Sudhakar Rastogi Vs. State Of U.P.

Allahabad High Court (Single Judge)

APPLICATION U/s 378, 4427 of 2017, Judgment Date: Jul 18, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 

 

Court No. - 11 AFR 

Case :- U/S 482/378/407 No. - 4424 of 2017 
Applicant :- Sudhakar Rastogi 
Opposite Party :- State Of U.P. 
Counsel for Applicant :- Purnendu Chakravarty 
Counsel for Opposite Party :- Govt. Advocate 

Hon'ble Attau Rahman Masoodi,J. 
 

Heard Sri P. Chakravorty, learned counsel for the petitioner and Sri Shiv Nath Tilhari, learned counsel for the State. 
During the course of investigation in case crime no. 7 of 2017 under Section 419, 420, 467, 468, 471, 120-B IPC, Section 12 of Passport Act and Section 7/13 Prevention of Corruption Act, 1988, an application was filed by the investigating officer before the court below on 19.6.2017 praying that the voice sample of two accused persons,namely, Maroof son of Mohd. Farukh and the petitioner who is a public servant holding the post of Assistant Passport Officer, may be permitted to be procured and sent for a forensic analysis and the investigation may accordingly be permitted to be carried out and finalised. 
The charge sheet came to be filed by the investigating officer on 10.7.2017 but prior thereto the court below passed an order on 6.7.2017 allowing the application insofar as the collection of voice sample of the petitioner being a public servant is concerned, whereas the prayer for collection of voice sample from Maroof son of Mohd Farukh was declined. The order passed by the court below records reasons as to why the voice sample of the petitioner for comparative analysis is desirable and for this purpose the mobile numbers of the accused and the co-accused (petitioner) have been mentioned in the order through which a conversation that has taken place during duty hours is alleged to be available with the investigation in the form of electronic record i.e. CD disc. 
Learned counsel for the petitioner while assailing the impugned order passed by the magistrate, has questioned the legality of this order primarily on the ground that during the course of investigation, such a procedure cannot be adopted by the investigating agency particularly when an identical issue is pending before the apex court in a reference arising out of the case of Ritesh Sinha v. State of U.P. wherein out of two questions the following question became a point of difference for which the matter was referred to the larger Bench. 
"Assuming that there is no violation of Article 20(3) of the Constitution of India, whether in the absence of any provision in the code can a Magistrate authorize the investigating agency to record the voice sample of the person accused of an offence?" 
In view of the fact that the above question has been referred to the larger Bench before the apex court, the position of law that emerges was placed before the Court on the basis of two judgments reported in 2001 10 SCC 605 and (2012) 8 SCC 575, according to which once a matter is referred to the larger Bench, the position of law becomes dormant and cannot be tilted either way having any prejudicial effect to the interest of either of the parties.  
Bearing the position of law as aforesaid in mind, this Court is faced with a situation to protect the larger interest of investigation on the one hand, and on the other hand, the vital interest of the accused can also not be lost sight of. A balancing view is to be taken which, in the circumstances of the case, may be a possible view. 
Noticeably, the petitioner in the present case was arrested on 12.4.2017 whereafter his judicial custody is extended under the remand orders passed from time to time. Presently, the petitioner is in Jail, thus, the provisions of Identification of Prisoners Act, 1920 are applicable. An accused while in judicial custody is also bound to cooperate with the investigation and for this purpose, Section 4 and Section 5 of the Act provides as under: 
"4. Taking of measurements or photographs of unconvicted persons. -- Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner. 

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 (5 of 1898) 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. 

Section 4 and Section 5 of the Act of 1920 aid in an investigation in respect of the proceedings under the Criminal Procedure Code. A perusal of Section 4 extracted above makes it clear that taking of measurements etc. of non-convicted person during investigation is permissible in the manner prescribed. However, in the State of U.P. no such guidelines or rules have been prescribed whereunder voice sample can be procured for investigation purposes. The only course open to the investigation, in such circumstances, seems to be Section 5 of the Act which confers power upon a magistrate to pass orders for a definite purpose of measurement to aid investigation. The word 'measurements' is defined under Section 2 (1) (a) as under: 

"(1) In this Act, unless there is anything repugnant in the subject or context,-- 
(a) "measurements" include finger impressions and foot-print impressions." 

