IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.157 OF 2004 Central Bureau of Investigation, Thru’ U.K.Goswami, Dy.S.P., C.B.I., NEW DELHI. ...Petitioner Versus 1.Abdul Karim Ladsab Telgi (A-23), (Presently lodged in Central Jail, Bangalore, Karnataka) 2.Manoj Ramesh Mehta (A-43) 3.Dilip Pandurang Kamath (A-44) 4.Anil Umrao Gote (A-45) 5.Abdul Azim Ladsab Telgi (A-46) 6.Abdul Rashid Sikandersab Kulkarni (A-49) (Respondents Nos.2 to 6 are presently lodged in Yerwada Central Prison, Pune). 7.State of Maharashtra ...Respondents ...... Mr.V.T.Tulpule with Mr.R.B.Thakare and Mr.A.M.Chimalkar for Petitioner. Mr.Harshad Nimbalkar for Respondent No.1. Mr.P.M.Pradhan for Respondents 2, 3, 5 & 6. Mr.A.P.Mundargi for Respondent No.4. Mr.D.R.More, A.P.P. for Respondent No.7. ....... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. OCTOBER 12, 2004. OCTOBER 12, 2004. OCTOBER 12, 2004. : 2 : ORAL ORDER : ORAL ORDER : ORAL ORDER : 1. Heard Counsel for the parties. 2. Rule. Rule made returnable forthwith, by consent. Mr.Nimbalkar waives notice for Respondent No.1. Mr.Pradhan waives notice for Respondents 2, 3, 5 & 6. Mr.Mundargi waives notice for Respondent No.4. Mr.More, A.P.P. waives notice for Respondent No.7. 3. As short question is involved, the matter is taken up for final disposal forthwith, by consent. 4. This Petition under Section 482 of the Code of Criminal Procedure, 1973 read with Article 227 of the Constitution of India takes exception to the order passed by the Special Judge under Maharashtra Control of Organised Crimes Act, 1999, Pune, dated December 12, 2003 below Exhibit 156 in Special Case No.2 of 2003. The State of Maharashtra, through Superintendent of Police, : 3 : S.I.T. Pune, had filed application before the Special Judge, being Exhibit 156, praying that they may be permitted to record the voice samples of the Respondents 1 to 6 herein in the jail premises itself, where the said Respondents were lodged and further direct the said Respondents to co-operate in that behalf. The Respondents 1 to 6 have been named as accused Nos.23, 43, 44, 45, 46 and 49 respectively in offence relating to "stamp scam case" registered vide C.R.No.135 of 2002 at Bund-Garden Police Station, Pune. The said application was resisted by the Respondents 1 to 6 herein, and the Special Judge, upon considering the rival submissions, rejected the same by the impugned Judgment and Order. The present Petition takes exception to the said Order. 5. This Petition was initially filed by the State of Maharashtra. However, during the pendency of this Writ Petition, investigation in respect of the said case has been taken over by the Central Bureau of Investigation, pursuant to order passed by the Supreme Court of India. In that backdrop, the Central Bureau of Investigation moved a formal : 4 : application before this Court for transposing them as Petitioner, and for making the State of Maharashtra as party Respondent No.7. The said application was allowed by this Court by consent, consequent to which, the present Petition is now espoused by the Central Bureau of Investigation. 6. Mr.Tulpule appeared for the Petitioner. According to him, the request made in the application was simpliciter to obtain voice sample so as to enable the investigating agency to identify the voice of the concerned accused and compare the same with the tape-recorded conversation which has been made available during the investigation of the case. According to him, the Court below has clearly misdirected itself in rejecting the application for reasons amongst others, that similar request made by Karnataka Police earlier was rejected, as the Court cannot compel the accused for giving a voice sample; that there are voice experts, who can easily concoct or tamper the voice of any person; that accused can also change their voice if they are compelled to give voice sample; that it will be difficult for : 5 : the expert to record the voice sample under compulsion; that the Respondents accused were not ready and willing to give their voice samples to verify the alleged intercepted telephonic conversation between main accused A.K.L. Telgi and the Respondents herein, adverse inference can be drawn that the same intercepted telephonic conversation is between accused A.K.L. Telgi and the Respondents, for which reason, it was not necessary for the prosecution to establish the identity of the voice recorded in the C.Ds. by the scientific and expert evidence obtaining the voice samples of the accused Respondents. Moreover, the Court below has rejected the prayer inspite of the finding that obtaining such voice sample would not amount to testimonial compulsion, as the accused were unwilling to give their voice sample. According to Mr.Tulpule, none of the reasons which have weighed with the Court below are appropriate or can be sustained, while considering the application as was made for the limited purpose of obtaining sample voice for identification of the voice of the concerned accused to be compared with in the intercepted telephonic conversation. He has : 6 : relied on the decision of the Apex Court reported in AIR 1961 SC 1808 in the case of State of Bombay AIR 1961 SC 1808 in the case of State of Bombay AIR 1961 SC 1808 in the case of State of Bombay vs. Kathi Kalu Oghad vs. Kathi Kalu Oghad vs. Kathi Kalu Oghad to support his submission and urged that the relief as prayed in the application preferred before the lower Court, ought to have been granted in its entirety, for requiring the accused to lend their sample voice was in no way different from requiring them to give finger prints, thumb impression, foot