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High Court Of Calcutta
P. N. Sinha
DWIJADAS BANERJEE - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. R. 2074 Of 2004
Decided On : 10/11/2004
VOICE RECORDING - COMPARISON - EVIDENCE ACT, 1872 - SECTION 73 - IDENTIFICATION OF PRISONERS ACT, 1920 - SECTIONS 3, 4, 5 - CONSTITUTION OF INDIA - ARTICLE 20(3) - CRIMINAL PROCEDURE CODE, 1973 - SECTIONS 161(2), 162(2) - During the investigation stage, a Magistrate cannot direct the accused to give their voice for recording or rendition to the Investigating Officer (IO) for comparison with a voice recorded earlier. The power to compare handwriting, fingerprints, or voice lies with the Court during a trial or proceeding for a just decision.
Fact of the Case:
Two accused persons were arrested for allegedly trying to sell a stolen manuscript containing literary work of Rabindranath Tagore in Japanese script with its Bengali translation. The police recorded a telephonic conversation between the accused regarding the sale of the manuscript in a micro-cassette. The IO prayed for recording the voice of the accused before the Magistrate under Section 164 of CrPC, which was declined by the accused. The IO then sought an order from the Magistrate to record the voice of the accused for comparison with the earlier recorded voice. The Magistrate allowed the prayer of the IO.
Finding of the Court:
The Court held that a Magistrate cannot interfere in the matter of investigation and cannot take part in the matter of investigation. The manner and method of conducting investigation should be left entirely to the Officer-in-Charge of the police station or subordinate officers deputed by him. Investigation is exclusively the power of the police and the Magistrate by his order cannot become a party to the investigation.
Issues: 1. Whether a Magistrate can direct the accused to give their voice for recording or rendition to the IO for comparison with a voice recorded earlier during the investigation stage? 2. Whether the power to compare handwriting, fingerprints, or voice lies with the Court during a trial or proceeding for a just decision?
Ratio Decidendi: 1. The Court relied on the Supreme Court decision in State of Uttar Pradesh v. Ram Babu Misra, AIR 1980 SC 791, which held that the language of Section 73 of the Evidence Act does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. 2. The Court also relied on the Supreme Court decision in Nandini Satpathy v. P. L. Dani, AIR 1978 SC 1025, which held that during the stage of investigation, the accused has a right to keep silence and an accused cannot be compelled to break his silence.
Final Decision: The Court allowed the revisional applications and set aside the orders of both the learned Courts below.
( 1 ) THESE two revisional application having been heard together involves identical question of law regarding power of the Magistrate to ask the accused petitioners to give their voice for recording or to rendition of their voice to the investigating Officer (I. O.) for comparison with the voice earlier recorded in tape-record. As the points involved are identical questions of law, I intend to dispose of both the revisional applications by this common judgment and order.
( 2 ) THE facts of the case as it appears from the revisional applications is that a suo moto complaint/fir was lodged by Inspector Md. Abdur Rashid of CID, west Bengal alleging inter alia that in the morning of 12. 5. 04 he received a source information to the effect that two persons in the age group of 55/60 years would come to Russa Road (South) and crossing of 3rd Lane in front of narendra Mistanna Bhandar under Jadavpur police station between 13. 00 to 14. 00 hours with one manuscript containing the literary work of Kabiguru rabindra Nath Tagore in Japanese script with its translation in Bengali for showing it to a broker for selling the same as they were in search of a good customer for the said manuscript which has antique value. The complainant along with force left for Russa Road (South) and crossing of 3rd Lane and started watching the place in front of the said Narendra Mistanna Bhander. At about 13. 45 hours two persons came in front of the said sweetmeat shop, one of whom was wearing pant and shirt and had a cotton bag in his hand, and the other was wearing pajama and panjabi. The complainant and his force surrounded them and two persons namely Nikhil Chatterjee and Mannan AH Mondal were called to attend the operation and in presence of the said two witnesses, the said two persons were apprehended and on interrogation they disclosed their name as Tapan Bose, S/o. Amal Bose and Biswanath Roy S/o. late Haripada roy, both of Sree Pally of Purba Putiary. After observing all legal formalities the said two persons were searched in presence of the abovenamed witnesses and during search one manuscript in Japanese script and its Bengali translation covered in a small polished wooden box fixed with a pair of pins made of ivory like were recovered from the cotton bag which was in possession of Tapan Bose. The writing on the said manuscript appeared to be that of Kabiguru Rabindra nath Tagore. On further interrogation the aforesaid persons disclosed that pritimoy Panda @ Pitu Panda of Bhabanipore had given the said manuscript to them for selling at a high price. The said articles were seized by preparing a seizure list.
( 3 ) AFTER arrest, the said two persons were produced before the learned Sub- divisional Judicial Magistrate (in short SDJM), Alipore and they were remanded to police custody till 21. 5. 04, and thereafter, further remanded to police custody till 24. 5. 04, and thereafter they were sent to judicial custody. Following the statement of Tapan Bose and Biswanath Roy the petitioner of CRR No. 2074 of 2004, namely Pritimoy Panda @ Pitu Panda was arrested on 18. 5. 04 and pursuant to his statement the accused petitioner of CRR No. 1942 of 2004 namely dwijadas Banerjee was arrested and it was revealed that the said Dwijadas banerjee made over the manuscript to the accused persons. The police recorded telephonic conversation between Dwijadas Banerjee and Pritimoy Panda, the two petitioners of these revisional applications regarding sale of the manuscript in a micro-cassette which was seized by police on 12. 5. 04. On 21. 5. 04 the accused persons were produced before the learned Judicial Magistrate, 4th Court for recording their statement under section 164 of Cr. PC which was declined by the accused persons. On 21. 5. 04 the I. O. again prayed for recording voice of these two petitioners namely Dwijadas Banerjee and Pritimoy Panda before the learned SDJM, Alipore and the learned SDJM by order dated 4. 6. 04 allowed the prayer of the
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