ORAL JUDGMENT
1. Since common question of law raised in these two petitions, they are taken up for hearing together and being disposed of by this common judgment.
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Facts of Criminal Revision Application No. 157 of 2021
2. By way of this revision application, the petitioner - accused challenges a judgment and order dated 09.02.2021 passed by the Special Court (ACB) & 3rdAdditional Sessions Judge, Gandhinagar, rendered in Criminal Misc. Application No.1317 of 2020, whereby application filed by the prosecution requesting the concerned Court directing petitioner to give his voice sample before competent Officer of Forensic Science Laboratory (for short "FSL"), Gandhinagar, as it is required for the purpose of voice spectrography, as during the course of investigation, recorded conversation, in between the petitioner - accused and the first-informant, is found and sent to the FSL for comparison thereof, whereas request made by Investigating Officer to give the same voluntarily is refused in writing.
Facts of Criminal Revision Application No. 960 of 2022
3. By way of this revision application, the petitioner therein challenges an order passed by the Special Judge (A.C.B.) dated 21.05.2022 rendered in Criminal Misc. Application (S) No. 66 of 2022 directing the petitioner - accused to remain present before the Investigating Officer to give his voice samples for spectrograph test. The petitioner -
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accused is prosecuted for an offence under Sections 7, 13(1)
(d) and 13(2) of the Prevention of Corruption Act, 1988.
4. Mr. Vicky B. Mehta, learned advocate for the petitioner - accused, submitted that for the offence committed on 08.02.2021, First Information Report came to be filed on 09.02.2021 against the petitioner - accused. Pursuant to the FIR filed by Ashishbhai Rameshbhai Patel, petitioner - accused is charge-sheeted long back i.e. on 07.04.2021. Therefore, the application praying for voice sample of the petitioner - accused came to be filed by the In-charge Police Inspector, Anand A.C.B. Police station, Anand, on 20.04.2022, i.e. after about a year of the charge-sheet being filed, given at a belated stage to fill up the lacuna in the investigation and it should not be permitted, as investigation is already concluded or else it may amount to further investigation.
4.1 So far as other ground is concerned, the conversation in between the petitioner - accused as also the first-informant in respect of demand of illegal gratification prior to filing of the FIR and during the trap proceeding also, it is recorded, which is sent to the FSL, Gandhinagar as muddamal. Pursuant thereto, FSL, Gandhinagar, informed the Investigating
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Officer to have the control voice sample of the first-informant as also the accused and for the purpose, a date was given being 15.03.2022. After receiving said letter from the FSL, Gandhinagar, the In-charge Investigating Officer issued notice to the petitioner - accused requesting him to give his control voice sample by remaining present before the FSL, Gandhinagar. However, the petitioner - accused shown his unwillingness in writing, which constrained the Investigating Officer to request the Court seeking direction upon the petitioner - accused to give his control voice sample by remaining present before the FSL, Gandhinagar. After said application was filed before the Court concerned, notice came to be issued to the accused and after hearing both the sides, the learned Judge by impugned order, directed the petitioner - accused to remain present as and when called by the Investigating Officer, to give his voice sample.
4.2 The contention that since investigation is over before a year to the application filed, no such request could have been made by the Investigating Officer to fill up the lacuna in the prosecution, is required to be rejected outright. So far as conversation in between petitioner - accused as also
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the first-informant, prior to the FIR as also during the course of trap, is already recorded and collected by the Investigating Officer during the course of investigation and it has been sent to the FSL. It is only the requirement of giving control voice sample, which cannot be termed as further investigation, as sought to be suggested by the learned advocate for the petitioner - accused. Investigation is already concluded and the recorded material in between the accused and first- informant, collected and sent to the FSL for the purpose of Voice Spectrography Test.
