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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 16.11.2017

CORAM:

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

Criminal Revision Case No.1752 of 2011 and

M.P.No.1 of 2011

P.Kishore .. Petitioner

Vs

State rep. By
Addl. Superintendent of Police,
SPE/CBI/ACB/Chennai. .. Respondent

Prayer:- Criminal Revision filed under Sections 397 and 401 of

Criminal Procedure Code to call for the records from the file of the
learned Principal Special Judge for CBI cases, Chennai in
Crl.M.P.No.5647 of 2011, dated 12.09.2011.

For Petitioner : Mr.S.Ashok Kumar

For Respondent : Mr.K.Srinivasan,

Special Public Prosecutor (CBI cases)

ORDER

This petition is filed against the order passed by the learned

Principal Special Judge for CBI cases in Crl.M.P.No.5647/2011 dated

12.09.2011, arising out of the petition filed by the Investigating

Officer to direct the accused person to give his specimen voice for
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comparison.

2. The revision petitioner herein is the second accused in the

case registered by CBI in connection with the trap proceedings. The

petitioner is alleged to have involved in offering bribe of Rs. 50,000/-

to one Andasu Ravindar ( A-1) Additional Commissioner of Income

Tax, Chennai to do undue favour in respect of his concealed income.

The interception of telephonic conversation between the accused

persons have revealed the conspiracy hatched between them in

respect of demand and acceptance of bribe. Hence, the prosecution

to compare the voice recorded during the investigation wanted the

sample voice of the petitioner to be tested scientifically. The trial

court allowed the petition and permitted the investigating officer to

record the sample voice of the petitioner and others. Accordingly, the

voice samples were also drawn pursuant to the trial court order.

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.

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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.

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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
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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 judical pronouncement.

9.According to the learned counsel for the petitioner, Section

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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 analysing 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

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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 dilog 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 analysed or
measured on the basis of time, frequency and
intensity of the speechsound waves. A voice
print is a visual recording of voice.
Spectrographic Voice Identification is
described in Chapter 12 of the Book
"Scientific Evidence in Criminal Cases" written
by Andre A. Moenssens, Ray Edward Moses
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and Fred E. Inbau. The relevant extracts of
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this chapter could be advantageously quoted.

"Voiceprint identification requires (1) a
recording of the questioned voice, (2) a
recording of known origin for comparison, and
(3) a sound spectrograph machine adapted
for 'voiceprint' studies." 12.02 Sound and
Speech In order to properly understand the
voiceprint technique, it is necessary to briefly
review some elementary concepts of sound
and speech. Sound, like heat, can be defined
as a vibration of air molecules or described as
energy in the form of waves or pulses, caused
by vibrations. In the speech process, the
initial wave producing vibrations originate in
the vocal cords. Each vibration causes a
compression and corresponding rarefications
of the air, which in turn form the
aforementioned wave or pulse. The time
interval between each pulse is called the
frequency of sound; it is expressed generally
in hertz, abbreviated as 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
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and intensity, two activities of air molecules in
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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 speechsound 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

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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

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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

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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.

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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

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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

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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.

22. To sum up, the Constitutional Bench judgment in State of

Bombay v. Kathi Kalu Oghad (cited supra) and the three judges

Bench in Selvi case permits physical examination of a person.

Compelling the person to give his voice sample is nothing, but

physical examination falling within the meaning of 'measurement' and

no testimonial compulsion is involved in it. In this case, as pointed

out earlier, already voice sample has been drawn pursuant to the

order passed by the trial Court. The Hon'ble Supreme Court in one of

the judgment reported in 2016 SC 366, Sudhir v. State NCTE

Delhi has held that once voice sample been given by the accused

person voluntarily, it is not open to him to dictate in the course of

investigation. The facts of the said case almost similar to the case in

hand. Except the petitioner pleads that voice sample was taken under

compulsion and not on his own volition. If it is so it is matter for trial

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and not a point which can be agitated at pre-trial stage.

23. Finally , in support of his argument, the learned counsel after

taking through the march of law, on this issue, ultimately, raised his

doubt about the very evidentiary value of the comparing voice, when

we are in an era of enjoying mimicry as the prime entertainment.

When a mimicry expert can mime any person's voice, is it prudent to

venture upon comparing the disputed voice with that of the sample

voice drawn against the consent of the accused person.

24. Precisely, that is the reason why this Court is of the firm

opinion that the person accused cannot refuse to give his voice

sample for comparison on the ground that he is protected under

constitution to keep silence. When his “voice” itself become subject

matter for trial, “silence” cannot be a shield. More so when drawing

voice sample is only a physical examination without exerting any

external force. Therefore, this Court holds that there is no merit in

this petition. Hence the petition is liable to be dismissed.

25.In the result, the Criminal Revision Case is dismissed and

the order passed by the learned Principal Special Judge for CBI

cases, Chennai in Crl.M.P.No.5647 of 2011, dated 12.09.2011 is

confirmed. Consequently, connected miscellaneous petition is closed.

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16.11.2017
jbm/ari

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.

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G.JAYACHANDRAN.J.,

jbm/ari

Crl.R.C.No.1752 of 2011

16.11.2017

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