1. Since common questions arise for consideration in the above matters, they are heard and decided together.
2. In Crl.Appeal No. 888/16, appellant being the first accused in SC No.3/16 pending before the NIA court, Ernakulam has approached this Court challenging Annexure II order dated 5/8/2016 by which the Court had allowed Crl.M.P. No. 100/16 permitting the investigating agency to take the voice sample of the appellant for the purpose of comparing his voice with the voice in a video clipping collected during investigation. Certain other directions had also been issued.
3. In Crl.M.C.No.7102/17, the petitioner is arrayed as an accused in RC 5(A)/2017-CBI/ACB/Cochin on the files of the Special Sessions Judge (SPE)/CBI)-III Court, Ernakulam. The investigation into the above crime is still pending. Annexure A1 application was filed by the investigating agency requesting for a direction to record the sample voices of the accused and the complainant in the court hall with the help of technical experts of Centre for Development of Advanced Computing (CDAC), Thiruvananthapuram in order to send the same for expert opinion. It is alleged that the conversation between the accused and complainant made on three days were recorded in the mobile phone of the complainant which was later seized by CBI. Though an objection was filed by the respondent, by Annexure A3 order dated 9/10/2017, the Special Sessions Judge allowed the said application.
4. Learned counsel appearing on behalf of the petitioner/appellant in the above cases raised a common argument that there is no provision in the Code of Criminal Procedure, Evidence Act or the Identification of Prisoners Act, 1920 (hereinafter referred to as the 1920 Act) enabling the Court below to direct the accused to give voice sample to the investigating agency for verification. It is submitted that the issue pertaining to the aforesaid legal issue came up for consideration before the Apex Court in Ritesh Sinha v. State of UP and another [(2013) 2 SCC 357]. In view of the conflicting view between the two Judges, the matter had been referred to a Larger Bench which is still pending consideration. It is therefore contended that when the law is not settled so far, Court below was not justified in issuing the directions.
5. On the other hand, learned counsel appearing for the respondent in Crl.Appeal No. 888/2016 submitted that in so far as the law is not settled, the accused should be directed to provide the voice sample. The sample voice need be sent for evaluation to an expert only after the law is settled by the Apex Court. It is submitted that it may not be appropriate for this Court to render a finding regarding the validity of the directions issued especially when the Apex Court is seized of the matter.
6. Learned standing counsel appearing for CBI, who is the respondent in Crl.M.C. No.7102/17, also made submissions stating that no prejudice will be caused to the accused if the voice sample is provided, as matters stand now. The evidentiary value can be decided by the Court at a later stage of the proceedings after a final decision is taken by the Apex Court. He also argued that in so far as there is no restriction imposed in any of the statutes and the investigating agency is entitled to take all measures for collection of evidence and in the process if it requires voice identification, the said procedure can also be investigated.
7. Both sides relied upon a few judgments, which we shall consider in due course.
8. A learned Single Judge of this Court had occasion to consider a similar matter in Pratap v. Central Bureau of Investigation (2017 (3) KLT 458). That was also a case where the CBI sought for a direction to the accused to give his voice samples which was allowed by the Special Judge, CBI, against which the accused had come up before this Court. This Court having relied upon Ritesh Sinha (supra) and State of Bombay v. Kathi Kalu Oghad (AIR 1961 SC 1808) held that in cases where there is no specific provision in any law to authorise a particular course of action, the Trial Court can use its inherent or ancillary powers. It is therefore held that even in the absence of any specific provision, Court can issue such orders which are in exercise of ancillary powers especially when there is no specific prohibition in law. Reference was made to Section 311A of Cr.P.C. It is held that though the said provision authorises orders directing the accused to provide specimen signatures or specimen handwriting for comparison as part of investigation, the inherent or ancillary powers can be utilized to issue such directions. In fact, as far as the applicability of Section 311A, which was a newly introduced provision in the Cr.P.C. was concerned, both the Judges who decided Ritesh Sinha (supra) concurred with the view that Section 311A cannot be used for obtaining a direction from a Magistrate for taking a voice sample. It is therefore clear that Section 311A of Cr.PC cannot have any application nor does it confer upon the Magistrate special powers to direct voice samples of the accused to be taken. It is also well settled that a Magistrate does not have any inherent powers. The inherent power is vested only in High Court under Section 482 of the Cr.P.C. No such power had been conferred on a Magistrate.