4.3 Furnishing/submitting control voice sample either by the first-informant or by the accused, subsequent to the filing of the charge-sheet, cannot be said to be a further investigation as contemplated under Section 173(8) of the Code of Criminal Procedure, 1973 (for short "the Code, 1973"). It is only the control voice sample, which is required by the FSL, Gandhinagar, to compare it with the recorded conversation in between the petitioner - accused and the first- informant. Therefore, the contention that order passed by the Magistrate is without jurisdiction because it could not have directed petitioner - accused to remain present for providing
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control voice sample, that too, post submission of charge- sheet. Even if it is to be termed as further investigation, in view of decision of the Supreme Court in the case of Vinubhai Haribhai Malaviya and Ors. Vs. State of Gujarat and Anr.
reported in (2019) 17 SCC 1, Magistrate is empowered to order that before trial commences i.e. charges are framed, that too, on application by the Investigation Officer. Therefore, the said submission is without any merit, and therefore, it is hereby rejected.
4.4 So far as other arguments are concerned, on the permissibility of directing accused to provide his voice sample, learned advocate for the petitioner has submitted that he adopts the arguments advanced by Mr. Tejas Barot, learned advocate for Ms. Rhea Choksi, learned advocate for the petitioner - accused in connected revision application.
5. Heard Mr. Tejas M. Barot, learned advocate for the petitioner. For assailing the impugned order passed by the learned Judge, it is submitted that it is in breach of fundamental right of privacy, and therefore, the impugned order passed by the Magistrate is required to be quashed and set aside.
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5.1 Drawing attention of the Court to a split verdict in the case of Ritesh Sinha Vs. State of Uttar Pradesh & Anr. reported in (2013) 2 SCC 357, he has submitted that despite the amendment made in "the Code, 1973" in the year 2005, an insertion of Section 53-A and substituting explanation to Section 53 of "the Code" also specifically prescribes examination of blood, bloodstains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and fingernail 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. Direction for drawing voice sample on request by the Investigating Authority itself or with the order of the Magistrate, has not been included therein, therefore, it doesn't empower even the Magistrate / Judge to pass such order directing control voice sample to be obtained of the petitioner - accused.
5.2 Drawing attention to Section 5 of the Identification of Prisoners Act, 1920 (for short "the Act, 1920), though Magistrate is empowered, directing any person to allow his measurement or photograph to be taken for the purpose of
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any investigation or proceedings under the Code of Criminal Procedure, 1898, definition of measurements, as defined under Section 2(a) of "the Act, 1920", though inclusive, it defines taking of finger impression and foot print impressions alone. Therefore, he has submitted that the order passed by the learned Judge is erroneous, illegal and requires to be quashed and set aside on that ground also.
5.3 Referring to the decision in the case of Ritesh Sinha Versus State of U.P. & Anr.(2) (hereinafter referred to as Ritesh Sinha-2), by the larger bench reported in (2019) 8 SCC 1, more particularly, para -26 thereof, it is submitted that an order compelling a person to give sample of his voice violates the fundamental right to privacy under Article 20(3) of the Constitution, is interesting and debatable question but not raised before the Supreme Court and therefore, it did not determine the same. Taking further his argument, it is submitted that without the consent of the petitioner - accused or without any authority of law, a judicial order cannot compel a person to give a sample of his voice, otherwise it would violate his right to privacy and the result thereof would amount to compelling the accused to be a witness against himself.
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Referring para - 27 of the said decision, it is submitted that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate is conferred the power to order a person to give sample of his voice for the purpose of investigation of a crime by a process of judicial interpretation and in exercise of jurisdiction vested in Supreme Court under Article 142 of the Constitution.
5.4 Relying on a decision in the case of Prem Chand Garg Vs. Excise Commissioner, U.P. & Anr. reported in
1963 SCR suppl. (1) 885, it is submitted that an order passed under Article 142 of the Constitution of India by the Supreme Court must not only be consistent with the fundamental rights guaranteed under the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws. Taking help of the said decision, it is submitted that Criminal Procedure (Identification) Act, 2022 (for short "the Act, 2022") is enacted with effect from 04.08.2022 repealing "the Act, 1920" vide Section 10 thereof.
5.5 Drawing attention of the Court to the definition of
"measurements" as provided under Section 2(b) of "the Act, 2022", it is submitted that nowhere drawing of a voice sample
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is said to be or included to be a measurement which can be ordered to be taken either by the investigation authority or by the Magistrate, as provided under Section 5 of "the Act, 2022".
