Leave granted. 2 A judgment of the High Court of Delhi dated 11
February 2015 has given rise to these proceedings. The
High Court dismissed a petition instituted under Section 482
of the Code of Criminal Procedure 1973 and affirmed an
order dated 7 July 2014 of the Additional Sessions Judge–01
Patiala House Courts, New Delhi, in a Criminal Revision.
3 On 2 October 2012, a First Information Report
(‘FIR’) was registered at P.S. Crime Branch New Delhi, on a
complaint made by Rajiv Bhadauria of Jindal Steel Company
Private Limited. Briefly stated, the allegation in the FIR (FIR
240 of 2012) is that the Appellants demanded a sum of
money to refrain from telecasting programmes on a
television channel pertaining to the alleged involvement of
a corporate entity in a wrongful activity pertaining to the
allocation of coal blocks. The FIR was registered against the
Appellants for offences under Sections 384, 511, 420 and
120B of the Penal code. The Appellants were arrested on 27
November 2012.
4 On 10 December 2012, an application was
moved by the Investigating officer in the Crime Branch before the Additional Chief Metropolitan Magistrate (South),
when the Appellants were in police custody in pursuance of
an order of remand, requesting the court to seek the
consent of the Appellants for obtaining their voice samples
at the Central Forensic Science Laboratory, CBI (CFSL-CBI)
for the purpose of comparing it with a recording which had
been made in the course of a sting operation. In their
replies to the application the Appellants furnished their
consent for tendering their voice samples. Consequently,
on 13 December 2012 the Metropolitan Magistrate disposed
of the application by directing that the Investigating officer
may move an appropriate application for the visit of the
accused to the place or office where he proposes to collect
the voice samples with a specification of time, date and
place. The Appellants were required by the Investigating
officer to furnish their voice samples on 21 December 2012.
When they reported at the police station, the Investigating
officer directed them to read out from a paper.
5 The grievance of the Appellants was that they
were being made to read out inculpatory material drawn
from an audio recording of the alleged sting operation. The Appellants objected JUDGMENTto do so and moved an application
under the Code of Criminal Procedure, 1973 for monitoring
the investigation and for a direction to the Investigating
officer to provide material for the purpose of a voice sample
“which does not contain any inculpatory statement” in the
presence of a judicial magistrate. The Additional Chief
Metropolitan Magistrate (for brevity ‘ACMM’) dismissed the
application on 4 February 2013, observing that while it was
open to the accused to decide whether or not to grant their
consent, once consent was granted the accused would have
to abide by the instructions of the Investigating officer and
cannot dictate the terms on which the voice sample has to
be given.
6 A Criminal Revision was filed against the order of
the ACMM. The Revision was heard and decided by an order
dated 7 July 2014. During the course of the proceedings
before the ACMM, the State agreed to provide a text which
was not an exact reproduction of the earlier text given to
the accused but which was stated to be a mixture of some
sentences drawn from the inculpatory material, besides
some general statements. After perusing the draft text, the Appellants objected JUDGMENTto the text stating that it contained
portions of the audio recording. Before the ACMM an
opinion furnished by the CFSL expert was produced. The
opinion, inter alia, stated that:
“(A) It is not mandatory to have
vis-à-vis same text to be read by a
suspect. However, sufficient
common sentences/words should be
present in the sample voice
recording with respect to the
questioned voice recording for
spectrographic examination.
(B) In case there are sufficient
common sentences/words in
between questioned & specimen
voice recording, then a complete
opinion could be offered. However,
in case of complete different text
and sufficient common
sentences/words are not available;
opinion could be offered based on
auditory examination only.
(C) For auditory comparison, the
whole recording/text is used. For
spectrographic examination, some
selected sentences/words are taken
for comparison.”
7 The ACMM by an order dated 7 July 2014, came
to the conclusion that it will not be appropriate if the
accused are required to read out a transcript of the
questioned text. At the same time, the ACMM took the
view that in the interest of a proper investigation it would JUDGMENT not be proper to direct that a text completely different from
the questioned text is used for drawing a voice sample. The
ACMM issued a direction in the following terms:
“….it will be appropriate if the CFSL
experts at CBI Laboratory are
directed to prepare a text
inter-mixed with sufficient
sentences from the questioned text
which may facilitate the
examination of voice sample
identification by them. The said
text shall be prepared by the CFSL
experts themselves only after the
investigating agency first provides
them with the questioned recording.
The collection of voice sample of
the accused persons shall also be
done in the CFSL Laboratory in
presence of the experts as not only
it will provide them a controlled
environment to suitably collect the
samples but it will also clear the
apprehension of the accused
persons that the investigating
agency may play some mischievous
role while collecting the voice
samples.”
