State of Rajasthan @APPELLANT@Hash Vikramjeet Singh, Vika Virk

Jodhpur, the second largest city of State of Rajasthan is relatively considered to be a peaceful and safe city. Known for its cultural heritage and hospitality,

Jodhpur City is rapidly adopting the metropolitan culture while trying to maintain balance between its originality and development.

However, the proud and belief of the residents of Jodhpur, of living in a peaceful and safe city, was shaken with two incidents, took place in the wee hours

of 17.03.2017, in which some armed youth indiscriminately fired gunshots at the residences of two persons viz. Dr Sunil Chandak and Mr Manish Jain. Dr

Sunil Chandak is owner of a private hospital having several branches in Jodhpur City, whereas Mr Manish Jain is a transporter, owner of a travel company.

The incidents of firing at residences of above named persons were immediately reported to the police. As the said incidents were recorded in the CCTV

Cameras installed outside both the houses, the footage of those CCTV Cameras were collected by the police. The details of the said footage revealed that

some youth on motorcycle stopped in front of houses of Dr Chandak and Mr Jain and started indiscriminate firing.

The group of youth first fired gunshots at the house of Dr Chandak and thereafter repeated the same at the house of Mr Jain and as the houses of Dr

Chandak and Mr Jain are falling in different police stations, two FIRs were registered. The FIR of Dr Chandak is registered at Police Station, Pratap

Nagar as FIR No.106/2017 and FIR of Mr Jain is registered as FIR No.69/2017 at Police Station, Shashtri Nagar. As per the police, after the

registration of two above referred FIRs in the morning, the complainants in both the FIRs were threatened on their mobile phones, whereby the person

calling them had reminded them of the firing on their houses in the morning and asked them to give protection money, otherwise they and their family

members either would be harmed or killed. Dr Chandak was called twice by the person in the evening of 17.03.2017 in which he was asked to give Rs.50

lac. Mr Chandak recorded the said conversation and made it available to the police in a pendrive.

During the course of investigation, the police arrested two persons from Punjab, who were allegedly the members of the group of youth, who had fired

gunshot at the houses of Dr Chandak and Mr Jain. When the police decided to conduct test identification parade of those arrested persons and asked one

person to make himself available for the same, Dr Chandak again received a call on his mobile phone on 12.04.2017, allegedly by the same person who

had called him in the evening of 17.03.2017 to give Rs.50 lac, asking him not to identify the persons arrested by the police. The said conversation was

also recorded by Dr Chandak and handed it over to the police.

It is the case of the prosecution that the person, who called Dr Chandak on 17.03.2017 twice and thereafter on 12.04.2017 is the respondent in this

petition, who had made those calls from Italy through Voice Over Internet Protocol (VOIP). It is also the case of the police that with the help of the cyber

crime experts, it has collected the evidence that the respondentVikramjeet Singh @ Vika had made those calls to Dr Chandak from Italy through VOIP on

the instructions of one Lawrence Bishnoi, another accused, in this case. After collecting this evidence, the police has obtained arrest warrant of the

respondent from the court and in furtherance of that a lookout notice was also issued. Ultimately, the respondent was arrested at Indira Gandhi

International Airport, Delhi while he was trying to flee abroad after a brief visit to India. After his arrest, the respondent has confessed that he made those

calls to Dr Chandak on the instructions of Lawrence Bishnoi, who was lodged at Firozpur Jail, Punjab in some other criminal case.

Probably the police feel that the information given by the respondent to it is not sufficient and may be not admissible as the same is given in the police

custody, it moved an application before the Additional Chief Metropolitan Magistrate No.2, Jodhpur Metropolitan (hereinafter to be referred as 'the

Magistrate') with a prayer to direct the respondent to give his voice sample for the purpose of comparison of his voice with the recorded conversation,

provided by Dr Chandak in connection with the FIR No.106/2017 lodged at Police Station, Pratap Nagar, Jodhpur.

The respondent, through his advocate, put in appearance before the Magistrate and as expected, refused to give his consent to collect his voice sample.

Learned Magistrate after hearing the State and counsel for the respondent, has rejected the application filed by the police vide order dated 06.09.2017

while observing that the issue regarding the power of a Magistrate to authorize the investigating agency to record the voice sample of an accused of an

offence is referred to the Larger Bench by the Hon'ble Supreme Court in Ritesh Sinha vs. State of U.P., reported in (2013) 2 SCC 357 and as the High

Court of Gujarat in Natvarlal Amarshibai Devani vs. State of Gujarat & Ors., Special Criminal Appeal (Direction) No.5226/2015 decided on 18.01.2017

has held that in the absence of any provision, which empowers the police officer or the court in law, it is not permissible for the police to ask an accused

to give his voice spectrography test, prayer of the police of this effect cannot be granted.