Therefore, according to his submission, as provided in the case of Ritesh Sinha-2 (Supra), empowering the Magistrate to direct accused to give his voice sample under the process of judicial interpretation and in exercise of jurisdiction vested under Article 142 of the Constitution, till the explicit provisions are engrafted, the said authority to the Magistrate would work. As soon as explicit provisions are made empowering the judicial magistrate to order a person to give a sample of his voice, when provisions are engrafted in "the Act, 2022" authorizing the Magistrate to exercise the same but not in respect of voice sample, specifically spelled out in the definition of measurements under Section 2(b) of "the Act, 2022", the said direction should be held to be inconsistent with the statutory provisions made and therefore, in view of the decision in the case of Prem Chand Garg (Supra) on an after "the Act, 2022"
having come into force, it ceases to empower the Magistrate to direct a person to give sample of his voice.
5.6 Drawing attention of the Court to the Criminal
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Procedure (Identification) Rules, 2022 (for short "the Rules, 2022"), which have been made effective from 19.9.2022, National Crime Records Bureau (for short "NCRB") is supposed to issue Standard Operating Procedure (for short SOP) for taking measurement as provided under sub Rule (2) of Rule 3 of "the Rules, 2022" and in absence thereof, no measurement in the nature of directing a person to give sample of his voice can be ordered. Which equipments / devices approved under the standard operating procedure and specified to be used for taking measurement is not known to anyone including the petitioner - accused. Therefore, it is submitted that for the purpose of analysis and comparison of voice sample, there has to be some SOP issued by the "NCRB" through specified equipments or devices and therefore, if any other equipments or devices are used, the result obtained therefrom cannot be said to be full proof and therefore, directing petitioner - accused to give sample of his voice would be futile exercise and therefore also, impugned order is required to be quashed and set aside.
5.7 He has further submitted that now since Rules are already framed being "the Rules, 2022", "NCRB" is to issue
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SOP for taking measurement including specifications of the equipments or the devices to be used for taking measurement; specifications and the format, including digital or physical, of the measurement to be taken; method of handling and storage of measurements in the database at the level of State Government or Union Territory Administration in a format compatible with the database of the Bureau; information technology system to be used for taking of measurements, are yet not issued, no voice sample should be ordered to be given by the petitioner - accused. Therefore, it is submitted that even the equipment used and procedure followed in absence of SOP under sub Rule (2) of Rule 3 of the Rules, 2022, result obtained therefrom may not be full proof and therefore, petitioner - accused cannot be directed to provide his sample of voice as directed by the learned Judge.
5.8 Relying on the decision in the case of Ritesh Sinha-2 (Supra), it is submitted that just because Judicial Magistrate is empowered by process of judicial interpretation by the Supreme Court to pass an order directing the accused to give his voice sample, no such powers should have been exercised without assigning reasons. It is further submitted
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that there has to be some justification for passing order. Absence thereof would render the order without any reasons and therefore, it requires to be quashed and set aside.
5.9 Referring to the decision of the Supreme Court in the case of Selvi & Ors. Versus State of Karnataka
reported in (2010) 7 SCC 263, more particularly, para-26 thereof, it is submitted that acceptability of result obtained from comparison of voice sample, using equipments or devices which are available, should be evaluated prior to relying on the same in view of "the Rules, 2022".
5.10 Relying on a decision of the Supreme Court in the case of Sudhir Chaudhary Etc. vs State (NCT Of Delhi)
reported in (2016) 8 SCC 307, it is submitted that process of drawing sample should be fair and reasonable having due regard to the mandate of Article 21 of the Constitution India. Relying on para-4, it is submitted that in that case the appellants were being made to read out inculpatory material drawn from an audio recording of the alleged sting operation and therefore, Supreme Court issued directions for carrying out procedure, in all fairness to the accused and that is to be followed.
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5.11 On the aforesaid submissions, learned advocates for the respective petitioners - accused submitted that the impugned orders passed by the learned Judge are required to be quashed and set aside by allowing these revision applications.
