Saturday, 11 February 2017

Whether accused can be compelled to give his voice sample for purpose of Voice Spectrography Test?

Thus, having viewed the matter from all possible angles, I find it
extremely difficulty to take the view that by virtue of the provisions of
the Act, 1920, Section 53 of the Cr.P.C. and Sections 73 and 165 of the
Evidence Act, an accused can be compelled or asked to give his voice
sample for the purpose of Voice Spectrography Test. I have explained in
details the importance of the Voice Spectrography Test, and therefore, it
is now for the Parliament to look into this issue and effect the necessary
amendment in both, the Act, 1920 as well as in the Code of Criminal
Procedure. 
99 Let me invite the attention of the State Government to Section 8
of the Act, 1920. Section 8 of the Act, 1920 reads as under:
“8. Power to make rules
(1) The State Government may [by notification in the Official Gazette,]
make rules for the purpose of carrying into effect the provisions of this
Act.
(2) In particular and without prejudice to the generality of the foregoing
provision, such rules may provide for ­
(a) restrictions on the taking  of photographs  of persons under
Section 5;
(b) the places at which measurements and photographs may be
taken;
(c) the nature of the measurements that may be taken;
(d) the method in which any class or classes of measurements shall
be taken;
(e) the dress to be worn by a person when being photographed
under Section 3; and
(f)   the   preservation,   safe   custody,   destruction   and   disposal   of
records of measurements and photographs.

[(3) Every rule made under this section shall be laid, as soon as may be
after it is made, before the State legislature.]”
100 Section 8 of the Act, 1920 empowers the State Government
to frame rules which would include the nature of the measurements
that   may  be   taken.  The   State   Government  should  consider   framing
appropriate rules in this regard and explore the possibility of including
voice   sample   as   one   of   the   measurements   that   can   be   done   of   an
accused in the course of the investigation. The State Government should
consider this at the earliest. 
101 My conclusions are as under:
[a] The   Voice   Spectrography   Test   does   not   fall   within   the
ambit of a psychiatric treatment. The Voice Spectrography Test is
in no manner violative of Article 20(3) of the Constitution of
India.
[b] However,   in   the   absence   of   any   specific   provision
empowering   the   police   officer   or   the   Court   in   law,   it   is   not
permissible to subject an accused to the Voice Spectrography Test.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 5226 of 2015

NATVARLAL AMARSHIBHAI DEVANI
V
STATE OF GUJARAT & 1
CORAM:  MR.JUSTICE J.B.PARDIWALA
Date : 18/01/2017



1 By this writ application under Article 226 of the Constitution of
India, the writ applicant – original accused has prayed for the following
reliefs:
24(A) Be pleased to admit this petition
(B) Be pleased to issue a writ of mandamus or any other appropriate
writ,   order   or   direction   in   the   nature   of   mandamus,   and   direct   the
respondent   No.2   to   not   to   call   the   petitioner   for   undergoing   Voice
Spectrographic   Test   in   connection   with   the   FIR   lodged   with   Kachchh
(West) ACB Police Station, Bhuj, being C.R. No.I­1/15;
(C) Pending admission and final disposal of the present petition, be
pleased to restrain the respondent No.2 from compelling and/or calling
the petitioner fro undergoing Voice Spectrographic Test in connection with
the FIR lodged with Kachchh (West), ACB Police Station, Bhuj, being C.R.
No.I­1/15;
(D) Be pleased to pass such other and further orders as may be deemed
fit and proper.”
2 In the case in hand, the writ applicant is charged with the offence
punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention
of   Corruption   Act.   The   allegations   are   that   while   serving   as   a
Superintendent   of   the   Prohibition   and   Excise   Directorate,   the   writ
applicant   demanded   an   amount   of   Rs.4,000/­   towards   illegal
gratification for the purpose of renewing the permit issued in favour of
the original complainant. It appears that there was a telephonic talk
between   the   two   which   was   recorded.   The   Investigating   Agency
prepared a  transcript of  the  tape­recorded conversation  between  the
accused and the complainant, in which, according to the case of the
prosecution, there is an illegal demand at the end of the writ applicant.
The Investigating Agency thought fit to subject the writ applicant to a
Voice Spectrography Test, which was opposed by the writ applicant. 
3 At the outset, I may state that Mr. Mangukiya, the learned counsel

appearing for the writ applicant submitted that he has instructions from
his  client  not  to  press this  writ  application  and  withdraw   the  same
unconditionally. He submitted that although this writ application raises
an important question relating to the right of the Investigating Agency to
conduct the Voice Spectrography Test of an accused and also the right of
the   accused   to   deny   lending   his   voice   sample   for   the   purpose   of
identification  of his voice so as to compare the same with the tape
recorded telephonic conversation, yet as his client does not want to press
this application, the Court may permit the writ applicant to withdraw
and leave the question to be decided in any other appropriate matter.
Mr. Mangukiya submitted that the petitioner is a dominus litus and if he
files the petition, he has a right to withdraw the same. According to him,
he could not have made such a request if the mater is argued and the
judgment is reserved. However, since without any effective hearing, his
client wants to withdraw the writ application, he may be permitted to do
so.  
4 Mr. Mangukiya, the learned counsel further submitted that this
Court may differ the adjudication of the issue in light of the conflicting
views expressed by the two learned Judges of the Supreme Court in the
case of Ritesh Sinha vs. State of U.P. and another reported in 2013(2)
SCC 357. Mr. Mitesh Amin, the learned Public Prosecutor appearing for
the State submitted that the writ applicant may not be permitted to
withdraw   this   writ   application   and   the   issue   as   regards   the   Voice
Spectrography Test may be decided by this Court being res­integra as on
date, many important investigations are affected relating to corruption,
etc in the State. The learned Public Prosecutor submitted that it is within
the   discretion   of   this   Court   whether   the   writ   applicant   should   be
permitted  to withdraw  the  writ application  or not.  Even  if  the  writ
applicant is not interested to pursue his writ application, the Court on its

own can decide a neat question of law of public importance. 
5 The questions of law falling for my consideration are framed as
under:
(1) Whether calling upon the accused to lend his voice sample
tantamounts “to be a witness against himself”? To put in other
words,   whether   the   Voice   Spectrography   Test   of   an   accused
amounts to testimonial compulsion within the meaning of Article
20(3) of the Constitution of India and whether such test should be
put at par with the tests, like Brain Mapping, Lie Detector Test,
Narco Analysis Test, etc. 
(2) Whether, in the absence of any provision in the Criminal
Procedure   Code,   can   a   Magistrate   authorise   the   Investigating
Agency to record the voice sample of the person accused of an
offence? 
6 Before I proceed to answer the main issues, I would like to deal
with the two preliminary submissions of Mr. Mangukiya as regards the
right of his client not to press this writ application and deferment of the
hearing of the two issues since the very same issues are pending before
the Larger Bench of the Supreme Court. 
7 I am of the view that once any petition is filed before the Court, its
withdrawal is not absolute in the hands of the litigant and it could be
only done with the permission of the Court. In appropriate cases, the
Court may exercise its discretion to reject the prayer of withdrawal of
the petition. If the issue raised in the writ petition needs to be tackled or
answered having regard to the public importance, then it is always upon
for  the  Court to  do  so and decline  the  request  of  the  petitioner  to

withdraw the petition. In taking such view, I am supported by a Division
Bench decision of the Rajasthan High Court in the case of Sunil Safety
Glass Industries vs. RIICO and another  reported in  2002 (5) WLN
(Rajasthan) 557. A.R. Lakshmanan, C.J. (as His Lordship then was),
speaking for the Bench, took the view that withdrawal of a petition is
not absolute in the hands of the litigant. 
8 So far as the submission as regards deferring the hearing of this
matter is concerned since the very same issues raised in this petition are
pending before the Larger Bench of the Supreme Court, I am of the view
that as such there is no legal embargo in deciding the matter. I take
support from the following observations made by the Supreme Court in
the case of  Ashok Sadarangani and another vs. Union of India and
others reported in [(2012) 11 SCC 321]. I may quote the observations
as contained in para 29 as under:
“As was indicated in Harbhajan Singh vs. State of Punjab, (2009) 13
SCC 608 : (2010) 1 SCC (Cri) 1135, the pendency of a reference to a
larger Bench, does not mean that all other proceedings involving the same
issue would remain stayed till a decision was rendered in the reference.
The reference made in Gian Singh vs. CBI, (2010) 15 SCC 118 need not,
therefore, detain us. Till such time as the decisions cited at the Bar are not
modified or altered in any way, they continue to hold the field.”
9 I shall now proceed to look into the two questions of law referred
to above. 
●     SUBMISSIONS ON BEHALF OF THE WRIT APPLICANT:
10 Mr.   Mangukiya,   the   learned   counsel   appearing   for   the   writ
applicant submitted that although there is no conflict of opinion between
the two Honourable Judges' of the Supreme Court as regards Article

20(3) of the Constitution, yet he would like to develop the argument
that if the Voice Spectrography Test falls within the ambit of “Psychiatric
Examination”, then the decision of the Supreme Court in the case of
Selvi vs. State of Karnataka [AIR 2010 SC 1974] would apply on all the
fours.   According   to   the   learned   counsel,   the   matter   has   not   been
examined by the Supreme Court from this angle i.e. from the angle of
“Psychiatric Examination”. 
11 Mr.   Mangukiya   submitted   that   without   prejudice   to   his   first
submission, the view taken by  Justice Aftab Alam holding that as there
is no specific provision in the Code of Criminal Procedure, 1973, either
empowering the Court to direct an accused to lend his voice sample or
the Investigating Agency to conduct the Voice Spectrography Test, the
same if conducted would be illegal is more commendable than the view
taken by Justice Ranjana Desai holding to the contrary and this Court
should follow the view taken by His Lordship Justice Aftab Alam. 
12 Mr.   Mangukiya   submitted   that   in   the   judgment   rendered   by
Justice  Aftab Alam, there is a reference to a earlier decision  of the
Supreme Court in the case of State of U.P. vs. Ram Babu Mishra [1980
(2) SCC 343] and also the suggestions made by the Law Commission of
India,   in   its   87th  Report.   According   to   Mr.   Mangukiya,   the   ratio
propounded in the decision of the Supreme Court in the case of  Ram
Babu Mishra (supra)  clinches the issue. Mr. Mangukiya placed strong
reliance on the following observations made by the Supreme Court in
the case of Ram Babu Mishra (supra):
“2. Shri O. P. Rana, learned counsel for the appellant, contended that S.
73 of the Evidence Act conferred ample power on the Magistrate to direct
the   accused   to   give   his   specimen   writing   even   during   the   course   of
investigation. He also urged that it would be generally in the interests of
the administration of justice for the Magistrate to direct the accused to

give his specimen writing when the case was still under investigation, since
that would enable the investigating agency not to place the accused before
the Magistrate for trial or enquiry, if the disputed writing, as a result of
comparison with the specimen writing was found not to have been made
by the accused. While we agree with Mr. Rana that a direction by the
Magistrate to the accused to give his specimen writing when the case is still
under investigation would surely be in the interests of the administration
of justice, we find ourselves unable to agree with his submission that S. 73
of the Evidence Act enables the Magistrate to give such a direction even
when the case is still under investigation. 
3. S. 73 of the Evidence Act is as follows :
"73. In order to ascertain whether a signature, writing or seal is
that of the person by whom it purports to have been written or
made, any signature, writing or seal admitted or proved to the
satisfaction of the Court to have been written or made by that
person   may   be   compared   with   the   one   which   is  to   be   proved,
although that signature, writing or seal has not been produced or
proved for any other purpose.
The Court may direct any person present in Court to write any
words or figures for the purpose of enabling the Court to compare
the words or figures so written with any words or figures alleged to
have been written by such person.
This   section   applies   also,   with   any   necessary   modifications   to
finger­impressions".
4. The second paragraph of Sec. 73 enables the Court to direct any person
present in Court to give specimen writings 'for the purpose of enabling the
Court to compare' such writings with writings alleged to have been written
by such person. The clear implication of the words 'for the purpose of
enabling the Court to compare' is that there is some proceeding before the
Court in which or as a consequence of which it might be necessary for the
Court   to   compare   such   writings.   The   direction   is   to   be   given   for   the
purpose of 'enabling the Court to compare' and not for the purpose of
enabling the investigating or other agency 'to compare'. If the case is still
under investigation there is no present  proceeding  before  the Court in
which or as a consequence of which it might be necessary to compare the
writings. The language of S. 73 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.
Further, S. 73 of the Evidence Act makes no distinction between a Civil
Court and a Criminal Court. Would it be open to a person to seek the
assistance of the Civil Court for a direction to some other person to give
sample writing under S. 73 of the Evidence Act on the plea that it would
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help him to decide whether to institute a Civil suit in which the question
would be whether certain alleged writings are those of the other persons or
not ? Obviously not.  If not,  why should it make any difference  if the
investigating agency seeks the assistance of the Court under S. 73 of the
Evidence Act on the plea that a case might be instituted before the Court
where it would be necessary to compare the writings? 
5. We may also refer here to S.5 of the Identification of Prisoners Act,
1920, which provides :
"5.   If   a   Magistrate   is   satisfied   that,   for   the   purposes   of   any
investigation or proceeding under the Cr. P. C. 1898, it is expedient
to direct any person to allow his measurements or photograph to be
taken, he may make an order to that effect, and in that case the
person to whom the order relates shall be produced or shall attend
at the time and place specified in the order and shall allow his
measurements or photograph to be taken, as the case may be, by a
public officer :
Provided that no order shall be made directing any person to be
photographed except by a Magistrate of the first class:
Provided further, that no order shall be made under this section
unless the person has at some time been arrested in connection with
such investigation or proceeding."
Section 2 (a) of the Act defines 'measurements' as including 'finger
impressions and foot­print impressions'.
6. There are two things to be noticed here. First, signature and writing are
excluded from the range of S. 5 of the Identification of Prisoners Act and,
second, 'finger impressions' are included in both S.73 of the Evidence Act
and S. 5 of the Identification of prisoners Act. A possible view is that it was
thought that S.73 of the Evidence  Act would not take in the stage of
investigation and so S.5 of the Identification of Prisoners Act made special
provision for that stage and even while making such provision, signature
and writings were deliberately excluded. As we said, this is a possible view
but not one on which we desire to rest our conclusion. Our conclusion rests
on the language of S.73 of the Evidence Act.
7.   S.73   of   the   Evidence   Act   was   considered   by   us   in   State   (Delhi
Administration) v. Pali Ram, AIR 1979 SC 14 where we held that a Court
holding an enquiry under the Criminal Procedure Code was entitled under
S. 73 of the Evidence Act to direct an accused person appearing before it to
give his specimen handwriting to enable the Court by which he may be
tried to compare it with disputed writings. The present question whether
such a direction, under S. 73 of the Evidence Act, can be given when the
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matter is still under investigation and there is no proceeding before the
Court was expressly left open. The question was also not considered in
State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808, where the
question which was actually decided was that no testimonial compulsion
under Art. 20 (3) of the Constitution was involved in a direction to give
specimen signature and handwriting for the purpose of comparison.
8. The view expressed by us in the earlier paragraphs on the construction
of S. 73, Evidence Act was the view taken by the Madras High Court in T.
Subbiah   v.   S.   K.   D.   Ramaswamy   Nadar,   AIR   1970   Mad   85,  the
Calcutta High Court in Farid Ahmed v. The State, AIR 1960 Cal 32
(Mitter J., at page 32), and Priti Ranjan Ghosh v. The State, (1973) 77
Cal WN 865,  the High Court of Punjab and Haryana in Dharamvir
Singh v. State, 1975 Cri LJ 884, the High Court of Madhya Pradesh in
Brij Bhushan Raghunandan Prasad v. The State  AIR 1957   Madhya
Pradesh 106,  the Orissa High Court in Srikant v. State of Orissa,
(1972) 2 Cut WR 1332, and the Allahabad High Court in the judgment
under appeal. A contrary view was taken by the Patna High Court in
Gulzar Khan v. State, AIR 1962 Pat 255 and the High Court of Andhra
Pradesh in  B. Rami Reddy v. State of Andhra Pradesh,  1971 Cri LJ
1591. We do not agree with the latter view. We accordingly dismiss the
appeal and while doing so we would suggest that suitable legislation may
be made on the analogy of S. 5 of the Identification of Prisoners Act, to
provide for the investiture of Magistrates with the power to issue directions
to any person, including an accused person, to give specimen signatures
and writings.”
13 Mr.   Mangukiya   submitted   that   in   the   judgment   rendered   by
Justice   Ranjana   Desai,   Her   Ladyship   placed   strong   reliance   on   the
provisions of the Identification of Prisoners Act, 1920, more particularly,
the   term  “measurements”  defined   therein   under   Section   2(a).
According to the learned counsel, the provisions of the Identification of
Prisoners Act, 1920 will not be applicable for the purpose of asking an
accused to lend his voice sample. 
14 Mr.   Mangukiya   submitted   that   under   Section   5   of   the
Identification of the Prisoners Act, 1920, it is specifically provided that if
a Magistrate is satisfied that, for the purposes for any investigation of
proceeding under the Code of Criminal Procedure, it is expedient to
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direct any person to allow his measurements or photograph to be taken,
he may make an order to that effect. It also provides that in that case,
the person to whom the order relates shall be produced or shall attend at
the   time   and   place   specified   in   the   order   and   shall   allow   his
measurements or photograph to be taken as the case may be, by a police
officer. The word "measurements" mentioned in the said provision will
include   fingerprints   and   footprints,   but   not   the   handwriting   or   the
signature. According to Mr. Mangukiya, the taking of handwriting or
signature from a person by a Magistrate is now permissible under the
provisions of Section 311A of the Code of Criminal Procedure, 1973.
Section 311A came to be inserted by Act 25 of 2005, Section 27 (w.e.f.
23rd  June 2006). According to Mr. Mangukiya, when the Parliament
made this enactment, it must have had in its mind not only that Section
73   of   the   Evidence   Act   does   not   give   power   to   the   Court   to   take
fingerprints, signature and handwriting from a person in the course of
investigation by the police, but also it must have thought that it might
not be necessary to include the taking of handwriting or signature of a
person in the course of investigation by the police. According to the
learned counsel, otherwise there is no tangible reason for the Parliament
to   exclude,   under   the   Identification   of   Prisoners   Act,   the   taking   of
handwriting or signature. The Parliament must have probably thought
that though the taking of the handwriting or the signature of a person is
one of the modes of identification, it was not an infallible one and that
the  better  mode   of   proving   the  handwriting  or  signature  is  what  is
provided under Section 47 of the Evidence Act, namely, the evidence of
that   person   who   is   acquainted   with   the   signature   of   the   person
concerned.
15 Mr. Mangukiya submits that the Act, 1920 came to be enacted for
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altogether a different purpose or object and the same has nothing to do
so far as the power of the police to investigate the offence is concerned.
To put it in other words, according to Mr. Mangukiya, the provisions of
the   Act,   1920   are   meant   only   the   purpose   of   identification   i.e.   the
physical measurements of the body or parts of the body. This would not
include voice sample of an accused or a suspect. 
16 Mr. Mangukiya submitted that although the definition of the term
“measurements”,   at   the   first   blush,   appears   to   be   inclusive   and   not
exhaustive, yet it connotes a specific meaning, that is as “means and
includes” or “comprises of” or “consist of”. According to the learned
counsel, reading  voice  sample in Section  2(a) of the  Act, 1920 will
amount   to   rewriting   of   the   definition   by   the   Court   which   is   not
permissible  in law. The learned counsel laid much emphasis on the
observations   made   by   His   Lordship   Aftab   Alam   that   if   the   term
“measurements” is to be read to include voice sample, then many other
medical   tests,   for   instance,   blood   tests   such   as   lipid   profile,   kidney
function test, liver function test, thyroid function test, etc, would equally
qualify as “measurements” within the meaning of the Identification of
Prisoners Act. 
17 Mr. Mangukiya, thereafter, invited the attention of the Court to
the decision of the Supreme Court in the case of  Selvi and others vs.
State of Karnataka [2010(7) SCC 263]. According to Mr. Mangukiya,
the   Voice   Spectrography   Test   would   fall   within   the   ambit   of   a
“Psychiatric Examination” and as held by the Supreme Court in  Selvi
(supra),  any   psychiatric   examination,   without   the   consent   of   the
accused, will offend Article 20(3) of the Constitution. 
18 In the writ application, five issues have been raised by the writ
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applicant. They are as under:
(a) Despite the recommendations of the 87th Report of the Law
Commission of India, the spectrographic test for voice sample has
not been included in the newly added Section 311­A of the Code
of Criminal Procedure. Can permission be granted for conducting
the spectrographic test of the accused against his consent?
(b) Whether the Special Judge can entertain such application?
(C) Whether   a   person   can   be   directed   to   pass   through   the
spectrographic test against his will?
(d) Whether such direction violates the right of the accused to
remain silent as enshrined under Article 20(3) of the Constitution
of India?
(e) In view of the Apex Court's judgment reported in AIR 2013
SC 1132, whether the impugned order can sustain?
19 In such circumstances referred to above, Mr. Mangukiya would
submit that this Court may lean in favour of the view taken by His
Lordship Justice Aftab Alam and hold that it is not permissible for the
Investigating Officer to ask the accused to lend his voice sample without
his consent. 
●     SUBMISSIONS ON BEHALF OF THE STATE ­ RESPONDENT:
20 On   the   other   hand,   Mr.   Mitesh   Amin,   the   learned   Public
Prosecutor appearing for the State submitted that the issue as regards
violation of Article 20(3) of the Constitution of India does not arise in
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the present case, because there is no dissent between the two learned
Judges   of   the   Supreme   Court   in   this   regard.   Mr.   Amin   invited   my
attention to the fact that Justice Desai, in her judgment, framed two
questions viz. (1) whether the protection under Article 20(3) of the
Constitution extends to the protection from being compelled to give a
voice sample during the course of investigating into an offence, and (2)
if   no,   whether   in   the   absence   of   any   provision   in   the   Cr.P.C.,   a
Magistrate can authorise the Investigating Agency to record the voice
sample of the person accused of an offence. Mr. Amin, thereafter, invited
my attention to the observations of Justice Aftab Alam in para 68 of the
judgment. The observations are as under:
“As regards the first question, relying primarily on the eleven­Judge Bench
decision of this Court in  State of Bombay v. Kathi Kalu Oghad and
others [1962] 3 SCR 10 : (AIR 1961 SC 1808) which was followed in the
more recent decision in Selvi and others v. State of Karnataka (2010) 7
SCC 263 : (AIR 2010 SC 1974 : 2010 AIR SCW 3011), Desai, J held that
"taking voice sample of an accused by the police during investigation is not
hit by Article 20 (3) of the Constitution." I am broadly in agreement with
the view taken by her on Article 20 (3) but, since I differ with her on the
second question, I think the issue of constitutional validity in compelling
the accused to give his/her voice sample does not really arise in this case.” 
21 Thus, according to Mr. Amin, the dissent between the two learned
Judge was on the second question of law i.e. whether in the absence of
any provision in the Cr.P.C., a Magistrate can authorise the Investigating
Agency to record the voice sample of the person accused of an offfence. 
22 In the aforesaid context, Mr. Amin has placed strong reliance on a
decision rendered by a learned Single of the Allahabad High Court in the
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case   of  Smt.  Leena  Katiar  vs.  State  of  U.P.  and  others  [Criminal
Miscellaneous Application No.540 of 2015 decided on 16th February
2015].
23 Mr. Amin would submit that the voice recorded in the audio C.D.
is admissible under Section 65­B of the Evidence Act, hence, if the said
evidence is to be proved by the prosecution, then taking of voice sample
of the accused by the trial Court becomes essential to arrive at the just
decision of a case, otherwise, the said audio C.D., in which there is
recording of the conversation between the accused and the complainant
regarding demand of illegal gratification will be of no help to the police
to ascertain the complicity of the accused. He would submit that Section
165 of the Evidence Act empowers the trial Judge to order for taking of
voice sample of the accused for being compared to the recorded voice in
the audio C.D.   
24 Mr.   Amin,   the   learned   Public   Prosecutor   submitted   that   the
definitions are generally of two types: (1) inclusive – i.e. providing what
all is covered by inclusive while leaving the scope open to others also to
be covered within the ambit of the provision, (2) exclusive (“means”
definition) – i.e. those providing an exhaustive meaning to the term and
not   other   meaning   is   permissible.   According   to   Mr.   Amin,  the   term
“measurements”   as   defined   under   Section   2(a)   of   the   Act,   1920   is
inclusive   and   not   exhaustive.   Voice   sample   is   one   of   the   modes   of
identification of an accused or a suspect. The learned Public Prosecutor
would   submit   that   voice   sample   can   be   included   in   the   exclusive
definition   of   the   “measurements”   appearing   in   Section   2(a)   of   the
Prisoners Act. He would submit that the voice prints are like fingerprints,
and   therefore,   would   be   covered   by   the   term   “measurements”.   The
learned Public Prosecutor submitted that purposive interpretation to the
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provisions of the Prisoners Act and Section 53 of the Code should be
given considering that crime has changed its voice. 
25 Having heard the learned counsel appearing for the parties and
having considered the materials on record, the only question that falls
for my consideration is whether the accused can object to lending of his
voice sample for the purpose of Voice Spectrography Test.
26 Before adverting to the rival submissions canvassed on either side,
I should look into the case­law available as on date. 
27 In Ritesh Sinha (supra), Her Ladyship Justice Ranjana Desai held
as under:
“28 The next question which needs to be answered is whether there is
any provision in the Code, or in any other law under which a Magistrate
can authorize the investigating agency to record voice sample of a person
accused of an offence. Counsel are ad idem on the point that there is no
specific provision either in the Code or in any other law in that behalf. In
its 87th Report,  the Law Commission suggested that the Prisoners Act
should be amended inter alia to include voice sample within the ambit of
Section 5 thereof. Parliament however has not amended the Prisoners Act
in pursuance to the recommendation of the Law Commission nor is the
Code amended to add any such provision therein. Resultantly, there is no
specific legal provision under which such a direction can be given. It is
therefore, necessary to see whether such power can be read into in any of
the available provisions of law.
29 A careful study of the relevant provisions of the Code and other
relevant statutes discloses a scheme which aims at strengthening the hands
of the investigator. Section 53, Section 54A, Section 311A of the Code,
Section 73 of the Evidence Act and the Prisoners Act to which I shall soon
refer reflect Parliament's efforts in that behalf. I have already noted that in
Kathi   Kalu   Oghad   (AIR   1961   SC   1808),   while   considering   the
expressions "to be a witness" and "furnishing evidence", this Court clarified
that "to be a witness" is not equivalent to "furnishing evidence" in the
larger sense of the expression so as to include giving of thumb impression
or impression of palm or foot or fingers or specimen writing or exposing a
part of the body by an accused for the purpose of identification because
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such interpretation would not have been within the contemplation of the
Constitution makers for the simple reason that though they may have
intended   to   protect   an   accused   person   from   the   hazards   of   selfincrimination,
they could not have intended to put obstacles in the way of
efficient and effective investigation into crime and bringing criminal to
justice.  Such  steps  often become  necessary  to help the investigation  of
crime. This Court expressed that it is as much necessary to protect an
accused person against being compelled to incriminate himself, as to arm
the agents of law and law courts with legitimate powers to bring offenders
to justice. This, in my opinion, is the basic theme and, the controversy
regarding taking of voice sample involved in this case will have to be dealt
with keeping this theme in mind and by striking a balance between Article
20(3) and societal interest in having a legal framework in place which
brings to book criminals.
30 Since   we   are   concerned   with   the   stage   of   investigation,   it   is
necessary to see how the Code defines 'investigation'. Section 2 (h) of the
Code is material. It reads thus:
"Investigation" includes all the proceedings under this Code for the
collection of evidence conducted by a police officer or by any person
(other than a Magistrate) who is authorized by a Magistrate in this
behalf."
31 It   is  the   duty   of   a  Police   Officer   or   any   person   (other   than   a
Magistrate) authorized by a Magistrate to collect evidence and proceedings
under the Code for the collection of evidence are included in 'Investigation'.
Collection of voice sample of an accused is a step in investigation. It was
argued by learned counsel for the State that various steps which the police
take during investigation are not specifically provided in the Code, yet they
fall within the wider definition of the term 'investigation' and investigation
has   been   held   to   include   measures   that   had   not   been   enumerated   in
statutory provisions and the decisions to that effect of the Rajasthan High
Court in Mahipal Maderna vs. State of Rajasthan (1971 Cri LJ 1405)
and Allahabad High Court in Jamshed vs. State of U.P. (1976 Cri LJ
1680) have been noticed by this Court in Selvi vs. State of Karnataka
(AIR 2010 SC 1974 : AIR SCW 3011) and, therefore, no legal provision
need be located under which voice sample can be taken. I find it difficult to
accept this submission. In the course of investigation, the police do use
force. In a country governed by rule of law police actions which are likely
to affect the bodily integrity of a person or likely to affect his personal
dignity   must   have   legal   sanction.   That   prevents   possible   abuse   of   the
power by the police. It is trite that every investigation has to be conducted
within   the   parameters   of   the   Code.   The   power   to   investigate   into   a
cognizable offence must be exercised strictly on the condition on which it is
granted. (State of West Bengal v. Swapan Guha (AIR 1982 SC 949)).