Being aggrieved with the order dated 06.09.2017 passed by the Magistrate, the Police through State of Rajasthan filed Cr.Revision No.495/2017 before the

Additional Sessions Judge No.6, Jodhpur Metropolitan (hereinafter to be referred as 'the revisional court'), however, the said revision was dismissed by the

revisional court vide order dated 27.10.2017 affirming the order passed by the Magistrate.

Hence, this criminal misc. petition is filed by the State under section 482 CrPC seeking following reliefs:

It is, therefore, most humbly and respectfully prayed that this Misc petition may kindly be allowed, impugned order dt. 27.10.2017 passed by learned

revisional court and the order dated 06.09.2017 passed by the learned Addl. Chief Judicial Magistrate No.2 Jodhpur Metro may kindly be quashed and set

aside and appropriate order for granting permission for voice sample of the accused respondent may kindly be passed in F.I.R. No.106/2017 of the Police

Station, Pratapnagar by allowing application of prosecution.

Any other order which this hon'ble Court deems just and proper may kindly passed in favour of State petitioner.

Assailing the impugned orders, learned Public Prosecutor Mr Vikram Singh Rajpurohit has argued that the courts below have erred in rejecting the prayer

of the police to direct the respondent to give his voice sample. It is argued that collection of voice sample of respondent will not prejudice him in any

manner, rather it may help the police to reveal the truth and in reaching to the just conclusion of the case.

It is argued that the prosecution has every right to prove its case through scientific methods, and forensic examination of voice of any accused person is

also one of such methods for arriving at a definite conclusion in the investigation.

It is also argued that the position of law is very clear as various High Courts and Hon'ble Supreme Court have categorically held in catena of decisions that

the voice spectography test is in no manner violative to the provisions of Article 20(3) of the Constitution of India and in view of that the rejection of the

prayer of the police to direct the respondent to give his voice sample is not justified.

Learned Public Prosecutor Mr Vikram Singh Rajpurohit

has also argued that one of the Judges of Hon'ble Supreme Court, Hon'ble Mr Justice Ranjana P. Desai in Ritesh Sinha vs. State of U.P. (supra) has

already held that the police can take voice sample of an accused during the course of investigation and the same view has also been followed by the

various High Courts and in view of that this criminal misc. petition deserves to be allowed and the impugned orders are liable to be set aside and the

prayers made in this petition are liable to be granted.

Learned Public Prosecutor in support of above arguments, has placed reliance on the view expressed by Hon'ble Mr Justice Ranajan P. Desai in Ritesh

Sinha vs. State of U.P. (supra) and on the decisions of Madras High Court in P.Kishore vs. State, reported in 2018(1) MLJ(Crl) 208 and in Rabindra

Kumar Bhalotia and Ors. vs. State and Ors., reported in 2018(1) MLJ (Crl) 149 and on the decision of Allahabad High Court in Leena Katiyar vs. State

of U.P. and Ors., reported in 2015(1) ACR 989.

With the permission of this Court, the Commissioner of Police, Jodhpur along with other Police Officers has given a power point presentation to

demonstrate that the incidents of firing at the residences of Dr Chandak and Mr Jain are not isolated incidents but those incidents were part of an

organized crime involving the criminals of various States. Police Commissioner has explained the modus operandi of the gang involved in this case and has

submitted that the criminal gang involved in this case is spread in Rajasthan, Punjab and Haryana States and they use to collect details about the rich and

prosperous people of any city through a local link. After collecting the details of the possible targets, the gang zero down some of them and give the task of

doing racky of them to the members of the gang, who are mostly locals. Then they start threatening to the possible targets by making calls with intention

to extort money from them. If a person does not fulfill their demand or ignore the same, shooters from other States are assigned to threat them by firing

gunshots at their residences or work places. It is informed that even in some cases, the gang has also killed the persons, who have flatly refused to fulfill

their demand even after firing at their residences or work places.

The Commissioner of Police has further explained that in the cases of Dr Chandak and Mr Jain, some local criminals had given clue to the gangster, who

was operating criminal activities of his gang from Firozpur Jail, Punjab that these two persons can be soft targets. After taking clue from the local

criminals, the gangster, lodged at Firozpur Jail, Punjab directed his gang members to make threatening calls to Dr Chandak and Mr Jain. In February,

2017, the said two victims were in receipt of threatening calls but they did not take it seriously. Then just some days prior to the incident, some youth

barged into the office of Mr Jain and attempted to fire gunshot. After that some of the accused-persons of Punjab reached Jodhpur in the morning of

17.03.2017 and straightaway went to the residences of Dr Chandak and Mr Jain along with some local members of gang on motorcycles and

indiscriminately fired gunshots. In the evening of 17.03.2017, respondent called Dr Chandak twice from Italy asking him to give Rs.50 lac as protection

money.