prints and the like. 7. Per contra, Mr.Pradhan for the Respondents would contend that there is no provision under any law, which permits grant of such a relief by the Court during the pendency of the trial and in any case, not adverted to in the subject application. It is further contended that requiring the concerned accused to lend his voice sample would amount "to be a witness against himself". On this premiss, it is argued that in such a case, the rigours of Article 20(3) of the Constitution of India will spring into action, as a result of which, the course suggested by the Petitioner cannot be permitted. It is then contended that for the same relief, another application was filed on : 7 : behalf of Assistant Commissioner of Police and Investigating Officer, Stampit, Bangalore, who was investigating into similar offence, allegedly committed by the same accused in the State of Karnataka, and that application was rejected by the same Court, which order has been allowed to become final. Accordingly, it is argued that, it was not open to entertain successive application for the same relief though filed by another investigating agency. He further contends that the stated telephonic conversation has been recorded during the investigation in relation to alleged offence registered in the State of Karnataka and while the main accused was in jail in that State. It is argued that the said recorded cassettes and tape conversation cannot be used in some other case investigated by the Petitioner, which is registered at Pune in Maharashtra. Mr.Pradhan, to buttress his argument, placed reliance on the decision of the Apex Court reported in 1978 SC 1025 in the case 1978 SC 1025 in the case 1978 SC 1025 in the case of Smt.Nandini Satpathy v. P.L.Dani & Anr. and of Smt.Nandini Satpathy v. P.L.Dani & Anr. and of Smt.Nandini Satpathy v. P.L.Dani & Anr. and A.I.R. 1973 SC 1196 in the case of Ramanlal A.I.R. 1973 SC 1196 in the case of Ramanlal A.I.R. 1973 SC 1196 in the case of Ramanlal Bhogilal Shah & Anr. v. D.K.Guha & Ors. Bhogilal Shah & Anr. v. D.K.Guha & Ors. Bhogilal Shah & Anr. v. D.K.Guha & Ors. to contend that directing the Respondents to lend : 8 : their voice sample would amount to testimonial confession, which will be impermissible because of the mandate of Article 20(3) of the Constitution of India. He further relied on the decision of the Kerala High Court reported in 1996 Cri.L.J. 1302 1996 Cri.L.J. 1302 1996 Cri.L.J. 1302 in the case of V.Gopalakrishnan Nayanar & Anr. v. in the case of V.Gopalakrishnan Nayanar & Anr. v. in the case of V.Gopalakrishnan Nayanar & Anr. v. K.V.Sasidharan Nambiar & Anr. K.V.Sasidharan Nambiar & Anr. K.V.Sasidharan Nambiar & Anr. to contend that it is impermissible for the Court to direct the accused to produce any document, and even the provisions of Section 91 of the Criminal Procedure Code, 1973 cannot be pressed into service inspite of the expansive language of the said provision. He submits that on the principles underlying the said decision, even the request of the Petitioner for directing the Respondents to lend their voice samples cannot be accepted, much less, when the Respondents were unwilling to do so. 8. Mr.Nimbalkar for Respondent No.1 adopts the argument of Mr.Pradhan and further submits that even assuming that it is open to the Court to permit collection of voice sample of the accused, even in that case, it will have to be permitted only if the accused voluntarily submitted to such : 9 : examination. He submits that even in the case of recording of confessional statement, as permitted under Section 24 of the Evidence Act, the statement cannot be recorded under duress or by force, but only if the accused was willing to submit to such recording. On the above submissions, Counsel for the Respondents would contend that the present Petition is devoid of merits. 9. Having considered the rival submissions, to my mind, the moot question that needs to be addressed is: whether requiring the accused to lend his voice sample tantamounts "to be a witness against himself"? For, it is only if this Court was to accept the contention canvassed on behalf of the Respondents that lending of voice sample has the trappings of "to be a witness against himself", the Court would lean to hold that compulsory taking of voice sample of the accused is impermissible because of the mandate of Article 20(3) of the Constitution of India. On examining the decisions cited at the Bar as referred to above, to my mind, the question can be straightaway answered by relying on the dictum of the Constitution Bench of : 10 : the Apex Court in the case of State of Bombay vs. State of Bombay vs. State of Bombay vs. Kathi Kalu Oghad (Supra) Kathi Kalu Oghad (Supra) Kathi Kalu Oghad (Supra). The Apex Court in Paragraph 11 of the said decision has observed that a person is said "to be a witness" when he imparts knowledge in respect of relevant facts, by means of oral statements or statements in writing of personal knowledge of the facts to be communicated to a Court or to a person holding an enquiry or investigation. It is further held that a person is 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. In the same Judgment, the Apex Court has observed in Para 10 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. : 11 : In this Judgment, the Apex Court has noted the subtle distinction between the situation where a person can be said to be a witness against himself, attracting the rigours of Article 20(3) of the Constitution of India and the situation such as requiring the accused to furnish evidence only for the limited purpose of