The accused has to be dealt with strictly in accordance with law. Even
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though,   taking   of   physical   evidence   which   does   not   amount   to
communicating   information   based   on   personal   knowledge   to   the
investigating officer by the accused which may incriminate him, is held to
be   not   violative   of   protection   guaranteed   by   Article   20(3),   the
investigating officer cannot take physical evidence from an accused unless
he is authorized by a Magistrate to do so. He cannot assume powers which
he does not possess. He can only act on the strength of a direction given to
him by a Magistrate and the Magistrate must have power to issue such a
direction. In  Bindeshwari Prasad Singh v. Kali Singh(1977) 1 SCC
57 : (AIR 1977 SC 2432), this Court  has clarified that subordinate
criminal courts have no inherent powers. Similar view has been taken by
this court in Adalat Prasad vs. Rooplal Jindal (AIR 2004 SC 4674 :
2004 AIR SCW 5174). Our attention was drawn to  Sakiri Vasu vs.
State of U.P. (AIR 2008 SC 907 : 2008 AIR SCW 309) in support of the
submission that the Magistrate has implied or incidental powers. In that
case, this Court was dealing with the Magistrate's powers under Section
156(3) of the Code. It is observed that Section 156(3) includes all such
powers as are necessary for ensuring a proper investigation. It is further
observed that when a power is given to an authority to do something, it
includes such incidental  or implied powers which would ensure proper
doing   of   that   thing.   It   is   further   added   that   where   an   Act   confers
jurisdiction, it impliedly also grants power of doing all such acts or employ
such   means   as   are   essentially   necessary   for   execution.   If   we   read
Bindeshwar Prasad, Adalat Prasad and Sakiri Vasu together, it becomes
clear that the subordinate criminal courts do not have inherent powers.
They can exercise such incidental powers as are necessary to ensure proper
investigation. Against this background, it is necessary to find out whether
power of a Magistrate to issue direction to a police officer to take voice
sample   of   the   accused   during   investigation   can   be   read   into   in   any
provisions of the Code or any other law. It is necessary to find out whether
a Magistrate has implied or ancillary power under any provisions of the
Code to pass such order for the purpose of proper investigation of the case.
32 In search for such a power, I shall first deal with the Prisoners Act.
As   its   short   title   and   preamble   suggests   it   is   aimed   at   securing
identification   of   the   accused.   It   is   an   Act   to   authorize   the   taking   of
measurements   and   photographs   of   convicts   and   others.   Section   2(a)
defines the term 'measurements' to include finger­impressions and footprint
impressions. Section 3 provides for taking of measurements, etc., of
convicted persons and Section 4 provides for taking of measurements, etc.,
of non­convicted persons. Section 5 provides for power of a Magistrate to
order a person to be measured or photographed. Section 6 permits the
police officer to use all means necessary to secure measurements etc. if such
person puts up resistance.  Section 7 states that all measurements  and
photographs taken of a person who has not been previously convicted shall
be destroyed unless the court directs otherwise, if such person is acquitted
or discharged. In Kathi Kalu Oghad, this Court referred to the Prisoners
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Act as a statute empowering the law courts with legitimate powers to
bring offenders to justice.
33 In  Amrit   Singh   v.   State   of   Punjab(2006)   12   SCC   79  the
appellant was charged for offences under Sections 376 and 302 of the
Indian Penal Code (for short "the IPC") and an application was filed by the
investigating officer for obtaining the appellant's hair sample. He refused
to give hair sample. It was argued that hair sample can be taken under the
provisions of the Prisoners Act. This Court held that the Prisoners Act may
not be ultra vires the Constitution, but it will have no application to the
case before it because it cannot be said to be an area contemplated under
it.
34 In CBI v. Abdul Karim Ladsab Telgi (2005 Cri LJ 2868), the
Bombay High Court was dealing with a challenge to the order passed by
the Special Judge, Pune, rejecting application filed by the investigating
agency praying that it may be permitted to record the voice samples of the
accused.  The High Court relying on Kathi Kalu Oghad (AIR 1961  SC
1808) rejected the contention that requiring the accused to lend their voice
sample to the investigating officer amounts to testimonial compulsion and
results in infringement of the accused's right under Article 20(3) of the
Constitution. The High Court held that measuring frequency or intensity of
the speech sound waves falls within the ambit of the scope of the term
"measurement" as defined in Section 2(a) of the Prisoners Act. The High
Court also relied on Sections 5 and 6 of the Prisoners Act as provisions
enabling the court to pass such orders.
35 In  Rakesh Bisht vs. CBI (2007 Cri LJ 1530), the Delhi High
Court disagreed with the view taken by the Bombay High Court in Telgi.
The Delhi High Court held that if after investigation, charges are framed
and in the proceedings before the court, the court feels that voice sample
ought to be taken for the purposes of establishing identity, then such a
direction may be given provided the voice sample is taken only for the
purposes of identification and it does not contain inculpatory statement so
as to be hit by Article 20(3) of the Constitution.
36 Having carefully perused the provisions of the Prisoners Act, I am
inclined to accept the view taken by the Bombay High Court in Telgi as
against the view taken by the Delhi High Court in Rakesh Bisht. Voice
sample stands on a different footing from hair sample with which this
Court was concerned in Amrit Singh because there is no provision express
or implied in the Prisoners Act under which such a hair sample can be
taken. That is not so with voice sample.
37 The   purpose   of   taking   voice   sample   which   is   non­testimonial
physical evidence is to compare it with tape recorded conversation. It is a
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physical characteristic of the accused. It is identificatory evidence. In R.M.
Malkani vs. State of Maharashtra (AIR 1973 SC 157), this Court has
taken a view that tape recorded conversation is admissible provided the
conversation is relevant to the matters in issue; there is identification of
the voice and the tape recorded conversation is proved by eliminating the
possibility of erasing the tape recorded conversation. It is a relevant fact
and is admissible under Section 7 of the Evidence Act. In view of this legal
position, to make the tape recorded conversation admissible in evidence,
there must be provision under which the police can get it identified. For
that purpose, the police must get the voice sample of the accused.
38 The dictionary meaning of the term 'measurement' is the act or
process of measuring. The voice sample is analysed or measured on the
basis of time, frequency and intensity of the speech­sound waves. A voice
print is a visual recording of voice. Spectrographic Voice Identification is
described in Chapter 12 of the Book "Scientific Evidence in Criminal Cases"
written by Andre A. Moenssens, Ray Edward Moses and Fred E. Inbau. The
relevant extracts of this chapter could be advantageously quoted. 
"Voiceprint identification requires (1) a recording of the questioned
voice, (2) a recording of known origin for comparison, and (3) a
sound spectrograph machine adapted for 'voiceprint' studies."
12.02 Sound and Speech
In   order   to   properly   understand   the   voiceprint   technique,   it   is
necessary to briefly review some elementary concepts of sound and
speech.
Sound, like heat, can be defined as a vibration of air molecules or
described   as  energy   in  the   form   of  waves   or  pulses,   caused   by
vibrations.   In   the   speech   process,   the   initial   wave   producing
vibrations  originate  in the vocal  cords.  Each vibration causes a
compression and corresponding rarefications of the air, which in
turn form the aforementioned  wave or pulse.  The time  interval
between each pulse is called the frequency of sound; it is expressed
generally in hertz, abbreviated as hz., or sometimes also in cyclesper­second,
abbreviated as cps. It is this frequency which determines
the pitch of the sound. The higher the frequency, the higher the
pitch, and vice versa .
Intensity is another characteristic of sound. In spe ech, intensity is
the characteristic of loudness. Intensity is a function of the amount
of energy in the sound wave or pulse. To perceive the difference
between frequency and intensity, two activities of air molecules in
an   atmosphere   must   be   considered.   The   speed   at   which   an
individual vibrating molecule bounces back and forth between the
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other air molecules surrounding it is the frequency. Intensity, on
the other hand, may be measured by the number of air molecules
that are being caused to vibrate at a given frequency."
"12.03 The Sound Spectrograph
The sound spectrograph is an electromagnetic  instrument  which
produces a graphic display of speech in the parameters of time,
frequency and intensity. The display is called a sound spectrogram."
39 Thus,   it   is   clear   that   voiceprint   identification   of   voice   involves
measurement of frequency and intensity of sound waves. In my opinion,
therefore, measuring frequency or intensity of the speech­sound waves falls
within   the   ambit   of   inclusive   definition   of   the   term   'measurement'
appearing in the Prisoners Act. 
40 There is another angle of looking at this issue. Voice prints are like
finger   prints.   Each   person   has   a   distinctive   voice   with   characteristic
features.  Voice  print  experts  have   to  compare   spectrographic   prints  to
arrive at an identification. In this connection, it would be useful to read
following   paragraphs   from   the   book   "Law   Enforcement   and   Criminal
Justice ­ an introduction" by Bennett­Sandler, Frazier, Torres, Waldron:
"Voiceprints.   The   voiceprint   method   of   speaker   identification
involves the aural and visual comparison of one or more identified
voice patterns with a questioned or unknown voice. Factors such as
pitch,   rate   of   speech,   accent,   articulation,   and   other   items   are
evaluated and identified, even though a speaker may attempt to
disguise his or her voice. Through means of a sound spectrograph,
voice signals can be recorded magnetically to produce a permanent
image on electrically sensitive paper. This visual recording is called
a voiceprint.
A voiceprint  indicates resonance bars of a person's voice (called
formants), along with the spoken word and how it is articulated.
Figure 9.7 is an actual voiceprint sample. The loudness of a voice is
indicated by the density of lines; the darker the lines on the print,
the greater the volume of the sound. When voiceprints are being
identified, the frequency and pitch of the voice are indicated on the
vertical axis; the time factor is indicated on the horizontal axis. At
least   ten   matching   sounds   are   needed   to   make   a   positive
identification,   while   fewer   factors   lead   to   a  probable   or   highly
probable conclusion.
  Voiceprints   are   like   fingerprints   in   that   each   person   has   a
distinctive   voice   with   characteristic   features   dictated   by   vocal
cavities and articulators. Oral and nasal cavities act as resonators
for energy expended by the vocal cords. Articulators are generated
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by the lips, teeth, tongue, soft palate, and jaw muscles. Voiceprint
experts must compare spectrographic prints or phonetic elements to
arrive at an identification. These expert laboratory technicians are
trained   to   make   subjective   conclusions,   much   as   fingerprint   or
criminalistic   experts   must   make   determinations   on   the   basis   of
evidence." (Emphasis supplied.)
Thus, my conclusion that voice sample can be included in the inclusive
definition of the term "measurements" appearing in Section 2(a) of the
Prisoners   Act   is  supported  by   the   above­quoted   observation   that  voice
prints are like finger prints. Section 2(a) states that measurements include
finger  impressions  and  foot  impressions.  If voice  prints  are like  finger
prints, they would be covered by the term 'measurements'. I must note that
the Law Commission of India in its 87th Report referred to the book "Law
Enforcement and Criminal Justice ­ an introduction". The Law commission
observed   that   voice   prints   resemble   finger   prints   and   made   a
recommendation   that   the   Prisoners   Act   needs   to   be   amended.   I   am,
therefore, of the opinion that a Magistrate acting under Section 5 of the
Prisoners Act can give a direction to any person to give his voice sample for
the purposes of any investigation or proceeding under the Code.
41 I shall now turn to Section 73 of the Indian Evidence Act to see
whether it empowers the court to give such a direction. It reads thus:
"Section 73 ­ Comparison of signature, writing or seal with others
admitted or proved.
In order to ascertain whether a signature, writing, or seal is that of
the person by whom it purports to have been written or made, any
signature, writing, or seal admitted or proved to the satisfaction of
the Court to have been written or made by that person may be
compared   with   the   one   which   is   to   be   proved,   although   that
signature, writing, or seal has not been produced or proved for any
other purpose.
The Court may direct any person present in court to write any
words or figures for the purpose of enabling the Court to compare
the words or figures so written with any words or figures alleged to
have been written by such person.
This   section   applies   also,   with   any   necessary   modifications,   to
finger­impressions.”
42 In State of U.P. vs. Ram Babu Misra vs. (AIR 1980 SC 791),
the   investigating   officer   made   an   application   to   the   Chief   Judicial
Magistrate,   Lucknow   seeking   a   direction   to   the   accused   to   give   his
specimen   writing  for  the  purpose  of comparison   with   certain   disputed
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writings. Learned Magistrate held that he had no power to do so when the
case was still under investigation. His view was upheld by the High Court.
This Court held that:
“4. The second paragraph of Section 73 enables the court to direct
any   person   present   in   court   to   give   specimen   writings   "for   the
purpose   of   enabling   the   court   to   compare"   such   writings   with
writings alleged to have been written by such person. The clear
implication of the words "for the purpose of enabling the court to
compare" is that there is some proceeding before the court in which
or as a consequence of which it might be necessary for the court to
compare such writings.” 
This  Court   further   observed  that   the  direction  is to  be  given  "for   the
purpose of enabling the court to compare" and not for the purpose of
enabling the investigating or other agency to compare. While dismissing
the appeal, this Court expressed that a suitable legislation may be made
on   the   analogy   of   Section   5   of   the   Prisoners   Act   to   provide   for   the
investiture of Magistrates with the power to issue directions to any person
including  an accused  person to give specimen signatures and writings.
Thus Section 73 of the Evidence Act does not empower the court to direct
the   accused   to   give   his   specimen   writings   during   the   course   of
investigation. Obviously, Section 73 applies to proceedings pending before
the court. They could be civil or criminal. In view of the suggestion made
by this Court by Act 25 of 2005 with effect from 23.6.2006, Section 311A
was added in the Code empowering the Magistrate to order a person to
give specimen signature or handwriting during the course of investigation
or proceeding under the Code.
43 Section 311A of the Code reads thus:
"311A.   Power   of   Magistrate   to   order   person   to   give   specimen
signatures or handwriting:
If a Magistrate of the first class is satisfied that, for the purposes of any
investigation or proceeding under this Code, it is expedient to direct any
person,   including   an   accused   person,   to   give   specimen   signatures   or
handwriting, he may make an order to that effect and in that case the
person to whom the order relates shall be produced or shall attend at the
time   and   place   specified   in   such   order   and   shall   give   his   specimen
signatures or handwriting:
Provided that no order shall be made under this section unless the person
has at some time been arrested in connection with such investigation or
proceeding."
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A bare reading of this Section makes it clear that Section 311A cannot be
used for obtaining a direction from a Magistrate for taking voice sample.
44  Section 53 of the Code pertains to examination of the accused by
medical practitioner at the request of a police officer. Section 53A refers to
examination of person accused of rape by medical practitioner and section
54 refers to examination of arrested person by a medical officer. Section
53 is material. It reads as under:
"Section 53 ­ Examination of accused by medical practitioner
at the request of police officer
(1) When a person is arrested on a charge of committing an offence
of such a nature and alleged to have been committed under such
circumstances that there are reasonable grounds for believing that
an   examination   of   his   person   will   afford   evidence   as   to   the
commission of an offence, it shall be lawful for a registered medical
practitioner, acting at the request of a police officer not below the
rank of sub­inspector, and for any person acting in good faith in
his aid and under his direction, to make such an examination of
the person arrested as is reasonably necessary in order to ascertain
the facts which may afford such evidence, and to use such force as
is reasonably necessary for that purpose.
(2) Whenever the person of a female is to be examined under this
section,   the   examination   shall   be   made   only   by,   or   under   the
supervision of, a female registered medical practitioner.
*Explanation:­
In this section and in sections 53A and 54­
(a) "examination" shall include the examination of blood, blood
stains, semen, swabs in case of sexual offences, sputum and sweat,
hair samples and finger nail clippings by the use of modern and
scientific techniques including DNA profiling and such other tests
which   the   registered   medical   practitioner   thinks   necessary   in   a
particular case;
(b) "registered medical practitioner" means a medical practitioner
who possess any medical qualification as defined in clause (h) of
section 2 of the Indian Medical Council Act, 1956 (102 of 1956)
and whose name has been entered in a State Medical Register.
*Substituted by the Code of Criminal Procedure (Amendment) Act,
2005. Earlier the text was as under:
Explanation.­ In this section and in section 54, "registered medical
practitioner"   means   a   medical   practitioner   who   possesses   any
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recognized medical qualification as defined in clause (h) of section
2 of the Indian Medical Council Act, 1956 (102 of 1956), and
whose name has been entered in a State Medical Register."
In short, this section states that if a police officer feels that there
are reasonable grounds for believing that an examination of the person of
the accused will afford evidence as to commission of the offence, he may
request a registered medical practitioner to make such examination of his
person as is reasonably necessary. For such examination, it is permissible
to use such force  as may be reasonably  necessary.  Explanation (a) to
Section 53 states what is 'examination'. It is an inclusive definition. It
states that the examination shall include the examination of blood, blood
stains, semen, swabs in case of sexual offences, sputum and sweat, hair
samples   and  finger  nail  clippings  by  the  use  of modern  and   scientific
techniques   including   DNA   profiling   and   such   other   tests   which   the
registered medical practitioner thinks necessary in a particular case. This
explanation   was   substituted   by   the   Code   of   Criminal   Procedure
(Amendment)  Act,  2005.  The question is whether  with the aid of the
doctrine 'ejusdem generis' voice sample test could be included within the
scope of the term 'examination'.
45 I am not impressed by the submission that the term "such other
tests" mentioned in Explanation (a) is controlled by the words "which the
registered medical practitioner thinks necessary". It is not possible to hold
that Explanation (a) vests the discretion to conduct examination of the
accused in the registered medical practitioner and not in the investigating
officer and therefore the doctrine of 'ejusdem generis' cannot be pressed
into service. Under Section 53(1) the registered medical practitioner can
act only at the request of a police officer. Obviously, he can have no say in
the process of investigation. The decision to get the accused examined is to
be taken by the investigating officer and not by the medical practitioner. It
is the expertise of the medical practitioner which the investigator uses to
decide the method of the test. It would be wrong, therefore, to state that
the   discretion   to   get   the   accused   examined   vests   in   the   medical
practitioner. This submission must, therefore, be rejected.
46 It   is   argued   that   voice   sample   test   cannot   be   included   in   the
definition  of 'examination'  because  in Selvi,  this Court  has   held that
Section 53 needs to be given a restrictive interpretation. I must, therefore,
revisit Selvi vs. State of Karnataka (AIR 2010 SC 1974).
47 In Selvi vs. State of Karnataka (AIR 2010 SC 1974 : 2010 AIR
SCW 3011),  it was contended  that the phrase "modern and scientific
techniques   including   DNA   profiling   and   such   other   tests"   should   be
liberally construed to include narco­analysis test, polygraph examination
and the BEAP test. These tests could be read in with the help of the words
"and   such   other   tests",   because   the   list   of   "modern   and   scientific
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techniques" contemplated was illustrative and not exhaustive. This Court
observed  that  it was inclined  to take  the view that the results  of the
impugned tests should be treated as testimonial acts for the purpose of
invoking the right against self­incrimination and, therefore, it would be
prudent   to   state   that   the   phrase   "and   such   other   tests"   appearing   in
Explanation (a) to Section 53 of the Code should be read so as to confine
its meaning to include only those tests which involve the examination of
physical evidence. This Court accepted the submission that while bodily
substances  such  as blood,  semen,  sputum,  sweat,  hair and  finger  nail
clippings can be characterized as physical evidence, the same cannot be
said about the techniques in question. This Court reiterated the distinction
between   physical   evidence   and   testimonial   acts   and   accepted   the
submission that the doctrine of 'ejusdem generis' entails that the meaning
of   general   words  which   follow   specific  words   in  a  statutory  provision
should be construed in light of commonality between those specific words.
This Court acknowledged that the substances mentioned in Explanation
(a) to Section 53 are examples of physical evidence and, hence, the words
"and such other tests" mentioned therein should be construed to include
the examination of physical evidence but not that of testimonial acts. This
Court made it clear that it was not examining what was the legislative
intent in not including the tests impugned before it in the Explanation.
48 Our attention was drawn to the observation of this Court in Selvi
that the dynamic interpretation of the amended Explanation to Section 53
is obstructed  because  the   general  words  "and   such  other  tests"  should
ordinarily be read to include tests which are of the same genus as the other
forms   of   medical   examination   which   are   examinations   of   bodily
substances. It is argued that voice sample is not a bodily substance like
blood, sputum, finger nail clippings etc.
49 Voice emanates from the human body. The human body determines
its volume and distinctiveness. Though it cannot be touched or seen like a
bodily substance, being a bodily emanation, it could be treated as a part of
human body and thus could be called a bodily substance. But, I feel that
there is no need to stretch the meaning of the term 'bodily substance' in
this case. I have already expressed my opinion that voice sample is physical
non­testimonial evidence. It does not communicate to the investigator any
information   based   on   personal   knowledge   of   the   accused   which   can
incriminate him. Voice sample cannot be held to be conceptually different
from physical non­testimonial evidence like blood, semen, sputum, hair
etc. Taking of voice sample does not involve any testimonial responses. The
observation of this Court in Selvi that it would not be prudent to read
Explanation (a) to Section 53 of the Code in an expansive manner is
qualified by the words "so as to include the impugned techniques". What
must be borne in mind is that the impugned techniques were held to be
testimonial   and   hit   by   Article   20(3)   of   the   Constitution.   This   Court
emphasized that Explanation (a) to Section 53 does not enumerate certain
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other kinds of medical examination that involve testimonial acts, such as
psychiatric   examination   among   others   and   this   demonstrates   that   the
amendment made to this provision was informed by a rational distinction
between the examination of physical substances and testimonial acts. If
this Court wanted to interpret Explanation (a) as referring only to bodily
substances there was no reason for it to draw such distinction. Pertinently,
this   distinction   was   employed   while   applying   the   doctrine   of   'ejusdem
generis' to Section 53. The tenor of this judgment makes it clear that tests
pertaining  to physical non­testimonial  evidence  can be included in the
purview of the words "and such other tests" with the aid of the doctrine of
'ejusdem generis'. In my opinion, Selvi primarily rests on the distinction
between physical evidence of non­testimonial character as against evidence
involving testimonial compulsions. The tests mentioned in Explanation (a)
are of bodily substances, which are examples of physical evidence. Even if
voice   sample   is   not   treated   as   a   bodily   substance,   it   is   still   physical
evidence   involving   no   transmission   of   personal   knowledge.   On   the
reasoning of Selvi which is based on Kathi Kalu Oghad, I find no difficulty
in including voice sample test in the phrase "such other tests" appearing in
Explanation (a) to Section 53 by applying the doctrine of 'ejusdem generis'
as it is a test pertaining to physical non­testimonial evidence like blood,
sputum etc. In my opinion, such interpretation of Selvi would be in tune
with   the   general   scheme   of   the   Code   which   contains   provisions   for
collection of evidence for comparison or identification at the investigation
stage in order to strengthen the hands of the investigating agency.
50 It   was   argued   that   Section   53   of   the   Code   only   contemplates
medical   examination   and   taking   of   voice   sample   is   not   a   medical
examination.   Section   53   talks   of   examination   by   registered   medical
practitioner  of the person of the accused  but,  does not  use the words
"medical examination". Similarly, Explanation (a) to Section 53 does not
use the words "medical examination". In my opinion, Section 53 need not
be confined to medical examination. It is pertinent to note that in Selvi,
this court was considering whether narco­analysis, polygraph examination
and   the   BEAP   tests   violate   Article   20(3)   of   the   Constitution.   While
examining this question, this Court analyzed Section 53 and stated that
because those tests are testimonial in nature, they do not fall within the
ambit of Section 53 of the Code but this Court did not restrict examination
of person contemplated in Section 53 to medical examination by a medical
practitioner even though the tests impugned therein were tests that were
clearly   not   to   be   conducted   by   the   medical   practitioner.   It   must   be
remembered that Section 53 is primarily meant to serve as aid in the
investigation. Examination of the accused is to be conducted by a medical
practitioner at the instance of the police officer, who is in charge of the
investigation. On a fair reading of Section 53 of the Code, I am of the
opinion that under that Section, the medical practitioner can conduct the
examination or suggest the method of examination. 
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51 I must also deal with the submission of learned counsel for the
appellant that non­inclusion of voice sample in Explanation (a) displays
legislative intent not to include it though legislature was aware of such
test. In Selvi, this court has made it clear that it was not examining the
question regarding legislative intent in not including the test impugned
before it in Explanation (a). Therefore, Selvi does not help the appellant
on this point. On the contrary, in my opinion, by adding the words 'and
such other tests' in the definition of term contained in Explanation (a) to
Section 53 of the Code, the legislature took care of including within the
scope of the term 'examination' similar tests which may become necessary
in the facts of a particular case. Legislature exercised necessary caution
and  made  the said definition  inclusive,  not  exhaustive  and  capable  of
expanding  to legally  permissible limits with the aid of the doctrine  of
'ejusdem generis'. I, therefore, reject this submission. 
52 Section   54A   of   the   Code   makes   provision   for   identification   of
arrested persons. It states that where a person is arrested on a charge of
committing   an   offence   and   his   identification   by   any   other   person   or
persons is considered necessary for the purpose of investigation of such
offence, the court having jurisdiction, may on the request of the officer in
charge of a police station, direct the person so arrested to subject himself
to identification by any person or persons in such manner as the court
may deem fit. Identification of the voice is precondition for admission of
tape   recorded   conversation   in   evidence  (R.M.   Malkani   vs.   State   of
Maharashtra (AIR 1973 SC 157)). Since Section 54A of the Code uses
the words "the Court,.... may …..direct the person so arrested to subject
himself to identification by any person or persons in such manner as the
court may deem fit", voice sample can be identified by means of voice
identification parade under Section 54A or by some other person familiar
with the voice. 
53 I   may   usefully   refer   to   the   judgment   of   this   Court   in  Nilesh
Paradkar v. State of Maharashtra  (2011) 4 SCC 143 : (AIR 2011 SC
(Cri) 911)  where the voice test identification was conducted by playing
cassette   in   the   presence   of   panchas,   police   officers   and   prosecution
witnesses.   This   Court   rejected   the   voice   identification   evidence   because
precautions similar to the precautions which are normally taken in visual
identification of suspects by witnesses were not taken. But this court did
not reject the evidence on the ground that voice identification parade is not
contemplated under Section 54A of the Code. It is important to note that
in Mohan Singh v. State of Bihar(2011) 9 SCC 272 : (AIR 2011 SC
3534 : 2011 AIR SCW 5120), after noticing Nilesh Paradkar, this Court
held   that   where   the   witnesses   identifying   the   voice   had   previous
acquaintance with the caller i.e. the accused, such identification of voice
can   be   relied   upon;   but   identification   by   voice   has   to   be   considered
carefully  by the court.  This, however,  is no answer to the question of
availability of a legal provision to pass an order directing the accused to
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give voice sample during investigation. The legal provision, in my opinion,
can be traced to the Prisoners Act and Section 53 of the Code. 
54 I am mindful of the fact that foreign decisions are not binding on
our courts. But, I must refer to the judgment of the Supreme Court of
Appeal   of   South   Africa   in  Levack,   Hamilton   Caesar   and   Ors.   v.
Regional Magistrate, Wynberg and Anr. [2003] 1 All SA 22 (SCA)
(28th   November,   2002)  because   it   throws   some   light   on   the   issue
involved in the case. In that case, the Magistrate had granted an order
under Section 37(3) of the Criminal Procedure Act 51 of 1977 (for short,
"South African Act") directing the accused to give voice samples as specified
by a named 'voice expert' in the presence of the legal representatives of the
accused. The object was to compare the samples with tape recordings of
telephone  conversations  in the State's possession,  for possible  later  use
during the trial. The accused were unsuccessful in the High Court in their
challenge to the said order of the lower court. Hence, they appealed to the
Supreme Court of South Africa. 
55 Under Section 37(1) of the South African Act, any police officer
may take the fingerprints, palm­prints and footprints or may cause any
such prints to be taken, inter alia, of any person arrested upon any charge.
Sections 37(1)(a)(i) and (ii) and Section 37(1)(c) of the South African
Act read thus:
"37.  Powers in respect  of prints and bodily appearance of
accused.­(1) Any police official may­
(a) take the finger­prints, palm­prints or footprints or may cause
any such prints to be taken­
(i) of any person arrested upon any charge;
(ii)   of   any   such   person   released   on   bail   or   on   warning   under
section 72;
(iii) xxx xxx xxx
(iv) xxx xxx xxx
(v) xxx xxx xxx
(b) xxx xxx xxx
(c) take such steps as he may deem necessary in order to ascertain
whether the body of any person referred to in paragraph (a) (i) or
(ii) has any mark, characteristic or distinguishing feature or shows
any condition or appearance: 
Provided that no police official shall take any blood sample of the
person concerned nor shall a police official make any examination
of the body of the person concerned where that person is a female
and the police official concerned is not a female;"
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56 The first question which fell for consideration was whether voice of
a person is a characteristic or distinguishing  feature of the body. The
Supreme Court of South Africa considered the Oxford Dictionary meaning
of   'voice'   as   '1.   Sound   formed   in   larynx   etc.   and   uttered   by   mouth,
especially human utterance in speaking, shouting, singing, etc. 2. Use of
voice,   utterance.   3.   (Phonetic)   Sound   uttered   with   resonance   of   vocal
chords,  not  with  mere  breath'.  It observed  that  voice  is thus a sound
formed in the larynx and uttered by the mouth and emanates from and is
formed   by   the   body.   Therefore,   there   can   be   no   doubt   that   it   is   a
'characteristic' (in the sense of a distinctive trait or quality) of the human
body. Though voice sample was not specifically mentioned in Section 37, it
was held that it fell within the scope of Section 37. It was observed that
Section 37 does not expressly mention the voice because it is one of the
'innumerable'   bodily   features   that   the   wording   expressly   contemplates.
Section 37 merely contemplates bodily appearance of the accused. 
57 It was further observed in Levack vs. Regl. Magistrate, Wynberg
(2003) 1 All SA 229SCA) that it is true that the voice, unlike palm or
other prints, is not itself part of the body. It is a sound. But, the sound is a
bodily emanation. And the body from which it emanates determines its
timbre, volume and distinctive modulations. It was further observed that
nothing   in   the   provision   suggests   that   the   'distinguishing   features'   it
envisages should be limited to those capable of apprehension through the
senses of touch and sight (or even taste or smell). Relevant observation of
the Supreme Court of South Africa could be quoted.
"14. Hearing is as much a mode of physical apprehension as feeling
or seeing. For the sight impaired it is indeed the most important
means   of   distinguishing   between   people.   It   would   therefore   be
counter­literal   to   interpret   the   section   as   though   the   ways   of
'ascertaining' bodily features it contemplates extend only to what is
visible or tangible."
58 The Supreme Court of South Africa then considered the question of
self­incrimination. It observed that it is wrong to suppose that requiring
the accused to submit voice samples infringes their right either to remain
silent   in   the   court   proceedings   against   them   or   not   to   give   selfincriminating
evidence. It was further observed that voice falls within the
same category as complexion, stature, mutilations, marks and prints i.e.
