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2017 Supreme(AP) 52
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATE OF TELANGANA AND THE STATE OF ANDHRA PRADESH
B. Siva Sankara Rao, J.
Mr. Amit Khetawat - Petitioner
Vs.
State of Telangana - Respondent
Criminal Revision Case No. 3208 of 2016
Decided On : 20-02-2017
For the Petitioner: Sri B. Chandrasen Reddy
For the Respondent: Sri V. Ravi Kiran Rao
Headnote:
Constitution of India - Articles 20 and 21, 20(3) and 141 - Criminal Law - Criminal Procedure Code - Sections 397,401, Sections 173(2), 53, 53A, 54 and Section 2(h), (i) & (y), 53A - Law of Evidence - Indian Evidence Act, Section 73 - Prevention of Corruption Act, 1988 - Sections 9 and 10 - Indian Penal Code,1860 - Sections 468, 471 and 120(B) r/w. Section 34 - Identification of Prisoners Act, 1920 - Section 5 - Criminal Revision Case under Sections is filed by the petitioner-AO. No. 1 of Crime dated aggrieved by the order dated in Crime passed by the learned I Additional Special Judge for SPE and ACB Cases-cum-V Additional Chief Judge City Civil Court allowing the petition/Memo filed by the Prosecution under Sections of Prevention of Corruption Act and Sections and Section seeking permission to record the voice samples of in directing to submit voice samples of so as to enable the Investigating Agency to send the same to the Forensic Science Laboratory for comparison to determine the voice - Submissions in the course of hearing by the learned counsel for revision petitioner 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 petitioner against his will by testimonial compulsion and thereby sought for setting aside the impugned order of the Court below - 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 comparison and opinion and comes within the meaning of such other tests mentioned in Explanation (a) of Section and the same is well within its scope contemplated by law and also necessary for the effective adjudication of the criminal list 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 - Held, If a Magistrate is satisfied that for the purpose of any investigation or proceeding under the Code of Criminal Procedure - Allow his measurements or photograph to be taken - Furnish a specimen of his signature or writing - Furnish a specimen of his voice by uttering the specified words or making the specified sounds - Magistrate may make an order to that effect recording his reasons for such an order - 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 of the Indian Evidence Act be given by such Magistrate - Report as noted was submitted - Code of Criminal Procedure was amended in when the Explanation was added to Section were inserted into the Code - 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 of the Code of Criminal Procedure - Respectfully differ from the judgment proposed by my sister would allow the appeal and set aside the order passed by the Magistrate and affirmed by the High Court - Judgment be sent to the Union Law Minister and the Attorney General and their attention be drawn to the issue involved in the case - Having regard to the above and by reiterating the conclusion arrived at by this Court earlier in dated reproduced this Criminal Revision Case is allowed by setting aside the order dated in Crime passed by the learned I Additional Special Judge for SPE and ACB Cases-cum-V Additional Chief Judge City Civil Court holding that the same is unsustainable and without jurisdiction conferred by law - Petitions pending - Ordered Accordingly.
B. SIVA SANKARA RAO, J.
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 comparison 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
