IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Revision Nos.67, 119 and 121 of 2010. Date of decision: 25.06.2010. 1. Cr.Revision No.67 of 2010. Sanjay Gupta …Petitioner Versus State of H.P. …Respondent 2. Cr.Revision No.119 of 2010. Mahinder Singh …Petitioner Versus State of H.P. …Respondent 3. Cr.Revision No.121 of 2010. Rajeev Rana …Petitioner Versus State of H.P. …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioner(s): Mr.Rajiv Jiwan, Advocate in Cr.Revision No.67 of 2010 and Mr.Onkar Jairath, Advocate in Cr.Revision Nos.119 & 121 of 2010. For the Respondent(s): Mr.R.K. Bawa, Advocate General with Ms.Ruma Kaushik, Additional Advocate General. Dev Darshan Sud,J. All these three petitions are being disposed of by a common judgment as the point for determination is the same i.e. as to whether it is open to the Court to issue direction for taking of voice samples before a case has been filed in the Court?. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 2. I am not going into the factual matrix as it is undisputed before me that in all the cases the prosecution had filed application(s) before the learned Special Judge praying for direction that each of the petitioners therein be directed to furnish voice sample(s) which can be compared by an Expert/Forensic Laboratory. 3. Learned counsel appearing for the petitioner(s) urges that the Court does not have jurisdiction at this stage and the Court could not supervise investigation as no case was pending/filed in Court. They place reliance on the judgment of Delhi High Court in Rakesh Bisht etc. vs. Central Bureau of Investigation, 2007 Cri.L.J.1530. Considering the provisions of both of Section 73 of the Indian Evidence Act and Sections 311 and 311-A of the Code of Criminal Procedure, (hereinafter referred to as the `Code’), the Delhi High Court held that Section 311-A of the Code provides only for the samples of handwriting and nothing else. The Court holds:- “19. Lastly, I come to the issue of introduction of Section 311-A 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 23.6.2006, whereas the impugned order was passed on 19.6.2006. In any event, the provisions of Section 311-A only refer to the handwriting and bears no reference to voice samples or voice recordings. The said provision 3 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 spears that this provision was introduced because of the recommendations suggested by the Supreme Court in Ram 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 311-A 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.” (PP-1536) 4 4. Learned Advocate General contends that the decision of the Bombay High Court in Central Bureau of Investigation vs. Abdul Karim Ladsab Telgi and Others, 2005 Cri.L.J., 2868 which is in consonance with the decision of the Supreme Court in State of Bombay vs. Kathi Kalu Oghad, AIR 1961 SC 1808 lays down the correct proposition of law and that the High Court of Delhi was incorrect in holding to the contrary. 5. Section 311-A of the Code has been introduced after decision of the Supreme Court in State of Uttar Pradesh vs. Ram Babu Misra, AIR 1980 SC 791. The Court therein held:- “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 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 5 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 Madh Pra 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 6 an accused person, to give specimen signatures and writings.” (PP-792-793 Emphasis supplied) 6. In State of Haryana vs. Jagbir Singh and Another, AIR 2003 SC 4377 the Court, adverting to the provisions of the Evidence Act, holds:- “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 cases is still under investigation there is no present proceedings before the Court in which or as a consequences 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 proceedings which may later be instituted in the Court. (PP-4381 - Emphasis Supplied) 7 7. Learned counsel appearing for the petitioner(s) have also placed reliance on the decision of the Kerala High Court in Sub-Inspector of Police vs. Devarajan, 1999 Cri.L.J.4264, to urge that at the investigating stage the Court cannot issue directions for compromise etc.:- “10. To enable exercise of the power, it is essential that there should be some proceeding pending before the Court. The direction can be given to enable the Court to compare and not for the purpose of enabling an Investigating Officer or prosecuting Agency to obtain and produce as evidence in the case, the specimen handwriting for ultimate comparison with the disputed writing. Where the case is still under investigation and no proceedings are pending before Court in which it might be necessary to compare the two hand-writings, a person present I Court albeit the accused, cannot be compelled to give his specimen handwriting. The possibility of the proceeding ultimately reaching the Court may not be sufficient. Recourse to the Section can be had only when an enquiry or trial is pending before the Court and the court requires the specimen writing to enable it to compare it with the disputed writing. In other words, the Court which can issue a direction under S.73 is only the Court holding an enquiry under Cr.P.C. or the Court trying an 8 accused. It follows that the Court which is not either concerned with an enquiry under the Cr.P.C. or trial, and had only received a copy of the FIR, cannot issue a direction of the nature contained in S.73. The position is also covered by the decision in Sukhvinder Singh vs. State of Punjab (1994)5 SCC 152.” (PP.4266) 8. Having held that Section 73 of the Evidence Act does not vest powers in the Court to direct for giving of handwriting samples etc., it is only Section 311-A of the Code which authorizes the Court to give directions. The provision is specific and the amendment contemplated and enacted by the legislature restricts the power of the Court to issue direction for taking samples of handwriting etc. 9. Learned Advocate General then submits that handwriting as envisaged under Section 311-A would include within its ambit voice samples also. I cannot accept this contention. If the legislature has specifically provided for a particular contingency and use of words and expression in no uncertain terms delineating the jurisdiction of the Court, handwriting cannot be construed to mean voice sample also. Learned counsel for the petitioner(s) also refers to the decision of the Supreme Court in Amrit Singh vs. State of Punjab, (2006)12 SCC 79, where referring to the Identification of Prisoners Act, 1920, the Court held 9 that the accused cannot be compelled to give samples of his hair. 10. The contention raised by the learned Advocate General that the decision of the Bombay High Court lays down the correct law cannot be accepted. True, handwriting etc. as held by the Supreme Court in State of Bombay vs. Kathi Kalu Oghad, AIR 1961 SC 1808 does not constitute violation of the guarantee under Article 20(3) of the Constitution of India, but the power of the Court to order/direct giving of samples, when there is no case pending in the Court, is not contemplated by the Code or by the Evidence Act. 11. These revisions are accordingly allowed. The order passed in each of the petitions by the Court directing the petitioners to give their voice samples is quashed and set aside. This would not preclude the State from applying to the Court afresh for obtaining samples of the voice of each of the petitioners herein at the appropriate stage in accordance with law. June 25, 2010. (Dev Darshan Sud) (aks) Judge.