9. In Ritesh Sinha (supra), the Apex Court considered the issue whether any such power was available for the Magistrate to direct voice samples of the accused to be taken. They considered Section 5 of the 1920 Act, Section 53 of Cr.P.C, Section 311A of Cr.P.C and Section 73 of the Evidence Act, 1872. As already stated, both the learned Judges concurred with the view that S.311A Cr.P.C. and S.73 of the Evidence Act do not confer any power on the Magistrate to authorise the investigating agency to record the voice sample. However, Justice Ranjana P. Desai speaking for herself observed that the Magistrate's power to authorise the investigating agency to record voice sample of a person accused of an offence can be traced to Section 5 of the 1920 Act and S.53 of the Cr.P.C. It was observed that the Magistrate has an ancillary or implied power under S.53 of the Cr.P.C. to pass an order permitting taking of voice sample to aid investigation. However, Justice Aftab Alam in a dissenting judgment held that Section 53 of Cr.P.C. or Section 5 of the 1920 Act does not confer any such power on the Magistrate.
10. In State of UP v. Ram Babu Misra [(1980) 2 SCC 343], the Apex Court held that the language of S.73 of the Evidence Act does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court. In that case, the investigating officer moved the Chief Judicial Magistrate Court for a direction to the accused to give a specimen writing for the purpose of comparison with some disputed writings. The Magistrate held that he had no right to do so which view was upheld by the High Court. It was held that Section 73 of the Evidence Act would not take in the stage of investigation and Section 5 of the 1920 Act made special provision for that stage. However, while making such a provision, signature and writings were deliberately excluded.
11. In Amrit Singh v. State of Punjab (2006 KHC 1584), the Apex Court considered whether the act of the investigating officer to file an application for obtaining a sample of the hairs of the appellant is valid or not. It was held that the 1920 Act is not applicable in the case as such provisions have not been incorporated in the Act. The accused had a right to give or not to give a sample of the hair and he cannot be made a witness against him.
12. In yet another judgment of the Delhi High Court in Rakesh Bisht v. CBI (2007 KHC 6274), the question involved was whether voice samples of the accused could be taken at the stage of investigation. Reference was made to Section 73 of the Evidence Act and S.311A. It was held that the law relating to taking handwriting samples and whether it violates the provisions of Article 20(3) of the Constitution has been decided by a decision of the 11 Judges of the Apex Court in Kathi Kalu Oghad (supra). Apex Court held that to be a witness may be equivalent to furnishing evidence in the sense of making oral or written statement, 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 the purpose of identification. Hence, it was held that taking of handwriting samples for the purpose of establishing identity or comparison with the documents in issue would not amount to violation of the fundamental right of an accused enshrined in Art.20(3) of the Constitution. Kathi Kalu Oghad (supra) was decided in the context of S.73 of the Evidence Act, 1872 which specifically speaks of comparison of signature, writing or seal with others admitted or proved. The proposition however held was that, taking of a handwriting sample in the course of a trial to establish identity of a person would not be hit by Article 20(3) of the Constitution of India. But if the accused is asked to give a handwriting sample and the matter contains inculpatory statements, then the same would be hit by Article 20 (3) of the Constitution since he would be a witness against himself. After considering Kathi Kalu Oghad (supra) and the principle underlying Article 20(3) of the Constitution of India, it was held that S.73 can be invoked only when the proceedings are pending before the Court and not when the matter is under investigation. It was therefore held that at the stage of investigation, accused cannot be compelled to give his voice sample and he also cannot be compelled to undergo a test identification parade. With reference to S.311A, it was held that the said provision came into operation only on 23/6/2006 even before the impugned order was passed and even in the said provision the expression 'specimen signatures or handwriting' did not contemplate obtaining voice samples of the accused.
13. Reference is also made to the judgment of the Bombay High Court in CBI, New Delhi v. Abdul Karim Ladsab (Crl.W.P.No.157/2004). This judgment is delivered by learned Single Judge of the Bombay High Court. It was held that when tape recorded conversation is admissible in evidence provided if it fulfils certain conditions as held in R.M.Malkani v. State of Maharashtra [(1973) 1 SCC 471], a prerequisite is identification of the voice. Without identification of voice, the tape recorded conversation is not admissible. Therefore, it is preposterous to suggest that it is not open to the investigating agency to require the concerned accused to lend his voice sample for the purpose of identification of the voice in the tape recorded conversation. It was held that the provisions of the 1920 Act was specially intended to authorise taking of measurements and photographs of convicts and others. It was therefore found that when the law as held in Kathi Kalu Oghad (supra) clearly indicates that no obstacles can be put in the process of investigation into a crime and of bringing criminals to justice, absence of specific provision cannot be a reason to defeat the ends of justice.