6. As against that, Mr. Utkarsh Sharma, learned Additional Public Prosecutor for the respondent - State submitted that even in absence of any provisions empowering the Magistrate directing accused to provide control voice sample, in view of the decision in the case of Ritesh Sinha-2 (Supra) by judicial interpretation under Article 142 of the Constitution till the provision is made by the Parliament by way of an enactment, Supreme Court has authorized the Judicial Magistrate to pass an order. Therefore, he has submitted that the argument that neither "the Code" nor any of the provisions of law empowers the Magistrate to pass such an order, is not to be accepted. Relying on decision of Ritesh Sinha-2 (Supra), more particularly para-26, he has submitted that once an authoritative pronouncement of the Supreme Court empowers the Magistrate to direct the accused to give sample of his voice, the said order is supported by a decision of the
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Supreme Court and therefore, it cannot be argued that it violates fundamental right to privacy under Article 20(3) of the Constitution of India, as sought to be argued. It is further submitted that the application given by the Police Authority as also the impugned judgment and order refers about need for voice sample of the petitioner - accused as the investigating authority has with it recording of conversation in between the first informant and the petitioner - accused as also conversation recorded during the trap proceedings whereunder the petitioner is arrested, and that material seized during the course of investigation has already been sent to the "FSL" for the purpose of comparison, therefore, when Magistrate recorded that the sample of voice of the petitioner for comparison with the material already seized and sent to "FSL", the said order cannot be found fault with or it cannot be said that it is unreasoned order. Therefore, it is submitted that exercise of the powers by the Magistrate in such set of circumstance, cannot be said to be mechanical. It also cannot be argued that he has passed an order only because he is empowered to do so.
6.1 Drawing attention of the Court to the impugned order, it is submitted that after detailed examination of
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material available with the Court in the form of charge-sheet, decisions cited by the learned advocate for the accused who himself represented him before this Court, detailed order is passed which cannot be found fault with. Dealing with the precedents cited by the learned advocate for the petitioner - accused, it is submitted that apprehension voiced by the learned advocate based on such precedents is too far fetched as petitioner - accused has not submitted to the jurisdiction of the authority to have his sample of voice. Therefore, he has submitted that since these revision applications are not having merit, they are required to be rejected.
7. Having heard the learned advocates for the respective petitioners as also learned Additional Public Prosecutor and going through the impugned orders in respective petitions as also the documents annexed with it and the precedents cited at the bar, it is clear that since there was no provision under the Code empowering the Magistrate to direct the accused for giving sample of his voice for the purpose of comparison, the judgment of the Supreme Court in the case of Ritesh Sinha-2 (Supra) empowered the Judicial Magistrate for the same, until explicit provisions engrafted in
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the Code of Criminal Procedure by the Parliament by process of judicial interpretation in exercise of the judicial interpretation of the Supreme Court under Article 142 of the Constitution. In both these cases, an application is made by the Investigating Officer requesting the Court to direct the accused to give his sample of voice for the purpose of comparison by the FSL, Gandhinagar. In both the cases impugned order is passed prior to "the Act, 2022" brought on the statute book empowering the Magistrate to direct a person to give measurement under Section 5 of "the Act, 2022". Therefore, contention raised by the learned advocate Mr. Barot, relying on the decision in the case of Prem Chand Garg (Supra), to submit that an order which the Supreme Court passed under Article 142 in order to do the complete justice between the parties, must not only be consistent with the fundamental rights guaranteed under the Constitution, but it cannot be even inconsistent with the substantive provisions of the relevant statutory laws, cannot be accepted for the reason that till the statutory law is brought to the book, exercising jurisdiction under Article 142 of the Constitution, the Supreme Court empowered Magistrate in absence of statutory law to direct any person to give his sample of voice. The impugned orders are passed in absence
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of statutory provisions and therefore, the Courts were within their right to follow the decision of the Supreme Court in the case of Ritesh Sinha-2 (Supra) directing the petitioner - accused to give his sample of voice. So far as challenge to the order of Magistrate directing accused to give his voice samples on the ground that it offends Article 20(3) of the Constitution of India is concerned, not only there was unanimity by both the Judge of Supreme Court in Ritesh Sinha-1 (Supra) that it doesn't offend Article 20(3) of the Constitution but larger bench also approved the said view in Ritesh Sinha-2 (Supra).