Though the definition of measurement is inclusive but any interpretation at this stage may not be proper for the reason that the apex court is seized of the matter. Analysis of evidence by comparison as a matter of principle is envisaged under Section 73 of Indian Evidence Act but it is not categorically mentioned that evidence of voice in disc form available with investigation can be analyzed by comparison with the voice sample that may be procured and more so when the report thereof is not an admissible testimony, thus, the controversy in any view of the matter has to be settled by the apex court. 
Insofar as the investigation process within the scope of Sections 156, 157 and report under Section 173 Cr.P.C. is concerned, unfettered powers are conferred upon the investigating agency to discharge its duty so as to trace the course of truth in cognizable offences. Thus power to investigate is co-extensive with the powers of Court having competent jurisdiction to enquire or try a cognizable case under Chapter XIII Cr.P.C. by virtue of Section 156(1) Cr.P.C.
It is trite that the courts of law administer justice through the institution of judiciary and it is for this reason intervention in the matters of administration of justice at any stage in exercise of jurisdiction under Section 482 Cr.P.C. to meet the ends of justice is permissible. 
Learned counsel for the petitioner has vehemently argued that the right to procure voice sample may not be fundamentally protected within the ambit of Article 20(3) of the Constitution of India yet use of any incriminating material against the person himself is certainly prohibited under Article 21 of the Constitution of India. Therefore, even if the sample is permitted to be taken but its comparative analysis or report thereof cannot be used against the petitioner during the course of trial so long as the law recognises such a material to be admissible in evidence. Such a material cannot be even subjected to analysis in absence of a prescribed procedure, it is argued. 
The submission put forth by learned counsel for the petitioner carries weight particularly in a situation when the issue of law is firstly pending before the apex court and secondly there are no Rules framed for procuring and subjecting the voice sample to comparative analysis. 
Looking to the larger interest of investigation to aid the administration of justice, it is necessary for this Court as well as competent court below to allow investigation in a manner that may not impinge upon the right of defence of an accused but at the same time, the investigation also must not stand impeded. 
The question of voice sample fell for consideration in a recent judgement of the apex court i.e. Sudhir Chaudhary etc. etc. v. State (NCT of Delhi) wherein the apex court on the aspect of voice sample has observed that such a sample would be classified as an 'identification data' and the same would not be a testimony. 
This Court on a plain reading of Sections 156 and 157 as well as Section 173 of Code of Criminal Procedure would find that the material collected during the course of investigation is classified as information, facts, circumstances and reports etc. By virtue of Section 173 (2)(h) the medical reports in rape cases is a part of police report but forensic reports of voice sample by comparison etc. are not conceived to be a part of investigation report. That apart Indian Evidence Act also does not classify the forensic report of voice sample by comparison to be an evidence under Section 73. In these circumstances allowing a course of investigation for a futile exercise seems to subject the accused to a process not conceived under law. 
It is true that law on such a subject has to grow but at the same time use of technology leaving traces of crime in the form of voice that can be compared through Spectrographic test is scientifically well known and it is for this purpose that Section 173 (8) of Code of Criminal Procedure permits further investigation and the same for ready reference is extracted as under: 
"173. Report of police officer on completion of investigation. 

(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub- section (2)." 

A report under the above provision can only be filed of an evidence, oral or documentary in the form prescribed. As has already been observed above, the forensic report of voice sample by comparison is neither classified to be a testimony nor there are any rules prescribed for the purpose. 
The Court at this juncture would also be concerned about the protection available to an accused under the provisions of Criminal Procedure Code and on this aspect reference may be made to Section 315, 316 and 318 Cr.P.C. which, for ready reference, are reproduced below: 
"315. Accused person to be competent witness. 
(1) Any person accused of an offence before a Criminal Court shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial: 

Provided that- 

(a) he shall not be called as a witness except on his own request in writing; 

(b) his failure to give evidence shall not be made the subject of any comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial. 

(2) Any person against whom proceedings are instituted in any Criminal Court under section 98, or section 107, or section 108, or section 109, or section 110, or under Chapter IX or under Part B, Part C or Part D of Chapter X, may offer himself as a witness in such proceedings: 

Provided that in proceedings under section 108, section 109 or section 110, the failure of such person to give evidence shall not be made the subject or any comment by any of the parties or the Court or give rise to any presumption against him or any other person proceeded against together with him at the same inquiry."