When the police have arrested two persons from Punjab, who had allegedly fired gunshots at the residences of victims and decided to conduct test

identification parade of them, the respondent again called him and asked him not identify those two persons.

It is further informed by the Commissioner of Police, Jodhpur that some members of the same gang then opened fire at the shop of one Vasudev Sindhi

at Sardarpura 'C' Road, Jodhpur on 19.06.2017 at 9:00 P.M. with the intention to extort money from him. Next day on 20.06.2017 at about 9:00 P.M.,

the members of very same gang fired gunshot at the residence of one Ritesh Lohiya at Shashtri Nagar. On 03.07.2017, this gang threatened one

Advocate Rajesh Panwar to give money. On 20.07.2017, one member of gang viz. Heera @ Harendra made a Whatsapp call to Vasudev Sindhi and

demanded money, however, when Vasudev Sindhi flatly refused to give money, he was killed on 17.09.2017 at 10:45 P.M., while he was closing his shop,

by Heera @ Harendra by firing gunshots on him.

The Commissioner of Police has urged that the criminals nowadays are using sophisticated techniques such as Whatsapp Calls, Internet Calls and

Facebook for commission of crime. It is stated that it is very difficult to trace the calls made through Internet or Whatsapp from foreign countries,

however, in the present case, police with the help of cyber crime experts are able to trace the calls made by the respondent to Dr Chandak from Italy. It

is submitted that the recorded conversation of Dr Chandak and respondent is available with the police and the respondent has also confessed during

interrogation that he made those calls but despite that it is necessary for the purpose of investigation that the voice sample of the respondent be collected,

so that, it can be compared with the voice of respondent contained in the recorded conversation.

The Commissioner of Police has finally urged that the respondent and other criminals have disturbed the peace of the city and with the intention to terrorise

the professionals and the businessmen of the city have committed crime in organized manner while using sophisticated techniques and, therefore, it is

necessary to allow the investigating agency also to make use of scientific method for the purpose of bringing offenders to justice, so that sense of security

amongst the citizens be restored.

The Commissioner of Police undertakes that it will be ensured that the text which the respondent would be called upon to read out for the purpose of

drawing his voice sample will not contain sentences appearing in the tape recorded conversation but will only contain some words drawn from the said

conversation.

Per contra, this criminal misc. petition is vehemently opposed by Mr Farzand Ali, counsel for the respondent, assisted by Mr Sanjay Bishnoi and Mr

Naman Mohnot, by raising few preliminary objections regarding maintainability of this misc. petition, which are thus:

(i) That the present misc. petition under section 482 CrPC is not maintainable because it is a second revision petition, which is filed after rejection of first

revision petition by the Additional Sessions Judge No.2, Jodhpur Metropolitan and, therefore, it is barred as per the provisions of Section 397(3) CrPC.

(ii) The matter regarding power of a Magistrate to authorize the investigating agency to record the voice sample of the person accused of an offence is

sub-judice before the Larger Bench of Hon'ble Supreme Court in a reference made vide judgment rendered in Ritesh Sinha vs. State of U.P. (supra), so

it is not desirable to decide this point till the decision of the Larger Bench of the Hon'ble Supreme Court is delivered.

On merits, learned counsel Mr Farzand Ali has argued that there is no illegality in the impugned orders passed by both the courts below as the courts below

have rightly rejected the prayer of the police to allow them to take voice sample of the respondent because there is no such provision under any law, which

empowers a Magistrate to allow the police to collect the voice sample of an accused during the course of investigation of a case.

It is also argued by learned counsel for the respondent that despite recommendation of the Law Commission submitted way back in the year 1980, the

Legislature in its wisdom has not included voice sample either in the explanation of Section 53 or in Section 31A CrPC or in the Identification of Prisoners

Act, 1920 (hereinafter to be referred as 'the Prisoners Act') and, therefore, it is clear that the Legislature has no intention to allow the investigating agency

to collect the voice sample of a person of accused of an offence, hence, no such direction can be given when the accused-person has refused to give his

voice sample.Â

In support of above arguments, learned counsel for the respondent has placed reliance on the observations made by Hon'ble Mr Justice Aftab Alam in

Ritesh Sinha vs. State of U.P. (supra) and the decisions of Gujarat High Court rendered in Natvarlal Amarshibai Devani vs. State of Gujarat & Ors.,

Special Criminal Appeal (Direction) No.5226/2015 decided on 18.01.2017 as well as of Kerala High Court rendered in Rupesh @ Praveen vs. Union of

India, reported in 2017(5) KHC 983 and has argued that when the Hon'ble Supreme Court and two High Courts have categorically held that in the absence

of any provision under any provision of law, which enables a Magistrate to allow the police to take the voice sample of a person of accused of an offence,

no such direction can be issued and this criminal misc. petition seeking said relief is liable to be dismissed.

