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NATVARLAL AMARSHIBHAI DEVANI v.

STATE OF GUJARAT
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 5226 of 2015
Delivered on: 18/01/2017
Coram- HONOURABLE MR.JUSTICE J.B.PARDIWALA

While he was serving as superintendent of the prohibition and excise directorate. it is specifically provided that if a Magistrate is satisfied that. The investigating agency made a transcript of the said tape-recorded conversation and they thought that it was fit to take a voice spectrography test. 1988.20 (3). but not the handwriting or the signature. Section 311A came to be inserted by Act 25 of . it is expedient to direct any person to allow his measurements or photograph to be taken. The word "measurements" mentioned in the said provision will include fingerprints and footprints. in the absence of any provision in Criminal Procedure Code. Whether the voice spectrography test of the accused amount to testimonial compulsion within the meaning of Article 20(3) of the Constitution of India? 2. taking of handwriting or signature from a person by a Magistrate is now permissible under the provisions of Section 311A of the Code of Criminal Procedure. 1920 . which was opposed by the writ applicant. Whether. the applicant demand bribe for the purpose of renewal of permit to the original complaint through telephone which was recorded. the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken as the case may be. for the purposes for any investigation of proceeding under the Code of Criminal Procedure. by a police officer. 1973. POINTS FOR DISCUSSION 1. can a Magistrate authorise the Investigating Agency to record the voice sample of the person accused of an offence? ARGUMENTS ON BEHALF OF THE PETITIONERS Spectrography test of the accused amounts to testimonial compulsion within the meaning of Article. It also provides that in that case. under Section 5 of the Identification of the Prisoners Act . he may make an order to that effect . FACTS OF THE CASE The writ applicant was charged with the offence punishable under Prevention of Corruption Act.

1920 is inclusive and not exhaustive. Otherwise there is no tangible reason for the Parliament to exclude. 23rd June 2006).20(3) of the constitution. State of U.2 (a) of the Prisoners Act. when the Parliament made this enactment. reading voice sample in Section 2(a) of the Act.1 And any psychiatric examination. and another2 it was argued that the two judges in that case was in consent with the idea that voice spectrography will not be voilative of Art. Purposive interpretation to the provisions of the Prisoners Act and Section 53 of the Code should be given considering that crime has changed its voice. the physical measurements of the body or parts of the body. will offend Article 20(3) of the Constitution ARGUMENTS ON BEHALF OF THE REPONDENTS By. 1920 are meant only the purpose of identification i. signature and handwriting from a person in the course of investigation by the police. 1 2010 (7) SCC 263 2 2013(2) SCC 357 . The term “measurements” as defined under Section.e. but also it must have thought that it might not be necessary to include the taking of handwriting or signature of a person in the course of investigation by the police .2 (a) of the Act. Voice sample is one of the modes of identification of an accused or a suspect. and therefore. Section 27 (w. State of Karnataka. would be covered by the term “measurements”. which the prosecution also thinks the correct view. Voice sample can be included in the exclusive definition of the “measurements” appearing in Section. The provisions of the Act. it must have had in its mind not only that Section 73 of the Evidence Act does not give power to the Court to take fingerprints. under the Identification of Prisoners Act. the taking of handwriting or signature.P. without the consent of the accused. Voice Spectrography Test would fall within the ambit of a “psychiatric Examination” as held by the Supreme Court in Selvi and others vs. This would not include voice sample of an accused or a suspect. 1920 will amount to rewriting of the definition by the Court which is not permissible in law.quoting the Supreme Court’s judgment in Ritesh Sinha vs.2005.e.f. The voice prints are like fingerprints.

The purpose of giving such a protection(right against self incrimination) was stated in Smt. it was held that in the absence of any specific provision empowering the police officer or the court in law. However. Selvi and Ors v. State of Karnataka3 as “Its underlying rationale broadly corresponds with two objectives . that of ensuring reliability of the statements made by an accused. the voice spectrography test of the accused will not amount to testimonial compulsion within the meaning of Art. ensuring that such statements are made voluntarily. it is clear from this observation that the under laying principle of giving fundamental right status to the right against testimonial compulsion is nothing but ensuring that the person has made it voluntarily in order to rule out the chances of violation of his rights otherwise guaranteed by the constitution (Right to Life).1 . False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. in the investigation efforts”. there is a higher likelihood of such testimony being false. ANALYSIS To answer the first question precisely. When a person is compelled to testify on his/her own behalf.20 (3).20 (3) of the constitution of India. JUDGMENT IN BRIEF It was held that the voice spectrography test does not fall within the ambit of a psychiatric treatment. The word voluntary itself 3 Supra note . false statements are likely to cause delays and obstructions. threats or inducements during the investigative stage. It is quite possible that a person suspected or accused of a crime may have been compelled to testify through methods involving coercion. The voice spectrography test is in no manner violative of Art. it is not permissible to subject an accused to the voice spectrography test. Even during the investigative stage. The premise is that involuntary statements are more likely to mislead the Judge and the prosecutor. thereby resulting in a miscarriage of justice.firstly. the purpose of the 'rule against involuntary confessions' is to ensure that the testimony considered during trial is reliable. and secondly. Therefore.