'autoptic   evidence'   ­   evidence   derived   from   the   accused's   own   bodily
features. It was held that there is no difference in principle between the
visibly discernible physical traits and features of an accused and those that
under law can be extracted from him through syringe and vial or through
the compelled provision of a voice sample. In neither case is the accused
required to provide evidence of a testimonial or communicative nature,
and in neither case is any constitutional right violated. 
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59 The Supreme Court of South Africa in Levack vs. Rgl. Magistrate,
Wynberg, then examined as to under which provision a Magistrate could
issue a direction to the accused to supply his voice samples. It observed
that Section 37(1)(a)(i) and (ii) permit any police officer to take the
finger­prints, palm­prints or footprints or may cause any such prints to be
taken of any person arrested upon any charge. Section 37(1)(c) states
that any police officer may take such steps as he may deem necessary in
order to ascertain whether the body of any person referred to in paragraph
(a) (i) or (ii) has any mark, characteristic or distinguishing feature or
shows   any   condition   or   appearance.   Though   'voice   sample'   was   not
specifically   mentioned   anywhere,   on   a   conjoint   reading   of   the   two
provisions, the Supreme Court of South Africa held that the police retained
the   power   under   Section   37(1)(c)   to   take   steps   as   they   might   deem
necessary to ascertain the characteristic or distinguishing features of the
accused's voice. That included the power to request the accused to supply
voice samples. The court further observed that this power, in turn, could
properly be supplemented by a court order requiring the accused to do so.
60 In the ultimate analysis, therefore, I am of the opinion that the
Magistrate's power to authorize the investigating agency to record voice
sample of the person accused of an offence can be traced to Section 5 of the
Prisoners Act and Section 53 of the Code. The Magistrate has an ancillary
or implied power under Section 53 of the Code to pass an order permitting
taking of voice sample to aid investigation. This conclusion of mine is
based on the interpretation of relevant sections of the Prisoners Act and
Section 53 of the Code and also is in tune with the concern expressed by
this court in Kathi Kalu Oghad that it is as much necessary to protect an
accused person against being compelled to incriminate himself, as to arm
the agents of law and the law courts with legitimate powers to bring
offenders to justice. 
61 The principle that a penal statute should be strictly construed is not
of   universal   application.   In  Murlidhar   Meghraj   Loya   v.   State   of
MaharashtraAIR   1976   SC   1929,   this   court   was   dealing   with   the
Prevention   of   Food   Adulteration   Act,   1954.   Speaking   for   this   court,
Krishna Iyer, J. held that any narrow and pedantic, literal and lexical
construction of Food Laws is likely to leave loopholes for the offender to
sneak out of the meshes of law and should be discouraged and criminal
jurisprudence  must  depart from old canons  defeating  criminal  statutes
calculated to protect the public health and the nation's wealth. Similar
view   was   taken   in  Kisan   Trimbak   Kothula   and   Ors.   v.   State   of
Maharashtra   AIR   1977   SC   435.   In  State   of   Maharashtra   v.
Natwarlal Damodardas Soni AIR 1980 SC 593,  while dealing with
Section 135 of the Customs Act and Rule 126­H(2)(d) of the Defence of
India Rules, a narrow construction given by the High Court was rejected
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on the ground that that will emasculate these provisions and render them
ineffective as a weapon for combating gold smuggling. It was further held
that the provisions have to be specially construed in a manner which will
suppress the mischief and advance the object which the legislature had in
view.   Therefore,   whether   the   penal   statute   should   be   given   strict
interpretation or not will depend on facts of each case. Considerations of
public health, preservation of nation's wealth, public safety may weigh
with the court  in a given case and  persuade  it not  to give  a narrow
construction to a penal statute. In the facts of this case, I am not inclined
to give a narrow construction to the provisions of the Prisoners Act and
Section 53 of the Code. Judicial note can be taken of the fact that there is
a   great   deal   of   technological   advance   in   means   of   communication.
Criminals   are   using   new   methodology   in   committing   crimes.   Use   of
landlines, mobile phones and voice over internet protocol (VoIP) in the
commission of crimes like kidnapping for ransom,  extortion, blackmail
and for terrorist activities is rampant. Therefore, in order to strengthen
the   hands   of   investigating   agencies,   I   am   inclined   to   give   purposive
interpretation to the provisions of the Prisoners Act and Section 53 of the
Code instead of giving a narrow interpretation to them. I, however, feel
that Parliament needs to bring in more clarity and precision by amending
the Prisoners Act. The Code also needs to be suitably amended. Crime has
changed   its   face.   There   are   new   challenges   faced   by   the   investigating
agency. It is necessary to note that many local amendments have been
made in the Prisoners Act by several States. Technological and scientific
advance   in   the   investigative   process   could   be   more   effectively   used   if
required amendments are introduced by Parliament. This is necessary to
strike   a   balance   between   the   need   to   preserve   the   right   against   self
incrimination guaranteed under Article 20(3) of the Constitution and the
need to strengthen the hands of the investigating agency to bring criminals
to book.”
28 His Lordship Justice Aftab Alam held as under:
“68 As regards the first question, relying primarily on the eleven (11)
Judges' Bench decision of this Court in State of Bombay v. Kathi Kalu
Oghad and others [1962] 3 SCR 10 : (AIR 1961 SC 1808) which was
followed in the more recent  decision in  Selvi and others v. State of
Karnataka (2010) 7 SCC 263 : (AIR 2010 SC 1974 : 2010 AIR SCW
3011)  she held that "taking voice sample of an accused by the police
during investigation is not hit by Article 20 (3) of the Constitution." I am
broadly in agreement with the view taken by her on Article 20 (3) but,
since   I   differ   with   her   on   the   second   question,   I   think   the   issue   of
constitutional   validity   in   compelling   the   accused   to   give   his/her   voice
sample does not really arise in this case. 
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69 Coming   to   the   second   question,   as   may   be   seen,   it   has   the
recognition that there is no provision in the Criminal Procedure Code to
compel the accused to give his voice sample. That being the position, to my
mind the answer to the question can only be in the negative, regardless of
the constitutional guarantee against self­incrimination and assuming that
in case a provision in that regard is made in the law that would not offend
Article 20 (3) of the Constitution. Desai J., however, answers the question
in the affirmative by means of a learned and elaborate discourse. She has
navigated the arduous course to the conclusion at which she arrived very
painstakingly and skillfully.
70 First, Desai, J. firmly rejects the submission advanced on behalf of
the State that in the absence of any express provision in that regard, it was
within the inherent and implied powers of the Magistrate to direct the
accused to give his/her voice sample to ensure a proper investigation. In
this regard, she observes as follows:­ 
"31...In the course of investigation, the police do use force. In a
country governed by rule of law police actions which are likely to
affect the bodily integrity of a person or likely to affect his personal
dignity must have legal sanction. That prevents possible abuse of
the power by the police. It is trite that every investigation has to be
conducted   within   the   parameters   of   the   Code.   The   power   to
investigate into a cognizable offence must be exercised strictly on
the condition on which it is granted.  (State of West Bengal v.
Swapan Guha (AIR 1982 SC 949)). The accused has to be dealt
with   strictly   in   accordance   with   law.   Even   though,   taking   of
physical   evidence   which   does   not   amount   to   communicating
information   based   on   personal   knowledge   to   the   investigating
officer by the accused which may incriminate him, is held to be not
violative   of   protection   guaranteed   by   Article   20(3),   the
investigating officer cannot take physical evidence from an accused
unless he is authorized by a Magistrate to do so. He cannot assume
powers which he does not possess. He can only act on the strength
of a direction given to him by a Magistrate and the Magistrate
must have power to issue such a direction."
I am fully in agreement with what is said above. 
71 However, having rejected the submission based on the inherent and
implied powers of the Magistrate she makes a "search" for the power of the
Magistrate to ask the accused to give his/her voice sample. She shortlists
for that purpose (i) the provisions of the Identification of Prisoners Act,
1920, (ii) Section 73 of the Evidence Act and (iii) Sections 311A and 53 of
the Code of Criminal Procedure. She finds and holds that Section 73 of the
Evidence Act and Section 311A of the Code of Criminal Procedure are of
no help and those two provisions cannot be used for obtaining a direction
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from   the   Magistrate   for   taking   voice   sample   and   finally   rests   her
conclusion on the provisions of the Identification of Prisoners Act, 1920
and Section 53 of the Code of Criminal Procedure.
72 Section 53 of the Code of Criminal Procedure originally reads as
under:­
"53. Examination of accused by medical practitioner at the request
of   police   officer.   ­  (1)   When   a   person   is   arrested   on   a   charge   of
committing   an   offence   of   such   a   nature   and   alleged   to   have   been
committed under such circumstances that there are reasonable grounds for
believing that an examination of his person will afford evidence as to the
commission   of   an   offence,   it   shall   be   lawful   for   a   registered   medical
practitioner, acting at the request of a police officer not below the rank of
sub­inspector, and for any person acting in good faith in his aid and under
his direction, to make such an examination of the person arrested as is
reasonably necessary in order to ascertain the facts which may afford such
evidence, and to use such force as is reasonably necessary for that purpose.
(2) Whenever the person of a female is to be examined under this section,
the examination shall be made only by, or under the supervision of, a
female registered medical practitioner."
73 In the year 2005,  a number of amendments  were made in the
Criminal Procedure Code by Act 25 of 2005. Those amendments included
the addition of an explanation to Section 53 and insertion of Sections 53­
A and 311­A. The explanation added to Section 53 reads as under:­
"[Explanation. ­ In this section and in sections 53A and 54,­
(a) "examination" shall include the examination of blood, blood
stains, semen, swabs in case of sexual offences, sputum and sweat,
hair samples and finger nail clippings by the use of modern and
scientific techniques including DNA profiling and such other tests
which   the   registered   medical   practitioner   thinks   necessary   in   a
particular case ;
(Emphasis added.)
(b) "registered medical practitioner" means a medical practitioner
who possess any medical qualification as defined in clause (h) of
section 2 of the Indian Medical Council Act, 1956 (102 of 1956)
and whose name has been entered in a State Medical Register.]"
74 Desai J. rejects the submission made on behalf of the appellant that
"the term 'such other tests' mentioned in Explanation (a) is controlled by
the words 'which the registered medical practitioner thinks necessary'" and
relying heavily upon the decision of this Court in Selvi holds:
"51...by adding the words 'and such other tests' in the definition of
term contained in Explanation (a) to Section 53 of the Code, the
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legislature   took   care   of  including   within   the   scope   of   the   term
'examination' similar tests which may become necessary in the facts
of a particular case. Legislature exercised necessary caution and
made the said definition inclusive, not exhaustive and capable of
expanding to legally permissible limits with the aid of the doctrine
of 'ejusdem generis'."
75 I am completely unable to see how Explanation (a) to Section 53
can be said to include voice sample and to my mind the ratio of the
decision in Selvi does not enlarge but restricts the ambit of the expressions
'such   other   tests'   occurring   in   the   Explanation.   In   my   opinion   the
Explanation in question deals with material and tangible things related to
the human body and not to something disembodied as voice. 
76 Section 53 applies to a situation where the examination of the
person of the accused is likely to provide evidence as to the commission of
an offence. Whether or not the examination of the person of the accused
would afford evidence as to the commission of the offence undoubtedly
rests on the satisfaction of the police officer not below the rank of subinspector.
But, once the police officer makes a request to the registered
medical practitioner for the examination of the person of the accused,
what   other   tests   (apart   from   those   expressly   enumerated)   might   be
necessary   in   a   particular   case   can   only   be   decided   by   the   medical
practitioner and not the police officer referring the accused to him. In my
view, therefore, Mr. Dave, learned counsel for the appellant, is right in his
submission that any tests other than those expressly mentioned in the
Explanation can only be those which the registered medical practitioner
would think necessary in a particular case. And further that in any event a
registered medical practitioner cannot take a voice sample.
77 Apart from Section 53 of the Code of Criminal Procedure, Desai J.
finds another source for the power of the Magistrate in Section 5 of the
Identification of Prisoners Act, 1920. Referring to some technical literature
on voice print identification, she holds:
"39. Thus, it is clear that voice print identification of voice involves
measurement  of frequency  and intensity of sound waves.  In my
opinion, therefore, measuring frequency or intensity of the speechsound
waves falls within the ambit of inclusive definition of the
term 'measurement' appearing in the Prisoners Act"
And further:
"40...Thus, my conclusion that voice sample can be included in the
inclusive   definition   of   the   term   "measurements"   appearing   in
Section 2(a) of the Prisoners Act is supported by the above quoted
observation that voice prints are like finger prints. Section 2(a)
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states   that   measurements   include   finger   impressions   and   foot
impressions. If voice prints are like finger prints, they would be
covered by the term 'measurements'."
She finally concludes:
"40...I am, therefore, of the opinion that a Magistrate acting under
Section 5 of the Prisoners Act can give a direction to any person to
give   his   voice   sample   for   the   purposes   of   any   investigation   or
proceeding under the Code."
I am unable to agree.
78 In   order   to   clearly   state   my   views   on   the   provisions   of   the
Identification of Prisoners Act, I may refer to the object and the scheme of
the Act. The principal object of the Act is to sanction certain coercive
measures (which would otherwise invite criminal or tortuous liability) in
order to facilitate the identification of (i) convicts, (ii) persons arrested in
connection with certain offences, and (iii) persons ordered to give security
in certain cases. The scheme of the Act is as follows. The first section
relates to the short title and the extent of the Act. The second section has
the   definition   clauses   and   defines   'measurements'   and   'prescribed'   in
clauses (a) and (c) respectively which are as under:
"2.   Definitions.  ­   (1)   In   this   Act,   unless   there   is   anything
repugnant in the subject or context, ­
(iii)   "measurements"   include   finger   impressions   and   foot­print
impressions;
(iv) xxx xxx xxx
(c) "prescribed" means prescribed by rules made under this Act."
79 Then there are the three substantive provisions of the Act. Section 3
deals   with  taking  of  measurements,  etc.  of  convicted  persons.  It  is as
under:
"3. Taking of measurements, etc., of convicted persons. ­ Every
person who has been ­
(a) convicted of any offence punishable with rigorous imprisonment
for a term of one year or upwards, or of any offence which would
render   him   liable   to   enhanced   punishment   on   a   subsequent
conviction; or
(b) ordered to give security for his good behaviour under section
118 of the Code of Criminal Procedure, 1898 (5 of 1898), shall, if
so required, allow his measurements and photograph to be taken
by a police officer in the prescribed manner."
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80 Section 4 deals with taking of measurement, etc. of non­convicted
persons. It is as under:
"4. Taking of measurements, etc., of non­convicted persons. ­
Any person who has been arrested in connection with an offence
punishable with rigorous imprisonment for a term of one year or
upwards   shall,   if   so   required   by   a   police   officer,   allow   his
measurements to be taken in the prescribed manner."
81 Section 5 deals with the power of Magistrate to order a person to
be measured or photographed. It is as under:
"5. Power of Magistrate to order a person to be measured or
photographed. ­ If a Magistrate is satisfied that, for the purposes
of   any   investigation   or   proceeding   under   the  Code   of   Criminal
Procedure, 1898 (5 of 1898), it is expedient to direct any person to
allow his measurements or photograph to be taken, he may make
an order to that effect, and in that case the person to whom the
order relates shall be produced or shall attend at the time and place
specified   in   the   order   and   shall   allow   his   measurements   or
photograph to be taken, as the case may be, by a police officer:
Provided that no order shall be made directing any person to be
photographed except by a Magistrate of the First Class:
Provided further, that no order shall be made under this section
unless the person has at some time been arrested in connection with
such investigation or proceeding."
82 The rest of the provisions from Section 6 to Section 9 deal with
incidental or consequential matters. Section 6 deals with resistance to the
taking of measurements, etc. and it is as under:
"6. Resistance to the taking of measurements, etc. ­ (1) If any
person who under this Act is required to allow his measurements or
photograph to be taken resists or refuses to allow the taking of the
same, it shall be lawful to use all means necessary to secure the
taking thereof.
(2) Resistance to or refusal to allow the taking of measurements or
photograph under this Act shall be deemed to be an offence under
section 186 of the Indian Penal Code (45 of 1860)."
83 Section  7 deals  with  destruction  of photographs  and records  of
measurements, etc., on acquittal and it is as under:
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"Destruction of photographs and records of measurements, etc., on
acquittal.  ­ Where  any person who,  not having been previously
convicted of an offence punishable with rigorous imprisonment for
a term of one year or upwards, has had his measurements taken or
has been photographed in accordance with the provisions of this
Act  is released  without  trial  or discharged  or acquitted  by any
court, all measurements and all photographs (both negatives and
copies) so taken shall, unless the court or (in a case where such
person is released without trial) the District Magistrate or SubDivisional
Officer for reasons to be recorded in writing otherwise
directs, be destroyed or made over to him."
84 Section 8 gives the State Governments the power to make rules and
it is as under:
"8. Power to make rules. ­ (1) The State Government may, [by
notification in the Official Gazette,] make rules for the purpose of
carrying into effect the provisions of this Act.
(2) In particular and without prejudice to the generality of the
foregoing provision, such rules may provide for ­
(a)   restrictions   on   the  taking  of   photographs   of   persons   under
section 5;
(b) the places at which measurements and photographs may be
taken;
(c) the nature of the measurements that may be taken;
(d) the method in which any class or classes of measurements shall
be taken;
(e) the dress to be worn by a person when being photographed
under section 3; and
(f)   the   preservation,   safe   custody,   destruction   and   disposal   of
records of measurements and photographs.
[(3) Every rule made under this section shall be laid, as soon as
may be after it is made, before State Legislature.]"
85 Section 9 finally lays down the bar of suits.
86  A careful reading of Sections 3, 4 and 5 would make it clear that
the three provisions relate to three categories of persons. Section 3 relates
to a convicted person. Section 4 relates to a person who has been arrested
in connection with an offence punishable with rigorous imprisonment for
term of 1 year or upwards.  Section 5 is far wider in amplitude than
Sections   3   and   4   and   it   relates   to   any   person,   the   taking   of   whose
measurements or photographs might be expedient for the purposes of any
investigation or proceeding under the Code of Criminal Procedure. In the
case   of   the   first   two   categories   of   persons,   the   authority   to   take
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measurements vests in a police officer but in the case of Section 5, having
regard to its much wider amplitude, the power vests in a Magistrate and
not in any police officer. 
87 It is to be noted that the expression "measurements" occurs not only
in Section 5 but also in Sections 3 and 4. Thus, if the term "measurements"
is to be read to include voice sample then on arresting a person in a case
relating to an offence punishable with rigorous imprisonment for a term of
1 year or upwards (and voice sample would normally be required only in
cases in which the punishment is one year or upward!) it would be open to
the police  officer  (of any  rank)  to require  the arrested person to give
his/her voice sample on his own and without seeking any direction from
the Magistrate under Section 5. Further, applying the same parameters,
not only voice sample but many other medical tests, for instance, blood
tests such as lipid profile, kidney function test, liver function test, thyroid
function   test   etc.,   brain   scanning   etc.   would   equally   qualify   as
"measurements" within the meaning of the Identification of Prisoners Act.
In other words on arresting a person in a case relating to an offence
punishable with rigorous imprisonment for a term of 1 year or upwards it
would be possible for the police officer (of any rank) to obtain not only the
voice sample but the full medical profile of the arrested person without
seeking   any   direction   from   the   Magistrate   under   Section   5   of   the
Identification   of   Prisoners   Act   or   taking   recourse   to   the   provisions   of
Sections 53 or 53A of the Code of Criminal Procedure. I find it impossible
to   extend   the   provisions   of   the  Identification   of   Prisoners   Act   to   that
extent. 
88 It may not be inappropriate here to point out that in exercise of the
rule­making powers under Section 8 of the Identification of Prisoners Act
some of the State Governments have framed rules. I have examined the
rules   framed   by   the   States   of   Maharashtra,   Madhya   Pradesh,   Orissa,
Pondicherry and Jammu and Kashmir. From a perusal of those rules it
would appear that all the State Governments understood "measurements"
to mean the physical measurements of the body or parts of the body. The
framing of the rules by the State Government would not be binding on this
Court in interpreting a provision in the rules. But it needs to be borne in
mind that unless the provision are incorporated in the Act in regard to the
manner of taking voice sample and the person competent to take voice
sample etc. there may be difficulty in carrying out the direction of the
Court. 
89 For arriving at her conclusion regarding the scope of Section 5 of
the Identification of Prisoners Act, Desai J. has considered two High Court
judgments.   One   is   of   the   Bombay   High   Court   in  Central Bureau  of
Investigation, New Delhi v. Abdul Karim Ladsab Telgi and others
2005 Cri LJ 2868 and the other by the Delhi High Court in Rakesh Bisht
v.   Central   Bureau   of   Investigation   2007   Cri   LJ   1530,    she   has
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approved the Bombay High Court decision in Telgi's case and disapproved
the Delhi High Court decision in Bisht's case. The Bombay decision is based
on exactly the same reasoning as adopted by Desai, J. that the definition
of "measurements" in Section 2(a) is wide enough to include voice sample
and hence a Magistrate is competent to order a person to give his voice
sample. The relevant passage in the decision is as under:­
"Be that as it may, the expression "measurements" occurring in Section 5
has been defined in Section 2(a), which reads thus:
2. Definitions. ­ In that Act ….
(a)   "measurements   include   finger­impressions   and   foot­print
impressions".
The   said   expression   is   an   inclusive   term,   which   also   includes   fingerimpressions
and foot­print impressions. Besides, the term measurement, as
per the dictionary meaning is the act or an instance of measuring; an
amount   determined   by   measuring;   detailed   dimensions.   With   the
development of science and technology, the voice sample can be analysed
or measured on the basis of time, frequency, and intensity of the speechsound
waves so as to compare and identify the voice of the person who
must have spoken or participated in recorded telephonic conversation. The
expression "measurements" occurring in Section 5, to my mind, can be
construed   to   encompass   even   the   act   undertaken   for   the   purpose   of
identification   of   the   voice   in   the   tape­recorded   conversation.   Such
construction will be purposive one without causing any violence to the said
enactment,   the   purpose   of   which   was   to   record   or   make   note   of   the
identity of specified persons."
90 For the reasons discussed above, I am unable to accept the views
taken in the Bombay decision and to my mind the decision in Telgi (2005
Cri LJ 2668) is not the correct enunciation of law.
91 The Delhi High Court decision in the case of Bisht pertains to the
period prior to June 23, 2006, when the amendments made in the Code of
Criminal Procedure by Act 25 of 2005 came into effect. It, therefore, did
not advert to Sections 53 or 311A and considered the issue of taking voice
sample of the accused compulsorily, primarily in light of Section 73 of the
Indian Evidence  Act,  1872.  Though  the decision  does not  refer  to the
provisions of the Criminal Procedure Code that came into force on June
23, 2006, in my view, it arrives at the correct conclusions.
92 At this stage, I may also refer to the decision of this Court in State
of Uttar Pradesh v. Ram Babu Misra (1980) 2 SCC 343 : (AIR 1980
SC 791) where the Court considered the issue whether the Magistrate had
the authority to direct the accused to give his specimen writing during the
course of investigation. The first thing to note in regard to this decision is
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that it was rendered long before the introduction of Section 311A in the
Code of Criminal Procedure which now expressly empowers the Magistrate
to   order   a   person   to   give   specimen   signature   or   handwriting   for   the
purposes of any investigation or any proceeding under the Code. In Ram
Babu Misra the Court noted that signature and writing are excluded from
the range of Section 5 of the Identification of Prisoners Act, though finger
impression   was   included   therein.   In   that   decision   the   Court   made   a
suggestion   to   make   a   suitable   law   to   provide   for   the   investiture   of
Magistrates with the power to issue directions to any person, including an
accused person, to give specimen signatures and writings. The suggestions
made by the Court materialized 25 years later when Section 311A was
introduced in the Code of Criminal Procedure.
93 The decision in Ram Babu Misra was rendered by this Court on
February 19, 1980 and on August 27, the same year, the Law Commission
of India submitted its 87th Report which was aimed at a complete revamp
of the Identification of Prisoners Act, 1920 and to update it by including
the scientific advances in the aid of investigation. In paragraph 3.16 of the
Report it was observed as under: 
"3.16 Voiceprints furnish one example of physical evidence not
dealt with by the Act ­  Often, it becomes desirable to have an
accused person speak for the purposes of giving to the police an
opportunity to hear his voice and try to identify it as that of the
criminal offender ? However, if the accused refuses to furnish such
voice, there is no legal sanction for compelling him to do so, and
the use of force for that purpose would be illegal."    (Emphasis
added.)
 Further, in paragraph 5.26 it was stated as under:
"5.26 Identification of voice – Present position ­  The scope of
section 5 needs to be expanded in another respect.  The general
power   of   investigation   given   to   the   police   under   the   Criminal
Procedure Code may not imply the power to require the accused to
furnish a specimen of his voice. Cases in which the voice of the
accused was obtained for comparison with the voice of the criminal
offender are known but the question whether the accused can be
compelled to do so does not seem to have been debated so far in
India.
  There is no specific statutory provision in India which expressly
gives power to a police officer or a court to require an accused
person to furnish a specimen of his voice ."(Emphasis added)
94  I am not suggesting for a moment that the above extracts are in
any way binding upon the Court but they do indicate the response of a
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judicial mind while reading the provisions of the Indian Prisoners Act
normally,  without  any urge to give the expression 'measurements'  any
stretched meaning.
95 The   Report   then   discussed   where   a   provision   for   taking   voice
sample  can be appropriately included;  whether  in the Identification of
Prisoners Act or in the Evidence Act or in the Code of Criminal Procedure.
It concluded that it would be appropriate to incorporate the provision by
amending Section 5 of the Identification of Prisoners Act as follows: 
"5.32 (1) If a Magistrate is satisfied that, for the purpose of any
investigation or proceeding under the Code of Criminal Procedure,
1973, it is expedient to direct any person ­
(a) to allow his measurements or photograph to be taken, or
(b) to furnish a specimen of his signature or writing, or
(c) to furnish a specimen of his voice by uttering the specified words
or making the specified sounds.
the Magistrate may make an order to that effect,  recording his
reasons for such an order.
(2) The person to whom the order relates ­
(a) shall be produced or shall attend at the time and place
specified in the order, and
(b) shall allow his measurements or photograph to be taken
by a  police  officer,  or furnish   the  specimen   signature  or
writing or furnish a specimen of his voice, as the case may
be in conformity with the orders of the Magistrate before a
police officer.
(3) No order directing  any person to be photographed shall be
made except by a Metropolitan Magistrate or a Magistrate of the
first class.
(4) No order shall be made under this section unless the person has
at some time been arrested in connection with such investigation or
proceeding.
(5) 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 73 of the Indian
Evidence Act 1872, be given by such Magistrate."
96 The Report as noted was submitted in 1980. The Code of Criminal
Procedure  was amended in 2005  when the Explanation  was added to
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Section 53 and Sections 53A and 311A were inserted into the Code. Voice
sample was not included either in the Explanation to Section 53 or Section
311A. 
97 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 53 of the Code of Criminal Procedure? I
would answer in the negative.”
29 A learned Single Judge of the Allahabad High Court in the case of
Leena Katiar (supra) held as under:
“29. The question as to whether the trial court can order for taking the
voice sample of accused, who are facing trial for being compared to the
voice recorded in the audio C.D. Ex. Ka. 2 during investigation. Section
165 of the Evidence Act becomes relevant to be considered in this context
which reads as follows:­ 
 Section 165. Judge's power to put questions or order production.­­
The Judge may, in order to discover or to obtain proper proof of
relevant facts, ask any question he pleases, in any form, at any
time, of any witness, or of the parties, about any fact relevant or
irrelevant;   and   may   order   the   production   of   any   document   or
thing; and neither the parties nor their agents shall be entitled to
make any objection to any such question or order, nor, without the
leave of the Court, to cross­examine any witness upon any answer
given in reply to any such question: Provided that the Judgment
must be based upon facts declared by this Act to be relevant, and
duly proved: Provided also that this section shall not authorize any
Judge to compel any witness to answer any question, or to produce
any document which such witness would be entitled to refuse to
answer or produce under Section 121 to 131, both inclusive, if the
questions   were   asked   or   the   documents   were   called   for   by   the
adverse party; nor shall the Judge ask any question which it would
be improper for any other person to ask under Section 148 or 149;
nor   shall   he   dispense   with   primary   evidence   of   any   document,
except in the cases hereinbefore excepted." 
30. Taking into account the powers of trial Judge as has been laid down in
Section 165 of the Evidence Act, it is clear that the trial Judge is well
within its jurisdiction in order to discover or to obtain proper proof of
relevant facts call upon the accused persons to give their voice sample in
the Court in order to determine their involvement in the crime and also to
arrive a just decision of the case. It will be relevant to mention here that
the accused is not being asked by the trial court about any fact which
within his knowledge and if he compel to answer the same prejudice would
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be caused to him. In other words, the accused is not being asked by the
trial court to be a witness against himself. In my opinion the voice sample
is physical non­testimonial evidence, hence taking of voice sample cannot
be held to be conceptually different from physical non testimonial evidence
like DNA, semen, sputum, hair, blood, finger nails etc. Taking of voice
sample does not involve any testimonial responses. In this regard Section
65­B of the Evidence Act is relevant which is quoted hereinbelow:­ 
"Section 65B Admissibility of electronic records:­ 
(1)Notwithstanding   anything   contained   in   this   Act,   any
information contained in an electronic record which is printed on a
paper,  stored,  recorded  or  copied  in  optical   or  magnetic  media
produced by a computer (hereinafter referred to as the computer
output) shall be deemed to be also a document, if the conditions
mentioned   in   this   section   are   satisfied   in   relation   to   the
information and computer in question and shall be admissible in
any   proceedings,   without   further   proof   or   production   of   the
original, as evidence or any contents of the original or of any fact
stated therein of which direct evidence would be admissible.(2) The
conditions referred to in sub­section (1) in respect of a computer
output shall be the following, namely: ­ 
(a) the computer output containing the information was produced
by the computer during the period over which the computer was
used regularly to store or process information for the purposes of
any activities regularly carried on over that period by the person
having lawful control over the use of the computer; 
(b) during the said period, information of the kind contained in
electronic  record  or of the kind  from which  the information  so
contained is derived was regularly fed into the computer in the
ordinary course of the said activities; 
(c) 'throughout the material part of the said period, the computer
was operating properly or, if not, then in respect of any period in
which it was not operating properly or was out of operation during
that part of the period, was not such as to affect the electronic
record or the accuracy of its contents; and 
(d) the information contained in the electronic record reproduces or
is   derived   from   such   information   fed   into   the   computer   in  the
ordinary course of the said activities. 
