1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELATE JURISDICTION CRIMINAL REVISION APPLICATION NO.677 OF 2008 Abhiman Singh S/O Man Bahadur Singh ...Petitioner vs. Central Bureau of Investigation through Superintendent of police, (A.C.B.) Mumbai ...Respondent Mr.P.R.Arjunwadkar with Ms Prabha Badadare i /b Mr.S.H.Shaikh for the applicant Mr.S.K.SHinde for the respondent CORAM :A.S.OKA,J. DATE : JUNE 26, 2009 P.C. 1 The submissions were heard on 6 th May 2009 and the Judgment was reserved. The present revision application was filed by the original accused taking exception to the order dated 19 th December 2008 passed by the learned Special Judge (under the Prevention of Corruption Act, 1988. 2 It will be necessary to refer to the facts of the case in brief : The applicant is being prosecuted for the offence punishable under section 7 of Prevention of Corruption Act,1988. An application was made by the prosecution before the learned Special Judge praying that the 2 applicant be directed to give voice specimen and specimen handwriting. The said application was contested by the applicant by filing a reply. By the impugned order dated 19 th December 2008, the learned Special Judge directed the revision applicant to remain present in the office of C.B.I on 23 rd December 2008 to give his voice specimen and specimen the Investigating Officer. 3 The case of the prosecution is that a complaint was made by one Asif Kasam Shaikh alleging demand and acceptance of Rs.5000/- as illegal gratification by the applicant. Illegal gratification was demanded and accepted by the applicant for not implicating the complainant and his employee in a theft case. A trap was laid on 23 rd July 2008. The case of the prosecution is that the conversation between the complainant and the applicant was recorded by using electronic devices and the said conversation proves the prosecution case. According to the prosecution case, conversation establishes that the applicant accused told one Khurshid Mir to keep Rs.5000/- with himself which he had accepted from the complainant Asif Kasam Shaikh. It is contended that during the investigation the transcription of the recorded conversation was reduced into writing vide three transcription panchanamas. 4 It is contended that voice specimen sample of the 3 applicant was required to be recorded for the purpose of voice spectrographic test and scientific opinion thereon in regard to the conversation that was recorded in the cassettes as per the verification cum pre-trap panchnama. According to the case of the prosecution, the applicant expressed inability to give handwriting specimen and voice specimen. Therefore, an application was made by the prosecution for seeking a direction to the accused to give the specimen on which the impugned order has been passed. 5 The submission of the learned counsel for the applicant is that the application made by the prosecution ought to have been dismissed by the learned Sessions Judge. He invited my attention to section 311 (A) of the Code of Criminal Procedure,1973 which was brought on the statute book on 23 rd June 2006. He submitted that even the said provision could not have been invoked as the same is not applicable. His submission is that the direction contained in the impugned order has infringed fundamental rights of the applicant guaranteed by Article 20 (3) of the Constitution of India. He placed reliance on the decision of the Apex Court in case of Amrit Singh Vs. State of Punjab [(2006) 12 SCC 79} and in particular what is held by the Apex Court in paragraph 19 thereof. He also fairly invited my attention to the decision of this 4 court in case of Central Bureau of Investigation, New Delhi Vs. Abdul Karim Ladsab Telgi and others (2005 Cri.L.J. 2868). He invited my attention to the decision of Delhi High in case of Rakesh Bisht etc. Vs. Central Bureau of Investigation (2007 Cri.L.J. 1530). He submitted that apart from the fact that section 311-A of the said Code is not applicable, the said provision refers to the handwriting and bears no reference to voice sample or voice recording. He submitted that the decision of this court in case of C.B.I.vs.Abdul Karim Ladsab Telgi (supra) will have no application. On plain reading of the said Judgment, the said decision will apply only to the persons to whom Identification of the Prisoners Act, 1920 will be applicable. He submitted that the impugned order infringes the fundamental rights under Articles 20 (3) of the Constitution of India. The learned A.P.P supported the impugned order. 6 I have given careful consideration to the submissions. In case of C.B.I.(supra), the petition was filed by the C.B.I for challenging the order passed by the Special Judge (under the provisions of The Maharashtra Control of Organized Crime Act, 1999). A permission was sought by the prosecution before the learned Special Judge for recording voice sample of the respondent nos.1 to 3 i.e. Accused. The said application came to be rejected and therefore, a writ petition was 5 filed before this court. The said petition was contested on various grounds. The main ground of contest was the right guaranteed by Article 20(3) of the Constitution of India. The question which was considered by this court which was set out in paragraph 9 reads thus : 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 respondent that lending of voice sample has the trapping 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... 7 Thereafter, this court proceeded to to consider various decision of the Apex Court including the decision in case of M.P.Sharma Vs.Satish Chandra (A.I.R. 1984 SC page 3007). It will be necessary to refer paragraph 13 of the said decision of this court which reads thus : 13.A priori, the argument canvassed on behalf 6 of the respondents will have to be negated. The argument proceeded on the premise that requiring the accused to lend voice sample is in the nature of testimonial compulsion. It this argument were to be accepted, on the same analogy, even the identification parade conducted during the investigation to establish the identity of the accused would become questionable. As mentioned earlier, this argument clearly overlooks the subtle distinction noted by the Apex Court in State of Bombay V. Kathi Kalu Oghad (1961 (2) Cri.LJ. 856) (supra) about to be a witness against himself: and to furnish evidence to lend support for the purpose of identification of the person concerned:. The decisions of the Apex Court pressed into service on behalf of the respondents mainly deal with the aspect of what amounts to testimonial compulsion . As held earlier, requiring the respondents to lend their voice sample, does not amount to testimonial compulsion and for that reason it is not necessary to dilate on the said decisions, even the judgment of the Kerala High Court pressed into service on behalf of the respondents is of no avail for deciding the point in issue . 7 (Emphasis added) 8 This court observed that as voice is associated with an individual or his person and a personal trait, if scientific analysis for identification of voice is possible then, there is no inhibition in taking the voice sample of a person on the basis of which, his identity in the tape recorded telephonic conversation can be established. 9 It will be necessary to refer paragraph 14 of the said decision for dealing with the submission made by the learned counsel for the applicant that the said decision will have application only when the Identification of Prisoners Act, 1920 is applicable. Perusal of the relevant part of paragraph 14 reads thus : 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... 8 10 Thus, this court clearly held that it will be open for the investigating agency for the purpose of ascertaing identification of the voice of the accused to require accused to lend his voice sample. After holding as aforesaid a reference has been made to the said Act of 1920. Therefore, it is not possible to accept the contention that the ratio of the said decision of this court is that the accused can be compelled to give voice sample only in case where the provisions of the said Act of 1920 are applicable. Therefore, the view taken by the learned Single Judge of this court will squarely apply to this case. In view of binding precedent this court cannot be persuaded the basis of the decision of Delhi High Court in the case of Rakesh (supra) to take another view. 11 The tape recorded conversation is admissible in evidence subject to the following the procedure laid down by this court in the Rules framing part of Criminal Manual. The evidence becomes admissible provided the identification of the voice is established. Therefore, the investigating agency cannot be denied the right of obtaining voice sample. The decision of the Apex Court in the case of Amrit Singh is on the aspect whether an accused can be compelled to give sample of his hair. There is no merit in the application and the same is rejected. 9 12 At this stage, the learned counsel for the applicant prays that operation of the order of the trial court be stayed for a period of six weeks from today. Accordingly, it is directed that the impugned order will not be acted upon for a period of six weeks from today. JUDGE