample and there is no such provision in
the Evidence Act to deal with taking of voice sample, however, if
investigation is completed and charges framed, the Court may allow
voice sample to be taken, provided it is only for the purpose of
identification and does not contain any inculpatory statement.  The
learned single Judge further referred the expression in KATHI
KALU (supra) and the judgment of the Apex Court in R.M.
MALKANI v. STATE OF MAHARASHTRA   for the proposition that    
tape recorded conversation is admissible in evidence, if it is
relevant to the matters in issue, and the other expression of the
Apex Court in STATE OF UTTAR PRADESH v. RAM BABU MISRA        
on the scope of Section 73 of the Indian Evidence Act of Court has
no power during investigation, but for during trial, to direct the
accused to subscribe the specimen handwriting or signature or
thumb impression etc., and the other judgment of the Apex Court
in UNION OF INDIA v. PRAKASH P. HINDUJA , particularly  
para-20, that the legal position is absolutely clear and also settled
by Judicial authorities that the Court would not interfere with the
investigation or during course of investigation, which would mean
from the time of lodging of the FIR till submission of final report by
the Officer incharge of Police Station in Court, under Section 173(2)
Cr.P.C., this field being exclusively reserved for the Investigating
Agency, and the other expression of the Apex Court in STATE OF
HARYANA v. JAGBIR SINGH AND ANOTHER , which relied upon      
RAM BABU MISRA (supra) on the scope of Section 73 of the  
Evidence Act and also referred Section 311-A of Cr.P.C. and
observed that by virtue of Section 311-A of Cr.P.C., amended
provision came into force with effect from 23.06.2006 and not prior
to that when the impugned order passed by the trial Magistrate,
apart from the same only refers to the handwriting and no
reference to voice samples or voice recording as a bar, it cannot be
urged that the specimen signatures or 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, no doubt, the said
amendment is pursuant to the recommendations of the Apex Court
in RAM BABU MISRA (supra) and thereby permitting of voice
sample during investigation held unsustainable and set aside.

9.      Though, the learned counsel for petitioner-A.1 relied on the
observation of, at a post-cognizance stage Court can take, it is not
by referring any provision and it is not a clear finding, but for a
contextual reference on the scope of Section 73 of Evidence Act,
from the law and what more observed is, the Bombay High Court
in CENTRAL BUREAU OF INVESTIGATION v. ABDUL KARIM        
LADSAB TELGI AND OTEHRS , at paras-11 and 12 directed for  
taking of voice samples referring to some English expressions. Even
the Bombay High Court did not refer to any of the enabling
provisions either in the Evidence Act or under Cr.P.C.  A learned
single Judge of Gujarat High Court in the very latest expression in
NATVARLAL AMARSHIBHAI DEVANI v. STATE OF GUJARAT in          
Special Criminal Application (Direction) No.5226 of 2015, dated
18.01.2017, observed that there is no provision in the Cr.P.C. to
authorise any Investigating Agency to record voice sample of any
person accused of an offence, though spectrographic analysis is the
available technique of voice identification or elimination by means
of voice prints and the voice print may be defined as a pictorial
representation of the acoustical energy output of a speaker, as a
function of time, frequency and amplitude and spectrographic voice
identification requires nothing of the support beyond the furnishing
of a voice sample, either in the presence of a tape recorder or
depending on the circumstances, over telephone line to which a
recording device has been connected. The suspect is required to
repeat the 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.  It is also observed
that spectrographic test will not fall within the ambit of psychiatric
treatment and the principles explained in SELVIs case (supra)
would not apply to the spectrographic test. However, there is no
provision in the Code or any other law, which empowers the police or
a Criminal Court, to subject the accused to the test, either from the
provisions of the Act of 1920 or Section 53 Cr.P.C. or Sections 73 and
165 of the Evidence Act to compel the accused to give his voice
sample for the purpose of spectrographs test.  For that conclusion, it
referred the expression in RITESH SINHA VS. STATE OF U.P.  In
RITESH SINHA (supra), the different opinions expressed by the
Honble 2-Judges Bench of the Apex Court and the matter is
pending on reference for majority opinion before Larger Bench of
the Apex Court. However, there is no legal bar therefrom in
deciding the matter from the view expressed by the Apex Court in
ASHOK SADARANGANI AND ANOTHER v. UNION OF INDIA AND            
OTHERS  of pendency of a reference to a Larger Bench does not
mean all other proceedings involving the same issue remains
stayed till a decision is rendered in the reference, by referring to
earlier expressions of the Apex Court, in this regard.