(3) Where over any period, the function of storing or processing
information for the purposes of any activities regularly carried on
over that period as mentioned in clause (a) of sub­section (2) was
regularly performed by computers, whether­­ 
(a) by a combination of computers operating over that period; or 
(b) by different computers operating in succession over that period;
or 
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(c) by different combinations of computers operating in succession
over that period; or 
(d) in any other manner involving the successive operation over
that period, in whatever order, of one or more computers and one
or more combinations of computers, all the computers used for that
purpose during that period shall be treated for the purposes of this
section as constituting  a single computer;  and references  in the
section to a computer shall be construed accordingly. 
(4) In any proceedings where it is desired to give a statement in
evidence by virtue of this section, a certificate doing any of the
following things, that is to say,­­ 
(a) identifying the electronic record containing the statement and
describing the manner in which it was produced; 
(b) giving such particulars of any device involved in the production
of that electronic record as may be appropriate for the purpose of
showing that the electronic record was produced by a computer; 
(c)dealing   with   any   of   the   matters   to   which   the   conditions
mentioned in sub­section (2) relate, and purporting to be signed by
a person occupying a responsible official position in relation to the
operation of the relevant device or the management of the relevant
activities (whichever is appropriate) shall be evidence of any matter
stated in the certificate; and for the purposes of this sub­section it
shall   be   sufficient   for  a   mailer   to   be   stated   to   the   best  of   the
knowledge and belief of the person stating it. 
(5) For the purposes of this section,­ 
(a) information shall be taken to be supplied to a computer if it is
supplied   thereto   in  any   appropriate   form   and   whether   it   is   so
supplied   directly   or   (with   or   without   human   intervention)   by
means of any appropriate equipment; 
(b) whether in the course of activities carried on by any official
information is supplied with a view to its being stored or processed
for   the   purposes   of   those   activities   by   a   computer   operated
otherwise than in the course of those activities, that information, if
duly supplied to that computer, shall be taken to be supplied to it in
the course of those activities; 
(c) a computer output shall be taken to have been produced by a
computer   whether   it   was   produced   by   it   directly   or   (with   or
without   human   intervention)   by   means   of   any   appropriate
equipment. 
Explanation.­For   the   purposes   of   this   section   any   reference   to
information   being   derived   from   other   information   shall   be   a
reference to its being derived therefrom by calculation, comparison
or any other process.]" 
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31. Thus, from the above, it is clear that the voice recorded in the audio
C.D. Ex. Ka. 2 is admissible under Section 65­B of the Evidence Act, hence
if the said evidence is to be proved by the prosecution then taking of voice
sample of the accused by the trial court becomes essential to arrive at just
decision of a case otherwise the said audio C.D. in which there is recording
of conversation between the accused and applicant regarding demand of
ransom of money for release of abductee/kidnapee would be a futile effort
by the police to ascertain the complicity of the accused, hence the trial
court was right in ordering to take voice sample of the accused persons.
Hence, it appears from Section 165 of the Evidence Act that the trial Judge
is empowered to order for taking of voice sample of accused for being
compared to the recorded voice in audio C.D. Ex. Ka. 2 to ascertain the
complicity of the accused persons in the present crime and once the trial
court has ordered for the same it was not correct in dropping the idea for
getting voice sample of the accused be taken and send for testing simply
because of lack of facility in the district as well as in the State for getting
the voice sample tested, hence the impugned order passed by the trial court
is not sustainable in the eyes of law. Thus, the impugned order dated
7.1.2015   passed   by   the   trial   court   is   illegal   and   the   orders   dated
8.10.2014 and 31.10.2014 directing for taking of voice sample of accused
persons was correct. 
33. These days the manner in which the crime is being committed by the
accused persons by adopting high materialized techniques and there is a
great  deal  of  technological  advanced  in  means  of  communication  and
criminals   are   using   new   methodology   in   committing   crimes.   Use   of
landlines, mobile phone and voice over internet protocol (VOIP) in the
commission of crimes like kidnapping for ransom,  extortion, blackmail
and for terrorist activities is rampant. The present case also falls in one of
the   such   categories   of   crimes   which   has   been   committed   by   adopting
advance means of communication and to ascertain the complicity of the
accused persons in the crime and to do justice it is essential that the voice
sample of the accused persons should be taken by the trial court and be
sent for testing to the authorized laboratory with the recorded voice in
audio C.D. by the police which is marked as Ex. Ka. 2. With utmost regard
to Hon'ble Mr. Justice Aftab Alam, this Court in its humble opinion also
agrees with the view taken by Hon'ble Mrs. Justice Ranjana Desia in the
case of Ritesh Sinha vs. State of U.P. (Supra).”
30 I find reference in the judgment delivered by Her Ladyship Justice
Ranjana Desai to a decision delivered by the Bombay High Court, in the
case of Central Bureau of Investigation vs. Abdul Karim Ladsab Telgi
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[2005 Criminal Law Journal 2868], His Lordship A.M. Khanwilkar, J.
(as His Lordship then was), in the said judgment, held as under:
“14.   That   takes   me   to   the   technical   plea   raised   on   behalf   of   the
respondents that the application as filed before the Court below makes no
reference to any express provision of the Law under which such relief could
be granted. As held earlier, it is open to the investigating agency for the
purpose of ascertaining identification of the voice of accused to require the
accused to lend his sample voice. Moreover, reference can be usefully made
to the provisions of the Identification of Prisoners Act, 1920. This Act was
especially intended to make provisions regarding authorising the taking of
measurements and photographs of convicts and others, so as to record or
make   note   of   the   identity   of   such   persons.   Section   5   of   the   Act   as
applicable to the State of Maharashtra, reads thus :
"5. Power of Magistrate to order a person to be measured or
photographed.­ If a Magistrate is satisfied that, for the purposes of
any   investigation   or   proceeding   under   the   Code   of   Criminal
Procedure, 1898, it is expedient to direct any person to allow his
measurements or photograph to be taken, be may make an order to
the effect, and in that case the person to whom the order relates
shall be produced or shall attend at the time and place specified in
the order and shall allow his measurements or photograph to be
taken, as the case may be, by a police officer :­
Provided that no order shall be made directing any person to be
photographed   except   by   the   District   Magistrate,   Sub­Divisional
Magistrate,   a   Magistrate   of   the   First   Class   and   Metropolitan
Magistrate."
Provided further, that no no order shall be made under this section
unless the person has at some time been arrested in connection with
such investigation or proceedings."
It provides that when the Magistrate is satisfied, for the purpose of
any   investigation   or   proceeding   under   the   Code   of   Criminal
Procedure,   it   is   expedient   to   direct   any   person   to   allow   his
"measurement" or "photographs" to be taken. Such a direction can
be   issued   by   the   concerned   Court,   if   pressed   on   behalf   of   the
investigating agency. In the first place, as held by the Apex Court in
Malkani's   case   (1973   Cri   LJ   228)   (supra),   tape­recorded
conversation is comparable to photograph of the relevant incident.
Be that as it may, the expression  "measurements"  occurring in
Section 5 has been defined in Section 2(a), which reads thus :
2. Definitions.­ In that Act.........
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(a)  "measurements  include   finger­impressions   and   foot­print
impressions".
The said expression is an inclusive term, which also includes fingerimpressions
  and   foot­print   impressions.   Besides,   the   term
measurement,   as   per   the   dictionary   meaning   is   the   act   or   an
instance   of   measuring;   an   amount   determined   by   measuring;
detailed   dimensions.   With   the   development   of   Science   and
Technology, the voice sample can be analysed or measured on the
basis of time, frequency, and intensity of the speech­sound waves so
as to compare and identify the voice of the person who must have
spoken   or  participated   in  recorded   telephonic   conversation.   The
expression "measurements" occurring in Section 5, to my mind, can
be construed to encompass even the act undertaken for the purpose
of   identification   of   the   voice   in   the   tape­recorded   conversation.
Such   construction   will   be   purposive   one   without   causing   any
violence to the said enactment, the purpose of which was to record
or make note of the identity of specified persons. On this reasoning,
the Court below could have legitimately granted the relief as prayed
by the investigating agency, so as to enable the investigating agency
to make further investigation in the case as desired. So understood,
even if the subject application as filed by the then investigating
agency before the lower Court makes no reference to any specific
provision   of   law   even   so   it   is  not   a   case   of   no   jurisdiction   to
consider   such   application   or   to   grant   the   said   relief.   If   such
direction were to be granted and the respondents resisted or refused
to co­operate, the consequence therefor is provided under Section 6
of the Act of 1920. This obviously may in addition to the adverse
inference that can be drawn against the obstinate accused. Section
6 of the said Act reads thus : 
"6. Resistance to the taking of measurements, etc.­  (i) If any
person who under this Act is required to allow his measurements or
photograph to be taken resists or refuses to allow the taking of the
same, it shall be lawful to use all means necessary to secure the
taking thereof.
(2) Resistance to or refusal to allow taking of measurements or
photograph under this Act shall be deemed to be an offence under
Section 186 of the Indian Penal Code, 1860."
15. It is appropriate to advert to the dictum of the Apex Court in State of
Bombay v. Kathi Kalu Oghad (1961 (2) Cri LJ 856) (supra). In
Paragraph 10 of this decision, it is observed that no obstacles can be put in
efficient and effective investigation into crime and of bringing criminals to
justice. It is further observed that it is as such necessary to protect an
accused person against being compelled to incriminate himself, as to arm
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the agents of Law and the law Courts with legitimate powers to bring
offenders to justice. To my mind, therefore, the petitioner cannot be nonsuited
merely because no specific provision has been referred to in the
subject application filed before the lower Court. Any other approach would
defeat the ends of justice.
16. Even the other technical objection taken on behalf of the respondents
that   the   earlier   order   passed   by   the   lower   Court   on   the   application
preferred   by   the   Assistant   Commissioner   of   Police   and   Investigating
Officer, Stampit, Bangalore would bind the petitioner, as it was allowed to
become  final,  does not commend  to me.  In the first place,  the earlier
application,   was   undisputedly   filed   by   some   other   agency,   engaged   in
investigation of case pending in another State, and not for and on behalf
of the investigating agency of State of Maharashtra or Central Bureau of
Investigation.   Therefore,   that   cannot   be   the   basis   to   non­suit   the
petitioner.  At any  rate,  assuming  the said order  will  bind  the Special
Judge, but as the matter is in appeal before the superior Court, it is always
open to the superior Court to examine the correctness of such a decision
(see 1977 (2) SCC 155 (Para 15) : (AIR 1977 SC 1011, Para 14),
Jasraj Inder Singh's case). It is seen that in the earlier order dated 30th
September, 2003, the lower Court merely observed that the accused were
not willing to give sample voice. I have already dealt with this aspect in
the earlier part of this Order that willingness of the accused  is of no
consequence.
17. Even the last argument canvassed on behalf of the respondents that the
stated   telephonic   tape   conversation   has   been   recorded   during   the
investigation   in   relation   to   another   offence   registered   in   State   of
Karnataka and cannot be relied does not commend to me. As presently
advised,   I find   substance   in  the   argument  of   the  petitioner   that  such
evidence can be used in both the cases being common to both. However, I
refrain from expressing any final opinion on this plea as, to my mind, the
question of admissibility thereof, can be appropriately considered by the
trial Court as and when the occasion arises. Suffice it to observe that this
ground   is   not   relevant   to   consider   the   limited   relief   claimed   by   the
investigating   agency   at   this   stage   of   the   proceedings   in   the   subject
application Exhibit 156.
18. Insofar as the reasons recorded by the lower Court in the impugned
order,   the   same   cannot   be   sustained.   The   first   reason   that   similar
application filed by Karnataka Police is already dealt with in the earlier
part of this Order. The second reason that there are voice experts who can
easily concoct or tamper the voice of any person, or the third reason that
the accused can also change their voice, if they are compelled to give voice
sample or the fourth reason that it will be difficult for the expert to record
the voice sample under compulsion, all these reasons are not germane to
consider the limited relief claimed in the subject application Exhibit 156.
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Those matters may be relevant at the trial, depending upon the nature of
evidence adduced before the Court so as to rule on the admissibility of that
evidence. The next reason weighed with the trial Court that as the accused
were unwilling to give their voice samples, adverse inference can be drawn.
It is rightly pointed out by the counsel for the petitioner that the said
observation is made to the context of provision specified in the Prevention
of Terrorists Activities Act, 2002, which is absent in the special enactment
under which the accused are being tried. Indeed, the question of adverse
inference will arise only when the investigating agency in the first place,
was permitted to take the sample voice of the accused as prayed by them
and the accused, in turn, were to resist or refuse. Taking any view of the
matter, the impugned decision of the lower Court cannot be sustained.”
31 A learned Single Judge of the Delhi High Court, in the case of
Sudhir Chaudhary vs. State [2015(2) JCC 1447] held as under:
“13. The right against self­incrimination is an essential safeguard, both
under   the   Constitution   of   India   and   Cr.P.C.   The   underline   rationale
behind it corresponds with two objectives – firstly that of ensuring that the
statements made by the accused are reliable and secondly ensuring that
such   statements   are   voluntarily   made.   In   several   instances,   a   person
suspected or accused of a crime may be  compelled through methods of
coercion, threats or inducement to testify on his/ her behalf. In such a
case, there is a higher likelihood of such a testimony being false. A false
testimony is undesirable because it impedes the integrity of a trial and
subsequent verdict of the case. Involuntary or compelled testimony is more
likely to mislead a Judge and a prosecutor thereby resulting in miscarriage
of justice. Even during an investigation, false statement is likely to cause
delay and obstruction in an investigation effort. If involuntary statements
were   readily   given   weightage   during   trial,   investigator   would   have   a
strong  incentive  to  compel  such  statements  through  methods  involving
coercion, threats, inducement or deception. It is for this reason the right
guaranteed under Article 20(3) of the Constitution of India is considered
as a “Fundamental Right‟. It serves as a check on police behavior during
the course of investigation. Exclusion of compelled testimony is important
otherwise   investigators   will   be   more   inclined   to   extract   information
through compulsion as a matter of course. However, what is prohibited
under Article 20(3) of Constitution of India is furnishing of information
based on personal knowledge likely to lead to incrimination by itself or
furnishing   a   link   in   the   chain   of   evidence.   The   rule   against   selfincrimination
  does   not,   however,   prohibit   (i)   collection   of   material
evidence such as bodily substances and other physical objects; and (ii)
statement   used   for   comparison   with   the   facts   already   known   to   the
investigator.
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15. In Selvi and Ors. vs. State of Karnataka, (2010) 7 SCC 263, the
Apex Court held: ­ 
“145.   The   next   issue   is   whether   the   results   gathered   from  the
impugned   tests   amount   to   “testimonial   compulsion”  thereby
attracting the prohibition of Article 20(3). For this purpose, it is
necessary to survey the precedents which deal with what constitutes
“testimonial   compulsion”   and   how   testimonial   acts   are
distinguished  from the collection of physical evidence. Apart from
the   apparent   distinction   between   evidence   of   a  testimonial   and
physical nature, some forms of testimonial acts lie outside the scope
of   Article   20(3).   For   instance,   even   though   acts   such   as
compulsorily   obtaining   specimen   signatures   and   handwriting
samples are testimonial in nature, they are not incriminating by
themselves  if they  are  used  for  the  purpose  of  identification  or
corroboration   with   facts  or materials  that  the  investigators  are
already acquainted with. The relevant consideration for extending
the protection of Article 20(3) is whether the materials are likely to
lead to incrimination by themselves or “furnish a link in the chain
of evidence” which could lead to the same result. Hence, reliance on
the contents of compelled testimony comes within the prohibition of
Article   20(3)   but   its   use   for   the   purpose   of   identification   or
corroboration with facts already known to the investigators is not
barred.
xxxx xxxx xxxx 
153. Since the majority decision in Kathi Kalu Oghad [AIR 1961
SC 1808 : (1961) 2 Cri LJ 856 : (1962) 3 SCR 10]  is the
controlling  precedent,   it will   be useful  to restate  the  two   main
premises for understanding the scope of “testimonial compulsion”.
The first is that ordinarily it is the oral or written statements which
convey the personal knowledge of a person in respect of relevant
facts that amount  to “personal testimony”  thereby coming within
the prohibition contemplated by Article 20(3). In most cases, such
“personal  testimony”  can be readily distinguished from material
evidence such as bodily substances and other physical objects. The
second premise is that in some cases, oral or written statements can
be   relied   upon   but   only   for   the   purpose   of   identification   or
comparison   with   facts   and   materials   that   are   already   in   the
possession of the investigators.  The bar of Article 20(3)  can be
invoked when the statements are likely to lead to incrimination by
themselves or “furnish a link in the chain of evidence” needed to do
so.   We   must  emphasise   that   a   situation   where   a   testimonial
response is used for comparison with facts already known to the
investigators   is   inherently   different   from   a   situation   where   a
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testimonial   response   helps   the   investigators   to   subsequently
discover   fresh   facts   or   materials   that   could  be   relevant   to   the
ongoing investigation.”
16. A voice sample is like a finger print impression, signature or specimen
handwriting.   Like   giving   of   fingerprint   impression   or   specimen
handwriting by an accused for the purpose of investigation, giving of voice
    sample   for   the   purpose   of   investigation   cannot   be      included   in   the
expression “to be a witness”. By giving a voice sample, the accused does not
convey any information based upon his personal knowledge which can
incriminate him. A voice sample by itself is fully innocuous. It is only used
for the purpose of comparing it with the recorded conversation but it „by
itself‟ is not a testimony at all. By giving a voice sample an accused,
merely gives an „identification data .  ‟ When an accused is asked to furnish
a voice sample he is neither asked nor expected to furnish any statement
based on his personal knowledge as would be barred under Article 20(3)
of the Constitution of India. The only thing that is required of him while
giving  a sample  is to read  from a given text which  gets recorded  for
comparative purpose. It is as, I have already observed, an identification
data record which when compared with the previous recorded conversation
with the help of mechanical process, may throw some light on the point in
controversy.
17. The voice sample is not, in itself, a substantive piece of evidence. The
use of such a sample is limited to the purpose for which it was collected. It
cannot be considered in isolation and what is stated therein cannot be
admitted as evidence before any Court on its own footing. The only use of
such a sample is for comparison and no other.
18. In the instant case the petitioners are aggrieved by the order of learned
Additional   Sessions   Judge   whereby   the   trial   court   directed   the   CFSL
Experts at CBI to prepare a “text intermixed with sufficient sentences from
questioned  text”. Observed  in the light of the decisions  of the  Hon'ble
Supreme Court in 'Selvi & Ors.’ (supra) and „Kathi Kalu Oghad’ (supra),
the contention of the petitioners that such a direction is violative of Article
20(3) of the Constitution of India does not find favour with this Court ­
Firstly, because the petitioners are not forced to give their voice sample. On
the other hand they have volunteered to give such a sample. Secondly, as I
have already observed, that a voice sample is not “evidence‟, which can be
used in isolation from the main recording to which it is to be compared
with. Its use is only comparative. What is contained in such a sample is
not based on the „personal information‟ of accused. It is merely a reading
of material given to him.
19. Furthermore, an expert carrying out scientific analysis and the process
of comparison is the best Judge to decide the sample which he needs for
such an analysis.  Where the CFSL experts at CBI have opined that best
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result   would   be   obtained   when   sufficient   common   sentences   to   the
questioned voice recording are present in the sample for spectrographic
examination,  it would be unfair to provide altogether a different text,
devoid of such “common sentences‟, and to expect accuracy in their result.
However, not delving into the question of evidentiary value of opinions/
results of such experts, it would be sufficient to state at this stage, even at
the   cost   of   repetition,   that   merely   because   the   text   provided   to   the
petitioners contain some inculpatory statements, it would not mean that
the petitioners are forced to be witness in their own case.
20. The apprehension of the petitioners of a possible misuse of the voice
recorded was also taken into consideration by learned Additional Sessions
Judge. It is for this reason that the Revisional Court directed the CFSL
experts at CBI to prepare a text containing parts from both questioned text
and other text.
21. The petitioners have also relied upon the judgment of this Court in
‘Sayeed Ahmad v. State’ 2010 (2) JCC 1416. The observations in 'Sayeed
Ahmad   case’  (Supra)  were   given   in   a   context   where   the   handwriting
specimen was obtained by the officer when the accused therein were in
custody  without  complying  with  the provisions  of the Identification  of
Prisoners Act 1920. In this context it was observed by this Court after
considering the judgments in ‘Sukhvinder Singh & Ors. v. State of Punjab’
1994 (5) SCC 152, 'State of U.P. v. Rambabu Mishra’ AIR 1980 SC 791
and 'State of Haryana v. Jagbir Singh & Ors.’  AIR 2003 SC 4377, that
anything personal to an accused obtained for the purpose of comparison
with   the   suspected   sample   if   obtained   without   the   permission   of   the
competent court and without accused being identified as required by the
provisions of the Identification of Prisoners Act 1920 has to be ignored.
The provisions of law stated in this judgment are not disputed.”
32 The decision of the Delhi High Court referred to above in the case
of Sudhir Chaudhary (supra) was challenged before the Supreme Court.
The Supreme Court held that the process for drawing the voice sample
must be fair and reasonable having due regard to the mandate of Article
21 of the Constitution. The Court observed that it is not open to an
accused to dictate the course of investigation. I may quote the relevant
observations as under:
“7   The order of the ACMM was questioned before  the Delhi High
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Court. By a judgment and order dated 11 February 2015, a learned Single
Judge held that the purpose of a voice sample is to facilitate the process of
comparing  it with a recorded  conversation.  The voice  sample is not  a
testimony   in   itself   since   it   only   constitutes   what   was   described   as
‘identification data’. A voice sample, in the view of the High Court is not a
substantive piece of evidence. The High Court rejected the submission that
the direction to furnish a voice sample was in violation of the fundamental
right under Article 20(3) of the Constitution since firstly, the Appellants
had not been forced or coerced into furnishing such a sample since it was
they who had furnished their consent;  secondly, a voice sample is not
evidence since its purpose is only to compare it with the questioned text. In
the   view   of   the   High   Court,   once   the   Appellants   had   furnished   their
consent  to furnishing their voice samples,  it was not open to them to
dictate the course of investigation. This order is called into question.
8 Learned   senior   counsel   appearing   on   behalf   of  the   Appellants
submitted that while it is true that the Appellants have consented to the
drawing of their voice samples (a concession which was reiterated before
this Court in the course of the submissions) yet the process of drawing the
samples must be fair, so as to be consistent with the right of the Appellants
under   Article   21   of   the   Constitution.   The   requirement   of   a   fair
investigation, it was urged, is implicit in Article 21 and the procedure
which is adopted for drawing a voice sample must be fair and reasonable.
9  The Appellants expressly consented to a voice sample being drawn,
in their response to the application that was filed by the Investigating
officer before the Court of Metropolitan Magistrate. This was reiterated
before the High Court. In the submissions which have been urged in these
proceedings,  learned  counsel  has specifically  stated  that  the Appellants
would   abide   by   the   consent   which   they   had   furnished   to   their   voice
samples being drawn. That being the position, the only surviving issue for
this Court is to ensure that the underlying process for drawing the voice
samples  is fair and  reasonable,  having  due regard  to the  mandate  of
Article 21. On the one hand, it is not open to the accused to dictate the
course of investigation. Hence, we do not find substance in the submission
that the text which is to be read by the Appellants in the course of drawing
their voice samples should contain no part of the inculpatory words which
are   a   part   of   the   disputed   conversation.   A   commonality   of   words   is
necessary to facilitate a spectrographic examination.
10 By our order dated  17 November  2015,  this Court  allowed  an
adjournment   to   the   Respondent   to   seek   instructions   from   the   expert
concerned whether or not a sample of words in such number as the expert
may suggest would suffice for the experts to give their opinion by scientific
voice sampling methods. Accordingly, a brief note has been filed on the
record stating that:
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“That the experts of the Central Forensic Science Laboratory (CFSL)
have informed that two separate texts/scripts have been prepared
in the laboratory from each Speaker/Accused, which are different
from the received transcripts. That the text/script prepared by the
CFSL experts cannot be provided to the petitioners in advance as
there   is   apprehension   that   the   petitioner   may   practice   the
texts/scripts   thereby   adversely   affecting   the   voice   sampling
examination.  Accordingly it is submitted that the sample/modal
text/script  can   only  be  supplied  to  the  speakers/Accused   if this
Hon’ble Court deems it appropriate.”
11 By an Order of this Court dated 1 July 2016, the Investigating
officer was directed to file a transcript of the disputed conversation in a
sealed cover. The Director CFSL­CBI, was called upon to file in a sealed
cover a proposed passage of a written text which the Appellants shall be
required to read out for the purpose of giving their voice samples using
words, but not the sentences, appearing in the disputed conversation in
such number as the Director/Scientific Officer may consider necessary for
the purpose of comparison.”
33 Let me now look into the decisions which are in tune with the
view expressed by His Lordship Justice Aftab Alam that in the absence of
any specific provision empowering the Magistrate to order the accused
to lend his voice for the purpose of identification, no such order can be
passed   or   it   will   not   be   permissible   for   the   Investigating   Officer   to
subject the accused to the Voice Spectrography Test. A learned Single
Judge of the Delhi High Court, in the case of Rakesh Bisht vs. Central
Bureau of Investigation [2007 Criminal Law Journal 1530] has held
that there is no provision in the  Cr.P.C. or in any other law which
empowers the Court to order the accused to lend his voice. I may quote
the relevant observations as under:
“10. Two separate issues have been raised by the counsel for the parties.
One is whether the taking of voice samples would infringe the provisions of
Article 20(3) of the Constitution of India? The other is "whether in the
course of investigation, the Court would have any jurisdiction directing an
accused   to   give   his   voice   samples?   A   third   issue   which   has   arisen   is
consideration of the provisions of Section 311­A of the Code, which has
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recently   come   into   operation   on   23­6­2006   and   which   permits   the
Magistrates to order a person to give a specimen signature or handwriting
for the purposes of any investigation or proceeding under the Code.
11. With regard to the first issue, the law relating to taking handwriting
samples and whether  it violates the provisions  of Article 20(3)  of the
Constitution has been set at rest by a decision of 11 Judges of the Supreme
Court in the case of  Kathi Kalu (1961 (2) Cri LJ 856) (supra). The
Supreme Court clearly held that "to be a witness" may be equivalent to
"furnishing evidence" in the sense of making oral or written statements,
but not in the larger sense of the expression so as to include giving of
thumb impression or impression of palm or foot or fingers or specimen
writing or exposing a part of the body by an accused person for purpose of
identification". The Supreme Court further observed that "the giving of
fingers   impression   or  of   specified   signature   or   of   handwriting,   strictly
speaking, is not "to be a witness". The expression "to be a witness" was held
by the Supreme Court to mean imparting knowledge in respect of the
relevant facts, by means of oral statements or statements in writing by a
person who has personal knowledge of the facts to be communicated to a
Court   or   to   a  person   holding   an   enquiry   or   investigation.   The   Court
further observed that "person is said 'to be a witness' to a certain state of
facts which has to be determined by a Court or authority authorised to
come to a decision, by testifying to what he has seen, or something he has
heard which is capable of being heard and is not hit by the rule excluding
hearsay,  or giving  his opinion,  as an expert,  in respect  of matters  in
controversy". The Court further observed that "clause 3 of Article 20 of the
Constitution is directed against self­ incrimination by an accused person.
Self­incrimination   must   mean   conveying   information   based   upon   the
personal   knowledge   of   the   person   giving   the   information   and   cannot
include merely the mechanical process of producing documents in Court
which may throw a light on any of the points in controversy, but which do
not   contain   any   statement   of   the   accused   based   on   his   personal
knowledge". The Court cited an example in the following words :­
"...... For example, the accused person may be in possession of a
document which is in his writing or which contains his signature or
his thumb impression. The production of such a document, with a
view   to   comparison   of   the   writing   or   the   signature   or   the
impression, is not the statement of an accused person, which can be
said to be of the nature of a personal testimony. ......"
12. The said decision, therefore, is an authority for the proposition that
taking of handwriting samples for the purposes of establishing identity or
comparison with the documents in issue would not amount to a violation
of the fundamental right of an accused enshrined in Article 20(3) of the
Constitution.  But, it must not be lost sight that the said decision was
rendered in the context of Section 73 of the Indian Evidence Act, 1872.
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The necessity of requiring an accused to give handwriting samples arose
during the course of trial and not in the course of investigation. In Kathi
Kalu   (1961   (2)   Cri   LJ   856)   (supra),   in   the   course   of   trial,   the
identification of the respondent therein, as one of the two alleged culprits
was the most important question to be decided by the Court. Besides other
evidence, the prosecution adduced in evidence a receipt "Exhibit" alleged to
have been in his handwriting and said to have been given by him. In order
to prove that Exhibit­5 was in the handwriting of the accused, the police
had   obtained   from   him   during   the   investigation   three   handwriting
specimens on three separate sheets of paper which were marked as Exhibits
27, 28 and 29. The disputed document, namely, Exhibit­5 was compared
with   the   admitted   handwriting   in   Exhibits   27,   28   and   29   by   the
handwriting expert whose evidence was to the effect that they were all
written   by   the   same   person.   In  the   trial   and   in  the   High   Court,   the
question   was   raised   as   to   the   admissibility   of   the   specimen   writings
contained in Exhibits 27, 28, and 19, in view of the provisions of Article
20(3) of the Constitution. So, it is clear that in Kathi Kalu (supra), the
question was not whether the Court could direct an accused in the course
of   the   investigation   to   provide   handwriting   samples,   but   whether   the
handwriting samples already obtained in the course of investigation would
be admissible in view of Article 20 (3) of the Constitution. The Supreme
Court held that it would be as the taking of handwriting samples, did not
amount to the accused being a witness against himself. The said decision
was rendered in the context of the Section 73 of the Indian Evidence Act
which specifically speaks of comparison of signature, writing or seal with
others admitted or proved. Section 73 of the Indian Evidence Act, 1872
reads as under :­
"73. Comparison of signature, writing or seal with others admitted
or proved." In order to ascertain whether a signature, writing or
seal is that of the person by whom it purports to have been written
or made, any signature, writing, or seal admitted or proved to the
satisfaction of the Court to have been written or made by that
person   may   be   compared   with   the   one   which   is  to   be   proved,
although that signature, writing, or seal has not been produced or
proved for any other purpose.