Heard learned counsels for the rival parties.

First of all, I would like to deal with the preliminary objections raised on behalf of the respondent regarding maintainability of this petition.

It is true that the revision petition filed on behalf of the State under Section 397 CrPC before the Additional Sessions Judge No.6 Jodhpur Metropolitan

against the order passed by the Magistrate has already been dismissed, however, at present the State has not filed revision petition under section 397 and

401 CrPC but has filed this petition under section 482 CrPC. The law in this respect is well settled by the decision of Hon'ble Supreme Court rendered in

Dhariwal Tobacco Products Ltd. vs. State of Maharashtra, reported in (2009) 2 SCC 370, wherein the Hon'ble Supreme Court has held that even in cases

where the second revision petition before the High Court after dismissal of first one by the Court of Sessions is barred under Sectioni 397(3) CrPC, the

inherent power of the High Court is still available. The relevant portion of the above referred decision is reproduced hereunder:

“6.……… Even where a revision application is barred, as for example the remedy by way of Section 115 of the Code of Civil Procedure, 1908, this

Court has held that the remedies under Articles 226/227 of the Constitution of India would be available. (See Surya Dev Rai v. Ram Chander Rai6.)Â

Even in cases where a second revision before the High Court after dismissal of the first one by the Court of Session is barred under Section 397(2)* of the

Code, the inherent power of the Court has been held to be available.

The power of the High Court can be exercised not only in terms of Section 482 of the Code but also in terms of Section 483 thereof. The said provision

reads thus:

“483. Duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates.- Every High Court shall so exercise its

superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such

Magistrates.â€​

The inherent power of the High Court is not conferred by statute but has merely been saved thereunder. It is, thus, difficult to conceive that the jurisdiction

of the High Court would be held to be barred only because the revisional jurisdiction could also be availed of. (See Krishnan v. Krishnaveni7.)â€

                                                         (Emphasis

supplied)

As stated earlier, the State has not invoked the revisional jurisdiction of this Court but has filed this petition while invoking inherent jurisdiction of this Court

under Section 482 CrPC and, therefore, this petition cannot be dismissed while treating it as second revision petition. Otherwise also, an important question

of law is involved in this petition and, therefore, a petition under Section 482 CrPC can be entertained by this Court to secure the ends of justice. Hence,

the first preliminary objection raised on behalf of the respondent is rejected.

So far as second preliminary objection raised on behalf of the respondent, that since the point in issue is pending before the Larger Bench of Hon'ble

Supreme Court this Court should not finally decide this controversy, is concerned, I am unable to accept the same as there is no prohibition in deciding

the matter even though if the point in issue is pending before the Larger Bench.

This view of mine gains strength from the observations made by the Hon'ble Supreme Court in Harbhajan Singh vs. State of Punjab, reported in (2009) 13

SCC 608, the relevant observations made in the said decision by the Hon'ble Supreme Court are reproduced hereunder:

………… Only because the correctness of a portion of the judgment in Mohd. Shafi has been doubted by another Bench, the same would not mean

that we should wait for the decision of the larger Bench.

Thereafter, the Hon'ble Supreme Court in Ashok Sadarangani vs. Union of India, reported in (2012) 11 SCC 321 has also made the following observations:

“29. As was indicated in Harbhajan Singh case, the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the

same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh case need not, therefore, detain us. Till

such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field.â€​

In view of the above, the second preliminary objection of the learned counsel for the respondent is also rejected.

Now I would like to deal with the judgment of the Honb'le Supreme Court rendered in Ritesh Sinha vs. State of U.P. (supra). The two Judges of Hon'ble

Supreme Court in Ritesh Sinha vs. State of U.P. are agreed on the issue that if an accused-person is compelled to give his voice sample during the course

of investigation of an offence, there is no violation of his right under Article 20(3) of the Constitution of India. The observations of this effect made by the

Hon'ble Mr Justice Ranajana P. Desai, to which Hon'ble Mr Justice Aftab Alam also agreed, are reproduced hereunder:

Applying the test laid down by this Court in Kathi Kalu Oghad which is relied upon in Selvi, I have no hesitation in coming to a conclusion that if an

accused person is directed to give his voice sample during the course of investigation of an offence, there is no violation of his right under Article 20(3) of

the Constitution. Voice sample is like fingerprint impression, signature or specimen handwriting of an accused. Like giving of a fingerprint impression

or specimen writing by the accused for the purposes of investigation, giving of a voice sample for the purpose of investigation cannot be included in the

expression “to be a witnessâ€. By giving voice sample the accused does not convey information based upon his personal knowledge which can

incriminate him. A voice sample by itself is fully innocuous. By comparing it with tape-recorded conversation, the investigator may draw his

conclusion but, voice sample by itself is not a testimony at all. When an accused is asked to give voice sample, he is not giving any testimony of the

nature of a personal testimony. When compared with the recorded conversation with the help of mechanical process, it may throw light on the points in

controversy. It cannot be said by any stretch of imagination that by giving voice sample, the accused conveyed any information based upon his personal

knowledge and became a witness against himself. The accused by giving the voice sample merely gives “identification data†to the investigating

agency. He is not subjected to any testimonial compulsion. Thus, taking voice sample of an accused by the police during investigation is not hit by Article

20 (3) of the Constitution.

