THE HON'BLE SRI JUSTICE E.V.VENUGOPAL CRIMINAL REVISION CASE NO.1039 OF 2011

ORDER :

This Criminal Revision Case is filed by the petitioner/complainant/CBI under Sections 397 and 401 of Criminal Procedure Code (for short ‘Cr.P.C.’) aggrieved by the orders dated 18.03.2011 in Crl.M.P.No.2938 of 2010 in RC No.17(A)/10-CBI, HYD in CC No.11 of 2010 on the file of the learned Special Judge for CBI Cases, Hyderabad wherein the request of the petitioner/CBI under Section 7 of the Evidence Act, seeking permission to obtain voice samples of the accused and other persons for the purpose of voice spectrograph test was rejected by the Court below.

2. Heard Mrs.Anandi, Special Public Prosecutor for CBI/

petitioner, Sri Vizarath Ali, learned Assistant Public Prosecutor representing learned Public Prosecutor for the State, Sri Vishwanath, learned counsel representing on behalf of Sri Challa Gunaranjan, learned counsel for the respondent Nos.3 and 5, Sri S.Ashok Anand Kumar, learned senior counsel for the respondent Nos.1 and 4, Sri PS Ramachandra Murthy, learned counsel for the respondent No.10 and Sri P.Rana Kamalasan, learned counsel for the respondent No.7.

3. The grounds urged through Crl.M.P.No.2938 of 2010 by the petitioner/CBI are that prior to registration and after registration of Crime in RC 17(A)/10-CBI, Hyderabad, which was numbered as CC No.11 of 2010, certain mobile phones of suspects of crime and also the accused were kept under electronic surveillance through the Government agencies after obtaining statutory permissions to fix the role of the accused and obtained results through compact disk and transmitted the same into writing in the presence of independent witnesses and hence, they are in need of voice samples of the accused and other persons, whose telephones were kept under electronic surveillance to compare the same from the data available in the compact disk. The accused denied the said request mainly contending that permission for collecting voice samples from the accused persons would lead to fresh investigation or reinvestigation to fill up the gaps in the investigation.

4. The Court below, dismissed the said application holding that no officers of Government Agency, which authorized to keep surveillance of telephones are cited as witnesses, the petitioner has not furnished the details of conversions said to have been heard by independent witnesses using computer and speakers and also not named the independent witnesses, who transmitted the conversations and the dates on which they heard and further copies of said transcript are also not furnished to the accused. It is also held that out of the persons whose voice samples were sought to be collected, three persons i.e. Sanjay Dhamgeswar, Avanthi Leera and Bairi Durga Prasad are not before the Court in any status and their complicity, if any, is not revealed before the Court below either through the petition or through the charge-sheet and hence, giving permission to collect their voice samples would cause prejudice effecting their right. Furthermore, the petitioner failed to quote any provision of law that empowers the investigating officer to collect voice samples as prayed for.

5. Aggrieved by the said findings of the Court below, the petitioner preferred the present criminal revision case contending that the said Court committed material irregularity in exercise of jurisdiction vested with it, failed to consider the fact that compact disks and their transcripts were furnished before the Court below and the necessary persons who gave authorization have been cited as witnesses and that the necessary documents would be filed along with additional charge- sheet, recording of sample voices for the purpose of comparing the same with the voice contained in the compact disks cannot amount to testimonial compulsion and it cannot hit by Article 20(3) of the Constitution of India. On the other hand, learned counsel for the respondents vehemently opposed the present criminal revi