The Court may direct any person present in Court to write any
words or figures for the purpose of enabling the Court to compare
the words or figure so written with any words or figures alleged to
have been written by such person.
This   section   applies   also,   with   any   necessary   modifications,   to
finger impressions".
A reading  of the above  provision makes  it clear  that  it pertains  to a
signature, writing or seal as also to finger impressions. It does not pertain
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to taking of voice samples.
13. An examination of the decision in Kathi Kalu (1961 (2) Cri LJ 856)
(supra), as well as other decisions on the subject of an accused being a
witness against himself makes it clear that the taking of an handwriting
sample in the course of a trial to establish the identity of a person would
not be hit by Article 20(3) of the Constitution of India. However, it may be
mentioned that if an accused is asked to give a handwriting sample and
the matter which he writes contains inculpatory statements, then the same
would be hit by Article 20(3) of the Constitution, as then he would be a
witness against himself. For example, if an accused in a car theft case is
compelled   to   write   "stole   the   car",   although   it   would   constitute   a
handwriting sample, it would be hit by Article 20(3) of the Constitution
because the accused was compelled to be a witness against himself. On the
other hand, if the accused were asked to give a handwriting sample by
copying some known classical work in his handwriting, that would not be
hit by Article 20(3) of the Constitution as then he would not be a witness
against   himself   and   his   handwriting   specimen   would   only   be   for   the
purposes of identification.
14. This is with regard to handwriting samples. The present case concerns
itself  with   the  voice   samples.  There   is no  specific  provision  under  the
Indian Evidence Act, 1872 to deal with the taking of voice samples. In my
view,   the   Court  may   permit   the   taking   of   voice   samples   only  for   the
purposes of identification. But these voice samples would not be admissible
if   they   contain   inculpatory   statements.   That   is   so   because,   in   that
eventuality, the accused would have been compelled to be a witness against
himself. However, this does not mean that the Court can pass an order
directing an accused to give samples of his voice even during the pendency
of   investigation.   The   position   with   regard   to   the   scope   of   judicial
interference in the course of investigation has been clearly stated by the
Supreme Court in the case of Union of India v. Prakash P. Hinduja :
2003 (6) SCC 195 : (2003 Cri LJ 3117) as under :­
"20. Thus the legal position is absolutely clear and also settled by
judicial authorities that  the Court would not  interfere with the
investigation or during  the course of investigation  which would
mean from the time of the lodging of the first information report
till the submission of the report by the officer in charge of the police
station in Court under Section 173 (2), Cr. P.C., this field being
exclusively reserved for the investigating agency."
15. In the same light the decisions rendered by the Supreme Court in the
cases of  Ram Babu Misra (AIR 1980 SC 791) (supra)  and  Jagbir
Singh (supra)  indicate that the provisions of Section 73 of the Indian
Evidence   Act,   1872   can   only   be   invoked   when   there   are   proceedings
pending   before   the   Court   and   not   when   the   matter   is   still   under
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investigation. In Ram Babu Misra (supra), the Supreme Court held :­
"4. The second paragraph of Sec. 73 enables the Court to direct any
person present in Court to give specimen writings 'for the purpose
of   enabling   the   Court   to   compare'   such   writings   with   writings
alleged to have been written by such person. The clear implication
of the words 'for the purpose of enabling the Court to compare' is
that there is some proceeding before the Court in which or as a
consequence   of   which   it   might   be   necessary   for   the   Court   to
compare such writings. The direction is to be given for the purpose
of   'enabling   the  Court   to   compare'   and   not   for   the   purpose  of
enabling the investigating or other agency 'to compare'. If the case
is still under investigation there is no present proceeding before the
Court in which or as a consequence of which it might be necessary
to compare the writings. The language of S. 73 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. Further, S. 73 of the Evidence Act
makes no distinction between a Civil Court and a Criminal Court.
Would it be open to a person to seek the assistance of the Civil
Court for a direction to some other person to give sample writing
under S. 73 of the Evidence Act on the plea that it would help him
to decide whether to institute a Civil Suit in which the question
would be whether certain alleged writings are those of the other
person  or not?  Obviously  not.  If not,  why  should  it make  any
difference  if the investigating  agency  seeks  the assistance  of the
Court under S. 73 of the Evidence Act on the plea that a case might
be   instituted   before   the   Court   where   it   would   be   necessary   to
compare the writings?"
16. In Jagbir Singh (2003 Cri LJ 5054) (supra), the Supreme Court,
following the decision of Ram Babu Misra (AIR 1980 SC 791) (supra),
held as under :­
"18. The second paragraph of Section 73 enables the Court to direct
any person present in the Court to give specimen writings "for the
purpose   of   enabling   the   Court   to   compare"   such   writings   with
writings alleged to have been written by such person. The clear
implication of the words "for the purpose of enabling the Court to
compare" is that there is some proceeding before the Court in which
or as a consequence of which it might be necessary for the Court to
compare such writings. The direction is to be given for the purpose
of   enabling   the   Court   to   compare   and   not   for   the   purpose   of
enabling the investigating or other agency, "to compare". If the case
is still under investigation there is no present proceedings before the
Court in which or as a consequence of which it might be necessary
to   compare   the   writings.   The   language   of   Section   73   does   not
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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.
19. In order to enable the exercise of power under Section 73, the
pendency of a proceeding before the Court is the sine qua non .
Therefore, the comparison of the signature on the alleged ransom
note in no way helps the prosecution."
17. Mr. Tiwari, the learned counsel for the CBI, submitted that these two
decisions, i.e., Ram Babu Misra (AIR 1980 SC 791) (supra) and Jagbir
Singh (2003 Cri LJ 5054) (supra) were not relevant for the controversy
at hand inasmuch as they pertain to Section 73 of the Indian Evidence Act,
1872 and since the stage of Section 73 had not been reached, no useful
purpose would be served by referring to these decisions. While it is true
that Section 73 falls under Chapter V of the Indian Evidence Act which
deals with documentary evidence and that stage of leading evidence has
not been reached in this case, as the matter is still under investigation,
reference   to   the   said   decisions   on   Section   73   would,   in   my   view,   be
apposite   inasmuch   as   even   where   a   specific   provision   for   taking
handwriting samples is made under Section 73 of the Indian Evidence Act,
1872, the Supreme Court has held that that would operate only when
there is a proceeding pending before the Court and not in the course of
investigation. There is no specific provision for directing the giving of voice
samples   under   the   Indian   Evidence   Act,   1872.   Therefore,   even   if   the
analogy of Section 73 is brought to the fore for the purposes of directing
an accused to give his voice samples, that would also have to wait till there
is a proceeding before the Court. It is in this context that the said two
decisions of the Supreme Court in Ram Babu Misra (supra) and Jagbir
Singh (supra) are relevant for the purposes of this case. In any event, as
observed in Prakash P. Hinduja (2003 Cri LJ 3117) (supra), the Court
has no jurisdiction to interfere in the investigative process which is left
entirely to the investigating agency. It is, therefore, clear that the CBI
could not have moved an application before the Court during the pendency
of the investigation directing the petitioners to give their voice samples
and, the Court ought not to have entertained such an application because
it   was   not   within   its   jurisdiction   to   have   interfered   in   the   course   of
investigation.   It   is   another   matter   if,   after   investigation,   charges   are
framed and in the course of proceedings before the Court, the Court feels
that  voice  samples   ought  to  be  taken   for  the purposes  of establishing
identity, then such a direction may be given provided the voice sample
taken is only for the purposes of identification and does not contain any
inculpatory statement so as to be hit by Article 20(3) of the Constitution
of India. In this context,  I am unable to agree with the decision of a
learned single Judge of the Bombay High Court in the case of Abdul Karim
Telgi (2005 Cri LJ 2868) (supra) because there the Court directed the
taking of voice samples even at the stage of investigation. 
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18. The accused, at the stage of investigation, cannot be compelled to give
his   voice   sample   just   as   he   cannot   be   compelled   to   undergo   a   test
identification parade. It is for him to give or not to give his voice sample in
the course of investigation and the Court cannot, during investigation,
direct the accused to give his voice sample. It would be interesting to note a
recent decision of the Supreme Court in the case of Amrit Singh v. State
of Punjab, 2006 AIR SCW 5712 : (2007 Cri LJ 298)  wherein the
question of obtaining a hair specimen of the accused was in issue. An
application   was   filed   by   the   Investigating   Officer   in   the   Court   of   the
Judicial Magistrate for obtaining a specimen of the hair of the accused, but
he refused to give any such specimen of hair. He made a statement before
the   Court   which   was   recorded,   but  he   did   not   assign  any  reason   for
refusing to give samples of his hair. It was contended on behalf of the State
of Punjab before the Supreme Court that an adverse inference, in the least,
ought to have been drawn against him. In repelling this contention, the
Supreme Court in para 19 of the said decision held as under :­
"Appellant had a right to give or not to give sample of his hair. He
could not have been made a witness against himself against his
will". 
This  decision  indicates   that   in  the course  of investigation,  an  accused
cannot be compelled to provide a sample of his hair. The same would
equally apply to the giving of a voice sample. This decision is also a clear
endorsement of the view taken by me that the petitioners could not be
directed to give their voice samples in the course of investigation.
19. Lastly, I come to the issue of introduction of Section 311­A in the Code
of Criminal Procedure, 1973. This provision would not apply to the facts
of the present case inasmuch as the same came into operation only on 23­
6­2006, whereas the impugned order was passed on 19­6­2006. In any
event, the provisions of Section 311­A only refer to the handwriting and
bears no reference to voice samples or voice recordings. The said provision
was introduced only recently and, therefore, it cannot even be urged that
the expression "specimen signatures of handwriting" should also include
voice samples because the legislature, when it introduced this provision,
was well aware of the technology of tape recording and taking of voice
samples. 
20.  The   legislature  has   consciously   referred   to   taking   of   specimens   of
signatures   or   handwriting   for   the   purposes   of   any   investigation   or
proceeding under this Code.  It is for the first time  that the Code has
empowered the Magistrate to carve out an exception of passing an order
directing a person to give specimen signatures of handwriting even in the
course   of   investigation.   It   appears   that   this   provision   was   introduced
because of the recommendations suggested by the Supreme Court in Ram
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Babu Misra (AIR 1980 SC 791) (supra). It is amply clear that dehors
this provision, the Court did not have any power to direct any accused in
the   course   of   an   investigation   to   give   specimens   of   his   signatures   or
handwriting. The argument advanced by Mr. Tiwari, who appeared on
behalf of the CBI with regard to the applicability of Section 311­A of the
Code  cannot  be accepted  because  of  these  grounds,  namely,  it has no
reference to voice samples and, secondly, it came into operation after the
impugned order had been passed. 
21. In view of this discussion, the impugned order dated 19­6­2006 is set
aside. These revision petitions are allowed.”
34 A learned Single Judge of the Calcutta High Court in the case of
Dwijadas Banerjee and Pritimoy Panda @ Pitu Panda vs. State of West
Bengal [2005 Criminal Law Journal 3151] held as under:
“17. The decision of Kathi Kalu Oghad reported in AIR 1961 SC 1808 :
(1961(2) Cri LJ 856) is not properly applicable as in the said decision it
was not considered by the Constitutional Bench whether a direction for
giving specimen handwriting or voice can be given when the matter is still
under   investigation.   In   this   connection   I   rely   upon   a   decision   of   the
Supreme Court in State of Uttar Pradesh v. Ram Babu Misra reported
in  AIR 1980 SC 791.  In this decision the Supreme Court has observed
that, "The clear implication of the words 'for the purpose of enabling the
Court to compare' is that there is some proceeding before the Court in
which or as a consequence of which it might be necessary for the Court to
compare such writings. The direction is to be given for the purpose of
'enabling the Court to compare' and not for the purpose of enabling the
investigating   or   other   agency   'to   compare'.   If   the   case   is   still   under
investigation there is no present proceeding before the Court in which or as
a consequence of which it might be necessary to compare the writings. The
language of Section 73 of 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." In the said decision the Supreme Court distinguished the decision
of  Kathi Kalu Oghad (supra)  and made it clear that in  Kathi Kalu
Oghad (supra)  the question which was actually  decided was that no
testimonial   compulsion   under   Article   20   (3)   of   the   Constitution   was
involved in a direction to give specimen signature and handwriting for the
purpose of comparison. In Kathi Kalu Oghad's case it was not considered
by the Supreme Court whether such a direction under Section 73 of the
Evidence Act can be given when the matter is still under investigation and
there is no proceeding before the Court.
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18. The Identification of Prisoners Act referred to by the learned Public
Prosecutor are not applicable in the present case. Section 3 of the said Act
deals with taking of measurement of convicted persons and accordingly
not   applicable.   Section   4   deals   with   taking   of   measurement   of   non
convicted persons and Section 5 deals with power of Magistrate to order a
person to be measured or photographed. These two sections cannot come
in relation to order directing rendition of voice as rendition of voice is to
some extent different from measurement and photograph. 
19. In the case of Smt. Nandini Satpathy (1978 Cri LJ 968) (supra)
the Supreme Court considered the constitutional bar under Section 161(2)
of Cr. P. C. and Article 20(3) of the Constitution and made it clear that
during the stage of investigation the accused has a right to keep silence
and an accused cannot be compelled to break his silence. It was observed
by the Supreme Court that the accused is entitled to keep his mouth shut if
answer sought has a reasonable prospect of exposing him to guilt in some
other accusation actual or imminent, even though the investigation under
way is not with reference to that.
20. In a recent decision in State of Haryana v. Jagbir Singh reported in
2004 SCC (Cri) 126 : (2003 Cri LJ 5054)  the Supreme Court again
reiterated the same view that the Court has no power to direct accused to
give   specimen   signature   for   comparison   during   investigation.   The
observation of the Supreme Court in connection with the above stated case
are as follows :
"The second paragraph of Section 73 enables the Court to direct
any person present in the Court to give specimen writings "for the
purpose of enabling the Court to compare" such writings alleged to
have been written by such person.  The clear implication of the
words "for the purpose of enabling the Court to compare" is that
there   is   some   proceeding   before   the   Court   in   which   or   as   a
consequence   of   which   it   might   be   necessary   for   the   Court   to
compare such writings.
The direction is to be given for the purpose of enabling the Court to
compare and not for the purpose of enabling the investigation or
other agency "to compare". If the case is still under investigation
there is no present proceeding before the Court in which or as a
consequence   of   which   it   might   be   necessary   to   compare   the
writings. The language of Section 73 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."
21.   The   above   discussion   signifies   that   during   stage   of   investigation
direction   to   accused   for   giving   specimen   writing   cannot   be   given.
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Similarly, during the stage of investigation in this mater the Court cannot
direct the accused for rendition of his voice to the I. O. for comparison.
Power  of  comparison  lies  with  Court   only  and   such  power  cannot  be
exercised by I. O. and a Magistrate or Sessions Judge by their order cannot
vest or delegate such power to I. O. during stage of investigation. 
22. The aforesaid discussions makes it clear that the power of comparison
either handwriting, or finger print or voice lies with the Court, if it is
required by the Court in any trial or proceeding for just decision of the
case. Power of comparison cannot be exercised by I. O. during the stage
investigation   and   accused   cannot   be   put   under   compulsion   to   give
statement or voice again for the purpose of comparison by the I. O. during
stage of investigation when already earlier statement, i.e. voice has been
recorded. Power of comparison of voice of these two accused petitioners
through tape record may be done only by Court in any proceeding or trial
and the Court or a Magistrate cannot direct the I. O. to use such power
during the stage of investigation. The order of the learned SDJM, Alipore
as well as the order of the learned Sessions Judge, South 24 Parganas at
Alipore was, therefore, not in accordance with law and are accordingly set
aside.”
●     ANALYSIS:
35 Of all the functions of the police, the investigation is the most
important   and   vital   one.   In   the   constantly   evolving   socio­economic
scenario the criminals using sophisticated tools and techniques commit
more and more crimes.   In order to overcome these complexities the
police all over the world are depending more and more on the scientific
methods of investigation.  A wide range of scientific techniques are now
available   for   the   analysis   of   varied   nature   of   objects   and   materials
encountered in the process of commission of crime by the culprit in and
around the crime scene, on the suspect and victim.  The study of such
material   evidence   also   known   as   the   objective   evidence   or   physical
evidence applying the latest scientific tools and techniques for proving
the guilt or innocence of the accused by the courts of law is broadly
known as the Forensic Science.
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36 The   applications/aid   of   science   to   the   crime   investigation   is
fundamentally   one   of   reconstruction,   that   is,   trying   to   assist   in
determining what happened, where it happened, when it happened, and
who was involved.  It is not concerned with, and cannot determine, why
something happened.   Forensic analysis is performed on evidence to
assist the police and the court in establishing the physical facts so that
the criminal or civil disputes can be resolved.  It is the job of the forensic
scientist   to   translate   the   legal   inquiry   into   appropriate   scientific
questions, and to advice the Investigating Officer and / or the judiciary
on the capabilities, limitations and results of the analytical techniques.  
37 In   forensic   science,   the   laws   of   various   facets   of   science   are
applied   in   conducting   an   analysis   to   determine   the   nature   and
characteristics of Physical Evidence collected in the process of crime or
civil investigation.   Using the scientific methods, inferences are drawn
about how the evidence can be linked to the crime and criminal.  These
inferences are thus connected to the events that may or may not have
taken  place  in  connection  with  the  said  evidence.    The  law defines
elements   of   a   crime;   science   contributes   information   to   assist   in
determining whether an element is present or absent.
38 It is an established fact that the criminals while committing crimes
either due to carelessness or due to anxiety, or due to contact with other
objects leave traces at the scenes and these are the basis for scientifically
exploiting   their   culpability.   This   physical   evidence   when   located,
collected, preserved and forwarded for scientific evaluation the report is
bound to have enormous potential in linking the criminal to the crime
scene, victim or any other circumstances leading to the crime.  Moreover
the evidence collected and based on scientific evolution and report is
unbiased, universally acceptable and also stands the test of time.  
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39 The  traditional   evidence   against   an   accused   is   in   the   form   of
eyewitnesses, confession and statement of approval. The eyewitnesses
have   now   become   a   rare   species,   the   reason   being   due   to   the
technological development the  modus operandi  of committing a crime
has changed. Crimes are now committed well­planned. In the recent
past, the Supreme Court had to observe that the culture of settlement
has led to the witnesses turning hostile and not supporting the case of
the prosecution. 
40 In the recent world of technology, there are many methods to
determine the individuality of a person. One of them is the voice –
unique individual characteristic. Each person's voice is different because
the anatomy of the vocal cords, vocal cavity, oral and nasal cavities is
specific to the individual. The comparing of two recorded speech by
means of spectrogram or voice prints is essential and important for the
purpose of criminal cases such as murder, rape, drug dealing, bomb
threats,   corruption   and   terrorism.   The   Investigator   has   two
complementary ways of making the identification through voice analysis.
First, he or she will listen to the evidence sample and the sample taken
from the suspect, comparing accent, speech habits, breath patterns and
inflections. Then a comparing of the corresponding voice prints is made.
Sometimes, voice is the only clue for the police and Forensic Scientists to
identify  the criminal. Especially in cases of telephoned bomb threat,
demand   of   money   in   corruption   and   kidnapping   cases   etc.   Speech
sounds come from the vibration of the vocal cords inside the larynx or
voice box. The cavities of the mouth, nose, and throat act as resonators,
making the sounds louder. The teeth, lips, tongue, hard and soft palate
are the articulators that shape the sounds into speech. 
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●     SPECTROGRAPHIC ANALYSIS:
41 Spectrographic analysis is the technique of voice identification (or
elimination) by means of "voiceprints." A voiceprint may be defined as "a
pictorial representation of the acoustical energy output of a speaker, as a
function of time, frequency and amplitude." [K. Thomas, “Voiceprint –
Myth or Miracle,” in Imwinkelried, supra, note 28, 1015 at p. 1020]
Essentially, there are two types of voiceprint that may be produced for
analysis in this technique: (1) bar spectrograms, " showing the resonance
bars of  the  voice   with  dimensions  of  time, frequency  and loudness"
(most   useful   in   matching   known   and   unknown   voice   samples);
[Moenssens and Inbau, supra, note 28, at p. 571]  and (2) contour
spectrograms, "measuring levels of loudness, time and frequency in a
shape much like a topographical map" (most useful in computerized
spectrographic classification). [ibid] Voice identification is accomplished
by subjective visual comparison of voiceprints from known and unknown
sources in much the same way as the fingerprints are compared. As Tosi
has noted, "any method of identification or elimination has to be based
on parameters that vary differently or less within the individual than
among   different   persons."  [O.   Tosi,   “Voice   Identification,”   in
Imwinkelried, supra, note 28, 971 at p. 973.] Spectrographic analysis is
accordingly   premised   on   the   theory   (1)   that   the   anatomical
characteristics of people's speech organs differ significantly, and (2) that
the habit patterns with regard to the way a given individual uses his or
her speech organs are different but consistent.  [Thomas, supra, note
108, at p.1025]. The validity of this theory is, however, a hotly­ debated
issue. [According to one of its detractors (Thomas, supra, note 108, at
p.1026].
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Spectrographic voice identification requires nothing of the suspect
beyond the furnishing of a voice sample, either in the presence of a tape
recorder or, depending on the circumstances, over a telephone line to
which a recording device has been connected. The suspect is required to
repeat sentence by sentence (perhaps several times) the words that have
been transcribed from the recording of the known voice with which his
or her voice is to be compared. [Tosi, supra, note 113, at pp. 110­111]
42 In a decision rendered by the Supreme Court of California in the
case of the People vs. Kelly [Criminal No.19028 decided on 28th May
1976], Justice Richardson has explained in his own words 'the Voice
print Technique'. I may quote the same: 
“Voice print analysis is a method of identification based on the comparison
of graphic representations or "spectrograms" made of human voices. The
method utilizes a machine known as a spectrograph which separates the
sounds   of   human   voices   into   the   three   component   elements   of   time,
frequency and intensity. Using a series of lines or bars, the machine plots
these   variables   across   electronically   sensitive   paper.   The   result   is   a
spectrogram of the acoustical signal of the speaker, with the horizontal
axis representing time lapse, the vertical axis indicating frequency, and the
thickness of the lines disclosing the intensity of the voice. (See generally,
People v. Law (1974) 40 Cal. App. 3D 69, 75­76 [114 Cal. Rptr. 708];
People v. King  (1968)266 Cal. App. 2D 437, 447­449 [72 Cal. Rptr.
478];   Comment,   Evidence:   Admissibility   of   Spectrographic   Voice
Identification (1971­1972) 56 Minn.L.Rev. 1235, 1239; Comment, The
Voiceprint Dilemma: Should Voices be Seen and not Heard? (1975) 35
Md.L.Rev. 267.) Spectrograms are taken of certain cue words, such as
"the,"  "me,"  "on,"   "is,"   "I,"  and  "it,"   spoken   by  a known   voice  and  an
unknown voice. An examiner then visually compares the spectrograms of
the same words, as spoken, and also listens to the two voices. Based upon
these   visual   and   aural   comparisons,   the   examiner   states   his   opinion
whether or not the voices, known and unknown, are the same. (Comment,
supra,   35   Md.L.Rev.   at   p.   270,   fns.   13,   16.)   Since   the   identification
process   is   essentially   an   exercise   in   pattern   matching,   the   examiner's
opinion is to a large extent a subjective one based upon the relative aural
similarity or dissimilarity of the two voices and visual  [17 Cal. 3d 30]
comparison of their spectrograms. (People v. Law, supra, at p. 79, fn. 10.)
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In some instances, the examiner is unable to declare positively either that
there is a match or nonmatch  of the sample tests, in which event no
opinion is rendered. (Comment, supra, at p. 270.)”
●     PSYCHIATRIC EXAMINATION:
43 A   thorough   psychiatric   examination   is   generally   comprised   of
three   elements:   physical   examination;   psychological   testing;   and
personal psychiatric interview [Schiffer, supra, note 70, at p. 23] . 
Physical   testing   is   aimed   generally   at   detecting   organic
abnormality which may be relevant to the accused's alleged criminal
behaviour. It involves such procedures as: blood tests (i.e., for detecting
possible   lead   or   alcohol   poisoning,   anemia,   syphilis,   etc.);   urinalysis
(useful in detecting diabetes or hypoglycemia); routine chest and skull
X­rays;   and   perhaps   such   special   organic   and   neurological   tests   as
pneumoencephalography,   electroencephalography   and   spinal   fluid
examination (useful in the diagnosis of neurological and organic brain
disorders   such   as   meningitis,   tumours,   epilepsy,   brain   injury   and
neurosyphilis)."
Psychological   tests   (administered   by   clinical   psychologists)   fall
generally into three categories : [ibid., at pp.24­25] intelligence tests (in
which   the   subject   is  required  to   solve   problems   or   answer  quiz­like
questions  [£.#.:   the   Stanford­Binet   test   or   Wechsler­Bellevue
Intelligence Scale for Adolescents and Adults (WAIS)]; personality and
behavioural questionnaires (in which the subject is required to answer
questions   about   him­   or   herself  [E.g.:   the   Minnesota   Multiphasic
Personality   Inventory   (MMPI)];   and   projective   tests   (in   which   the
subject  may  be   required  to   do  various  things,   such  as interpret  the
meaning of a picture, [i.e., the Thematic Apperception Test (TAT)] tell
what a series of ink blots look like to him or her, i.e., the Rorschach Test
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or draw a picture of a person). [i.e., the Draw­A­Person (DAP) Test]
Additional tests may be given to measure intellectual impairment. [E.g.:
the   Bender­Gestalt,   Goldstein­Scheerer,   Shipley­Hartford,  GrahamKendall
Memory for Designs or Wechsler Memory Scale Tests.]
The personal psychiatric interview, as one would expect, takes the
form of a conversation between the psychiatrist and the subject. Though
it   is   not   easily   defined,   Sullivan   has   enumerated   its   general
characteristics, describing it in part as: 
...a situation of primarily vocal communication in a two­ group,
more or less voluntarily integrated, on a progressively unfolding expertclient
basis for the purpose of elucidating characteristic patterns of living
of   the   subject   person,   the   patient   or   client,   which   patterns   he
experiences as particularly troublesome or especially valuable.... [H. S.
Sullivan, The Psychiatric Interview (New York: W. W. Norton, 1970) at
p. 4 (emphasis included). See also CD. Webster, R. J. Menzies and M.
A. Jackson, Clinical Assessment Before Trial: Legal Issues and Mental
Disorder (Toronto: Butterworths, 1982) at pp. 24­27]
As Stevenson has further noted, the interview need not conform to
any specific format. As he has written: 
Formerly a question­and­answer type of interview satisfied the
requirements of psychiatric interviewing, as it did and still does satisfy
those   of   medical   history­taking   with   regard   to   exclusively   physical
illnesses.   But   the   modern   psychiatric   interview,   though   it   includes
questions,   puts   much   more   emphasis   on   a   free­flowing   exchange
between the psychiatrist and the patient. [I. Stevenson, "The Psychiatric
Interview," in S. Arieti, ed., American Handbook of Psychiatry, 2nd ed.,
vol. 1 (New York: Basic Books, 1974) 1138 at p. 1138]
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This  is  not  to   say,   however,  that  the   goals  of   any  psychiatric
interview and the factors being assessed are not clearly defined. In their
outline of a typical psychiatric examination, Stevenson and Sheppe have
enumerated several key areas on which the psychiatrist is trained to
focus.   These   include:   the   subject's   emotions;   his   or   her   behaviour
(including   the   potential   for   destructive   behaviour);   intelligence
(including vocabulary, range of information, memory and judgment);
thought   processes (including  speed, accuracy and clarity  of thought,
capacity for higher forms of thinking and rigidity of thought processes);
thought   content   (including   central   themes,   abnormalities   of   thought
content,   self­concept   and   insight)   and   perceptions   (including
misperceptions, illusions, hallucinations, attention and orientation). [I.
Stevenson and W. M. Sheppe, Jr., "The Psychiatric Examination," in
Arieti, supra, note 127, 1157 at pp. 1162­1170]. In conducting his or
her evaluation, moreover, the psychiatrist may pay as much attention to
non­verbal indicia (for example, facial expressions, gestures, postures,
and   so   forth)   as   to   the   information   verbally   communicated   by   the
subject. [Ibid., Sit p. 1172]  In forensic examinations, the psychiatrist
may or may  not directly question the subject concerning the offence he
or  she   is suspected or  alleged  to  have  committed.  As Davidson   has
written: 
In Britain it is considered unsporting for the doctor to ask the
accused whether he has committed the crime, but American psychiatrists
often   find   it   impossible   to   conduct   a   thorough   mental   examination
without somehow touching on that point.  [H. A. Davidson, Forensic
Psychiatry, 2nd ed. (New York: Ronald Press, 1965) at p. 36]
44 I   am   of   the   view   having   regard   to   the   above   that   the   Voice
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Spectrography   Test   will   not   fall   within   the   ambit   of   psychiatric
treatment. I have no hesitation in arriving at the conclusion that the
principles explained by the Supreme Court in the case of Selvi (supra)
would not apply to the Voice Spectrography Test, and therefore, the
contention of the learned counsel as regards violation of Article 20(3) of
the Constitution of India i.e. testimonial compulsion should fail.