14. As far as the case on hand is concerned, both sides relied upon almost the very same judgments. As far as Pratap's case (supra) is concerned, this Court proceeded on the basis that Section 311A render support for issuing an order enabling the Magistrate to issue an order for taking voice samples. Section 311A of Cr.P.C came to be inserted by Amendment Act 25 of 2005 w.e.f. 23/6/2006 which reads as under:-
'311A. Power of Magistrate to order person to give specimen signatures or handwriting- If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give has specimen signatures or handwriting:
Provided 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.'
Statute clearly provides for giving specimen signatures on handwriting and nothing more. When a specific power had been conferred on the Magistrate in terms of Section 311A, no ancillary or incidental power can arise from the aforesaid provision enabling the Magistrate to invoke S.311A. Further, both the learned Judges in Ritesh Sinha (supra) were unanimous about the opinion that the power under S.311A cannot be invoked by the Magistrate to compel an accused to give voice sample. Further, there is no inherent power that could be exercised by the Magistrate. That apart, the judgment in Ritesh Sinha (supra) is not an authority for any proposition as it does not become a judgment which amounts to a binding precedent with reference to the divergent views expressed, regarding the application of implied, ancillary and incidental powers under Section 53 of the Cr.PC and Section 5 of the 1920 Act. Therefore, we are of the view that the judgment in Pratap (supra) is not based on good reasoning.
15. Dehors Pratap (supra), the question is whether the Magistrate has jurisdiction to direct voice sample of the accused to be given during the stage of investigation. There is no dispute about the fact that any of the provisions, either S.5 of the 1920 Act or S.53 of the Cr.PC, lays down any specific provision in that regard. S. 5 of the 1920 Act reads as under:-
'5. Power of Magistrate to order a person to be measured or photographed. If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to the effect, 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, as the case may be, 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, 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.'
16. S.53 of the Cr.P.C. reads as under:-
'53 - Examination of accused by medical practitioner at the request of police officers: (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonable necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose.
(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.
In this section and in sections 53A and 54,
(a) "examination" shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;
(b) "registered medical practitioner" means a medical practitioner who possess any medicalqualification as defined in clause (h) of section 2of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register.'
17. In Chambers Twentieth Century Dictionary, measurement means, the act of measuring; quantity found by measuring.'
18. The statement of objects and reasons for 1920 Act reads as under:-
'The object of this Bill is to provide legal authority for the taking of measurements, finger impressions, foot-prints and photographs of persons convicted of, or arrested in connection with, certain offences. The value of the scientific use of finger impressions and photographs as agents in the detection of crime and the identification of criminals is well known, and modern developments in England and other European countries render it unnecessary to enlarge upon the need for the proposed legislation.
The existing system by which the police in India take finger impressions, photographs, etc., of criminals and suspected criminals is void of legal sanction, except as regards registered members of criminal tribes, in whose case provision exists for the taking of finger impressions in section 9 of the Criminal Tribes Act, 1911 (III of 1911). The need for legalizing the practice has long been recognised, but it was not thought expedient to take the matter up so long as no practical difficulties arose. Instances have recently been reported to the Government of India where prisoners have refused to allow their finger prints or photographs to be taken. With a view to prevent such refusals in future it is considered necessary without further delay to place the taking of measurements etc., which is a normal incident of police work in India as elsewhere on a regular footing. No measurement, etc., of any person will be taken compulsorily when that person has been arrested.'
The purpose apparently is to give legal sanctity to the procedure adopted by investigating officers in obtaining the measurements of an accused. Voice recognition is not normally considered as a feature to identify a person. Therefore, while enacting the 1920 Act, it was never in the contemplation of the legislature, nor any attempt had been made to incorporate, taking of voice samples, when the scientific field of investigation developed. Therefore, we do not think that Section 5 of the 1920 can be invoked and stretched to confer power on the Magistrate to direct voice sample of the accused to be given.
19. Now coming to S.53, as already indicated, there is divergent opinion between the two learned Judges who had given separate judgments in Ritesh Sinha (supra). In S.53, an explanation is added as per Amendment Act 25/2005 which had come into effect on 23/6/2006. Earlier, there was no provision for enabling the investigating agency to take the samples of blood, blood stains etc., which had been incorporated only when it was found that there was no specific provision for the same. However, in the explanation to the word 'examination' there is no specific mention of voice sample. Further, it is clearly indicated that the examination can be done only when a registered medical practitioner thinks that it is necessary in a particular case. Even the two learned Judges who decided Ritesh Sinha (supra) were of the clear opinion that the provision does not indicate any specific power to obtain voice samples through a Magistrate. The only question is whether there is any ancillary or implied power for a Magistrate to issue such directions even in the absence of a specific provision.