ascertainment of his identity. In the latter case, the Apex Court has held that evidence furnished by the accused for his identification such as specimen handwriting or signature or finger impressions are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. Those are only materials for comparison in order to lend assurance to the Court that its inference on other pieces of evidence is reliable. It is further observed that such materials neither fall in the category of documentary evidence or oral evidence, but it is in the nature of material evidence which is outside the limit of "testimony". It is apposite to reproduce the discussion of the Apex Court in Paragraphs 10 to 12 of this decision, which deals : 12 : with this aspect in extenso. The highlighted portion of this extract, in my opinion, would answer the point in issue. The same read thus: "(10) "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 of exposing a part of the body by an accused person for purpose of identification. "Furnishing evidence" in the latter sense could 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 self-incrimination, in the light of the English Law on the subject - they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. 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. Furthermore it must be assumed that the Constitution makers were aware of the existing law, for example, S.73 of the Evidence Act or Ss.5 and 6 of the Identification of Prisoners Act (XXXIII of 1920). Section 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken, if he is satisfied that it is expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure to do : 13 : so : ‘Measurements’ include finger impressions and foot-print impressions. If any such person who is directed by a Magistrate, under S.5 of the Act, to allow his measurements or photographs to be taken resists or refuses to allow the taking of the measurements or photographs, it has been declared lawful by S.6 to use all necessary means to secure the taking of the required measurements or photographs. Similarly S.73 of the Evidence Act authorises the Court to permit the taking of finger impression or a specimen handwriting or signature of a person present in Court, if necessary for the purpose of comparison. (11) 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 fact 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 authorises 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. 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 BCR 1077 : (AIR 1954 SC 300) that the prohibition in cl.(3) of Art,20 covers not only oral testimony given by a person accused of an offence but also his written statements : 14 : 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 S.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 cross-examined 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 1951 SC 800) that S.139 of the Evidence Act has no bearing on the connotation of the word ‘witness’ is not entirely well-founded in law. It is well established that cl.(3) of Art.20 is directed against self-incrimination by an accused person. Self-incrimination 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. 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. When an accused person : 15 : is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a ‘personal testimony’. The giving of a ‘personal testimony’ must depend upon his volition. he can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, inspite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. This, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression ‘to be a witness’. (12) In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of ‘testimony’." (emphasis supplied) : 16 : . It will be appropriate to refer even to Paragraph 16 of this decision, which articulates the conclusion of the Court, which reads thus: "(16) In view of these consideration, we have come to the following conclusions :- (1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement. (2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not ‘compulsion’. (3) ‘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. (4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showings parts of the : 17 : body by way of identification are not included in the expression ‘to be a witness’. (5) ‘To be a witness’ means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise. (6) ‘To be a witness’ in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing. (7) To bring the statement in question within the prohibition of Art.20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made". (emphasis supplied) 10. It is relevant to point out that although the minority Judgment has assigned separate reasons, but has agreed with the conclusion reached by the majority that furnishing of such evidence will not infringe Article 20(3) of the Constitution of India, as can be discerned from the exposition in Paragraph 35 of the same decision. : 18 : 11. Indubitably, requiring the accused to lend his voice sample for the limited purpose of identification of his voice so as to compare the same with the tape-recorded telephonic conversation, is neither requiring him to impart knowledge in respect of relevant facts, by means of oral statements or statements in writing of his personal knowledge of the facts to be communicated to a Court or to a person holding an enquiry or investigation. Besides, the accused will not be called upon to state on any of the state of facts which will have to be determined by a Court or authority authorised to came to a decision, by testifying to what he has seen, or something he has heard, which