45 In Selvi (Supra), the legality of the three scientific tests namely (i)
Narcoanalysis, (ii)  Polygraph test (Lie Detector  Test) and (iii)  BEAP
(Brain Electrical Activation Profile) Test were challenged  inter alia  on
the grounds that a direction to the accused to undergo those tests violate
the rights guaranteed to the accused under Articles 20 and 21 of the
Constitution   of   India   and   under   Section   161(2)   of   Cr.P.C.   It   is
undisputed that for conducting Narcoanalysis test intravenous injection
of Sodium Pentothal will be given to the subject of the test and due to
which the subject of the test goes into hypnotic trance. In polygraph test,
some   instruments   like   cardiographs,   pneumographs,   cardio­cuffs,
sensitive electrodes etc. would be attached to the subject's body before
measuring   physiological   responses.   In   BEAP   test,   electrical   waves
emitted   from   the   subject's   brain   would   be   recorded   by   attaching
electrodes to his scalp. Considering the nature of the three tests, the
entire   technical   processes   involved   in   the   conduct   of   the   said
techniques/tests   and   the   legal   position,   the   Supreme   Court   held   as
follows: 
“The National Human Rights Commission had published Guidelines for the
Administration of Polygraph Test (Lie Detector Test) on an accused in
2000.   These   Guidelines   should   be   strictly   adhered   to   and   similar
safeguards should be adopted for conducting the "narcoanalysis technique"
and   the   "Brain   Electrical   Activation   Profile"   test.   The   text   of   these
Guidelines has been reproduced below :
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(i) No lie detector tests should be administered except on the basis of
consent of the accused. An option should be given to the accused whether
he wishes to avail such test.
(ii) If the accused volunteers for a lie detector test, he should be given
access to a lawyer and the physical, emotional and legal implication of
such a test should be explained to him by the police and his lawyer.
(iii) The consent should be recorded before a Judicial Magistrate.
(iv) During the hearing before the Magistrate, the person alleged to have
agreed should be duly represented by a lawyer.
(v) At the hearing, the person in question should also be told in clear
terms   that   the   statement   that   is   made   shall   not   be   a   "confessional"
statement to the Magistrate but will have the status of a statement made
to the police.
(vi) The Magistrate shall consider all factors relating  to the detention
including the length of detention and the nature of the interrogation.
(vii) The actual recording of the lie detector test shall be done by an
independent agency (such as a hospital) and conducted in the presence of
a lawyer.
(viii)   A   full   medical   and   factual   narration   of   the   manner   of   the
information received must be taken on record.”
In paragraphs 263, 263 and 264 while concluding, the Supreme
Court recorded findings only in regard to the impugned three techniques
referred to above. So far taking of voice sample is concerned, the body of
the subject will not be subjected to any scientific processes or techniques
as   required   in   the   other   three   scientific   techniques   namely,   (i)
Narcoanalysis, (ii) Polygraph Test (Lie Detector Test) and (iii) BEAP
(Brain Electrical Activation Profile), and therefore, it cannot be said that
directing the accused to undergo the Voice Spectrography Test subjects
him to any involuntary process violating the privacy and further compels
to a witness against himself. 
46 Article  20(3) of the  Constitution  has been borrowed from  the
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United States of America. The Fifth Amendment of America constitution
provides that no person shall be compelled in any criminal case to be a
witness against himself. In Vol. 22 A Corpus Juris Secundum Para 649,
the law on the subject has been stated as under :
"Under   the   common   law   principle   condemning   compulsory   selfincrimination
  and   constitutional   provisions   declaratory   thereof,
incriminating   evidence   produced   by   the   accused   under   compulsion   is
inconsistent; but the protection is generally confined to evidence produced
by testimonial compulsion.
........................
The   more   general   view   is   that   the   constitutional   guarantee   renders
incompetent only such evidence as is furnished or produced by accused
under   "testimonial   compulsion"   such   as   disclosures   obtained   by   legal
process against him as a witness. As otherwise stated, the rule against self
incrimination extends only to communications, written or oral, on which
reliance is to be placed as involving accused's consciousness of the facts and
the operation of his mind in expressing it. The test of admissibility under
the   majority   rule   has   been   said   to   be   whether   the   proposed   evidence
depends for its probative force on the testimonial responsibility of accused,
or has such force in itself unaided by any statement of accused."
In para 651(a) of the same volume :
"Generally,  the constitutional  guarantee  against  self­incrimination  does
not  preclude  the admission of real  evidence  produced  by a reasonable
examination of the body of accused; and the admission in evidence of the
findings of experts of a physical or mental examination of the accused does
not   ordinarily   violate   his   privilege,  at  least  where   the  examination   is
without any compulsion.
......................
In State v. Green, 86 SE 2nd 596 : 227 SC 1, it was held by Supreme
Court  that  such  evidence  is admissible  even where  the examination  is
compulsory and imposed on accused against his Will, provided accused is
not compelled to answer any question propounded to him by those making
the examination."
And in para 651(b) :
"The admission in evidence of the results of a scientific examination of a
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substance taken from the body of the accused does not violate his privilege
against   self­incrimination   where   the   substance   was   taken   without   his
consent under circumstances not amounting to a physical invasion of his
body in violation of due process.
.................
Such   rule   applies   with   respect   to   the   taking   of   a   blood   sample   from
accused, and the testing of accused's blood, breath, or urine for alcoholic
content  and consequent  intoxication;  and this is the rule even though
accused was not warned at the time of giving a specimen that it might be
used against him in a prosecution."
In Wigmore's Classic Commentary on Evidence (Vol. VIII ­ 1961 Ed) in
para 2265 the law on 'Self­Incrimination Privilege' has been stated as
follows :
"The limit of the privilege should be plain. From the general principles it
results that an inspection of the bodily features by the Tribunal or by
witness does not violate the privilege because it does not call upon the
accused as a witness i.e. upon his testimonial responsibility. That he may
in such cases be required sometimes to exercise muscular ­ as when he is
required to take off his shoes or roll up his sleeve is immaterial unless all
bodily action were synonymous with testimonial utterance, for as already
observed, not compulsion alone is the component idea of the privilege, but
testimonial compulsion. What is obtained from the accused by such action
is not testimony about his body, but his body itself. Unless some attempt is
made to secure a communication ­ written, oral or otherwise ­ upon which
reliance is to be placed as involving his consciousness of the facts and the
operation of his mind in expressing it, the demand made upon him is not a
testimonial one......."
47 In   the   same   paragraph   the   learned   author   has   noticed   large
number of decisions given by the Courts in America where examination
of the body of the suspect for identifying characteristics or examination
of the body of a suspect, including his private parts for evidence of
disease, or crime or extraction of substance from inside the body of a
suspect for purposes of analysis and use in evidence, has been ruled as
not covered by the privilege. Reference to some of them is being given
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below.
(1) Murder ­ Specimen of blood obtained from accused admitted.
Davis v. State, 189 Md 640, 57 A 2d 289 (1948); State v. Alexander, 7
NJ 585, 83 A 2d 441 (1951).
(2)  Death  by  driving  automobile  while   intoxicated,  sample  of  blood
taken from defendant who was unconscious ­ result of test admitted.
Kallanbach v. People, 125 Colo 144, 242 P. LE 2d 222 (1952).
(3) Blood specimen obtained without defendants knowledge or consent ­
doctors testimony about alcoholic content admitted.
People v. Tucker, 105 Cal App 2d 333, 193 P. 2d 941 (1948).
Schacht v. State, 154 Neb 858; 50, NW 2d 78 (1951).
(4) Homicide ­ evidence as to defendants blood type, blood taken while
he was in jail awaiting trial, without consent ­ admitted.
State v. Alexander 7 NJ 585, 83A. 2d 441 (1951).
(5) Murder ­ no denial of constitutional privilege to use scrapings from
under fingernails taken against the Will.
State v. Mc Laughlin, 138 La 958, 70 So 925 (1961).
48 It may be mentioned here that due to Phenominal increase in
crime and highly sophisticated methods adopted by the criminals, the
State   is   confronted   with   overwhelming   difficulties   in   detection   and
prosecution of crime. In the case of a large number of offences the proof
is difficult, if not impossible, of ascertainment without the testimony of
individuals   accessory   to   the   act.   Eminent   Jurists   even   in   U.S.A.   are
divided   in   their   opinion   as   to   whether   the   privilege   against   selfPage
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incrimination should be retained. Cardozo, J. in  Palko v. Connecticut,
302 U.S. 319 (1937) said as follows :
"Few would be so narrow or provincial as to maintain that a fair and
enlightened system of justice would be impossible without......the immunity
from compulsory self incrimination. This too might be lost, and justice still
done. Indeed, today as in the past there are students of our penal system
who look upon the immunity as a mischief rather than a benefit, and who
would   limit   its   scope,   or  destroy   it   altogether.   No   doubt   there   would
remain the need to give protection against torture, physical or mental.
Justice, however, would not perish if the accused were subject to a duty to
respond to orderly inquiry."
49 Some Jurists have said that the privilege is a hiding place of crime
and only the guilty have use for the privilege.
50 It may be mentioned here that the crime scenario in the country
has undergone a sea change in the recent times. Criminals are using the
most sophisticated weapons and highly specialised means to achieve
their objective. Highly sophisticated devices like blasting of land mines
by   remote   control   are   being   used   to   thwart   the   law   enforcement
machinery from doing its duty. The change in the pattern of crime and
mode of its commission requires modern scientific methods of crime
detection   so   that   the   criminals   may   not   move   about   with   impunity
holding the entire community at ransom.
51 The above takes me to consider the provisions of the Identification
of Prisoners Act, 1920. In the statement of Objects and Reasons attached
to the Bill which eventually became the Identification of Prisoners Act,
XXXIII   (33)   of   1920,   the   necessity   for   the   law   relating   to   the
identification of prisoners has been explained as follows :
"The   object   of  the   Bill   is to   provide   legal  authority   for   the   taking   of
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measurements, finger impressions, foot­prints and photographs of persons
convicted of or arrested in connection with certain offences. The value of
the scientific use of finger impressions and photographs as agents in the
detection of crime and the identification of criminals is well known, and
modern developments in England and other European countries render it
unnecessary to enlarge upon the need for the proposed legislation.
The existing system by which the Police in India take finger impressions,
photographs etc.,  of criminals  and suspected  criminals is void of legal
sanction, except as regards registered members of criminal tribes, in whose
case provision exists for the taking of finger impressions in Section 9 of
Criminal Tribes Act, 1911 (III (3) of 1911). The need for legalising the
practice has long been recognised, but it was not thought expedient to take
the matter up so long as no practical difficulties arose. Instances have
recently been reported to the Government of India where prisoners have
refused to allow their finger prints or photographs to be taken. With a
view to prevent such refusals in future it is considered necessary without
further delay to place the taking of measurements etc., which is a normal
incident of police work in India as elsewhere, on a regular footing."
52  Sections 3, 4 and 5 of the Identification of Prisoners Act read as
follows :
“3. Taking of measurements, etc., of convicted persons.­ Every person
who has been,
(a) convicted of any offence punishable with rigorous imprisonment for a
term of one year or upwards, or of any offence which would render him
liable to enhanced punishment on a subsequent conviction; or
(b) ordered to give security for his good behaviour under Section 118 of
the Code of Criminal Procedure, 1898 (5 of 1898).
shall, if so required, allow his measurements and photograph to be taken
by a Police Officer in the prescribed manner.
STATE AMENDMENTS
Gujarat­ In clause (b) of Section 3, add the following at the end:
"or under Section 93 of the Bombay Prohibition Act, 1949".
[Bombay Act 58 of 1953].
Maharashtra­ For Section 3, substitute the following namely,
"3. Taking of measurements, etc., of convicted persons.­ Every person who
has beenPage
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(a) convicted of any offence punishable with rigorous imprisonment for a
term of one year or upwards or of any offence punishable under Section 19
of the Dangerous Drugs Act, 1930, or of any offence which would render
him liable to enhanced punishment on a subsequent conviction, or
(b) ordered to give security for his good behaviour under Section 118 of
the Code of Criminal Procedure, 1898, or under Section 93 of the Bombay
Prohibition Act, 1949, or to give security for abstaining from commission
of certain offences under Section 18 of the Dangerous Drugs Act, 1930.
Shall if so required allow his measurements and photographs to be taken
by a police officer in the prescribed manner."
[Maharashtra Act 35 of 1970]
4. Taking of measurement, etc., of non­convicted persons.­ Any person who
has been arrested in connection with an offence punishable with rigorous
imprisonment for a term of one year or upwards shall, if so required by a
police   officer,   allow   his   measurements   to   be   taken   in   the   prescribed
manner.
STATE AMENDMENTS
Gujarat : (i) In its application to the State of Gujarat for Section 4, the
following substituted, namely :
"4. Taking of measurements  or photographs of non­convicted persons.­
Any person­
(a) who has been arrested­
(i) under Section 55 of the Code of Criminal Procedure, 1898, or
under Section 4 of the Bombay Beggars Act, 1945;
(ii) in connection with an offence punishable under Section 122 of
the   Bombay   Police   Act,   1951,   or   under   Section   6   or   9   of   the
Bombay   Beggars   Act,   1945,   or   in   connection   with   an   offence
punishable with rigorous imprisonment for a term of one year or
upwards, or
(b) in respect of whom a direction or order under Section 55 or 56 of the
Bombay Police Act, 1951, or under sub­section (1) or (2) of section 23 of
the Bombay Beggars Act, 1945, or under Section 2 of the Bombay Public
Security Measures Act, 1947, has been made,
shall,   if   so   required   by   a   police   officer,   allow   his   measurements   or
photograph to be taken in the prescribed manner."
Karnataka­  In its application to the State of Karnataka, for Section 4
substitute the following :
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"4.   Taking   of   measurements   or   photographs   of   non­convicted
persons.­ Any person­
(a) who has been arrested in connection with an offence punishable under
Section 96 of the Karnataka Police Act, 1963, or in connection with an
offence punishable of the Karnataka Police Act, 1963, or in connection
with an offence punishable with rigorous imprisonment for a term of one
year or upward or in connection with an offence for the commission of
which on a second or subsequent occasion enhanced penalties have been
provided for under any law for the time being in force; or
(b) in respect of whom direction or order under Section 54 or 55 of the
Karnataka Police Act, 1963, has been made,
shall   if   so   required   by   a   police   officer,   allow   his   measurements   or
photographs to be taken in the prescribed manner.
"4­A.  Taking  of measurements,  etc.  of  habitual  offenders  against
whom restriction order is made.­ Any person against whom an order of
restriction has been made under the provisions of the Karnataka Habitual
Offenders Act, 1961,  shall if so required by a Police Officer, allow his
measurements   or   photograph   to   be   taken   in   the   prescribed   manner."
[Karnataka Act 29 of 1975].
(ii) After Section 4­A as inserted in Karnataka insert the following:
"4­B. Taking of measurement, etc., of beggars under the Karnataka
Prohibition of Beggary Act, 1975.­ Any person who has been arrested
and not released under subsection (2) of Section 11 of the Karnataka
Prohibition of Beggary Act, 1975 (Karnataka Act 27 of 1975) or against
whom  an order   of  detention  has  been  made  under   sub­section  (1)  of
Section 12 of the said Act, shall, if so required by an officer­in­charge of a
receiving centre or relief centre allow his measurements and photographs
to be taken in the prescribed manner."
[Karnataka Act 1 of 1987].
5. Power   of   Magistrate   to   order   a   person   to   be   measured   or
photographed.­ If a Magistrate is satisfied that, for the purposes of any
investigation or proceeding under the Code of Criminal Procedure, 1898, it
is expedient to direct any person to allow his measurements or photograph
to be taken, he may make an order to the effect, and in that case the
person to whom the order relates shall be produced or shall attend at the
time and place specified in the order and shall allow his measurements or
photograph to be taken, as the case may be, by a police officer :
Provided   that   no   order   shall   be   made   directing   any   person   to   be
photographed except by a Magistrate of the first class :
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Provided further, that no order shall be made under this Section unless the
person   has   at   some   time   been   arrested   in   connection   with   such
investigation or proceeding."
53 Section   3   deals   with   taking   of   measurement   of   the   convicted
persons. The photographs and measurements and photographs can be
taken by the police officer in the manner prescribed. Section 4 deals with
taking of measurement etc. of non­convicted persons. It is taken if the
police officer so requires it and it has to be done in the prescribed
manner.
54 So far as Section 5 is concerned it deals with the power of the
Magistrate to direct any person for measurement or photographs to be
taken   if   he   is   satisfied   that   for   the   purpose   of   any   investigation   or
proceedings under the Court the same is necessary.
55 Although   the   Act   does   not   specify   the   reasons   and   objects   of
taking   such   measurements   or   photographs   of   the   convicts,   habitual
offenders or suspects, yet evidently it is not for mere preservation. It
must evidently be for being used, for some permissible purposes. What
could be such purposes? According to Mr. Mangukiya, the true object of
the Act, 1920 is to take care of the contingencies like to avoid any setback
to the prosecution case regarding identification of the accused, for
the   purpose   of   service   of   summons   and   warrants   for   arresting   the
absconding   accused   persons,   etc.,   but   not   for   the   purpose   of
investigation as regards the complicity of the accused in the alleged
offence. 
56 In the aforesaid context, Mr. Mangukiya has drawn my attention
to a decision of the Supreme Court in the case of  State of Madhya
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Pradesh vs. Devendra [(2009) 14 SCC 80]. The challenge in the said
case was to the order passed by a learned Single Judge of the Madhya
Pradesh   High   Court,   which   gave   certain   directions   to   the   State
Government in the matter of identification of prisoners and methodology
in investigation. The respondent therein had filed an application  for
grant of bail in terms of Section 439 of the Cr.P.C. During the hearing of
the petition, the respondent 1 who was the applicant before the High
Court did not press the application for bail as the same had become
infructuous. The High Court, however, thought fit to issue directions to
the concerned authorities. The stance of the State of Madhya Pradesh
before   the   High   Court   was   that   there   were   no   many   cases   where
impersonation was involved, and therefore, the desirability of taking the
photographs in all cases would be an additional burden on the State
Exchequer. The High Court issued the following directions:
"1.   That   the   State   shall   make   suitable   amendments   in   the   Police
Regulations   about   taking   and   filing   photographs   of   the   complainant,
material witnesses and accused persons along with the charge sheet in all
criminal cases, sessions trials, except in minor/petty offences and noncognizable
offence.
2. In a case where there is no dispute of identification of the accused, the
photograph of such person should invariably be taken at the time of arrest
of any person for crime, while noting his identification marks to avoid any
set   back   on   the   prosecution   case   regarding   identification   and   when
identification is doubtful then the photograph should be taken at the time
of filing charge sheet.
3. In all criminal cases and sessions trials, except in non cognizable and
minor / petty offences, at the time of filing of the challan /charge sheet the
State should also file the photographs of complainant, material witnesses
and all the accused persons and the same should be part of the papers of
the trial. The State may also retain copy of photographs with the case
diary or at the police station for the purposes of service of summons and
warrants for arresting the absconding accused persons.
4. The photographs should be of enough number to show the accused
clearly from his front pose and may include a photograph of the accused in
standing position.
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5. The photographs of the accused persons should be duly authenticated by
the concerned officer, who arrested the accused persons.
6. In all sessions trials and criminal cases when warrants of arrest are
issued the photographs and mark of identification should be checked with
the accused.
7. In all sessions trials and criminal cases at the time of arrest the identity
of the accused should be properly verified and care should be taken to
ascertain his correct name and address.
8. The officer arresting the accused must certify the photographs and the
particulars of his identity with a certificate which should accompany the
chargesheet, which is sent to the Court.
9. In all appeals against acquittal the photographs should also form part
of record of the trial Court and whenever notices and warrants are issued
by the appellate  Court or High Courts the photographs and marks  of
identification should be cross­ checked by the office with the accused and
when the notices are returned duly served and warrants executed, they
should accompany a certificate by the officer that the accused has been
duly   served   after   verifying   the   identify,   name   and   address   with   the
photograph."
57 It was submitted by the State before the High Court that most of
the directions referred to above were impracticable and few ran counter
to the statute mandate of the Prisoners Act. The Supreme Court disposed
of the appeal with the necessary modification and clarifying that the
directions were subject to the provisions of the Act, regulations and the
Code. In case of any conflict, the statute would prevail. 
58 Reliance on the decision of the Supreme Court referred to above
by   the   learned   counsel,   in   my   view,   is   thoroughly   misplaced   or
misconceived. I find it extremely difficult to accept the submission of Mr.
Mangukiya in this regard, as noted above. A Division Bench of this Court
in the case of P.C. Vyas vs. State of Gujarat [2001 (3) G.L.R. 2755] had
the occasion to consider the provisions of the Act, 1920. In the case
before the Division Bench of this Court, the challenge was to the two
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circulars issued by the Police Commissioner, Rajkot asking the police
officer to submit the report giving reasons with regard to cases wherein
a person is produced before the Magistrate or released on bail within
sixteen   hours   of   arrest.   The   challenge   was   on   the   ground   that   the
indirect effect of the circulars was that such person would be detained
by the police for sixteen hours even when it was not necessary. It was
also argued before the Division Bench that the right of such person to be
released   on   bail   could   not   have   been   curtailed   by   such   executive
instructions. The Division Bench, while quashing the circulars, observed
as under:
“14.   There   is   great   substance   in   the   statement   made   by   the   Police
Commissioner on affidavit that even in cases of bailable offences, some
kind of preliminary inquiry and interrogation of the accused is necessary.
Many times, recording of identification marks, taking of finger prints and
photographs are found desirable to make further investigation into the
crime and connected crimes. It may also happen that accused released on
bail in bailable offence absconds. In that eventuality, not only that the said
accused escapes unpunished, but other offenders connected with the same
crime go beyond the clutches of police. In the circulars, it is rightly stated
that in bailable offences, police is not expected to just mechanically and
without making preliminary inquiry, release the arrested person forthwith
on bail. Some reasonable period is justifiably required for interrogation
and for completing necessary formalities of recording identification marks,
finger prints, photographs etc..”
I may also quote the observations as contained in para 18:
“As has been noted by us above, even in bailable offence, requirement of
the investigating  agency  for bringing  to book the alleged offender and
others connected with it, cannot be disregarded. Effective investigation is
necessary in general interest of society. In our view, therefore, it is open to
the investigating agency to utilise minimum possible time to interrogate
the   accused   and   to   take   his   identification   marks,   finger   prints,
photographs,   etc.,   which   would   help   the   police   not   only   to   bring   the
arrested person to book, but also furnish clue or linkage of the offence with
other offenders and offences. If such a need is found necessary by the
investigating officer even in bailable offence, the officer can resort to the
provisions contained in Sections 4 and 5 of the Identification of Prisoners'
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Act,   1920   and   for   the   limited   purpose   mentioned   therein,   he   has   to
approach the Magistrate...”
59 The   word  “document”  is   defined   in   Section   3   of   the   Indian
Evidence Act, 1872 as under:
“'Document' means any matter expressed or described upon any substance
by means of letters, figures or marks, or by more than one of those means,
intended to be used, or which may be used, for the purpose of recording
that matter.
Illustration
A writing is a document;
Words printed, lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document."
60 In R.M. Malkani vs. State of Maharashtra [(1973) 1 SCC 471],
the   Supreme   Court   observed   that   the   tape   recorded   conversation   is
admissible provided first the conversation is relevant to the matters in
issue; secondly, there is identification  of the voice; and, thirdly, the
accuracy of the tape recorded conversation is proved by eliminating the
possibility of erasing the tape record.
61 In  Ziyauddin   Barhanuddin   Bukhari   v.   Brijmohan   Ramdass
Mehra and others [(1976) 2 SCC 17 ], the Supreme Court held that
tape­records of speeches were "documents", as defined by Section 3 of
the Evidence Act, which stood on no different footing than photographs,
and that they were admissible in evidence on satisfying the following
conditions:
"(a) The voice of the person alleged to be speaking must be duly identified
by the maker of the record or by others who know it.
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(b) Accuracy of what was actually recorded had to be proved by the maker
of the record and satisfactory evidence, direct or circumstantial, had to be
there so as to rule out possibilities of tampering with the record.
(c) The subject­matter recorded had to be shown to be relevant according
to rules of relevancy found in the Evidence Act."
62 As held by the Supreme Court in  Shamsher Singh Verma vs.
State of Haryana [2015 AIR SCW 6434], a compact disc is a document
having regard to the definition of the term “document” in the Evidence
Act. Thus, the provisions of the Act, 1920 are not just meant for taking
care of the evidence as submitted by the learned counsel Mr. Mangukiya,
but they are equally meant for the purpose of effective investigation of
the offence. 
63 The  idea that someone could be identified by the sound of his
voice had its origins in the work of Alexander Melville Bell (father to
Alexander Graham Bell).  Over one hundred years ago, he developed a
visual representation of what the spoken word would look like.  It was
based   on   pronunciation   and   he   showed   that   there   were   subtle
differences among different people who said the same things. Then in
1941,   the   laboratories   of   Bell   Telephone   in   New   Jersey produced   a
machine  — the  sound spectrograph — for  mapping  a voice  onto a
graph.  It analyzed sound waves and produced a visual record of voice
patterns that were based on frequency, intensity, and time.   Acoustic
scientists   used   it   during   World   War   II   to   identify   enemy   voices   on
telephones and radios.  However, with the end of the war, the urgency
for this technology diminished and little came of it until later.
The forensic science of voice identification has come a long way
from when it was first introduced in the American courts back in the
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mid 1960's. In the early days of this identification technique there was
little research to support the theory that human voices are unique and
could   be   used   as   a   means   for   identification.   There   was   also   no
standardization of how identification was reached, or even training or
qualifications   necessary   to   perform   the   analysis.   Today   voice
identification analysis has matured into a sophisticated identification
technique, using the latest technology science has to offer. The research,
which is still continuing today, demonstrates the validity and reliability
of the process when performed by a trained and certified examiner
using established, standardized procedures. Voice identification experts
are found all over the world. No longer limited to the visual comparison
of a few words, the comparison of human voices now focuses on every
aspect of the words spoken; the words themselves, the way the words
flow together, and the pauses between them.
64 However, the moot question still remains whether I should read
voice sample in the definition of the term "measurements" as defined
under Section 2(a) of the Act, 1920, treating the definition of the term
"measurements" as inclusive and not exhaustive. 
65 A lot was argued before me as regards the nature of the definition
of the term “measurements” as defined in Section 2(a) of the Prisoners
Act. What should be the meaning applicable to a particular term in a
particular statute is one of constant debate and most of them owe their
origin to the manner in which the definition provision is worded. 
66 Based  on  their   character,  the   definitions  are   generally   of   two
types:
(i) inclusive ­ i.e. providing what all is covered by specification
while leaving the scope open to others also to be covered within
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the ambit of the provision, (ii) exclusive (or 'means' definition) ­
i.e. those providing an exhaustive meaning to the term and no
other meaning is permissible. 
67 The Supreme Court recently in West Bengal State Warehousing
Corporation vs. M/s. Indrapuri Studio Pvt. Ltd. [AIR 2011 SC 47]
inter alia  explained the difference between the two in the following
terms;
“13. Section 3(b) of the 1894 Act, which also contains definition of the
expression   'person   interested'   and   which   was   interpreted   by   the
Constitution Bench in U.P. Awas Evam Vikas Parishad v. Gyan Devi
(AIR 1995 SC 724) (supra), reads as under :
"3(b).   the   expression   "person   interested"   includes   all   persons
claiming an interest in compensation to be made on account of the
acquisition of land under this Act; and a person shall be deemed to
be interested in land if he is interested in an easement affecting the
land."
14.   A   comparative   study   of   the   two   definitions   of   expression   'person
interested', one contained in Section 3(b) of the 1894 Act and the other
contained in Section 2(d) of the Act shows that while the first definition is
inclusive,   the   second   definition   is   exhaustive.   The   difference   between
exhaustive and inclusive definitions has been explained in P. Kasilingam
v. P.S.G. College of Technology (1995) Supp 2 SCC 348 : (AIR 1995
SC 1395) in the following words : 
"A particular expression is often defined by the Legislature by using
the   word   'means'   or   the   word   'includes'.   Sometimes   the   words
'means and includes' are used. The use of the word 'means' indicates
that "definition is a hard­and­fast definition, and no other meaning
can be assigned to the expression than is put down in definition".
(See   :   Gough   v.   Gough;   Punjab   Land   Development   and   Reclamation
Corpn.   Ltd.   v.   Presiding   Officer,  Labour   Court.)  The word 'includes'
when used, enlarges the meaning of the expression defined so as to
comprehend not only such things as they signify according to their
natural import but also those things which the clause declares that
they shall include. The words "means and includes", on the other
hand, indicate "an exhaustive explanation of the meaning which, for
the purposes of the Act, must invariably be attached to these words
or   expressions".   (See   :   Dilworth   v.   Commissioner   of   Stamps   (Lord
Watson); Mahalakshmi Oil Mills v. State of A.P. (AIR 1984 SC 335). The
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use of the words "means and includes" in Rule 2(b) would, therefore,
suggest that the definition of 'college' is intended to be exhaustive and not
extensive and would cover only the educational institutions falling in the
categories specified in Rule 2(b) and other educational institutions are
not comprehended. Insofar as Engineering Colleges are concerned, their
exclusion may be for the reason that the opening and running of the
private   Engineering   Colleges   are   controlled   through   the   Board   of
Technical   Education   and   Training   and   the   Director   of   Technical
Education in accordance with the directions issued by the AICTE from
time to time." 
In Bharat Co­operative Bank (Mumbai) Ltd. v. Employees Union (2007)
4   SCC   685   :   (AIR   2007   SC   2320),   this   Court   again   considered   the
difference between the inclusive and exhaustive definitions and observed :
"When in the definition clause given in any statute the word "means"
is used, what follows is intended to speak exhaustively. When the
word   "means"   is   used   in   the   definition   it   is   a   "hard­and­fast"
definition and no meaning other than that which is put in the
definition can be assigned to the same. On the other hand, when the
word "includes" is used in the definition, the legislature does not
intend   to   restrict   the   definition   :   it   makes   the   definition
enumerative but not exhaustive. That is to say, the term defined will
retain its ordinary meaning but its scope would be extended to
bring within it matters, which in its ordinary meaning may or may
not comprise.  Therefore, the use of the word "means" followed by the
word "includes" in the definition of "banking company" in Section 2(bb) of
the   ID   Act   is   clearly   indicative   of   the   legislative   intent   to   make   the
definition   exhaustive   and   would   cover   only   those   banking   companies
which fall within the purview of the definition and no other."