7.1 Another submission made to the effect that no powers can be exercised simply because Magistrate is empowered to do so but the order must be supported by some reason, is also not convincing in view of the fact that the learned Judge while allowing the application, not only considered the facts of the case, even the decision in the case of Ritesh Sinha-2 (Supra) and para -19 thereof, which refers to earlier judgment of nine-judge bench of Supreme Court in the case of State of Bombay Versus Kathi Kalu Oghad
reported in AIR 1961 SC 1808 and the decision in the case of
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People's Union for Civil Liberties & Anr. Versus Union of India reported in (2004) 9 SCC 580, and decision in the case of Selvi (Supra), cited by the learned advocate represented the petitioner - accused before the learned Judge and that is also referred to by the learned Judge and concluded that directing accused to give his sample of voice would be within the law and ultimately, allowed the application made by the prosecution. Not only that, para -26 & 27 of the judgment in the case of Ritesh Sinha-2 (supra), were also shown to the Court and the later part thereof dealing with the submissions based on right to privacy under Article 20 (3) of the Constitution, noting three Supreme Court's decisions in the cases of Modern Dental College & Research Center V. State of M.P., Gobind V. State of M.P. and the nine-Judge Bench of the Supreme Court in the case of K.S.Puttaswa,y (Privacy-9J.) V. Union of India, expressed that fundamental right to privacy cannot be construed as absolute but it must bow down to compelling public interest. Though the said issue is found to be interesting and debatable, it was not examined in detail by the Supreme Court but an information over the right to privacy flowing from aforesaid three decisions referred therein, Supreme Court has expressly said that fundamental right to
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privacy must give way to compelling public interest. By directing accused to give his sample of voice for the purpose of comparison with the material collected and sent to the FSL during the course of investigation to FSL would be for the purpose of comparison and by that, it cannot be said that accused is compelled to become witness against himself as provided under sub Article (3) of Article 20 of the Constitution. So long as drawing of a voice sample from the accused does not invade his body as a whole by any outer force that it cannot be said that any of the fundamental right of the accused is infringed. With the advancement of technology, if any, scientific data available for the purpose of investigation and bringing to book the real culprit who use even advance technology for the purpose of even committing the offence, to investigate the case in a scientific manner without infringing any of the fundamental right of the accused, directing him to give his sample of voice for the purpose of comparison with conversation in between the first informant and him recorded prior to the first information report as also during the course of trap would be useful to the investigation as also to the Court, if it is produced and proved during the course of evidence being recorded, to be reliable. Submission based on right to privacy,
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of an accused whose liberty is curtailed by due process of law, can be compelled to give his voice sample, as it is not absolute right, but it must bow down to compelling public interest in the larger interest of society.
7.2 Decisions, in the case of Ritesh Sinha-1 and
Ritesh Sinha- 2 (Supra), were on the very same issue whether Article 20(3) of the Constitution which protects a person of an accused of an offence to be compelled to be a witness against himself, protecting such an accused from being compelled to give his voice sample during the course of investigation into an offence?, not only on the said question of law, there was unanimity between both the judges who gave a split verdict, even the decision by larger Bench in Ritesh Sinha- 2 (Supra) has also given its approval to the said finding recorded in the judgment of the Supreme Court in the case of Ritesh Sinha-1 (Supra).
7.3 So far as argument that "the Act, 2022", though empowers the Magistrate to direct a person to give his measurements, the definition "measurements" under Section 2
(b) does not include voice sample when legislature has not included specifically the said examination for which, Magistrate
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is empowered to direct a person to give such measurements, is required to be rejected for the reason that the definition of measurements is inclusive and apart from specifically mentioned finger-impressions, palm-print impressions, foot- print impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examination referred to in section 53 or section 53A of "the Code, 1973", are mentioned therein. Directing a person to give his measurements in the form of sample of voice, it would a physical or material sample of his voice which is included in the definition of measurements. Despite the said method of comparison of voice sample is approved by the Supreme Court for the purpose of investigation even empowering the Magistrate to direct the accused to give that sample even in absence of specific provisions under the law authorizing the Magistrate or authorizing drawing of voice sample, non inclusion of the same specifically in the definition of measurements under Section 2(b) of "the Act, 2022", maybe with a view to include even further development in the law, science and the technology for which there may not be any need to immediately pass a law in future. However, not
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mentioning the same specifically in the definition of measurements cannot be construed that it is excluded by the legislature and therefore, no direction can be issued to any person by the Magistrate to give such sample of voice. At any rate, "the Act, 2022" came to the statute book on 04.08.2022 and these orders are passed by the Magistrate much prior thereto, relying on the decision of Ritesh Sinha (1) and Ritesh Sinha (2) (supra) and therefore, no fault can be found with the impugned orders of the learned Judge.
