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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
Rabindra Kumar Bhalotia & Others - Petitioner
Versus
State rep. by Inspector of Police, Central Bureau of Investigation, Anti-Corruption Branch, Chennai & Others - Respondents
Criminal Revision Case Nos. 808, 816, 823 of 2015 & M.P. No. 1 of 2015
Decided On : 28-11-2017
Criminal Procedure Code, 1973 - Section 53-A and 311-A - Identification of Prisoners Act, 1920 - Section 5 - Criminal Revision petitions - Petition filed by the prosecution was contested by the accused persons on the ground that the accused cannot be compelled to give voice sample - Criminal Revision petitions are directed against the order passed by the trial court, allowing the petition filed by the prosecution to draw voice sample of the accused persons for comparison with that of the questionable voice recorded in the course of intercepted telephonic conversion between the Accused - Held, Similarly, while looking at Section 311(A) of the Code non-inclusion of voice test in the said Section which was inserted through Amendment Act, does not give an impression that the Parliamentarians had consciously omitted the voice test - Drawing of voice sample is only a measurement of waves emanating through vocal cord - It is only a measurement and fall within the meaning of physical examination and not testimonial compulsion - While so, it is incorrect to plead that in the absence of express provision enabling the investigation agency to draw the voice sample prohibits them to do so - Any methodology which does not have the trappings of invasiveness is permissible in law - Therefore, this Court finds no merit in these Revision Petitions - Hence all these Criminal Revision Petitions are liable to be dismissed - Petition dismissed.
Based on the provided legal document, the key points are as follows:
The legal question pertains to whether the investigation authorities can compel an accused person to give a voice sample for comparison with recorded questionable voice, especially in the context of intercepted telephonic conversations (!) (!) .
The court observed that the statutory provisions cited do not explicitly authorize the drawing of voice samples against the will of the accused, and the absence of specific legal provisions makes such a direction by the court unlawful (!) .
Drawing a voice sample is considered a physical measurement of waves emanating from the vocal cords, which is akin to a physical examination rather than testimonial evidence. Therefore, it is not protected under the right against self-incrimination (!) (!) .
The process of obtaining a voice sample involves measurement of sound waves, specifically frequency and intensity, which are scientific measurements and do not involve testimonial compulsion (!) (!) (!) .
The legal interpretation suggests that the phrase "such other tests" included in relevant statutes should be broadly and purposively interpreted to encompass voice spectrography, given the advancements in scientific techniques (!) (!) .
The court emphasized that since the act of obtaining a voice sample does not involve questioning or testimonial compulsion, it does not violate constitutional protections, particularly Article 20(3) of the Constitution, which guards against self-incrimination (!) (!) .
The court noted that the omission of voice testing in certain legislative amendments does not imply an intentional exclusion, and the methodology of voice measurement is permissible as it does not involve invasive or testimonial procedures (!) (!) .
Ultimately, the court dismissed the revision petitions, affirming that compelling an accused to give a voice sample for investigative purposes is lawful and does not infringe constitutional rights (!) .
The court reaffirmed that the investigative process involving voice measurement is a form of physical examination and falls outside the scope of testimonial evidence protected by the right against self-incrimination, provided it is conducted without invasiveness or coercion (!) (!) .
The decision underscores the importance of scientific techniques in modern investigations, advocating for their use while respecting constitutional protections, as long as such procedures are non-invasive and do not involve testimonial compulsion (!) (!) .
Please let me know if you need further analysis or specific legal advice based on these points.
1. These Criminal Revision petitions are directed against the order passed by the trial court, allowing the petition filed by the prosecution to draw voice sample of the accused persons for comparison with that of the questionable voice recorded in the course of intercepted telephonic conversion between the Accused (A1, A2 and A3).
2. The petition filed by the prosecution was contested by the accused persons on the ground that the accused cannot be compelled to give voice sample. The statutory provision which enables medical examination of accused persons through investigation in certain cases. However, Explanation to Section 53A and 54 of the Code does not enable the prosecution to draw voice sample of the accused person against their wish. Neither Section 5 of the Identification of Prisoners Act, 1920 nor Section 53-A and 311-A of Criminal Procedure Code empowers the court to direct the accused persons to give their voice sample. In the absence of specific legal provision the trial Court ought not to have allowed the application filed by the prosecution directing the accused persons to give voice sample.
3. The background of the facts of the case is that after obtaining due permission from the Union Home Secretary, telephonic conversation between A3 and A1 and A3 and A2 were intercepted by the investigation agency and on such interception the demand of illegal gratification by the public servant and private individual had been come to light. Hence, the prosecution has launched criminal case against the Revision Petitioners.
4. In the course of the investigation request has been made to the trial court for drawing voice sample of the accused persons for comparison with that of the questionable voice recorded in the course of intercepted telephonic conversion between the Accused. The trial court after going through the provisions of law and the pronouncements of the High Courts and the Hon'ble Supreme Court also considering the judgment of the Supreme Court in Ritish Sinha v. State of U.P reported in (2013 (2) SCC 357), has concluded pending decision of the Larger Bench in Ritish Sinha, that the accused persons are to be directed to give their voice sample directly to the investigating officer.
5. Aggrieved by the order passed by the trial court, the present Revision Petitions have been filed on the ground that compelling the accused persons to give their voice sample to compare with that of the questionable voice recorded in the course of intercepted telephonic conversion between them is violative of Article 20(3) of the Indian Constitution. There is no provision in the Code for any other law for authorizing the prosecution to make application for an order directing the accused persons to give their voice sample for comparison with that of the questionable voice recorded in the course of intercepted telephonic conversion between them. The Judicial Magistrate has no inherent power to pass an order issuing such direction when he is not empowered to do so in any of the provisions of law. The word 'measurement' as defined under Section 2(a) of the Identification of Prisoners Act does not cover voice measurement and it is only pertaining physical measurement namely finger impressions and foot print impressions. Similarly the Amendment to the Code by insertion of Section 311-A includes only handwriting but no voice samples. While the framers of the statute had consciously omitted the drawing of voice sample within the meaning of 'measurement' or within the meaning of 'such other tests' by registered medical practitioner, the order of the trial court is illegal and it has to be set aside.
6. Further, it has been contended by the learned counsel for the petitioners that taking note of this anomaly, the Hon'ble Supreme Court had referred the matter for the Larger Bench to decide. Therefore, the trial court even after placing the order to reference passed by the Hon'ble Supreme Court in Ritish Sinha case had passed the impugned or
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