In N.D.P. Namboodripad v. Union of India (2007) 4 SCC 502 : (AIR
2007 SC 1782), the Court observed :
"The word "includes" has different meanings in different contexts.
Standard dictionaries assign more than one meaning to the word
"include".   Webster's   Dictionary   defines   the   word   "include"   as
synonymous   with   "comprise"   or   "contain".   Illustrated   Oxford
Dictionary defines the word "include" as : (i) comprise or reckon in
as a part of a whole; (ii) treat or regard as so included. Collins
Dictionary of English Language defines the word "includes" as: (i)
to have as contents or part of the contents; be made up of or
contain; (ii) to add as part of something else; put in as part of a
set, group or a category; (iii) to contain as a secondary or minor
ingredient or element. It is no doubt true that generally when the
word "include" is used in a definition clause, it is used as a word of
enlargement,   that   is   to   make   the   definition   extensive   and   not
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restrictive. But the word "includes" is also used to connote a specific
meaning,   that   is,   as   "means   and   includes"   or   "comprises"   or
"consists of." 
In  Hamdard   (Wakf)   Laboratories   v.   Dy.   Labour   Commissioner
(2007) 5 SCC 281 : (AIR 2008 SC 968), it was held as under :
"When   an   interpretation   clause   uses   the   word   "includes",   it   is
prima facie extensive. When it uses the word "means and includes",
it will afford an exhaustive explanation to the meaning which for
the purposes of the Act must invariably be attached to the word or
expression."
68 Justice   G.   P.   Singh   in   his   treatise   'Principles   of   Statutory
Interpretation', (Tenth Edition, 2006), has noticed that where a word
defined is declared to 'include' such and such, the definition is  prima
facie extensive, but the word 'include' when used while defining a word
or   expression,   may   also   be   construed   as   equivalent   to   'mean   and
include' in which event, it will afford an exhaustive explanation of the
meaning which for the purposes of the Act must invariably be attached
to the word or expression, [vide pages 173 and 175 referring to and
relying   on   the   decisions   of   the   Supreme   Court   in  The   Municipal
Council, Raipur vs. State of Madhya Pradesh 1970 Cri LJ 1656 : (AIR
1970 SC 1923) South Gujarat Roofing Tile Manufacturers Association
vs. State of Gujarat [1977] 1 SCR 878 : (AIR 1977 SC 90), Hindustan
Aluminum Corporation vs. State of Uttar Pradesh 1983 (13) ELT1656
(SC), : (AIR 1981 SC 1649) and  Reserve Bank of India vs. Peerless
General Finance and Investment Co. Ltd. [1987] 2 SCR 1 : (AIR 19987
SC 1023). It is, therefore, evident that the word “includes” can be used
in the interpretation clauses either generally in order to enlarge the
meaning of any word or phrase occurring in the body of a Statute, or in
the normal standard sense, to mean 'comprises' or 'consists of' or 'means
and includes', depending on the context.
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69 Mr.   Mangukiya,   the   learned   counsel   submitted   that   the   word
“includes” must be read as “means”. In this regard, the learned counsel
placed reliance upon two decisions of the Supreme Court namely; (1)
The   South   Gujarat   Roofing   Tiles   Manufacturers   Association   and
another vs. The State of Gujarat and Anr.  [(1976) 4 SCC 601] (2)
Reserve Bank of India vs. Peerless General Finance and Investment
Co. Ltd. and Ors. [(1987) 1 SCC 424)]. 
70 Lord Watson in  Dilworth vs. Commissioner of Stamps (1899)
AC 99 made the following classic statement :
"...The word "include" is very generally used in interpretation clauses in
order to enlarge the meaning of words or phrases occurring in the body of
the   statute;   and   when  it   is  so   used   these   words   or   phrases   must   be
construed   as   comprehending,   not   only   such   things   as   they   signify
according   to   their   natural   import,   but   also   those   things   which   the
interpretation   clause   declares   that   they   shall   include.   But   the   word
"include"   is   susceptible   of   another   construction,   which   may   become
imperative, if the context of the Act is sufficient to show that it was not
merely employed for the purpose of adding to the natural significance of
the words or expressions defined.  It may be equivalent  to "mean and
include", and in that case it may afford an exhaustive explanation of the
meaning which, for the purposes of the Act, must invariably be attached
to these words or expressions."
71 Dilworth   (supra)  and   few   other   decisions   came   up   for
consideration in  Peerless General Finance and Investment Co. Ltd.
[(1987) 1 SCC 424]  and the Supreme Court summarized the legal
position that inclusive definition by the Legislature is used;
“32...(1) to enlarge the meaning of words or phrases so as to take in the
ordinary,  popular  and natural  sense of the words  and also the sense
which the statute wishes to attribute to it; (2) to include meaning about
which there might be some dispute; (3) to bring under one nomenclature
all   transactions   possessing   certain   similar   features   but   going   under
different names.”
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72 It   goes   without   saying   that   the   interpretation   of   a   word   or
expression must depend on the text and the context. The resort to the
word   'includes'   by   the   Legislature   often   shows   the   intention   of   the
Legislature that it wanted to give extensive and enlarged meaning to
    such    expression. Sometimes, however, the context may suggest that the
word 'includes' may have been designed to mean "means". The setting,
context and object of an enactment may provide sufficient guidance for
the interpretation of word 'includes' for the purposes of such enactment.
73 I have reached to the conclusion that the view taken by Justice
Aftab Alam appears to be more commendable. It is difficult to read voice
sample as inclusive in the definition of the term “measurements”. It
deserves to be noted that in the definition of the term “measurements”,
the   handwriting   or   the   signature   is   also   not   included.   The   word
“measurements”   includes   only   the   fingerprints   and   footprint.   It   is
significant to note that taking of handwriting or signature from a person
by a Magistrate in the course of the investigation by the police was
specifically excluded until 2006. It is for the first time, by virtue of
Section 311A of the Cr.P.C., inserted by Act 25 of 2005, Section 27
(w.e.f. 23rd  June 2006) that the Magistrate has been empowered to
order a person to give his specimen signature or handwriting. When the
Parliament enacted Act, 1920, it must have had in its mind not only that
Section 73 of the Evidence Act does not give power to the Court to take
fingerprints, signature and handwriting from a person in the course of
investigation by the police, but also it must have thought that it might
not be necessary to include the taking of handwriting or signature of a
person in the course of investigation by the police. Otherwise, there is
no tangible reason for the Parliament to exclude, under the Act, 1920,
the taking of handwriting or signature. To put it in other words, if it was
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the intention of the legislature to allow the police to take specimen
handwriting or signature of a person in the course of investigation or to
empower a Magistrate to give necessary directions to a person to give
his specimen handwriting or signature to the police in the course of the
investigation,   then   all   that   was   necessary   was   to   include   the   word
“specimen   handwriting   and   signature”   in   the   definition   of
“measurements” in Section 2(a) of the Act, 1920. 
74 For such reason, as noted above, I find it difficult to take the view
that the definition of the word “measurements” is inclusive and not
exhaustive. The line of reasoning assigned by Justice Aftab Alam that if
a   voice   sample   is   to   be   read   in   the   definition   of   the   word
“measurements”, then many other medical tests would equally qualify
as “measurements” within the meaning of the Act, 1920 is worth taking
note of . I do not undermine the importance of the Voice Spectrography
Test, but the difficulty is that there is no provision of law in this regard
so as to give  effect to the  same. It is not the question  of giving  a
purposive   interpretation   or   giving   a   narrow   construction   to   the
provisions   of   the   Act,   1920   and   Section   53   of   the   Cr.P.C.   What   is
important is whether there is any scope of giving any construction to the
provisions of the Prisoners Act. The rule stated by Tindal, C.J. in Sussex
Peerage case, (1844) 11 Cl and F 85, still holds the field. The aforesaid
rule is to the effect :
"If the words of the statute are in themselves precise and unambiguous,
then no more can be necessary than to expound those words in their
natural and ordinary sense. The words themselves do alone in such cases
best declare the intent of the lawgiver."
It is a cardinal  principle of construction  of statute  that  when
language of the statute is plain and unambiguous, then the court must
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give effect to the words used in the  statute and it would not be open to
the courts to adopt a hypothetical construction on the ground that such
construction is more consistent with the alleged object and policy of the
Act. In Kirkness v. John Hudson and Co. Ltd., 1955 (2) All ER 345,
Lord Reid pointed out as to what is the meaning of "ambiguous" and
held that "a provision is not ambiguous merely because it contains a
word which in different context is capable of different meanings and it
would be hard to find anywhere a sentence of any length which does
not contain such a word.  A provision is, in my judgment, ambiguous
only if it contains a word or phrase which in that particular context is
capable of having more than one meaning." It is no doubt true that if on
going through the plain meaning of the language of statutes, it leads to
anomalies, injustices and absurdities, then the court may look into the
purpose for which the statute has been brought and would try to give a
meaning, which would adhere to the purpose of the statute. Patanjali
Sastri, C.J. in the case of Aswini Kumar Ghose v. Arabinda Bose, 1953
SCR 1 had held that it is not a sound principle of construction to brush
aside words in a statute as being inapposite surplusage, if they can have
appropriate   application   in   circumstances   conceivably   within   the
contemplation of the statute. In Quebec Railway Light Heat and Power
    Co. v. Vandray, AIR  1920 PC 181    ,   it   had   been   observed   that   the
Legislature is deemed not to waste its words or to say anything in vain
and a construction which attributes redundancy to the legislature will
not   be   accepted   except   for   compelling   reasons.   Similarly,   it   is   not
permissible to add words to a statute which are not there unless on a
literal   construction   being   given   a   part   of   the   statute   becomes
meaningless. But before any words are read to repair an omission in the
Act, it should be possible to state with certainty that these words would
have been inserted by the draftsman and approved by the legislature
had their attention been drawn to the omission before the Bill had
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passed into a law. At times, the intention of the legislature is found to
be clear but the unskilfulness of the draftsman in introducing certain
words in the statute results in apparent ineffectiveness of the language
and in such a situation, it may be permissible for the court to reject the
surplus words, so as to make the statute effective. [See: Union of India
and another vs. State of Tripura and another, AIR 2002 SC 3240].
Having regard to the importance of the test, the Parliament could have
easily included voice sample along with the specimen signature and
handwriting in Section 311A of the Cr.P.C. However, the Parliament, in
its wisdom, has thought fit not to include the Voice Spectrography Test
or voice sample in Section 311A of the Cr.P.C. despite being aware of
the technology of tape recording and taking of voice samples. 
75 The above takes me to consider whether Section 53 of the Cr.P.C.
can be invoked. Her Ladyship Justice Desai has also considered Section
53 of the Cr.P.C. at length and held that purposive construction should
be given to the said provisions. Section 53 of the Cr.P.C. reads as under:
“53. Examination of accused by medical practitioner at the request
of police officer
(1) When a person is arrested on a charge of committing an offence of
such   a   nature   and   alleged   to   have   been   committed   under   such
circumstances  that there are reasonable grounds for believing that an
examination of his person will afford evidence as to the commission of an
offence, it shall be lawful for a registered medical practitioner, acting at
the request of a police officer not below the rank of sub­inspector, and for
any person acting in good faith in his aid and under his direction, to
make   such   an   examination   of   the   person   arrested   as   is   reasonably
necessary in order to ascertain the facts which may afford such evidence,
and to use such force as is reasonably necessary for that purpose.
(2) Whenever the person of a female is to be examined under this section,
the examination shall be made only by, or under the supervision of, a
female registered medical practitioner. 
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*[Explanation.­In this section and in sections 53A and 54,­
(a) "examination" shall include the examination of blood; blood stains,
semen, swabs in case of sexual offences, sputum and sweat, hair samples
and finger nail clipping by the use of modern and scientific techniques
including DNA profiling and such other tests which the registered medical
practitioner thinks necessary in a particular case;
(b) "registered medical practitioner" means a medical practitioner who
possesses any medical qualification as defined in clause (h) of section 2 of
the Indian Medical Council Act, 1956 and whose name has been entered
in a State Medical Register.
*Substituted by the Code of Criminal Procedure (Amendment) Act (25 of
2005), S. 8 (23­6­2006).
NOTE:­Law Commission in para. 5.1 of its 41st Report has said thus in
respect of this new provision: ". . . . . . . . .the Commission has considered
at length the question as to how far the physical examination of the
arrested   person   is   legally   and   constitutionally   permissible   and   what
provision, if any, should be made in the Code for the purpose. It came to
the   conclusion   that   a   provision   on   the   subject   was   needed   and
recommended  a new section authorising,  in certain circumstances and
subject to certain safeguards, the examination of person of the accused by
a   qualified   medical   practitioner.   We   agree   that   such   a   provision   is
necessary for effective investigation and will not offend against Art. 20(3)
of the Constitution".
76 Section 53 of the Code was introduced for the first time in the
1974 Code. The purpose of introducing this section was to facilitate
effective investigation. If, from the nature of the alleged offence or the
circumstances under which it is alleged to have been committed, there
was reasonable ground for believing that the examination of the person
will   afford   the   evidence,   examination   of   the   arrested   person   by   a
medical practitioner was authorised. The provision made under Section
54 of the Code for the examination of an arrested person by a medical
practitioner at the request of the arrested person, will also show that the
object   of   the   law­maker   was   to   provide   a   facility   during   the
investigation  by a scientific  approach, which may either  benefit the
prosecution   or   the   accused.   This   scientific   approach   during   the
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investigation   is   thus   under   the   protective   eye   of   the   law.   The
constitutional mandate does not say that no person shall be deprived of
his right or personal liberty under any circumstances. On the contrary, if
such deprivation of right or personal liberty is in accordance with the
procedure established by law, it does not get protected by Article 21.
The function of deciding as to whether certain procedure of life or
personal liberty was reasonable or not was not of the Court, since it was
an   exclusively   legislative   function.   This   view   was   expressed   by   a
Division Bench of the Bombay High Court in State vs. Sheshappa, AIR
1964 Born 253 : (1964 (2) Cri LJ 523)  while considering a similar
provision for medical examination, in the Bombay Prohibition Act.
77 The  word   "examination"   used   in  the  Section  obviously  means
medical   examination   and   therefore,   it   should   be   given   the   same
meaning   as   is   understood   in   the   medical   world.   In   New   Lexicon
Webster's Dictionary 1987 Edition in Chapter MD­1 relating to Medical
Dictionary the meaning of the word 'examination' is given as under :
"The   process   of   inspecting   the   body   and   its   products   as   a   means   of
diagnosing a disease or as to physical fitness."
In the same chapter the meaning of the word 'diagnosis' is given as
under :
"Recognition   of   diseases   based   on   examination   and   microscopic   and
chemical results of laboratory findings".
A   conjoint   reading   of   the   two   words   would,   therefore,   show   that
medical examination would mean the process of inspecting the body
and   its   products   as   a   means   of   recognition   of   diseases   based   on
examination   and   microscopic   and   chemical   results   of   laboratory
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findings. Medical science has made great strides in recent times and
highly sophisticated scientific tools have been developed in order to
diagnose ailments or disorders in human body. In my opinion, it will
not be proper to give a restricted meaning to the word "examination"
used in Section 53 of the Code. The examination of the accused should
mean a complete examination which a medical practitioner may like to
have by all modern and scientific tools available in order to give his
opinion and it should not be confined to a superficial examination by
merely having a look at the body of the accused. In fact a doctor who is
trained and is used to employing modern day technic for diagnosis may
refuse to give his opinion unless he performs the necessary scientific
tests in this regard. The legislature was also conscious of this and has,
therefore,   made   a   specific   provision   permitting   use   of   force   while
enacting Section 53 in the Code of 1974 which was previously not there
in   the   1898   Code.   It   is   not   necessary   to   give   examples   where   the
provisions of Section 54 may be of great use in bringing on record
valuable evidence which may help the court in deciding the point in
issue.   In   a   case   involving   accident   an   immediate   blood   test   of   the
accused may produce the evidence which may show whether he had
consumed   alcohol.   Instances   are   known   where   smugglers   have
swallowed gold, pearls and diamonds and x­ray examination or use of
permissible chemicals by which these objects are ejected outside the
body would lead valuable evidence regarding the commission of crime.
The result of medical examination may also give clinching evidence
which may prove the innocence of the accused.
78 Mr.   Amin,   the   learned   Public   Prosecutor   very   strenuously
submitted that the examination contemplated by Section 53 of the Code
is by a registered medical practitioner and not by a laymen, which is to
be done at the request of a responsible police officer not below the rank
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of   Sub­Inspector.   The   medical   officer   or   person   authorised   is
empowered to use such force as is necessary for carrying out such an
examination. The examination of a “person of the accused” many times
provides   clue   to   establish   his   innocence   also.   Section   53   is   a   new
provision incorporated in new Criminal Procedure Code which confers a
power   upon   the   investigating   machinery   to   get   the   person   of   the
accused examined and Section 54 confers such a right on the accused.
Mr.   Amin   submits   that   the   examination   used   in   Section   53   i.e.
“examination of his person” should be given a wider meaning and the
provisions of Sections 53 and 54 of the Code cannot be construed in
isolation torn from its context. In support of his submissions, Mr. Amin
has placed reliance on the decision of the Supreme Court in the case of
Sheikh Gulfan vs. Sanat Kumar [AIR 1965 SC 1839], wherein the
Supreme Court observed thus:
"normally,  the words used in a statute have  to be construed  in their
ordinary meaning but in many cases, Judicial approach finds that the
simple device of adopting the ordinary meaning of words does not meet
the ends of a fair and a reasonable construction. Exclusive reliance on the
bare dictionary meaning of words may not necessarily assist a proper
construction of the statutory provision in which the words occur. Often
enough, in interpreting a statutory provision, it becomes necessary to have
regard  to the subject­matter  of the statute  and the object  which it is
intended to achieve. That is why in deciding the true scope and effect of
the relevant words in any statutory provision, the context in which the
words occur, the object of the statute in which the provision is included,
and   the   policy   underlying   the   statute   assume   relevance   and   become
material. As Halsbury has observed, the words "should be constructed in
the light of their context  rather than what may be either their strict
etymological sense or their popular meaning apart from that context." 
79 It is equally well­settled that the literal construction should not
obsess the Court because it has only  prima facie  preference, the real
object of interpretation being to find out the true intent of the law
maker and that can be done only be reading the statute as an organic
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whole, with each part throwing light on the other and bearing in mind
the rule in Heydon's case (1854) 76 ER 637 which requires four things
to be 'discerned and considered' in arriving at the real meaning : (1)
what was the law before the Act was passed; (2) what was the mischief
or   defect   for   which   the   law   had   not   provided;   (3)   what   remedy
Parliament has appointed; and (4) the reason of the remedy.  Mr. Amin
very fervently urged this Court to consider the true meaning and effect
of the expression used in Section 53 of the Code of Criminal Procedure
bearing in mind the principles referred to above. 
80 On   the   other   hand,   Mr.   Mangukiya,   the   learned   counsel
submitted that Section 53 of the Code refers to a “registered medical
practitioner”.   He   pointed   out   that   the   term   “registered   medical
practitioner” has been explained and is very specific. If the Investigating
Officer wants the voice sample of the accused, then he cannot be taken
to a registered medical practitioner. A registered medical practitioner
will not be able to take the  voice sample for the  purpose of Voice
Spectrography   Test.   In   such   circumstances,   according   to   Mr.
Mangukiya, in the term “examination” it is not possible to read voice
sample. He further submitted that the term “such other test” means the
test which the registered medical practitioner may think necessary in a
particular case. It is not permissible to include Voice Spectrography Test
in the term “such other test”. Mr. Amin, the learned Public Prosecutor
has a reply to this submission of Mr. Mangukiya. Mr. Amin submitted
that the term “examination” includes semen. According to Mr. Amin,
semen is never examined or tested by a registered medical practitioner,
but after the sample of semen is collected by the registered medical
practitioner, the same is forwarded to the Forensic Science Laboratory
and the test will be carried out by a Chemical Analyzer. To put it in
other words, according to Mr. Amin, it is the Serologist who will test the
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sample of semen and will prepare the serological test report. 
81 It comes to this that if the police officer wants the voice sample of
the accused for the purpose of Voice Spectrography Test, he will have to
be taken to a registered medical practitioner and the registered medical
practitioner will have to call an expert for the purpose of collecting the
voice sample and thereafter, the Voice Spectrography Test would be
conducted. Having given my thoughtful consideration in this regard, I
find   it   extremely   difficult   to   read   voice   sample   also   in   the   term
“examination” or “such other test”, as explained in Section 53 of the
Cr.P.C. 
82 The above takes me to consider whether Section 73 of the Indian
Evidence Act is, in any manner, helpful to the prosecution so far as the
Voice   Spectrography   Test   is   concerned.   Section   73   of   the   Indian
Evidence Act reads as under:
“73. Comparison of signature, writing or seal with others admitted
or proved
(1) In order to ascertain whether a signature, writing or seal is that of the
person by whom it is alleged to have been written or made, any signature,
writing or seal admitted or proved to the satisfaction of the Court to have
been written or made by that person may be compared by the Court or
under   its   orders   with   the   one   which   is   to   be   proved,   although   that
signature, writing or seal has not been produced or proved for any other
purpose.
(2) The Court may direct any person present in Court to write any words
or figures for the purpose of comparison of the words or figures so written
with any words or figures alleged to have been written by such person.
(3) This section applies also, with any necessary modifications, to finger
impressions, palm impressions, footprints and type­writing.
(4) Without prejudice to the provisions of any other law for the time
being in force, nothing in this section shall apply to a criminal Court
before it has taken cognizance of an offence."
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83 It is thus clear that the section permits the Court to direct the
accused persons to write words and figure for the purpose of comparing
and such comparing is to be instituted with a view to enabling the Court
to form its own conclusion and in an order, it might to complete justice
between the two parties. It entitles the Court to assist itself to a proper
conclusion in the interest of justice. Mr. Amin invited the attention of
this Court to the observations made by the Delhi High Court in the case
of Rakesh Bisht (supra). I may quote the relevant observations:
“17. Mr. Tiwari, the learned counsel for the CBI, submitted that these two
decisions,   i.e.,  Ram  Babu  Misra  (AIR   1980  SC   791)  (supra)  and
Jagbir Singh (2003 Cri LJ 5054) (supra)  were not relevant for the
controversy at hand inasmuch as they pertain to Section 73 of the Indian
Evidence   Act,   1872   and   since   the   stage   of   Section   73   had   not   been
reached, no useful purpose would be served by referring to these decisions.
While  it is true  that Section  73 falls  under  Chapter  V of the Indian
Evidence Act which deals with documentary evidence and that stage of
leading evidence has not been reached in this case, as the matter is still
under investigation, reference to the said decisions on Section 73 would,
in my view, be apposite inasmuch as even where a specific provision for
taking   handwriting   samples   is  made   under   Section   73   of   the   Indian
Evidence Act, 1872, the Supreme Court has held that that would operate
only when there is a proceeding pending before the Court and not in the
course of investigation.  There is no specific provision for directing the
giving of voice samples under the Indian Evidence Act, 1872. Therefore,
even if the analogy of Section 73 is brought to the fore for the purposes of
directing an accused to give his voice samples, that would also have to
wait till there is a proceeding before the Court. It is in this context that
the said two decisions of the Supreme Court in Ram Babu Misra (supra)
and Jagbir Singh (supra) are relevant for the purposes of this case. In
any event, as observed in  Prakash P. Hinduja (2003 Cri LJ 3117)
(supra),  the Court has no jurisdiction to interfere in the investigative
process which is left entirely to the investigating agency. It is, therefore,
clear that the CBI could not have moved an application before the Court
during the pendency of the investigation directing the petitioners to give
their voice samples and, the Court ought not to have entertained such an
application because it was not within its jurisdiction to have interfered in
the course of investigation. It is another matter if, after investigation,
charges are framed and in the course of proceedings before the Court, the
Court  feels  that  voice  samples  ought   to  be taken   for the  purposes  of
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establishing identity, then such a direction may be given provided the
voice sample taken is only for the purposes of identification and does not
contain any inculpatory statement so as to be hit by Article 20(3) of the
Constitution  of India. In this context,  I am unable to agree with the
decision of a learned single Judge of the Bombay High Court in the case of
Abdul Karim Telgi (2005 Cri LJ 2868) (supra)  because  there  the
Court   directed   the   taking   of   voice   samples   even   at   the   stage   of
investigation.”
84 Mr. Amin submitted that if not at the stage of investigation, at
least at the post­cognizance stage, the Court concerned has the power to
direct an accused to give his voice sample for the purpose of the Voice
Spectrography Test. The Delhi High Court has cursorily observed that
even if the analogy of Section 73 of the Evidence Act is brought to the
fore for the purpose of directing an accused to give his voice sample,
that would also have to wait till there is a proceeding before the Court.
My reading of the decision of the Delhi High Court is that it does not lay
down as a proposition of law that under Section 73 of the Evidence Act,
the Court is empowered to direct an accused to give his voice sample.
85 It is difficult for me to consider Section 73 of the Evidence Act as
an instrument or a device to be used for the advancement of any party
either prosecution or the accused. Sections 73 is one of those sections
where wide powers are given to the Court with the obvious object of
enabling the Court to find out the truth to do complete justice between
the two parties. If the section is proposed to be put in other use, such
use will be wholly unjustified. 
86 The above takes me to consider the last contention canvassed by
Mr. Amin, the learned Public Prosecutor as regards the provisions of
Section 165 of the Evidence Act. Mr. Amin, by placing reliance on the
Allahabad   High   Court   in   the   case   of    Smt.  Leena  Katiar  (supra),
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submitted that the trial Judge is well within its jurisdiction in order to
discover or to obtain proper proof of the relevant facts call upon the
accused to give his voice sample in the Court in order to determine his
involvement in the crime and also to arrive at a just of the decision of
the case. 
87 Section 165 of the Evidence Act reads thus:
“165. Judge's power to put question or order production
(1) Subject to the provisions of sub­sections (2), the Judge may, in order
to discover or to obtain proper proof of relevant facts, ask any question he
pleases, in any form, at any time, of any witness, or of the parties, about
any fact relevant or irrelevant;  and may order the production of any
document or thing:Provided that the parties or their agents shall not be
entitled ­
(a) to make any objection to any such question or order, or,
(b) without the leave of the court, to cross­examine any witness upon any
answers given in reply to any such question.
(2)  Nothing  in sub­section  (1)  shall  authorize  a Judge to­(a)  ask or
compel a witness to answer any question or to produce any document
which such witness would be entitled to refuse to answer or produce,
under the provisions of this Act or under any other law for the time being
in force, if the questions were asked or the documents were called for by
the adverse party; or
(b) dispense with primary evidence of any document, except in the cases
hereinbefore excepted.
(3) Notwithstanding anything contained in this section, the judgment of
the Court must be based upon facts declared relevant under this Act and
duly proved."
88 The power of the Court under Section 165 of the Evidence Act is
in a way of complementary to its power under Section 311 of the Code.
Mr.   Amin   invited   my   attention   to   the   observations   made   by   the
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Supreme Court as regards the true scope and object in the case of Ram
Chandar vs. State of Haryana [AIR 1981 SC 1036]. I may quote the
observations as under:
“1 What is the true role of a judge trying a criminal case? Is he to
assume the role of a referee in a football match or an umpire in a cricket
match,  occasionally  answering,  as Pollock  and  Maitland  [Pollock  and
Maitland : The history of English law] point out, the question 'How is
that' or, is he to, in the words of Lord Denning 'drop the mantle of a judge
and assume the role of an advocate'? [Jones v. National Coal Board :
(1957) 2 All ER 155.], Is he to be a spectator or a participant at the
trial? Is passivity or activity to mark his attitude? If he desires to question
any of the witnesses, how far can he go? Can he put on the gloves and
'have a go' at the witness who he suspects is lying or is he to be soft and
suave? These are some of the questions which we are compelled to ask
ourselves in this appeal on account of the manner in which the judge who
tried the case put questions to some of the witnesses.
2   The   adversary   system   of   trial   being   what   it   is,   there   is   an
unfortunate tendency for a judge presiding over a trial to assume the role
of a referee or an umpire and to allow the trial to develop into a contest
between the prosecution and the defence with the inevitable distortions
flowing   from   combative   and   competitive   elements   entering   the   trial
procedure.   If   a   Criminal   Court   is   to   be   an   effective   instrument   in
dispensing justice the presiding judge must cease to be a spectator and a
mere recording machine. He must become a participant in the trial by
evincing intelligent active interest by putting questions to witnesses in
order to ascertain the truth. As one of us had occasion to say in the past :
"Every Criminal trial is a voyage of discovery in which truth is the
quest. It is the duty of a presiding Judge to explore every avenue
open to him in order to discover the truth and to advance the
cause of justice. For that purpose he is expressly invested by Section
165   of   the   Evidence   Act   with   the   right   to   put   questions   to
witnesses. Indeed the right given to a Judge is so wide that he may
ask any question he pleases, in any form, at any time, of any
witness, or of the parties about any fact, relevant or irrelevant.
Section 172 (2) of the Code of Criminal Procedure enables the
Court to send for the police­diaries in a case and use them to aid it
in   the   trial.   The   record   of   the   proceedings   of   the   committing
Magistrate may also be perused by the Sessions Judge to further
aid him in the trial". (Sessions Judge, Nellore v. Intna Ramana
Reddy, ILR (1972) Andh Pra 683).
3 With such wide powers the Court must actively participate in the
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trial, to elicit the truth and to protect the weak and the innocent. It must,
of course, not assume the role of a prosecutor in putting questions. The
functions of the counsel, particularly those of the Public Prosecutor, are
not to be usurped by the judge, by descending into the arena as it were.