However, the difference of opinion cropped up in between two Hon'ble Judges is on the issue ""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.""Â

Hon'ble Mr Justice Ranjana P. Desai while interpretating the provisions of Identification of Prisoners Act and Section 53 CrPC has held as under:

In the ultimate analysis, therefore, I am of the opinion that the Magistrate’s power to authorise the investigating agency to record voice sample of

the person accused of an offence can be traced to Section 5 of the Prisoners Act and Section 53 of the Code. The Magistrate has an ancillary or implied

power under Section 53 of the Code to pass an order permitting taking of voice sample to aid investigation. This conclusion of mine is based on the

interpretation of relevant sections of the Prisoners Act and Section 53 of the Code and also is in tune with the concern expressed by this Court in Kathi

Kalu Oghad that it is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of law and the

law courts with legitimate powers to bring offenders to justice.

The principle that a penal statute should be strictly construed is not of universal application. In Murlidhar Meghraj Loya v. State of Maharashtra this

Court was dealing with the Prevention of Food Adulteration Act, 1954. Speaking for this Court, Krishna Iyer, J. held that any narrow and pedantic, literal

and lexical construction of food law is likely to leave loopholes for the offender to sneak out of the meshes of law and should be discouraged and criminal

jurisprudence must depart from old canons defeating criminal statutes calculated to protect the public health and the nation’s wealth. Similar view

was taken in Kisan Trimbak Kothula v. State of Maharashtra. In State of Maharashtra v. Natwarlal Damodardas Soni, while dealing with Section 135 of

the Customs Act and Rule 126-H(2)(d) of the Defence of India Rules, a narrow construction given by the High Court was rejected on the ground that that

will emasculate these provisions and render them ineffective as a weapon for combating gold smuggling. It was further held that the provisions have to

be specially construed in a manner which will suppress the mischief and advance the object which the legislature had in view. Therefore, whether the

penal statute should be given strict interpretation or not will depend on facts of each case. Considerations of public health, preservation of nation’s

wealth, public safety may weigh with the court in a given case and persuade it not to give a narrow construction to a penal statute.

In the view that I have taken, I find no infirmity in the impugned order passed by the High Court confirming the order passed by the learned Chief

Judicial Magistrate, Saharanapur summoning the appellant to the court for recording the sample of his voice. The appeal is dismissed.

On the other hand, Hon'ble Mr Justice Aftab Alam disagreed with the above view of Hon'ble Mr Justice Ranjana P. Desai and made certain observations,

relevant portions whereof are as follows:

As regards the first question, relying primarily on the eleven-Judge Bench decision of this Court in State of Bombay v. Kathi Kalu Oghad which was

followed in the more recent decision in Selvi v. State of Karnataka Desai, J. held that “taking voice sample of an accused by the police during

investigation is not hit by Article 20 (3) of the Constitutionâ€. I am broadly in agreement with the view taken by her on Article 20(3) but, since I differ

with her on the second question, I think the issue of constitutional validity in compelling the accused to give his/her voice sample does not really arise in this

case.

Coming to the second question, as may be seen, it has the recognition that there is no provision in the Criminal Procedure Code to compel the accused

to give his voice sample. That being the position, to my mind the answer to the question can only be n the negative, regardless of the constitutional

guarantee against selfincrimination and assuming that in case a provision in that regard is made in the law that would not offend Article 20(3) of the

Constitution. Desai, J., however, answers the question in the affirmative by means of a learned and elaborate discourse. She has navigated the arduous

course to the conclusion at which she arrived very painstakingly and skilfully.

I am completely unable to see how Explanation (a) to Section 53 can be said to include voice sample and to my mind the ratio of the decision is Selvi

does not enlarge but restricts the ambit of the expressions “such other tests†occurring in the Explanation. In my opinion the Explanation in question

deals with material and tangible things related to the human body and not to something disembodied as voice.

Section 53 applies to a situation where the examination of the person of the accused is likely to provide evidence as to the commission of an offence.Â

Whether or not the examination of the person of the accused would afford evidence as to the commission of the offence undoubtedly rests on the

satisfaction of the police officer not below the rank of Sub-Inspector. But, once the police officer makes a request to the registered medical practitioner

for the examination of the person of the accused, what other tests (apart from those expressly enumerated) might be necessary in a particular case can

only be decided by the medical practitioner and not the police officer referring the accused to him. In may view, therefore, Mr Dave, learned counsel for

the appellant, is right in his submission that any tests other than those expressly mentioned in the Explanation can only be those which the registered

medical practitioner would think necessary in a particular case. And further that in any event a registered medical practitioner cannot take a voice

sample.