finger print etc) are used. Information that. the investigating authority would not be able to get. AIR 1961 SC 1808 . He is to say whatever there in his knowledge.73 of evidence Act. over which I have no control. It is more for identification or corroboration with facts already known to the investigation authority that these things (voice sample. frequency and intensity. Thus it cannot be considered as a testimonial act. More over it has been held in kathi kalu’s6 case that to be a self incriminatory testimony within the meaning of Art. for I am human. behind where ever I am going. Can my knowledge as to fact be equated with my knowledge as to my finger print or voice? My answer would. 1872 comes into play only at the stage of trial. which was reiterated in Selvi’s5 decision as “A specimen handwriting or signature or finger impressions by themselves are no testimony at all. a tendency which the voice spectrograph lacks. which should have active participation of my intelligence. 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. It cannot said to be even under my sole ownership as I leave a bit of it. My finger prints or voice (spectrograph.it must be of such a character that by itself it should have the tendency to incriminate the accused.20(3).'” I cannot find any logic in not equating a voice spectrograph with finger print. This position is made clear in State of Bombay v.53 0f Criminal procedure code. when displayed graphically in the parameters of time. no. otherwise than with strenuous effort. Let’s examine the provisions quoted in the judgment. Another major concern in this case is about the magistrate's power to authorize investigating agency to record the voice sample of the person accused. State of Karnataka. Likewise Section. It’s a physical trait that I am having. 1973 says about 4 AIR 1961 SC 1808 5 Selvi and others vs. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of 'testimony. Kathi Kalu Oghad. to the exclusion of others. 2010 (7) SCC 263 6 State of Bombay v.connotes a degree of knowledge that the person posses. 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. Kathi Kalu Oghad4.) cannot even qualify to be called as knowledge. in such a direct nature. Section.

Another legislation which is quoted many times by the counsels was the identification of prisoners Act. Moreover 87th law commission report recommended for amending Sec. 8(2) (c) of the Act makes it clear that. I will not say that measurement would include voice spectrograph also. as the case may be.5 of the Act provides that “If a Magistrate is satisfied that.medical examination of the person. Section. Sec.” Sec.91 empowers both the court and investigating authority to summon a person to produce . In 2005 Section. it is for the State Government to decide as to the nature of measurements that may be taken. for the purposes of any investigation of proceeding under the Code of Criminal Procedure. that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.5 of the Act together with Sec. it is expedient to direct any person to allow his measurements or photograph to be taken. From what I have understood of this provision.PC which empowers the magistrate to direct any person to give specimen signature or handwriting during the investigation. they have not intended to give such a power to the magistrate under this legislation.91 Cr. Besides this Sec.311A has been inserted in Cr.2 (a) will give magistrate the power as stated before.8 (2) (c) along with the hesitation of the legislature to implement the recommendation in 87th report makes it clear that. as the definition seems to me an exclusive one even after having the word including in it.2 (a) of the Act defines “measurement” as including include finger impressions and foot-print impressions. 1920. which however does not recognize voice sample. by a police officer: Provided that no order shall be made directing any person to be photographed except by a magistrate of the first class: Provided further. Thus Sec. and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken.PC. he may make an order to that effect. Now the only avail is Sec. The question is whether Sec. Both these provisions would not be of any help to the magistrate at the stage of investigation.5 so as to include voice sample within its ambit.

and what is the need of a new provision.e. both hand writing and signature specimen could also be obtained by this section itself. inquiry or trial. However if this section could be used for that purpose. .documents or things in their possession in connection with the investigation. There is no doubt from the plain meaning of this provision that it does give magistrate the power in question. i. 311A..