Any questions put by the judge must be so as not to frighten, coerce,
confuse   or   intimidate   the   witnesses.   The   danger   inherent   in   a   judge
adopting   a   much   too   stern   an   attitude   towards   witnesses   has   been
explained by Lord Justice Birkett :
"People accustomed to the procedure of the Court are likely to be
over­awed or frightened, or confused. or distressed when under the
ordeal   of   prolonged   questioning   from   the   presiding,   judge.
Moreover, when the questioning takes on a sarcastic or ironic tone
as it is apt to do, or when it takes on a hostile note as is sometimes
almost inevitable, the danger is not only that witnesses will be
unable to present the evidence as they may wish, but the parties
may begin to think quite wrongly it may be, that the judge is not
holding the scales of justice quite eventually". Extracted by Lord
Denning in Jones v. National Coal Board. ((1957) 2 All ER 155)
(supra).
In Jones v. National Coal Board, Lord Justice Denning observed :
"The Judge's part in all this is to hearken to the evidence, only
himself asking questions of witnesses when it is necessary to clear
up any point that has been overlooked or left obscure; to see that
the advocates behave themselves seemly and keep to the rules laid
down by law; to exclude irrelevancies and discourage repetition; to
make sure by wise intervention that he follows the points that the
advocates are making and can assess their worth; and at the end
to make up his mind where the truth lies. If lie goes beyond this, he
drops   the   mantle   of   the   Judge   and   assumes   the   robe   of   an
advocate; and the change does not become him well".
We may go further than Lord Denning and say that it is the duty of a
judge to discover the truth and for that purpose he may "ask any question,
in any form, at any time, of any witness or of the parties, about any fact,
relevant  or irrelevant" (Sec.  165, Evidence  Act).  But this he must do,
without unduly trespassing upon the functions of the public prosecutor
and the defence counsel, without any hint of partisanship and without
appearing to frighten or bully witnesses. He must take the prosecution
and the defence with him. The Court the prosecution and the defence must
work as a team whose goal is justice, a team whose captain is the judge.
The judge, 'like the conductor of a choir, must, by force of personality,
induce his team to work in harmony; subdue the raucous. encourage the
timid, conspire with the young, flatter the old".
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89 Mr. Amin, thereafter, invited my attention to the observations of
the Supreme Court in the case of Zahira Habibulla H. Sheikh vs. State
of Gujarat [2004 (4) SCC 158]. I may quote the observations as under:
“The Courts have to take a participatory role in a trial. They are not
expected to be tape recorders to record whatever is being stated by the
witnesses. Section 311 of the Code and Section 165 of the Evidence Act
confer vast and wide powers on Presiding Officers of Court to elicit all
necessary materials by playing an active role in the evidence collecting
process. They have to monitor proceedings in aid of justice in a manner
that something, which is not relevant, is not unnecessarily brought into
record. Even if the prosecutor is remiss in some ways, it can control the
proceedings effectively so that ultimate objective i.e. truth is arrived at.
This becomes more necessary where the Court has reasons to believe that
the prosecuting agency or the prosecutor is not acting in the requisite
manner.   The   Courts   cannot   afford   to   be   wishfully   or   pretend   to   be
blissfully ignorant or oblivious to such serious pitfalls or dereliction of
duty on the part of the prosecuting agency. The prosecutor who does not
act fairly and acts more like a counsel for the defence is a liability to the
fair judicial system, and Courts could not also play into the hands to such
prosecuting agency showing indifference or adopting an attitude of total
aloofness.”
90 Mr. Amin also placed reliance on a Kerala High Court decision in
the case of  Kuriland (P) Ltd vs. P.J. Thomas [2009 Criminal Law
Journal 763].  In this decision, a learned Single Judge of the Kerala
High Court considered the distinction between Section 91 of the Code
and Sections 131, 139 and 165 of the Evidence Act. It was argued
before the Kerala High Court that in exercise of power under Section
165 of the Evidence Act, a summon cannot be issued to the accused or
to an agent of the accused to produce a document. The learned Judge
held   that   mere   production   of   a   document   without   compelling   the
accused   to   be   a   witness   as   such   would   not   amount   to   testimonial
compulsion within the meaning of Article 20(3) of the Constitution,
even if it was assumed that the direction to the Accountant of the
accused­company to attend and produce the document would amount
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to a direction to the accused to produce the document, because they
were actually, in law, deemed to be in custody of the document. Mr.
Amin submitted that applying the same principle, the accused can be
asked in the course of the trial to give his voice sample for the purpose
of the Voice Spectrography Test. The observations of the learned Single
Judge are as under:
“12. There is a substantial difference between the power exercisable by a
court under S. 91 of the Code and Section 165 of the Evidence Act. There
is   a   difference   in   the   terminology   as   well.   Section   91   of   the   Code
comprehends even a police officer. Section 165 of the Evidence Act is a
power which is exercisable only by a court. An analogy from Shyamlal
(AIR 1965 SC 1251) : (1965 (2) Cri LJ 256)  would  therefore  be
inappropriate in considering the scope of Section 165 of the Evidence Act,
he contends.
13. The first and foremost issue to be considered in the context of the
contentions raised by the parties is whether, even if a direction issued by
the   court   is   construed   as   a   direction   to   the   accused   to   produce   the
document,   whether   the   same   by   itself   will   amount   to   testimonial
compulsion   prohibited   under   Article   20(3)   of   the   Constitution.   The
concept of testimonial compulsion is relatable to the protection given to
an accused from being a witness against himself. The larger Bench of the
Supreme Court in  Kathi Kalu (1961 (2) Cri LJ 856)  considered this
aspect elaborately. One of the aspects considered by the larger bench was
the correctness of the reasoning given by the Supreme Court in an earlier
judgment in M. P. Sharma v. Sathish Chandra, District Magistrate,
Delhi [AIR 1954 SC 300 : (1954 Cri LJ 865)]. The scope and ambit of
Article 20(3) of the Constitution was considered by the Supreme Court in
M. P. Sharma (AIR 1954 SC 300) : (1954 Cri LJ 865) and the same
merits reproduction :
"Broadly   stated   the   guarantee   in   Article   20   (3)   is   against
"testimonial compulsion". It is suggested that this is confined to the
oral evidence of a person standing his trial for an offence when
called to the witness­stand. We can see no reason to confine the
content   of   the   constitutional   guarantee   to   this   barely   literal
import.   So   to   limit   it   would   be   to   rob   the   guarantee   of   its
substantial purpose and to miss the substance for the sound as
stated in certain American decisions. The phrase used in Article
20(3) is "to be a witness". A person can "be a witness" not merely
by   giving   oral   evidence   but   also   by   producing   documents   or
making intelligible gestures as in the case of a dumb witness (see
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Section 119 of the Evidence Act) or the like". "To be a witness" is
nothing more than "to furnish evidence", and such evidence can be
furnished through the lips or by production of a thing or of a
document or in other modes. So far as production of documents is
concerned, no doubt, Section 139 of the Evidence Act says that a
person producing a document on summons is not a witness. But
that Section is meant to regulate the right of cross­examination. It
is not a guide to the connotation of the word "witness", which must
be understood in its natural sense, i.e., as referring to a person
who furnishes evidence. Indeed, every positive volitional act which
furnishes   evidence   is   testimony,   and   testimonial   compulsion
connotes   coercion   which   procures   the   positive   volitional
evidentiary acts of the person, as opposed to the negative attitude
of silence or submission on his part. Nor is there any reason to
think that the protection in respect of the evidence so procured is
confined to what transpires at the trial in the Court room. The
phrase used in Article 20(3) is "to be a witness" and not to "appear
as a witness": It follows that the protection afforded to an accused
in so far as it is related to the phrase "to be a witness" is not
merely in respect of testimonial compulsion in the Court room, but
may well extend to compelled testimony previously obtained from
him. It is available therefore to a person against whom a formal
accusation   relating   to   the   commission   of   an   offence   has   been
levelled  which  in the normal  course  may  result in prosecution.
Whether it is available to other persons in other situations does
not call for decision in this case."
14. The court then went on to find that the guarantee against testimonial
compulsion is also extended to a statement in writing which incriminated
a witness when figuring as an accused person. In the words of the court
"put a witness" means "to furnish evidence". After referring to the said
view taken by the Supreme Court in M. P. Sharma [AIR 1954 SC 300 :
(1954 Cri LJ 865)],  the Larger Bench said that the substantial view
taken by the court earlier seems to be correct, but went on to find in
paragraph 11 of the judgment as follows :
"The matter may be looked at from another point of view. The
giving   of   finger   impression   or   of   specimen   signature   or   of
handwriting, strictly speaking, is not "to be a witness." "To be a
witness" means imparting knowledge in respect of relevant facts,
by means of oral statements or statements in writing by a person
who has personal knowledge of the facts to be communicated to a
court or to a person holding an enquiry or investigation. A person
is said 'to be a witness' to a certain state of facts which has to be
determined   by   a   court   or   authority   authorised   to   come   to   a
decision, by testifying to what he has seen, or something he has
heard which is capable of being heard and is not hit by the rule
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excluding hearsay, or giving his opinion, as an expert, in respect of
matters in controversy. Evidence has been classified by text writers
into   three   categories,   namely   (1)   oral   testimony;   (2)   evidence
furnished   by   documents   and   (3)   material   evidence.   We   have
already indicated that we are in agreement with the Full Court
decision in  Sharma's case, 1954 SCR 1077 : (AIR 1954 SC
300) : (1954 Cri LJ 865) that the prohibition in Clause (3) of
Article 20 covers not only oral testimony given by a person accused
of an offence, but also his written statements which may have a
bearing on the controversy with reference to the charge against
him. The accused may have documentary evidence in his possession
which may throw some light on the controversy. If it is a document
which   is   not   his   statement   conveying   his   personal   knowledge
relating to the charge against him, he may be called upon by the
Court to produce that document in accordance with the provisions
of Section 139 of the Evidence Act, which, in terms, provides that a
person may be summoned to produce a document in his possession
or power and that he does not become a witness by the mere fact
that   he   has   produced   it;   and   therefore,   he   cannot   be   crossexamined.
Of course, he can be cross­examined if he is called as a
witness   who   has   made   statements   conveying   his   personal
knowledge by reference to the contents of the document or if he has
given his statements in Court otherwise than by reference to the
contents   of   the   documents.   In   our   opinion,   therefore,   the
observation of this court in Sharma's case, 1954 SCR 1077 : [AIR
1954   SC   300]   :   (1954   Cri   LJ   865)  that   Section   139   of   the
Evidence   Act   has   no   bearing   on   the   connotation   of   the   word
'witness' is not entirely well­founded in law. It is well established
that Clause (3) of Article 20 is directed against self­incrimination
by an  accused  person.  Self­incrimination  must  mean   conveying
information  based upon the personal  knowledge of the persons
giving the information and cannot include merely the mechanical
process of producing documents in court which may throw a light
on any of the points in controversy, but which do not contain any
statement of the accused based on his personal knowledge."
15. In effect, therefore, the Larger Bench of the Supreme Court specifically
referred to the Section to hold that a person summoned to court does not
become a witness by the mere fact that he produces a document  and
cannot be examined or cross­examined unless and until he is called as a
witness. Therefore, if the accused is called upon to produce a document, he
does not become a witness by reason of the same. Obviously, the accused
cannot be compelled to testify against himself, and therefore, the order
passed by the court directing the accused to produce a document does not
by   reason   of   the   said   order   impute   the   status   of   a   witness   and
consequently,   mere   production   of   the   document   will   not   amount   to
testimonial   compulsion   within   the   meaning   of   Article   20(3)   of   the
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Constitution. The conclusions of the larger bench in paragraph 16 of the
judgment is relevant and with respect, merits reproduction :
"'To be a witness' is not equivalent to 'furnishing evidence' in its
widest significance, that is to say, as including not merely making
of oral or written statements, but also production of documents or
giving materials which may be relevant at a trial to determine the
guilt or innocence of the accused."
16. Once this position is accepted, mere production of a document without
compelling   the   accused   to   be   a   witness   as   such,   will   not   amount   to
testimonial   compulsion   within   the   meaning   of   Article   20(3)   of   the
Constitution, even if it is assumed that the direction to the Accountant of
the 1st accused company to attend and produce the documents would
amount to a direction to the accused to produce the documents because
they are actually, in law, deemed to be in custody of the documents. The
direction to the Accountant to produce the documents by itself cannot be
considered as illegal. 
17. This brings me to the next question urged by the learned counsel for
the petitioner. The power available to the court to summon the witnesses
in criminal proceedings is expressly conferred by Section 91 of the Code
and Section 91 of the Code has been construed as excluding an accused
therefrom  {State of Gujarat v. Shyamlal [AIR 1965 SC 1251]} :
(1965   (2)   Cri   LJ   256).   It   is   true   that   the   Supreme   Court   has   in
Shyamlal's case considered the scope of Section 94(1) of Code of Criminal
Procedure, 1898 [in pari materia with Section 91 of the present Code]
and has held that Section 94 should exclude the accused from its purview.
With utmost respect, to an extent, the view taken by the Supreme Court in
the   latter   decision,  would   be  inconsistent  with  the  view  taken   in the
judgment of the majority of the Judges in State of Gujarat v. Shyamlal
{AIR 1965 SC 1251} : (1965 (2) Cri LJ 256)  and to that limited
extent,  there is a conflict, as has been held by the Supreme Court in
V.S.Kuttan Pillai v. Ramakrishnan {1980 (1) SCC 264} : (1980 Cri
LJ 196). Assuming that there is such a conflict, this court is obviously
bound by the view taken by the larger bench in State of Bombay v. Kathi
Kalu {AIR 1961 SC 1808} : (1961 (2) Cri LJ 856) which was decided
by a bench consisting of 11 learned Judges whereas the latter decision was
by   a   Constitution   Bench   of   5   Judges.   Further,   even   if   Section   91   is
considered as excluding the accused from the purview as such, the present
direction is only to the Accountant and not to the accused as such.
18.  Mr. Santhosh  then referred to the judgment  of the Bombay High
Court in State of Maharashtra v. Nagpur E.L. and P. Co. {AIR 1961
Bombay 242}: (1961 (2) Cri LJ 200) to contend for the position that
summons to an employee of an accused to produce a document will have
to be treated  as summons  to the accused  himself  and  such  summons
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would , therefore, be comprehended by the bar of testimonial compulsion
under Article 20(3) of the Constitution. No doubt, the Division Bench
judgment supports this contention. But with respect, I am unable to agree
with   the   said   reasoning   for   more   than   one   reason.   Firstly,   mere
production of a document itself has been construed as not amounting to
testimonial   compulsion   under   Article   20(3)   of   the   Constitution   and
secondly, if an Accountant of a Company, by himself is not an accused in
a criminal proceedings, but he is only cited as a witness, there is nothing
in Article 20(3) of the Constitution or Section 91 of the Code or any other
provision of law which would entitle him to claim a privilege of being an
accused   or   for   that   matter   be   burdened   with   the   responsibility   of
defending  himself in a criminal  case. After all,  the protection  against
testimonial compulsion is a fundamental right adumbrated in Part III of
the Constitution and it operates qua a person who is identifiable in the
context of his specific status that is attributed to him viz., that he is an
accused in a criminal proceedings. A company is a juristic entity, and an
employee  in a company  would  not  be an accused  merely  because the
company is an accused. The employee may be responsible for the conduct
of the affairs of the company. But obviously, he cannot be imputed with
the status of an accused unless he is arrayed as an accused in a criminal
proceedings. Therefore, the fundamental right which could be claimed by
an   individual   or   even   by   an   incorporeal   person   like   an   incorporated
company always operates as a shield qua an accused person and this is
specifically attributable to the status of the person as an accused in the
criminal proceedings as such. In such circumstances, the direction to the
Accountant of an accused company to produce the documents which are
stated to be in his custody would not be comprehended by Article 20(3) of
the Constitution. I am afraid, I am unable to agree with the Division
Bench of the Bombay High Court in this regard. 
19. Sri. Santhosh then contended that essentially the direction issued by
the court to the Accountant of the Company to produce the documents
will have to be treated as unenforceable firstly because the documents
should be deemed, under law, to be in the custody of the company or at
least the Directors of the company, who are responsible for the conduct of
the affairs of the company viz., accused 2 to 13 that such persons would
be, in law, entitled to refuse to hand over the documents; and in such
circumstances the order issued by the court would be in contravention of
Section 131 of the Act, which reads as follows :
"Production   of   documents   or   electronic   records   which   another
person, having possession, could refuse to produce : No one shall
be compelled to produce documents in his possession or electronic
records   under   his   control,   which   any   other   person   would   be
entitled  to refuse  to produce  if they were  in his possession,  or
control,   unless   such   last­mentioned   person   consents   to   their
production."
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20. The submission would rest on the premise that the Accountant, any
way, will have to ask the Managing Director or other Directors of the first
accused company and they are entitled to refuse to produce the same,
inasmuch as they are entitled to take up the stand that production of the
documents, as such, would amount to testimonial compulsion as far as
they are concerned. I am not inclined to accept this submission for more
than one reason. Firstly, the question as to whether the witness will be in
a position to produce the document as such when he is summoned to
attend the court is not really a matter which arises for consideration at
this stage. But it is open to the Accountant, as a witness to come and say
that he is not  in possession of the document  and the accused  are in
possession of the same. It is open to him to come to the court and say that
he is not in possession of the document and the accused have taken the
stand that they cannot be compelled to produce the document before the
court. If that be the stand taken by the accused and here I am really
speculating as to what could be the stand taken by the witness in this
regard;   is   the   court   powerless   to   direct   the   accused   to   produce   the
document as such? The question of inability of the witness shall be dealt
with at the next stage. But, with regard to the question as to whether it
will be competent for the court to direct the production of the document, I
am   inclined   to   answer   in   the   affirmative.   If   mere   production   of   the
documents by itself does not amount to testimonial compulsion, as has
been held by the Larger  Bench  in  Kathi Kalu's case {AIR 1961 SC
1808} : (1961 (2) Cri LJ 856), then the latter part of Section 131 of
the Evidence Act cannot be cited as a reason to stultify what otherwise
would legitimately be possible for the court. The latter part of Section 131
would be applicable to a person who is legitimately entitled to refuse to
produce the document in court as such.
21.  This possibly would apply in the case of a person who would be
entitled  to   claim   a  privilege   in  terms   of  Sections   121   to   131   of  the
Evidence   Act.   No   doubt,   the   right   of   the   accused   against   testimonial
compulsion under Article 20(3) of the Constitution is a greater right, in
content, then the right of a person, who is entitled to claim privilege. But
in circumstances where mere production will not amount to testimonial
compulsion, it may not be open to the accused to resist a direction to a
witness to attend  the court  and produce the documents  and say that
Section 131 stands in the way of the court in summoning the witness and
requiring the production of the document. 
22. It takes me to the next aspect regarding the power of the court to issue
a direction to the accused to produce the document as such. Sri. Santhosh
points out in  State of Gujarat v. Shyamlal {AIR 1965 SC 1251} :
(1965 (2) Cri LJ 256), the Supreme Court has construed Section 91 of
the Code as an exclusive source of power to summon the accused and sans
Section 91 of the Code, there is no provision in the Code which enables
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the court to summon a document to be produced by a party as such.”
91 Mr. Amin, by placing reliance on the Kerala High Court decision
noted above, submitted that there is nothing in Section 165 of the Act,
on an  ex­facie  reading, as to necessarily suggest the exclusion of an
accused from its purview. He submitted that a direction to give a voice
sample could be issued under Section 165 of the Evidence Act if the trial
Judge is of the opinion that voice sample is necessary to discover the
relevant facts. Mr. Amin placed reliance on the following observations
made by the learned Judge as contained in para 23:
“23. Sri. John, on the other hand, submits that Section 91 may have been
construed as excluding an accused, but there are still powers available to
the court under Section 165 of the Evidence Act to issue summons to any
party   for   production   of   a   document.   I   am   inclined   to   accept   the
submission made by Sri. John in this regard. There is nothing in Section
165 of the Act, on an ex facie reading, as to necessarily suggest exclusion
of an accused from its purview.  But, it is obvious that a direction to
produce a document could be issued under Section 165 of the Act only if
the   Judge   is   of   the   opinion   that   the   production   of   the   document   is
necessary to discover the relevant facts and such opinion could be arrived
at by the Judge by reference to the materials already on record. I may also
hasten to make it clear that if the Judge is called upon to direct the
accused to produce the document by invoking the power under Section
165 of the Evidence Act, it is always open to the accused, even at that
stage, to raise a contention that the document the production of which is
sought   for,   would   be   self­incriminatory   and   in   that   circumstance   the
production of the document will amount to testimonial compulsion within
the meaning of Article 20(3) of the Constitution. In such circumstances, it
is open to the court to pass a reasoned order by invoking the power under
Section 165 of the Act. But, this safeguard which the court will have to
adopt, is no reason to adopt an interpretation that Section 165 of the
Evidence   Act   should   be   construed   as   to   exclude   an   accused   from   its
purview.”
92 The powers vested under Section  165 of the Act, in the trial
Courts has been explained by the Supreme Court in the case of Ritesh
Tiwari vs. State of U.P. [2010 (10) SCC 677] in the following words:
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“37...It is an extraordinary power conferred upon the court to elicit the
truth and to act in the interest of justice. A wide discretion has been
conferred on the court to act as the exigencies of justice require. Thus, in
order to discover or obtain proper proof of the relevant facts, the court
can ask the question to the parties concerned at any time and in any
form. "Every trial is voyage of discovery in which truth is the quest".
Therefore, power is to be exercised with an object to subserve the cause of
justice and public interest, and for 1 getting the evidence in aid of a just
decision and to uphold the truth...”
93 The legislative philosophy behind Section 165 of the Act has been
succinctly   explained   by   J.R.   Midha,   J,   in   the   case   of  Sky   Land
International Pvt Ltd vs. Kavita Lalwani, RFA 697 of 2010 decided by
the Delhi High Court on 25th May 2012 in the following words:
“26.21...... Section 165 casts a duty on the Judge to discover truth to do
complete justice and empowers him to summon and examine or recall and
re­examine any such person if his evidence appears to be essential to the
just decision of the case. The Judge has to play an active role to discover
the truth. He is expected, and indeed it is his duty, to explore all avenues
open to him in order to discover the truth and, to that end, question
witnesses   on   points   which   the   lawyers   for   the   parties   have   either
overlooked or left obscure or willfully avoided. The Court can also invoke
Section 30 of the Code of Civil Procedure to ascertain the truth.”
94 Section 165 of the Act is intended to arm the Judge with the most
extensive power possible for the purpose of getting at the truth. The
effect of this section is that in order to get to the bottom of the matter
before it, the Court will be able to look at and inquire into every fact
whatever. Each party in a case is interested in setting­up his own case
and demolishing the one set­up by his adversary. There is danger in
some cases that the whole truth would not come out before the Court.
The Judge, in order to discover, or to obtain proper proof and the
relevant facts, may exercise very wide powers indeed; but they all pivot
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upon the ascertainment of the relevant facts. The Court may approach
the cases from any point of view, and is not tied down to the ruts
marked  out  by  the   parties.  The   Court  can  ask  (i)   any  question   he
pleases; (2) in any form; (3) at any time; (4) of any witness; (5) or of
the party; (6) about any fact relevant or irrelevant. No party is entitled
to object to any such question or order, or to cross­examine the witness
without the leave of the Court. Therefore, under Section 165 of the
Evidence Act, the Court has a right to ask the parties even relevant or
irrelevant questions and the party or their counsel cannot raise any
objection to any such question. But out of the evidence so brought out,
the Judge can only use that which is relevant and duly proved. There
are three exceptions to the very wide powers given to the Judge. The
witness cannot be compelled to include (i) any question or to produce
any document contrary to Sections 121 to 131; or (ii) any question
contrary to Section 148 or 149; and (3) the Judge shall not dispense
that the primary evidence of any document, except as provided before. 
95 The object underlying the provisions of Section 165 of the Act is
that if a Criminal Court is to be an effective instrument in dispensing
justice, the Presiding Judge must cease to be a spectator and a mere
recording   machine   by   becoming   a   participant   in   the   trial   evincing
intelligent active interest and elicit all relevant materials necessary for
reaching the correct conclusion, to find out the truth and administer
justice with fairness and impartiality both to the parties and to the
community it serves. Section 165 of the Evidence Act confers vast and
wide   powers   on   Presiding   Officer   of   Court   to   elicit   all   necessary
materials by playing an active role in the evidence collecting process,
but the question is whether such vast and wide powers would include
the power to call upon the accused and ask him to give his voice sample
for   the   purpose   of   the   Voice   Spectrography   Test.   The   answer   is
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emphatic “No”. If it would have been so easy for a Judge to do so, then
there was no need for the Supreme Court as well as this Court to
undertake this laborious exercise as regards the Voice Spectrography
Test of an accused. When there is no provision in law for collecting
voice sample of an accused for the purpose of the Voice Spectrography
Test, then how can the Judge, in exercise of his power under Section
165 of the Evidence Act, ask the accused to give such voice sample. The
words, “may order the production of any document of thing”, by any
stretch of imagination, cannot be construed as one conferring power
upon a Judge to ask the accused to give his voice sample. 
96 The  decision  of  the  Kerala High  Court  referred to above  and
relied upon by Mr. Amin takes the view that Section 91 of the Code may
exclude   an   accused,   but   there   are   still   powers   to   the   Court   under
Section 165 of the Evidence Act to issue summons to any party for
production of a document and that would include an accused or an
agent of the accused. I find it extremely difficult to subscribe to the view
taken by the Kerala High Court that Section 165 of the Act would apply
even to an accused. Section 165 of the Act, like Section 73 of the Act is
one of those sections where wide powers are given to the Court with the
obvious object of enabling the Court to find out the truth to do complete
justice between the two parties, but like Section 73 of the Act, Section
165 of the Evidence Act cannot be considered an instrument or a device
to be used for the advancement of any party either prosecution or the
accused.   To   put   the   provisions   of   Section   165   of   the   Act   for   such
purpose, then such use or purpose is wholly unjustified. Thus, in my
view, Section 165 of the Evidence Act will have no application so far as
the issue at hand is concerned. 
97 I could lay my hands on a decision of the Supreme Court in the
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case of Pritam Singh and another vs. State of Punjab [AIR 1956 SC
415] throwing some light on this issue. In the said case, the appellants
were   convicted   and   sentenced   to   death   by   the   Additional   Sessions
Judge, Amritsar, and confirmed by the High Court of Punjab at Simla.
The prosecution relied upon track evidence. The argument before the
Supreme Court was that the track evidence was quite unsatisfactory and
should not have been relied upon by the Court below. The Supreme
Court noticed that the shoes found in the search at the house of one of
the co­accused had not been established to belong to him and in the
absence of any satisfactory evidence as to their ownership in comparing
of the impression made by those shoes with the moulds prepared from
the footprints on the spot could not establish the identity of  Pritam
Singh as one of the culprits. The shoes had been recovered in the search
of the house of the accused and the result of the search was proved by
calling the search witnesses whose evidence was believed by both the
Courts with the result that those shoes, having been recovered from the
house   of   the   accused,   the   ownership   of   the   shoes   was  prima   facie
established. The learned trial Judge, however, in order to derive further
assurance attempted, in the examination of the accused under Section
342, Criminal Procedure Code (new Section 313 Cr.P.C.) to see if those
shoes which had been recovered from the house of the accused fitted his
feet. The Supreme Court took the view that the Court could not have
done so. I may quote the observations as under:
“The   learned   Additional   Sessions   Judge,   however,   in   order   to   derive
further assurance attempted, in the examination of the accused under
Section 342. Criminal P. C. to see if these shoes which had been recovered
from the house of the accused fitted his feet. If the accused had refused to
accede  to this suggestion  of  the  learned  Additional  Sessions  Judge  he
would have been justified in doing so and there is no provision in law by
which this demonstration could have been made.”

98 Thus, having viewed the matter from all possible angles, I find it
extremely difficulty to take the view that by virtue of the provisions of
the Act, 1920, Section 53 of the Cr.P.C. and Sections 73 and 165 of the
Evidence Act, an accused can be compelled or asked to give his voice
sample for the purpose of Voice Spectrography Test. I have explained in
details the importance of the Voice Spectrography Test, and therefore, it
is now for the Parliament to look into this issue and effect the necessary
amendment in both, the Act, 1920 as well as in the Code of Criminal
Procedure. 
99 Let me invite the attention of the State Government to Section 8
of the Act, 1920. Section 8 of the Act, 1920 reads as under:
“8. Power to make rules
(1) The State Government may [by notification in the Official Gazette,]
make rules for the purpose of carrying into effect the provisions of this
Act.
(2) In particular and without prejudice to the generality of the foregoing
provision, such rules may provide for ­
(a) restrictions on the taking  of photographs  of persons under
Section 5;
(b) the places at which measurements and photographs may be
taken;
(c) the nature of the measurements that may be taken;
(d) the method in which any class or classes of measurements shall
be taken;
(e) the dress to be worn by a person when being photographed
under Section 3; and
(f)   the   preservation,   safe   custody,   destruction   and   disposal   of
records of measurements and photographs.

[(3) Every rule made under this section shall be laid, as soon as may be
after it is made, before the State legislature.]”
100 Section 8 of the Act, 1920 empowers the State Government
to frame rules which would include the nature of the measurements
that   may  be   taken.  The   State   Government  should  consider   framing
appropriate rules in this regard and explore the possibility of including
voice   sample   as   one   of   the   measurements   that   can   be   done   of   an
accused in the course of the investigation. The State Government should
consider this at the earliest. 
101 My conclusions are as under:
[a] The   Voice   Spectrography   Test   does   not   fall   within   the
ambit of a psychiatric treatment. The Voice Spectrography Test is
in no manner violative of Article 20(3) of the Constitution of
India.
[b] However,   in   the   absence   of   any   specific   provision
empowering   the   police   officer   or   the   Court   in   law,   it   is   not
permissible to subject an accused to the Voice Spectrography Test.
102 With the above, this writ application is disposed of. 
103 The   Registry   is   directed   to   forward   one   copy   each   of   this
judgment to the Law Secretary, Legal Department, Union of India, New
Delhi   and   the   Law   Secretary,   Legal   Department,   State   of   Gujarat,
Gandhinagar.
(J.B.PARDIWALA, J.)
chandresh

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