10.     In RITESH SINHA case (supra), the Apex Court by referring
to KATHI KALU (supra) among other expressions, observed that:

       21. While departing from the view taken in M.P. Sharma that to be
witness is nothing more than to furnish evidence and such evidence can be
furnished through lips or by production of a thing or of a document or in other
modes, in Kathi Kalu Oghad this Court was alive to the fact that the
investigating agencies cannot be denied their legitimate power to
investigate a case properly and on a proper analysis of relevant legal
provisions it gave a restricted meaning to the term to be witness. The
relevant observations may be quoted: (KATHI KALU OGHADs case  AIR  
p-1814  para-10)
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. Furnishing evidence in the latter sense
could not have been within the contemplation of the Constitution-
makers for the simple reason that  thought they may have intended
to protect an accused person from the hazards of self-incrimination,
in the light of the English Law on the subject  they could not have
intended to put obstacles in the way of efficient and effective
investigation into crime and of bringing criminals to justice. The
taking of impressions or parts of the body of an accused person very
often becomes necessary to help the investigation of a crime. 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.

        ..          

       24. Four of the conclusions drawn by this court, which are relevant
for our purpose, could be quoted:
(3) 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.
(4) Giving thumb impressions or impressions of foot or palm or fingers or
specimen writings or showing parts of the body by way of identification are
not included in the expression to be a witness.
(5) To be a witness means imparting knowledge in respect of relevant
facts by an oral statement or a statement in writing, made or given in
court or otherwise.
(6) To be a witness in its ordinary grammatical sense means giving oral
testimony in court. Case law has gone beyond this strict literal
interpretation of the expression which may now bear a wider meaning,
namely, bearing testimony in court or out of court by a person accused of
an offence, orally or in writing.

        ..          
            26.  In SELVIs case, a three Judge Bench of this Court was
considering whether involuntary administration of certain scientific
techniques like narco-analysis, polygraph-examination and the Brain-
Electrical-Activation-Profile (BEAP) tests and the results thereof are of a
testimonial character attracting the bar of Article 20(3) of the
Constitution. This Court considered the protective scope of right against
self-incrimination, that is whether it extends to the investigation stage and
came to the conclusion that even the investigation at the police level is
embraced by Article 20(3). After quoting extensively from Kathi Kalu
Oghad, it was observed that the scope of testimonial compulsion is made
clear by two premises. 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. It
was held that all the three techniques involve testimonial responses. They
impede the subjects right to remain silent. The subject is compelled to
convey personal knowledge irrespective of his/her own volition. The
results of these tests cannot be likened to physical evidence so as to
exclude them from the protective scope of Article 20(3). This Court
concluded that compulsory administration of the impugned techniques
violates the right against self-incrimination. Article 20(3) aims to prevent
the forcible conveyance of personal knowledge that is relevant to the facts
in issue. The results obtained from each of the impugned tests bear a
testimonial character and they cannot be categorized as material evidence
such as bodily substances and other physical objects.