A careful reading of Sections 3, 4 and 5 would make it clear that the three provisions relate to three categories of persons. Section 3 relates to a

convicted person. Section 4 relates to a person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of

1 year or upwards. Section 5 is far wider in amplitude than Sections 3 and 4 and it relates to any person, the taking of whose measurements or

photographs might be expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure. In the case of the first two

categories of persons, the authority to take measurements vests in a police officer but in the case of Section 5, having regard to it much wider amplitude,

the power vests in a Magistrate and not in any police officer.

It is to be noted that the expression “measurements†occurs not only in Section 5 but also in Sections 3 and 4. Thus, if the term

“measurementsâ€​ is to be read to include voice sample then on arresting a person in a case relating to an offence punishable with rigorous imprisonment

for a term of 1 year or upwards (and voice sample would normally be required only in cases in which the punishment is one year or upward!) it wold be

open to the police officer (of any rank) to require the arrested person to give his/her voice sample on his own and without seeking any direction from the

Magistrate under Section 5. Further, applying the same parameters, not only voice sample but many other medical tests, for instance, blood tests such as

lipid profile, kidney function test, liver function test, thyroid function test, etc., brain scanning, etc. would equally qualify as “measurements†within the

meaning of the Identification of Prisoners Act. In other words on arresting a person in a case relating to an offence punishable with rigorous

imprisonment for a term of 1 year or upwards it would be possible for the police officer (of any rank) to obtain not only the voice sample but the full

medical profile of the arrested person without seeking any direction from the Magistrate under Section 5 of the Identification of Prisoners Act or taking

recourse to the provisions of Section 53 or 53-A of the Code of Criminal Procedure. I find it impossible to extend the provisions of the Identification of

Prisoners Act to that extent.

It may not be inappropriate her to point out that in exercise of the rule-making powers under Section 8 of the Identification of Prisoners Act some of

the State Governments have framed rules. I have examined the ruels framed by the States of Maharashtra, Madhya Pradesh, Orissa, Pondicherry and

Jammu and Kashmir. From a perusal of those rules it would appear that all the State Governments understood “measurements†to mean the

physical measurements of the body or parts of the body. The framing of the rules by the State Government would not be binding on this Court in

interpreting a provision n the rules. But it needs to be borne in mind that unless the provisions are incorporated in the Act in regard to the manner of

taking voice sample and the person competent to take voice sample, etc. there may be difficulty in carrying out the direction of the Court.

For arriving at her conclusion regarding the scope of Section 5 of the Identification of Prisoners Act, Desai, J. has considered two High Court

judgments. One is of the Bombay High Court in CBI v. Abdul Karim Ladsab Telgi and the other by the Delhi High Court in Rakesh Bisht v. CBI. She

has approved the Bombay High Court decision in Telgi case and disapproved the Delhi High Court decision in Bisht case. The Bombay High Court

decision is based on exactly the same reasoning as adopted by Desai, J. that the definition of “measurement†in Section 2 (a) is wide enough to include

voice sample and hence a Magistrate is competent to order a person to give his voice sample. The relevant passage in the decision is as under: (Telgi

case, Cri LJ p. 2876, para 14)

“14. … Be that as it may, the expression ‘measurements’ occurring in Section 5 has been defined in Section 2(a), which reads thus:

‘2. Definitions. -In this Act …

(a) “measurementsâ€​ include impressions and footprint impressions;’

The said expression is an inclusive term, which also includes finger impressions and footprint impressions. Besides, the term, measurement, as per the

dictionary meaning is the act or an instance of measuring; an amount determine by measuring; detailed dimensions. With the development of Science

and Technology, the voice sample can be analysed or measured on the basis of time, frequency, and intensity of the speech sound waves so as to compare

and identify the voice of the person who must have spoken or participated in recorded telephonic conversation. The expression ‘measurements’

occurring in Section 5, to my mind, can be construed to encompass even the act undertaken for the purpose of identification of the voice in the tape-

recorded conversation. Such construction will be purposive one without causing any violence to the said enactment, the purpose of which was to record

or make note of the identity of specified persons.â€​

The Report as noted was submitted in 1980. The Code of Criminal Procedure was amended in 2005 when the Explanation was added to Section 53

and Sections 53-A and 311-A were inserted into the Code. Voice sample was not included either in the Explanation to Section 53 or Section 311-A.

Should the Court still insist that voice sample is included in the definition of “measurements†under the Identification of Prisoners Act and in the

Explanation to Section 53 of the Code of Criminal Procedure? I would answer in the negative.