7.4 Relying on the decision in the case of Sudhir Chaudhary Etc. (supra), Mr. Tejas Barot, learned advocate for the petitioner - accused submitted that process of drawing voice sample should be fair and reasonable, having regard to mandate of Article 21 of the Constitution, but under the said power, accused may not be asked to read out inculpatory recorded conversation in obtaining voice sample; however, there cannot be any dispute with regard to the principle of law enunciated in the aforesaid decision of the Supreme court but the argument is only based on apprehension and the said stage has yet not reached as he has not even obeyed the order of the Magistrate to give his
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sample of voice. In the said case when the accused were ordered to give their voice samples and report to the Police Officer, the Investigating Officer directed them to read out from the paper which according to the accused therein they were asked to read out inculpatory material drawn from an audio recording of the alleged sting operation. In that peculiar facts of the case, the Supreme Court determined the issue before it. However, no such stage has yet reached and therefore, this argument is irrelevant for the present.
7.5 Another submission made based on "the Rules, 2022", more particularly, sub rule 2 of Rule 3 of "the Rules, 2022", making grievance that no such SOP for taking measurements which may include the specifications of the equipments or devices to be used for taking measurements; specification and the format, including digital or physical, of the measurements to be taken, as provided under sub rule
(a) & (b) of Rule 2 of the Rules, 2022 and therefore, even any result drawn from comparison of voice sample of the petitioner - accused would in breach of the Rules and therefore, it cannot be used as evidence. The said argument having no merit in it, requires to be rejected for the reason
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that by enacting "the Act, 2022" and "the Rules, 2022", the Parliament has attempted to streamline keeping pace with the advancement of the technology and the science to make the FSL equipped with all latest gadgets, NCRB is empowered to issue SOP and provide specifications of the equipments or devices etc. However, so long as equipments or devices for comparison of voice sample prior to even promulgating "the Rules, 2022" is available and well existing, recognized drawing of voice sample by the Supreme Court, unless it is shown that any particular equipment or device or method of drawing sample, incorrect result is obtained, it may not be used against the accused. But it can never be said that the prosecution is not well equipped with drawing of voice sample as also the comparison thereof through the equipment or device which is available.
7.6 Another contention, relying on the decision in the case of Selvi and Ors. (Supra), more particularly, para-26 thereof, it is submitted that the Supreme Court of U.S. in the case of Daubert held that the trial Court should have
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evaluated the scientific evidence as per Rule 702 of the Federal Rules of Evidence which mandates an inquiry into the relevance as well as the reliability of the scientific technique in question along with other several considerations, such as whether the theory or technique in question can be and has been tested; whether it has attracted widespread acceptance within the scientific community etc. However, drawing of sample of voice as also comparison thereof with the equipment or device and the result obtained therefrom is unless shown to be lacking in any technique or scientific acceptability, decision of the Supreme Court of U.S. based on their Federal Rules of Evidence provided for such scientific technique, cannot be ipso facto applied in India. At the same time, if there is any doubt in the mind of the accused with regard to the acceptability of the result obtained from equipment or device comparing his sample of voice, he can very well cross examine the expert witness who might opine on such comparison in view of Section 293 of "the Code, 1973"
permitting use of the reports of certain government scientific expert, as evidence in the trial.
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8. At any rate, again it is presumed by the learned advocates that it is not scientifically explicit technique, under which, sample of voice of the accused is sought to be compared, without there being any material on record as also before that stage is reached and therefore, such contention is also required to be rejected.
9. On overall view of the matter, I find no illegality in the orders impugned passed by the learned Judge directing the petitioner - accused to give his sample of voice and therefore, these petitions are devoid of any merit and therefore, they are hereby rejected.
Sd/-
(UMESH A. TRIVEDI, J)
Lalji Desai
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