"316. No influence to be used to induce disclosure. Except as provided in sections 306 and 307, no influence, by means of any promise or threat or otherwise, shall be used to an accused person to induce him to disclose or withhold any matter within his knowledge." 

"318. Procedure where accused does not understand proceedings. If the accused, though not of unsound mind, cannot be made to understand the proceedings, the Court may proceed with the inquiry or trial; and, in the case of a Court other than a High Court, if such proceedings result in a conviction, the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as it thinks fit." 

Courts of law cannot take an accused by surprise. The proceedings have to be understandable and an accused can also not be influenced to disclose. A forensic report of voice sample by comparison unless recognised by law, as an admissible evidence, remains firstly un-understandable to law and for this reason it cannot be a part of evidence or police report. Secondly, the right of cross-examination under Section 139 of the Evidence Act is the only tool through which an evidence can be disproved. If forensic report of voice sample is allowed to be used as an evidence, it must be kept in mind whether such a material is normally understandable to the accused so that his right of defence is not prejudiced. A fair trial requires protection of the right to defend and all these aspects of the matter, this Court is hopeful that the apex court would delve into. This Court would also note that in the case of Leena Katiyar v. State of U.P. and others rendered in Misc. Case No. 540 of 2015, the power of taking voice sample has been read by this Court within the scope of Section 165 read with Section 65-B of the Indian Evidence Act, which in my humble view escapes attention of the above provisions. 
This Court would also note that as per the case study by Federal Bureau of Investigation in U.S., the accuracy of forensic reports has not gained absolute certainty, thus, the forensic report to be classified as evidence may require more advancement in technology. The techniques are being studied to raise the level of certainty world over. Today no one disputes that the natural capability of human organism i.e. voice, it travels through electronic media to shape the crimes and, therefore, sample of voice like discovery of documents can very well aid investigation to a great extent. Identification of voice sample by comparison through scientific means is gaining importance and it is quite possible that some foolproof mechanism is discovered to serve the purpose of law but for the present, spectrograpic identification is loaded with problems. Acceptance of voice prints has yet not touched the degree of certainty to be classified as an evidence and the technique of voice identification by means of aural and spectrographic comparison remains an unsettled area in law. 
In Indian Forensic Science Laboratories, voice identification techniques are regularly conducted and have the facility of voice analysis, yet the reports so derived have to be considered within the ambit and scope of law which the legislation has not recognised. 
As per the case of prosecution, a CD disc. of conversation of two persons involved in the case crime mentioned above has been obtained and preserved. It is this evidence which has to be analyzed by the experts through the process of comparison. The apprehension of the petitioner at this stage is none other than that of tampering of evidence by prosecution after asking him to give sample of the same very transcription which may have been discovered during investigation. The comparison of voice sample of the petitioner with the transcription identical to the words procured during investigation may definitely prejudice his vital interest and to this extent protection sought for deserves to be granted. 
In the facts and circumstances of the case, though this Court is not inclined to interfere in the impugned order subject to the outcome on the question of law under reference before the apex court but at the same time, it is provided that the voice sample obtained from the petitioner shall be confined to the transcription of sentence other than what is said to be discovered in conversation obtained in the form of CD-disc and the court below shall ensure adequately that the voice sample is distinctly procured, which may be preserved only to serve the purpose of investigation in the present case. 
The petitioner may provide the voice sample to the investigating authority for analysis purpose but the final report obtained, if any, shall also be kept in sealed cover till the outcome of the pending reference before the apex court. The trial before the court below except to the extent of voice sample is left open and shall not be affected in any manner. 
Let a copy of this judgement be forwarded to the Registrar General, Supreme Court of India, who is expected to ensure early listing of the reference as per procedure of the apex court. 
A copy of this judgement may also be circulated to the district courts. 
The petition stands disposed of finally. 
 

Order Date :- 18.7.2017 
Fahim/- 



Court No. - 11 

Case :- U/S 482/378/407 No. - 4424 of 2017 
Hon'ble Attau Rahman Masoodi,J. 
The petition is disposed of vide order of date, on separate sheets. 
Order Date :- 18.7.2017 
Fahim/-