11.     In DIPANWITA ROY v. RONOBROTO ROY  referring to the    
earlier expressions in BHABANI PRASAD JENA ETC. v.  
CONVENER, SEC. ORISSA S.COMN. , and NANDLAL WASUDEO            
BADWAIK VS. LATA NANDLAL BADWAIK AND ANOTHER , while          
holding that there is no conflict in the two decisions of this Court,
namely, GOUTAM KUNDU VS. STATE OF WEST BENGAL          
and SHARDA VS. DHARMPAL , it was held that:  
It is borne from the decisions rendered by this Court in BHABANI
PRASAD JENA (supra), and NANDLAL WASUDEO BADWAIK (supra), that        
depending on the facts and circumstances of the case, it would be
permissible for a Court to direct the holding of a DNA examination, to
determine the veracity of the allegation(s), which constitute one of the
grounds, on which the concerned party would either succeed or lose.
There can be no dispute, that if the direction to hold such a test can be
avoided, it should be so avoided. The reason, as already recorded in
various judgments by this Court, is that the legitimacy of a child should
not be put to peril.

12.     In fact, even from these expressions, even against the will, the
DNA test can be ordered to provide sperm, blood or other samples
to be extracted from the body of the person for such examination
and what is observed to avoid where it can be avoided is, in the
interest of the child cannot be put to peril and not in considering
any direction tantamount to testimonial compulsion of the same.
13.     In the latest 3-Judges Bench expression of the Apex Court in
SUDHIR CHAUDHARY VS. STATE (NCT of Delhi) , it was    
observed, no doubt from the consent of accused to the voice
sampling, that:
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.


14.     From the above, it is clear that the process of collecting
samples for conducting tests should be fair and reasonable, having
regard to the mandate of Article 21 of the Constitution of India.
But, it is not open to the accused to dictate the course of
investigation. The conclusion therein is practically from the consent
to give voice sample and not against the consent, its ordering and
the expression in RITESH SINHAs case (supra) not referred
therein. However, it is observed that giving of voice sample is not
evidence, since its purpose is only to compare it with the
questioned test, since consented to furnish.

