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Wednesday Seminar Report
Wednesday Seminar Report
STATE
OF GUJARAT
SPECIAL CRIMINAL APPLICATION (DIRECTION) NO. 5226 of 2015
Delivered on: 18/01/2017
Coram- HONOURABLE MR.JUSTICE J.B.PARDIWALA
Sarika.P.S
CUSAT
FACTS OF THE CASE
The writ applicant was charged with the offence punishable under Prevention of Corruption
Act, 1988. While he was serving as superintendent of the prohibition and excise directorate,
the applicant demand bribe for the purpose of renewal of permit to the original complaint
through telephone which was recorded. 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,
which was opposed by the writ applicant.
1. 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. Whether, in the absence of any provision in Criminal Procedure Code, can a Magistrate
authorise the Investigating Agency to record the voice sample of the person accused of an
offence?
JUDGMENT IN BRIEF
It was held that the voice spectrography test does not fall within the ambit
of a psychiatric treatment. The voice spectrography test is in no manner
violative of Art.20 (3) of the constitution of India. However, it was held
that in the absence of any specific provision empowering the police officer
or the court in law, it is not permissible to subject an accused to the voice
spectrography test.
ANALYSIS
To answer the first question precisely, the voice spectrography test of the
accused will not amount to testimonial compulsion within the meaning of
Art.20 (3). The purpose of giving such a protection(right against self
incrimination) was stated in Smt. Selvi and Ors v. State of Karnataka 3 as
Its underlying rationale broadly corresponds with two objectives - firstly,
that of ensuring reliability of the statements made by an accused, and
secondly, ensuring that such statements are made voluntarily. It is quite
possible that a person suspected or accused of a crime may have been
compelled to testify through methods involving coercion, threats or
inducements during the investigative stage. When a person is compelled
to testify on his/her own behalf, there is a higher likelihood of such
testimony being false. False testimony is undesirable since it impedes the
integrity of the trial and the subsequent verdict. Therefore, the purpose of
3 Supra note .1
the 'rule against involuntary confessions' is to ensure that the testimony
considered during trial is reliable. The premise is that involuntary
statements are more likely to mislead the Judge and the prosecutor,
thereby resulting in a miscarriage of justice. Even during the investigative
stage, false statements are likely to cause delays and obstructions, in the
investigation efforts.
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). The word voluntary itself connotes a degree of
knowledge that the person posses. He is to say whatever there in his
knowledge, to the exclusion of others. Information that, in such a direct
nature, the investigating authority would not be able to get, otherwise
than with strenuous effort. Can my knowledge as to fact be equated with
my knowledge as to my finger print or voice? My answer would, no. My
finger prints or voice (spectrograph, when displayed graphically in the
parameters of time, frequency and intensity.) cannot even qualify to be
called as knowledge. Its a physical trait that I am having, over which I
have no control. It cannot said to be even under my sole ownership as I
leave a bit of it, for I am human, behind where ever I am going. Thus it
cannot be considered as a testimonial act, which should have active
participation of my intelligence.
This position is made clear in State of Bombay v. Kathi Kalu Oghad 4, which
was reiterated in Selvis5 decision as 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
5 Selvi and others vs. State of Karnataka, 2010 (7) SCC 263
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.' I cannot find
any logic in not equating a voice spectrograph with finger print.
More over it has been held in kathi kalus 6 case that to be a self
incriminatory testimony within the meaning of Art.20(3),it must be of such
a character that by itself it should have the tendency to incriminate the
accused, a tendency which the voice spectrograph lacks. It is more for
identification or corroboration with facts already known to the
investigation authority that these things (voice sample, finger print etc)
are used.
Another legislation which is quoted many times by the counsels was the
identification of prisoners Act, 1920. The question is whether Sec.5 of the
Act together with Sec.2 (a) will give magistrate the power as stated
before. Sec.5 of the Act provides that If a Magistrate is satisfied that, for
the purposes of any investigation of proceeding under the Code of
Criminal Procedure, it is expedient to direct any person to allow his
measurements or photograph to be taken, 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 the order and
shall allow his measurements or photograph to be taken, as the case may
be, by a police officer:
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.
Besides this Sec. 8(2) (c) of the Act makes it clear that, it is for the State
Government to decide as to the nature of measurements that may be
taken. Moreover 87th law commission report recommended for amending
Sec.5 so as to include voice sample within its ambit. Thus Sec.8 (2) (c)
along with the hesitation of the legislature to implement the
recommendation in 87th report makes it clear that, they have not intended
to give such a power to the magistrate under this legislation.