THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Crl.P.Nos.5307, 5439, 8546 & 10414 of 2009 COMMON ORDER: In all these four cases, common questions of law and fact have arisen for consideration, therefore they are being disposed of by this common order. Crl.P.Nos.5307 and 5439 of 2009 are filed seeking to quash order dated 18.6.2009 in Crl.M.P.No.310 of 2009 in Cr.No.7/ACB/KNR/2009 on the file of the Principal Special Judge for SPE & ACB Cases, Hyderabad. Likewise, Crl.P.No.8546 of 2009 is filed seeking to quash order in Memo SR.No.1187 of 2009 in Crime No.6/ACB/-CR-1/2009 dated 25.9.2009 and Crl.P.No.10414 of 2009 is filed seeking to quash order in Memo SR.No.1271 of 2009 in Crime No.21/ACB-CIU-HYD/2009 dated 27.11.2009 on the file the Additional Special Judge for SPE & ACB Cases, Hyderabad. The petitioners in all these cases are the accused and the respondent therein is the complainant in the criminal cases For the sake of convenience, the parties hereinafter referred to as they arrayed before the trial Court. In all the cases, the petitions were filed before the Court below requesting the Court to record the original voices of all the accused before the Court and to forward the same to the Forensic Science Laboratory for comparison with the Compact Discs (CDs) allegedly containing the voices/conversations of the accused recorded by the complainant in all the cases for the purpose of ascertaining whether those voices/conversations in the discs are of accused only in connection with proving the corresponding charges. The said petitions were allowed by the Court below. It is contended on behalf of the accused that directing the accused to appear before the Court for the said tests amounts to testimonial compulsion, which therefore cannot be allowed. On the other hand, it is the contention of learned counsel for the complainant that there is no question of directing the accused to speak anything about the crimes in question and whatever they speak otherwise in that context would not amount to testimonial compulsion and the Court below on proper consideration of the matters, allowed the petitions and there are no grounds to interfere with the said orders passed by the Court below. In support of his contention, he has relied upon the decisions in Y.RANGANADH GOUD v. STATE OF ANDHRA PRADESH[1] and CENTRAL BUREAU OF INVESTIGATION, NEW DELHI v. ABDUL KARIM LADSAB TELGI AND OTHERS[2]. The point for consideration is whether there are sufficient grounds in order to quash the orders passed by the Court below as prayed for. In Y.RANGANADH GOUD v. STATE OF A.P. (2 supra), following the decisions in STATE OF BOMBAY v. KATHI KALU OGHAD (1962 (3) SCR and SELVI v. STATE OF KARNATAKA (2010 AIR SCW 3011) observed that under similar circumstances that it would not amount to testimonial compulsion. In STATE OF BOMBAY v. KATHI KALU OGHAD (1962 (3) SCR) it was held: “It is well established that Clause (3) of Article 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 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 ay refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, 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.' 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.” In SELVI v. STATE OF KARNATAKA it was held: “136. Since the majority decision in Kathi Kalu Oghad (4 supra) is the controlling precedent, it will be useful to re-state 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 emphasize that a situation where a testimonial response is used for comparison with facts already known to investigators is inherently different from a situation where a testimonial response helps the investigators to subsequently discover fresh facts or materials that could be relevant to the ongoing investigation. However, the compulsory extraction of material (or physical) evidence lies outside the protective scope of Article 20(3). Furthermore, even testimony in oral or written form can be required under compulsion if it is to be used for the purpose of identification or comparison with materials and information that is already in the possession of investigators. If the facts in the present case are examined in the light of the above pronouncements of the Apex Court, it is evident that the Sub Divisional Police Officer, Bapatla is already in possession of a CD containing voices or conversation said to be between A-1 and the victim woman; and the investigating officer wanted sample voice of A-1 and the victim to be recorded in court for the purpose of making comparison of voices contained in the CD with the sample voices recorded in open court. This exercise of recording of sample voices of A-1 and the victim in open court is not going to incriminate A-1 on the basis of such sample voice, but only facilitates the investigating officer and the court to identify voice contained in the CD which is already in possession of the investigating officer. By any stretch of imagination, the exercise of recording sample voice of A-1 for the purpose of identifying the male voice already contained in CD which is collected by the investigating officer during investigation, cannot amount to testimonial compulsion which is prohibited under Article 20(3) of the Constitution of India.” Further, in CENTRAL BUREAU OF INVESTIGATION v. ABDUL KARIM LADSAB TELGI (3 supra), the Bombay High Court held that the requirement of lending voice sample to the investigating agency by the concerned accused for the purpose of identification of their voice would not infringe Article 20(3) of the Constitution of India as it was outside the limit of ‘testimonial compulsion’. In view of the judgments cited above, it cannot be said that what is pleaded and what is recorded amount to testimonial compulsion against the accused, because there is no question of recording anything which is connected with the crime in question from the accused, whereas the voice to be recorded can be taken into consideration for the purpose of identification of the voice contained in the C.D. Hence, there are no merits in the petitions and they deserve to be dismissed. For the reasons stated above, all the criminal petitions are dismissed. _________________________ G.KRISHNA MOHAN REDDY, J Date: 15.12.2011 DA THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Crl.P.Nos.5307, 5439, 8546 & 10414 of 2009 15.12.2011 IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY Crl.P.Nos.5307, 5439, 8546 & 10414 of 2009 Date: 15th December, 2011 Between: Mittadoddi Venkata Sudheer (A1) .. Petitioner in Crl.P.No.5307 of 2009 C.Jayaprakash (A2) .. Petitioner in Crl.P.No.5439 of 2009 T.Johnson .. Petitioner in Crl.P.No.8546 of 2009 K.Yadagiri Reddy .. Petitioner in Crl.P.No.10414 of 2009 And State of A.P., rep. by Special Public Prosecutor for ACB .. Respondent in all the four petitions [1] 2010(2) ALD (Crl.) 538 (AP) [2] 2005 Crl.L.J. 2868