8 The order of the ACMM was questioned before
the Delhi High Court. By a judgment and order dated 11
February 2015, a learned Single Judge held that the purpose
of a voice sample is to facilitate the process of comparing it
with a recorded conversation. The voice sample is not a JUDGMENT testimony in itself since it only constitutes what was
described as ‘identification data’. A voice sample, in the
view of the High Court is not a substantive piece of
evidence. The High Court rejected the submission that the
direction to furnish a voice sample was in violation of the
fundamental right under Article 20(3) of the Constitution
since firstly, the Appellants had not been forced or coerced
into furnishing such a sample since it was they who had
furnished their consent; secondly, a voice sample is not
evidence since its purpose is only to compare it with the
questioned text. In the view of the High Court, once the
Appellants had furnished their consent to furnishing their
voice samples, it was not open to them to dictate the
course of investigation. This order is called into question.
9 Learned senior counsel appearing on behalf of
the Appellants submitted that while it is true that the
Appellants have consented to the drawing of their voice
samples (a concession which was reiterated before this
Court in the course of the submissions) yet the process of
drawing the samples must be fair, so as to be consistent with the right of the Appellants under Article 21 of the
Constitution. The requirement of a fair investigation, it was
urged, is implicit in Article 21 and the procedure which is
adopted for drawing a voice sample must be fair and
reasonable.
10 The Appellants expressly consented to a voice sample
being drawn, in their response to the application that was
filed by the Investigating officer before the Court of
Metropolitan Magistrate. This was reiterated before the
High Court. In the submissions which have been urged in
these proceedings, learned counsel has specifically stated
that the Appellants would abide by the consent which they
had furnished to their voice samples being drawn. That
being the position, the only surviving issue for this Court is
to ensure that the underlying process for drawing the voice
samples is fair and reasonable, having due regard to the
mandate of Article 21. On the one hand, it is not open to
the accused to dictate the course of investigation. Hence,
we do not find substance in the submission that the text
which is to be read by the Appellants in the course of
drawing their voice samples should contain no part of the
inculpatory words which are a part of the disputed JUDGMENT conversation. A commonality of words is necessary to
facilitate a spectrographic examination.
11 By our order dated 17 November 2015, this Court
allowed an adjournment to the Respondent to seek
instructions from the expert concerned whether or not a
sample of words in such number as the expert may suggest
would suffice for the experts to give their opinion by
scientific voice sampling methods. Accordingly, a brief note
has been filed on the record stating that:
“That the experts of the Central
Forensic Science Laboratory (CFSL)
have informed that two separate
texts/scripts have been prepared in
the laboratory from each
Speaker/Accused, which are
different from the received
transcripts.
That the text/script prepared by the
CFSL experts cannot be provided to
the petitioners in advance as there
is apprehension that the petitioner
may practice the texts/scripts
thereby adversely affecting the
voice sampling examination.
Accordingly it is submitted that the
sample/modal text/script can only
be supplied to the
speakers/Accused if this Hon’ble
Court deems it appropriate.” 12 By an Order of this Court dated 1 July 2016, the
Investigating officer was directed to file a transcript of the
disputed conversation in a sealed cover. The Director
CFSL-CBI, was called upon to file in a sealed cover a
proposed passage of a written text which the Appellants
shall be required to read out for the purpose of giving their
voice samples using words, but not the sentences,
appearing in the disputed conversation in such number as
the Director/Scientific Officer may consider necessary for
the purpose of comparison.
13 We are of the view that the aforesaid directions which
have been issued by this Court would allay the
apprehension of the Appellants in regard to the fairness of
the process involved in drawing the voice sample. Our
directions ensure that the text which the Appellants would
be called upon to read out for the purpose of drawing their
voice samples will not have sentences from the inculpatory
text. Similarly, permitting the text to contain words drawn
from the disputed conversation would meet the legitimate
concern of the investigating authorities for making a fair
comparison.
JUDGMENT14 In pursuance of the directions issued by this Court the
Investigating officer has filed in sealed cover: (i) transcripts
of the disputed conversations; and (ii) a proposed passage
of a written text required to be read out by the Appellants
for the purpose of giving their voice samples. The passage
contains words but not the sentences appearing in the
disputed conversation. Having perused the contents of the
sealed covers, we are satisfied that the Investigating officer
has complied with our directions. We order accordingly.
15 The order passed by the High Court shall accordingly
stand modified and be substituted by the aforesaid
directions.
16 The Appeals are disposed of in the above terms.
New Delhi JULY 29, 2016.