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2012 Supreme(Bom) 434
BOMBAY HIGH COURT AT PANAJI, GOA
F.M. REIS, J.
Shri Madhukar K. Farde - Petitioner
Versus
Central Bureau of Investigation, having its office at Bambolim Goa - Respondent
Criminal Revision Application No. 57 of 2011
Decided on: 28th February, 2012
Advocate Appeared
R. Menezes, Advocate, for the petitioner;
J. Vaz. Special PP, Advocate for respondent.
Headnote:Criminal Procedure Code, 1973 - Criminal Revision - Challenging order dated 30.9.2011 of trial Court allowing application filed by respondent-CBI for taking of voice specimen of petitioner -Contention that direction to take voice sample cannot be done at stage of investigation - And granting application for voice sample opposed to provisions of Article 20(3) of Constitution.
Held - Charge-sheet against petitioner has already been filed before trial Court - Objection of petitioner that voice sample cannot be taken during investigation, not survives - First contention rejected - Voice samples of petitioner asked for purpose of comparison not in any way infringe Article 20(3) of Constitution - Contention of petitioner cannot be accepted - Question of existence of voice sample kept open to be decided by trial Court on merit during course of trial - Revision petition devoid of merit - Dismissed.
Admittedly, the charge sheet has already been filed and the script is one of the documents produced by the respondent along with the charge-sheet and the copy thereof has also been furnished to the petitioner. Hence, the first contention of the counsel for the petitioner stands rejected. The next apprehension of the counsel appearing for the petitioner that the respondent may call upon the petitioner to read some incriminating statements which can be used against the petitioner also does not survive. The petitioner is already in possession of the script which is relied, upon by the respondent and, as such, such apprehension would also not subsist.
The protective scope of Article 20(3) read with Section 161(2), Cr PC guards against the compulsory extraction of oral testimony, even at the stage of investigation. With respect to the production of documents, the applicability of Article 20(3) is decided by the trial Judge but parties are obliged to produce documents in the first place. However, the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20(3). Furthermore, even testimony in oral or written form can be required under compulsion if it is to be used for the purpose of identification or comparison with materials and information that is already in the possession of investigators.
There is no bar to direct the petitioner to give his voice sample for the purpose of identification or comparison with the material that is already in possession of the investigators. The Single Judge of the Court in the judgment of the Central Board Investigations (supra) has upheld the right of the respondents to record voice samples of the accused for the purpose of identification of his voice to compare it with the tape recorder or telephonic conversations.
One of the precondition for admissibility of tape- recorded conversation is identification of the voice. If identification of the voice is the quintessence for the admissibility of the tape- recorded conversations it is preposterous to suggest that it is not open to the investigating agency to require the concerned accused to lend his voice sample for the purpose of identification of the voice in the tape-recorded conversation.
Indubitably, with the advancement of Science and Technology, identity of a person with the aid of finger prints, palm impression, thumb impression, foot marks, blood sample, D.N.A. test, specimen of handwritings-signature or exposing a part of the body or the like, can be established. A contemporaneous tape- record of a relevant conversation is a relevant fact admissible under Section 8 of the Evidence Act. The same is res gestae and also comparable to a photograph of a relevant incident, admissible under Section 7 of the Evidence Act. Just as handwriting and signature are associated with an individual or his personal trait, even the voice of a person is his personal trait. World over, voice identification is employed by police during investigation for identifying individuals by the time, frequency, and intensity of their speech-sound waves. A sound spectrograph is employed to record these waves in the form of a graph that may be compared to graphs of other individuals and differentiated. For the most accurate results from the spectrographic voice identification method, a professional examiner :
(1) will require the original recordings or the best quality re-recordings if the original is not available;
(2) will perform a critical aural review of the suspect and known recordings;
(3) will produce sound spectrograms of the comparable words and phrases;
(4) will produce a comparison recording juxtaposing the known and unknown speech samples;
(5) will evaluate the evidence and classify the results into one of five standard categories (1-positive identification, 2- probable identification, 3-positive elimination, 4-probable elimination, and 5-no decision). The final decision is reached through a combined process of aural and visual examination.
