Whether accused can be compelled to give his voice sample?

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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