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
 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.

POINTS FOR DISCUSSION

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?

ARGUMENTS ON BEHALF OF THE PETITIONERS

Spectrography test of the accused amounts to testimonial compulsion within the

meaning of Article.20 (3). under Section 5 of the Identification of the Prisoners Act ,
1920 , it is specifically provided that if a Magistrate is satisfied that, for the purposes
for 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 . It also provides that 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. The word "measurements"
mentioned in the said provision will include fingerprints and footprints, but not the
handwriting or the signature. 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, 1973. Section 311A came to be inserted by Act 25 of
2005, Section 27 (w.e.f. 23rd June 2006). when the Parliament made this enactment, 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, signature and handwriting
from a person in the course of investigation by the police, 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 . Otherwise there is
no tangible reason for the Parliament to exclude, under the Identification of Prisoners
Act, the taking of handwriting or signature. The provisions of the Act, 1920 are
meant only the purpose of identification i.e. the physical measurements of the body
or parts of the body. This would not include voice sample of an accused or a suspect.
reading voice sample in Section 2(a) of the Act, 1920 will amount to rewriting of the
definition by the Court which is not permissible in law. Voice Spectrography Test
would fall within the ambit of a psychiatric Examination as held by the Supreme
Court in Selvi and others vs. State of Karnataka.1 And any psychiatric examination,
without the consent of the accused, will offend Article 20(3) of the Constitution

ARGUMENTS ON BEHALF OF THE REPONDENTS

By,quoting the Supreme Courts judgment in Ritesh Sinha vs. State of U.P. 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.20(3) of the constitution, which the
prosecution also thinks the correct view. The term measurements as defined under
Section.2 (a) of the Act, 1920 is inclusive and not exhaustive. Voice sample is one of the
modes of identification of an accused or a suspect. Voice sample can be included in the
exclusive definition of the measurements appearing in Section.2 (a) of the Prisoners
Act. The voice prints are like fingerprints, and therefore, would be covered by the term
measurements. 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.

1
2010 (7) SCC 263
2
2013(2) SCC 357
 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 Karnataka3 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 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

3
Supra note .1
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 Oghad4, 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 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 kalus6 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 major concern in this case is about the magistrate's power to authorize
investigating agency to record the voice sample of the person accused. Lets examine the
provisions quoted in the judgment. Section.73 of evidence Act, 1872 comes into play only
at the stage of trial. Likewise Section.53 0f Criminal procedure code, 1973 says about

4
AIR 1961 SC 1808
5
Selvi and others vs. State of Karnataka, 2010 (7) SCC 263
6
State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808
medical examination of the person. Both these provisions would not be of any help to
the magistrate at the stage of investigation.

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 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.

Sec.2 (a) of the Act defines measurement as including include finger impressions and
foot-print impressions. From what I have understood of this provision, I will not say that
measurement would include voice spectrograph also, as the definition seems to me an
exclusive one even after having the word including in it.

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.

In 2005 Section.311A has been inserted in Cr.PC which empowers the magistrate to direct
any person to give specimen signature or handwriting during the investigation, which
however does not recognize voice sample. Now the only avail is Sec.91 Cr.PC. Section.91
empowers both the court and investigating authority to summon a person to produce
documents or things in their possession in connection with the investigation, inquiry or
trial. There is no doubt from the plain meaning of this provision that it does give
magistrate the power in question. However if this section could be used for that
purpose, both hand writing and signature specimen could also be obtained by this
section itself, and what is the need of a new provision, i.e., 311A.