In light of the above discussion, I respectfully differ from the judgment proposed by my Sister Desai, J. I would allow the appeal and set aside the

order passed by the Magistrate and affirmed by the High Court. Let copies of this judgment be sent to the Union Law Minister and the Attorney

General and their attention be drawn to the issue involved in the case.

Having taken into consideration both the above views, I would prefer to follow the view expressed by Hon'ble Mr Justice Ranjana P. Desai because

nowadays, criminals are using sophisticated devices and modern techniques while committing heinous crimes. They are using Whatsapp Call, VOIP and

many other modern techniques for committing the offences like extortion, kidnapping, blackmail and terrorist activities and looking to these circumstances,

narrow interpretation of Section 53 CrPC or keeping voice sample out of the definition of measurement, as provided in the Prisoners Act, at one hand will

result in giving long rope to the criminals indulged in destroying the peace of society and making life of an ordinary law abiding citizen miserable,

whereas on the other hand will also result in throttling the investigation by the police or investigating agency. Hon'ble Mr Justice Ranjana P. Desai has

rightly observed that consideration of public safety may weigh with the court in persuading it not to give narrow construction to a penal statute.

From the facts involved in this case, prima facie, it appears that criminals of different States form a gang to commit organized crime. The modus operandi

of the gang is to threat the victims with the intention to extort money, first on telephone or mobile phone and when the victims do not toe their line, then

to terrorise them and their family by firing gunshots at their houses or work places or by killing anybody. The members of the gang made calls through

Whatsapp or VOIP or other techniques from within country or from foreign country knowing well that it is very difficult for the police to trace them and

even if the police is able to trace them, it is difficult to prove that they have called the victim because they cannot be compelled to give their voice

sample. Misuse of the technology by the criminals can only be countered by good use of technology.

We must not forget that though the voice sample has not been expressly included in any of the provisions of CrPC or in the definition of measurement as

provided in Prisoners Act but there is no prohibition in drawing voice sample in CrPC or in any other law either. The law is silent on this aspect.

It is settled law that the voice sample in itself is not a substantive piece of evidence. By giving it the accused does not convey any information based upon

his personal knowledge, which can incriminate him. It can only be used for comparison with the recorded conversation and it cannot be treated as

testimony at all.

When as per Section 65B of the Indian Evidence Act, tape recorded conversation containing voice of an accused is admissible in evidence and if the

prosecution has to prove the said evidence, it is essential to allow the police or investigating agency to take voice sample of accused, otherwise, keeping of

the recorded voice of the accused by the police in case file would be a futile exercise if it cannot be proved. In R.N.Malkani vs. State of Maharashtra,

reported in (1973) 1 SCC 471 and in Ziyauddin Barhanuddin Bukhari vs. Brijmohan Ramdass Mehra & Ors reported in (1976) 2 SCC 17, the Hon'ble

Supreme Court has held that tape recorded conversation are admissible in evidence on satisfying the conditions about their genuineness.

Therefore, while following the view expressed by Hon'ble Mr Justice Ranjana P. Desai on the second point in Ritesh Sinha vs. State of U.P. (supra), I also

endorse the view taken by Madras High Court in P.Kishore vs. State, and in Rabindra Kumar Bhalotia and Ors. vs. State and Ors.(supra) as well as by

the Allahabad High Court in Leena Katiyar vs. State of U.P. and Ors. (supra) though for different reasons. At the same time, I express my respectful

disagreement with the view taken by Kerala High Court in Rupesh @ Praveen vs. Union of India, reported in 2017(5)

KHC 983 and the decision of Gujarat High Court rendered in Natvarlal Amarshibai Devani vs. State of Gujarat & Ors. (supra) respectively.

I feel that there are two more aspects, which are also to be taken into consideration. Firstly when there is no provision under the law, which empowers a

Magistrate to compel an accused to give his voice sample during the course of investigation or in other words when no procedure is prescribed under any

law, which enables the police to take voice sample of an accused during the course of investigation, how a court of law can allow the police to take voice

sample of any accused, who voluntarily agrees to give it.

In my opinion, if there is no provision under any law to take any voice sample of an accused-person during the course of investigation, the same cannot be

permitted even when the accused-person voluntarily agrees for it. Either the law permits it or does not permit it, there cannot be any via media.

Otherwise also, when Hon'ble Supreme Court and various High Courts have taken this view that voice spectography test is in no manner violative of

Article 20(3) of the Constitution of India, the voice sample in itself is not a substantial piece of evidence, it can only be used for the purpose of comparing it

with the tape recorded conversation and by giving voice sample, the accused does not convey any information based upon his/her personal knowledge,

which can incriminate him/her, I don't think that there is any impediment in directing the accused-person of the offence to give voice sample to the police

during the course of investigation. However, safeguard, which is to be observed is that the text which the accused would be called upon to read out for the

purpose of his/her voice sample should not have the sentences from the inculpatory text but can contain words drawn from the recorded conversation as

held by the Hon'ble Supreme Court in Sudhir Chaudhary vs. State (NCT of Delhi), reported in (2016) 8 SCC 307.