The spectrographic method of voice identification is a process that interweaves the visual analysis of the sound spectrograms with the critical aural examination of the sounds being viewed. No longer are voices compared on the basis of admitted group of key words. Today’s aural/spectrographic voice identification method takes advantage of the latest in technological advancements and interweaves several analysis into one procedure to produce an accurate opinion as to the identity of a voice. This modern technique combines the experience of a trained examiner performing the visual analysis of the spectrograms, and aural analysis of the recordings with the use of the latest instruments modern technology has to offer, all in a standardised methodology to assure reliability.’ Proper presentation and explanation of the research pertaining to spectrographic voice identification analysis will allow the Court to better understand the accuracy and reliability of the spectrographic voice identification method. When the research is properly presented, the studies show that properly trained individuals, using standard methodology, produce accurate results. It is not necessary to dilate an the issue as to whether the spectrograph analysis to be done or as done, would be accurate and reliable, for it will be a matter of evidence to be established by the experts an that subject. Suffice it to observe that as voice is associated with an individual or his person and a personal trait, if scientific analysis for identification of voice is possible then, there is no inhibition in taking the voice sample of a person on the basis of which, his identity in the tape-recorded telephonic conversation can be established.
It is well settled that reading the said script for identification/comparison by itself cannot be an evidence against the petitioner. The respondent will have to follow the procedure of law to establish the allegations about the existence of the voice recording and their claim that such voice recording is being identified before the CFSL. This aspect in any event would be a matter which would have to be considered after evidence is recorded on merits. The apprehension of the Counsel for the petitioner to the effect that the petition disputes the existence of the voice recording itself is also a matter which would have to be considered by the Sessions Judge on merits. The question of existence of voice sample is kept open to be decided by the Sessions Judge on merits during the course of the trial of the case. At this stage, It would not be appropriate to consider the said aspect while deciding the application seeking permission to take the voice sample of the petitioner.
Per F.M. Reis, J. - Heard. Shri R. Menezes, learned Counsel appearing for the petitioner and Shri J. Vaz, learned Special Public Prosecutor for the respondent.
2. The above revision petition challenges the order dated 30/09/2011 passed by the learned Principal District and Sessions Judge, North Goa, Panaji in Criminal Miscellaneous Application No.38/2011.
3. Briefly the facts of the case are that the respondent/CBI had registered RC5(A)/2010 against the petitioner for demanding a bribe of Rs.1,00,000/- from Ms. Bharati Roy of M/s. Vidya Industrial Services for the release of the attachment of the shop and firm. It is further their contention that he was caught red handed while accepting an amount of Rs.25,000/- from the complainant through her advocate in the course of the trap laid out. It is further their case that the conversation that ensued between the accused, the complainant and her advocate were recorded in the presence of the panch witnesses and sealed under their signature. It is further their case that the petitioner, the complainant and the witnesses were called to the CBI office for recording their voice specimen on 3/03/2011 when they gave her voice specimen unlike the petitioner who refused to do so. A notice to that effect was given through the advocate to the petitioner to give such voice specimen. It is further their case that it was vital for the voice spectrographic test by the CFSL. New Delhi on the recorded conversation that his voice specimen is essential for such test and crucial for the investigation. The petitioner opposed the said application and disputed the right of the respondent to carry out such voice specimen. It was his case that by indulging in such exercise the petitioner would have to give evidence against himself which is not permissible in view of Article 20(3) of the Constitution of India. It is further his case that the application itself was malafide attempt on the part of the respondent and that the earlier attempt by the respondent to take such voice sample was not permitted by the learned Judge. It is further his case that such tests are not at all crucial or vital for the purpose of investigations and prayed that the application be rejected.
4. The learned Judge vide impugned order dated 30/09/2011 upon hearing the parties allowed the application filed by the respondent. Being aggrieved by the said order, the petitioner has preferred the above revision petition.
5. Shri R. Menezes, the learned Counsel appearing for the petitioner advanced three submissions assailing the impugned order passed by the learned Sessions Judge. The first contention is that such direction to take voice sample cannot be done at the stage of investigations. It is further his contention that by directing the grant of such voice sample the respondent may force the petitioner to record some incriminating statements against the petitioner which may implicate him for the alleged crime. It is further his case that granting of such application for voice sample is opposed to the provisions of Article 20(3) of the Constitution of India. It is further his case that the question of seeking any voice sample by reading the script as proposed by the respondent would not arise as at the most the respondent can call upon the petitioner to read some neutral statements if at all the respondent is entitled to take such voice sample. The learned Counsel has further pointed that though the charge sheet has been filed during the pendency of the above revision petition, nevertheless, the petitioner disputes the existence of the voice recording which has been produced along with the charge sheet which is alleged to have been sent to the CFSL for test. In support of his submissions, the learned Counsel has relied upon paras 13 and 18 of the judgment of the Hon'ble Delhi High Court reported in 2007 Cri.L.J. 1530 in the case of Rakesh Bisht etc. v. Central Bureau of Investigation which thus:
13. An examination of the decision in