20. In R.M.Malkani (supra), it was held that taperecorded evidence is admissible provided the conversation is to the matters in issue and the accuracy of the taperecorded conversation is also to be proved. One of the questions raised in the said case was whether the Courts erred in admitting the evidence of telephonic conversation which was recorded on the tape. The recording was in contravention of S.25 of the Indian Telegraph Act. It was also contended that the conversation was recorded on the tape during investigation and therefore the conversation was not admissible under S.162 of the Cr.P.C. It was held that the police officer fixed the tape recording instrument to the telephone instrument with the authority of Dr.Motwani, which does not amount to any interception of any message or damaging or tampering or removing or touching any machinery within the meaning of S.25 of the Indian Telegraph Act. It was observed that in Rama Reddi v. V.V.Giri (1970) 2 SCC 340), Yusufalli Esmail Nagree v. State of Maharashtra (AIR 1968 SC 147) and S.Pratap Singh v. State of Punjab (AIR 1964 SC 72), the Court had accepted conversation or dialogue recorded on a tape recording machine as admissible evidence. It was therefore held that a contemporaneous tape record of a telephone conversation is a relevant fact and is admissible under S.8 of the Evidence Act it is res gestae. It is also comparable to a photograph of a relevant incident. As far as the contention regarding vice of S.162 of the Cr.P.C was concerned, it was held that in so far as the conversation is between two private individuals and it was not made to a police officer, there is no mischief to the said section. But it is relevant to note that in R.M.Malkani (supra), the Court has not indicated anywhere as to whether the Magistrate has the power to direct voice sample of the accused to be given at the stage of investigation. The law laid down is clear from the proposition that tape recorded conversation can be evidence in the case, provided, it is proved and the conditions are complied with.
21. Now the only question to be considered is whether while exercising power, the Magistrate has any implied, ancillary or incidental power while invoking power under S.5 of the 1920 Act or S.53 of the Cr.P.C. The meaning of the word 'ancillary' in Black's Law Dictionary is stated to be supplementary or subordinate. 'Incidental' means subordinate to something of greater importance, having a minor role. 'Incident power' means a power that, although not expressly granted, must exist because it is necessary to the accomp
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lishment of an express purpose. 'Implied power' means a political power that is not enumerated but that nonetheless exists because it is needed to carry out an express power. 22. There is no doubt about the proposition that when tape recorded conversations can be treated as evidence, necessarily a question may arise regarding identity of the person whose voice is recorded. If the investigating agency arrives at a conclusion or proceeds on the basis that the tape recorded conversation belongs to the accused, necessarily, the said fact requires proof. Proof can be obtained only by a method of scientific examination after obtaining voice sample. 23. In Assistant Collector of Central Excise, Calcutta v. National Tobacco Company of India Ltd., (AIR 1972 SC 2563), the Apex Court had occasion to consider the doctrine of implied powers and it is held that a power to do something essential for the proper and effectual performance of the work which the statute has in contemplation may be implied. It will also be apposite to note the Constitution Judgment in M.Pentiah v. Muddala Veeramallappa (AIR 1961 SC 1107). It is held that when a statute confers an express power, a power inconsistent with that expressly given cannot be implied. The very purpose of Code of Criminal Procedure in restricting Magisterial powers is to enable the accused to get a fair trial in any proceeding. Under such circumstances, if a Court is permitted to exercise a power, which is not specifically provided, such power cannot be impliedly conferred on the Magistrate. The question to be considered would be whether the express power that is already granted can take in a power to direct an accused against whom an investigation is pending to give his voice sample for the purpose of investigation. We are of the view that such an implied power cannot be read into the statute especially under S.5 of the 1920 Act, or Section 53 of Cr.P.C. In that view of the matter, the impugned orders are liable to be set aside. Hence, Pratap (supra) is not good law. 24. However, since the issue is pending consideration before the Apex Court, it shall be open for the Investigating Agency to approach the Court below, if there is any change in view. Accordingly, Crl.Appeal No. 888 of 2016 and Crl.M.C. No. 7102 of 2017 are allowed, setting aside the impugned orders, reserving right to the Investigating Agency to file a fresh application, subject to the decision of the Apex Court, in Ritesh Sinha (supra).