15.     From the above, covering the scope of admissibility and
relevancy of an expert opinion on voice sampling and the same can
be obtained from the accused against his will, either during
investigation or at post-cognizance stage by the Court or to direct
the police to so obtain/take either at request of police or other
investigating agency or at request of the defacto-complainant or
victim of a criminal proceeding, this Court in Crl.P.No.2119 of
2015, dated 23.06.2015, at paras-3 to 5, held as follows:
               3.  Though the Eleven Judges Constitutional Bench expression
of the Apex Court in KATHIKALU (supra)  is clear that once accused is
arrested in connection with investigation or other proceeding under
Section 5 of the Identification of Prisoners Act, 1920, a Magistrate of
the First Class, where satisfied that, for purpose of said investigation
or proceeding under the Criminal Procedure Code, it is expedient to
direct the person to allow his photographs or measurements (which
include finger impressions or foot print impressions as per Section
2(i)(iii) of the Act, 1920 (that may extends to signatures even) for
purpose of comparison with any disputed finger impressions or the
like, that does not hit by Article 20(3) of the Constitution of India as
not within the meaning of to be a witness but for furnishing evidence
in the larger sense and what is protected an accused is from hazards
of self incrimination, the bar under Article 20(3) of the Constitution of
India can be invoked when the statements are likely to lead to
incrimination by themselves or furnish a link in the claim of evidence.
              4. The law is very clear by interpretation of scope of Section 73 of
the Indian Evidence Act that the Court has no power to ask for writing
or thumb impression of an accused of a crime before commencement
of enquiry or trial. Such obtaining by the Magistrate is besides
unwarranted and even so taken and used for comparison during
investigation, it is inadmissible in evidence, but for the same obtained
during enquiry or trial to admit in evidence, vide expressions of the
Apex Court in RAM BABU MISHRA (supra) relied upon later in
SUKHVINDER SINGH & ORS. v. STATE OF PUNJAB , AJITH        
SAVANTH MAJAGAVI v. STATE OF KARNATAKA , AMRITH SINGH          
v. STATE OF PUNJAB , B.MALLESAM v. STATE OF A.P.   No      
doubt, Section 311-A Cr.P.C is introduced by amended Act 25 of 2005
with effect from 23.06.2006, where under the investigating officer can
ask during investigation for purpose of the investigation to provide for
specimen signature or hand-writing of an arrested accused. Even this
provision no way speaks giving of voice sampling but for confining at
best to set at knot the impact of the expression of RAMBABU MISHRA
(supra) (and the later expressions relied on it) on the scope of Section
73 of the Indian Evidence Act. It is needless to say even the law
commission (pursuant to the observation in RAMBABU MISHRA  
(supra) in its 87th report of August, 1980 suggested the amendments
to Sections 3 to 5 of the Act, 1920 to update it by including the
scientific advances in the aid of investigation, including at para 3.16 of
the report, for voice identification to furnish voice of the accused, same
not materialized for none of the provisions of the Act, 1920 amended.
Section 311-A Cr.P.C inserted is only for the limited area of arrested
accused specimen writings and even explanation to Section 53 of
Cr.P.C besides Section 53-A inserted by inclusion of D.N.A profiling
and such other tests which the registered medical practitioner thinks
necessary in a particular case; thus when registered medical
practitioner cannot take a voice sample, Section 53 or 53-A or Section
311-A Cr.P.C or Section 73 of Indian Evidence Act or Sections 3 to 5 of
the Act, 1920 have no application for taking voice sampling. Further
when accused not arrested and brought before Court none of the
provisions even enable to ask the accused or suspect to undergo any
medical tests even muchless to subscribe handwriting or signature or
thumb or palm impressions or foot prints.
              5. The law is well settled no doubt that even a minority view of
the Apex Court not in conflict to the majority view of the Apex Court,
when that applicable to the lis is binding precedent under Article 141
of the Constitution of India. However, when there is difference of
opinion between each of the two Judge bench of the Apex Court, High
Court and subordinate Courts can follow which view among the two is
sound to follow, but for to say if the view of first Judge is considered
and differed by the second Judge, the High Court and Subordinate
Courts cannot sit against the wisdom of the second Judge of the Apex
Court. Hence, among the conflicting opinions of the two Judges
expressed in RITESH SINHA (supra), the view expressed by Honble
Justice Aftab Alam is not only a later one after going through the views
expressed by Honble Justice R.P.Desai; but also a reasoned one to
follow and accordingly relied upon.

16.     From the above, coming back to the decision of the 3-Judge
Bench of the Apex Court in SELVI AND OTHERS v. STATE OF    
KARNATAKA , it is clearly observed that --
        -- The rule under Article 20(3) of the Constitution of India
against the testimonial compulsion, however, does not prohibit
collection of material evidence, such as bodily substances and
other physical objects and the statement used for comparison with
facts already known to investigators. To ascertain whether the
statement is incriminatory, depends upon the use to which it is
put. The distinction, whether the statement is inculpatory or
exculpatory is to decide at the stage of trial, whereas the Right to
remain Silence is available even at the stage of investigation in a
criminal case.


In the conclusion para, it was observed:

        In our considered opinion, the compulsory administration of the
impugned techniques violates the `right against self- incrimination'. This
is because the underlying rationale of the said right is to ensure the
reliability as well as voluntariness of statements that are admitted as
evidence. This Court has recognised that the protective scope of Article
20(3) extends to the investigative stage in criminal cases and when read
with Section 161(2) of the Code of Criminal Procedure, 1973 it protects
accused persons, suspects as well as witnesses who are examined
during an investigation. The test results cannot be admitted in evidence
if they have been obtained through the use of compulsion. Article 20(3)
protects an individual's choice between speaking and remaining silent,
irrespective of whether the subsequent testimony proves to be
inculpatory or exculpatory. Article 20(3) aims to prevent the forcible
`conveyance of personal knowledge that is relevant to the facts in issue'.
The results obtained from each of the impugned tests bear a
`testimonial' character and they cannot be categorised as material
evidence.
        We are also of the view that forcing an individual to undergo any of
the impugned techniques violates the standard of `substantive due
process' which is required for restraining personal liberty. Such a
violation will occur irrespective of whether these techniques are forcibly
administered during the course of an investigation or for any other
purpose since the test results could also expose a person to adverse
consequences of a non-penal nature. The impugned techniques cannot
be read into the statutory provisions which enable medical examination
during investigation in criminal cases, i.e. the Explanation to Sections
53, 53-A and 54 of the Code of Criminal Procedure, 1973. Such an
expansive interpretation is not feasible in light of the rule of `ejusdem
generis' and the considerations which govern the interpretation of
statutes in relation to scientific advancements. We have also elaborated
how the compulsory administration of any of these techniques is an
unjustified intrusion into the mental privacy of an individual. It would
also amount to `cruel, inhuman or degrading treatment' with regard to
the language of evolving international human rights norms.
Furthermore, placing reliance on the results gathered from these
techniques comes into conflict with the `right to fair trial'. Invocations of
a compelling public interest cannot justify the dilution of constitutional
rights such as the `right against self-incrimination'.
        In light of these conclusions, we hold that no individual should be
forcibly subjected to any of the techniques in question, whether in the
context of investigation in criminal cases or otherwise. Doing so would
amount to an unwarranted intrusion into personal liberty. However, we
do leave room for the voluntary administration of the impugned
techniques in the context of criminal justice, provided that certain
safeguards are in place. Even when the subject has given consent to
undergo any of these tests, the test results by themselves cannot be
admitted as evidence because the subject does not exercise conscious
control over the responses during the administration of the test.
However, any information or material that is subsequently discovered
with the help of voluntary administered test results can be admitted, in
accordance with Section 27 of the Evidence Act, 1872. 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:
(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.


17.     From the above, covering the scope of Expert Opinion,
admissibility and relevancy, now coming to the opinion as to voice
sampling can be obtained from the accused against his will, either
during investigation or at post-cognizance stage by the Court or to
direct police to so obtain/take either at request of police or other
investigating agency or at request of defacto-complainant or victim
of a criminal proceeding, this Court in Crl.P.No.2119 of 2015, dated
23.06.2015, at para-3, held as follows:
3) Though the Eleven Judges Constitutional Bench expression of
the Apex Court in State of Bombay V. Kathikalu Oghad [1] is
clear that once accused is arrested in connection with
investigation or other proceeding under Section 5 of the
Identification of Prisoners Act, 1920, a Magistrate of the First
Class, where satisfied that, for purpose of said investigation or
proceeding under the Criminal Procedure Code, it is expedient to
direct the person to allow his photographs or measurements
(which include finger impressions or foot print impressions as per
Section 2(i)(iii) of the Act, 1920 (that may extends to signatures
even) for purpose of comparison with any disputed finger
impressions or the like, that does not hit by Article 20(3) of the
Constitution of India as not within the meaning of to be a witness
but for furnishing evidence in the larger sense and what is
protected an accused is from hazards of self incrimination, the bar
under Article 20(3) of the Constitution of India can be invoked
when the statements are likely to lead to incrimination by
themselves or furnish a link in the claim of evidence.
     
18.     No doubt, in DIPANWITA ROY (supra), it was observed at
para-18, upholding of the order of the High Court directing for DNA
examination by giving liberty to the wife to comply with and if she
declines, the allegation would be determined by the Court
concerned by drawing a presumption of the nature contemplated by
Section 114, particularly from illustration (h) (adverse inference) of
the Evidence Act.
     
19.     This decision, no doubt, shows that despite direction, if a
party failed to obey the same, the Court is entitled to draw an
adverse inference.

20.  Thus, asking or directing an accused or suspect and even
during investigation to give his/her/ their voice samples is not a
testimonial compulsion "to be a witness" in the sense of making
any oral or written statements against himself within the meaning
of self-incrimination of conveying information based upon the
personal knowledge of the person giving the information, but it is
only in the larger sense of the expression to include giving of thumb
impression or impression of palm or foot or fingers or specimen
writing or voice sample or exposing a part of the body by an
accused or suspect for purpose of identification; particularly in case
of voice samples, its` purpose is only to compare them with the
disputed ones, which are to be analysed though the available
spectrographic technique of voice identification or elimination by
means of voice prints by pictorial representation of the acoustical
energy output of a speaker, as a function of time, frequency and
amplitude, which may either in the presence of a tape recorder or
depending on the circumstances, over telephone line to which a
recording device has been connected in its submission of any
similarity in repeating of sentences that are to be compared, by
such mechanical process.

21.     It is needless to say that spectrographic test will not fall
within the ambit of psychiatric treatment and the principles
explained in SELVIs case (supra) would not apply to the
spectrographic test. It is no doubt to ensure that the underlying
process for drawing the voice samples must be fair and reasonable,
having due regard to the mandate of Article 21, which does not
mean, it is open to the accused to dictate the course of
investigation or terms of the test of voice sample, but for any
objection for same words.

22.     However, the fact remains that there is no specific and
enabling provision in the Code or any other law, which empowers the
police or  Court to subject the accused/suspect to such test, either
from the provisions of the Act of 1920 or Sections 53, 53-A, 54, 311-A
Cr.P.C. or Sections 73 and 165 of the Evidence Act, to compel the
accused to give his voice sample for the purpose of spectrographic
test within the meaning of procedure established by law, for the
reason that specimen signatures or handwriting or finger prints or
thumb impressions etc., should also include voice samples, nor it
comes within such other tests contemplated by any of the
provisions and, in particular, from the wording of Section 53 CrPC,
apart from the fact that the Legislature, when it introduced Section
311-A Cr.P.C., was well aware of the said difference in the
technology of tape recording and taking of voice samples.

23.   In fact, in RITESH SINHA (supra), among the conflicting
opinions of the two Hon`ble Judges, the views expressed by
Honble Justice Aftab Alam, which is a later one, after going
through the views expressed by Honble Justice R.P.Desai; by
assigning  reasons to the conclusion are as follows:
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 is
not the correct enunciation of law.
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.
At this stage, I may also refer to the decision of this Court in State of
Uttar Pradesh v. Ram Babu Misra[34] 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 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.
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 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 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)
 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
judicial mind while reading the provisions of the Indian Prisoners Act
normally, without any urge to give the expression measurements
any stretched meaning.
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:
(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.
The Report as noted was submitted in 1980. The Code of Criminal
Procedure was amended in 2005 when the Explanation was added to  
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.
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.
In light of the above discussion, I respectfully differ from the
judgment proposed by my sister Desai J. I would allow the appeal
and set aside the order passed by the Magistrate and affirmed by the
High Court.
Let copies of this judgment be sent to the Union Law Minister and
the Attorney General and their attention be drawn to the issue
involved in the case.
In view of the difference of opinion between us, let this case be listed
for hearing before a bench of three Judges after obtaining the
necessary direction from the Honourable the Chief Justice of India.

24.     Having regard to the above and by reiterating the conclusion
arrived at by this Court earlier in Crl.P.No.2119 of 2015, dated
23.06.2015, at paras-3 to 5 reproduced above, this Criminal
Revision Case is allowed by setting aside the order dated
05.12.2016 in Crl.M.P.No.50 of 2016 in Crime No.7/ACB-CIU-
Hyd/2015 passed by the learned I Additional Special Judge for SPE
and ACB Cases-cum-V Additional Chief Judge, City Civil Court,
Hyderabad, holding that the same is unsustainable and without
jurisdiction conferred by law.

25.     As a sequel, miscellaneous petitions pending, if any, in this
revision shall stand closed.

____________________________________    
Dr. JUSTICE B. SIVA SANKARA RAO    
20.02.2017

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