The another aspect which I want to emphasise is that assuming that there is no provision under any law which enables a Magistrate to direct the accused-

person to give his voice sample to the police during the course of investigation, can any such direction be given. I would like to refer the decision of this

Court rendered in Mahipal Maderna vs. State of Rajasthan, reported in RLW 1971 page 43, wherein this Court while dealing with similar argument

has refused to interfere with the order passed by the Magistrate, where it has directed the accused of that case to give his hair sample. The case relates to

the period when the Criminal Procedure Code, 1898 was in force, wherein there was no provision which could enable the Magistrate to direct the accused

of the offence to give sample of his hair. The relevant observations in the above referred case are quoted hereunder:

It has however been argued by Mr. Singhvi, learned counsel for accused Mahipal Maderna, that in the absence of any direct provision in the law

authorising the taking of the specimen of the hair of the accused, impugned order of the Magistrate contravenes the fundamental right enshrined in article

21 of the Constitution.

16......It does not require much argument to hold that no inhibition against the deprivation of life is involved in the impugned order of the Magistrate for it

does not impinge on the enjoyment of the life of the accused. So also, the order does not encroach upon the liberty of the accused in the sense in which the

word has been used in the Constitution.

It is not disputed that it is the duty of the Deputy Superintendent of Police (Central Bureau of Investigation), at whose instance the learned Magistrate

has made the impugned order, to make an investigation into the case. Sec.9 of the Evidence Act provides that facts which establish the identity of any

person whose identity is relevant, are relevant. It was therefore, the duty of the Investigating Officer, under the law, to collect that evidence, for sec. 4(1)

(l) Cr P. C. defines ""investigation"" to include all the proceedings under the Code for the collection of evidence. It will follow that in the absence of any legal

provision to the contrary, he should be allowed to use the reasonable means for obtaining a few specimen of the hair of the accused for the purpose of

establishing the identity of those who took part in the crime. This may in fact operate as a strong protection for the innocent persons, and is quite

unexpeptionable.

So as held in the above case, it is the duty of the investigating officer to collect the evidence by using reasonable means to establish the identity of those,

who took part in a crime. In the present case also, the police cannot be restrained from taking voice sample of respondent for establishing his

involvement in the crime for the reason that there is no provision under the law which permits to take voice sample of the accused during the course of

investigatiion.

Interestingly, Hon'ble Mr Justice Aftab Alam in Ritesh Sinha vs. State of U.P. (supra) in his opening remarks has emphasised on the need of equipping the

police with all the forensic aid from science and technology. The said remarks are quoted hereunder:

In today’s world when terrorism is a hard reality and terrorist violence is a common phenomenon, the police needs all the forensic aids from science

and technology. The technology is in position today to say whether two voice recordings are of the same person or of two different people and, thus, to

provide valuable aid in investigation.

Similarly, the Gujarat High Court in Natvarlal Amarshibai Devani vs. State of Gujarat & Ors. (supra) has also expressed the need of the use of advance

technologies during the course of investigation by police. The relevant portions of the above judgment are quoted hereunder:

Of all the functions of the police, the investigation is the most important and vital one. In the constantly evolving socio-economic scenario the criminals

using sophisticated tools and techniques commit more and more crimes. In order to overcome these complexities the police all over the world are

depending more and more on the scientific methods of investigation. A wide range of scientific techniques are now available for the analysis of varied

nature of objects and materials encountered in the process of commission of crime by the culprit in and around the crime scene, on the suspect and victim.

The study of such material evidence also known as the objective evidence or physical evidence applying the latest scientific tools and techniques for

proving the guilt or innocence of the accused by the courts of law is broadly known as the Forensic Science.

In the recent world of technology, there are many methods to determine the individuality of a person. One of them is the voice - unique individual

characteristic. Each person's voice is different because the anatomy of the vocal cords, vocal cavity, oral and nasal cavities is specific to the individual.

The comparing of two recorded speech by means of spectrogram or voice prints is essential and important for the purpose of criminal cases such as

murder, rape, drug dealing, bomb threats, corruption and terrorism. The Investigator has two complementary ways of making the identification through

voice analysis. First, he or she will listen to the evidence sample and the sample taken from the suspect, comparing accent, speech habits, breath patterns

and inflections. Then a comparing of the corresponding voice prints is made. Sometimes, voice is the only clue for the police and Forensic Scientists to

identify the criminal. Especially in cases of telephoned bomb threat, demand of money in corruption and kidnapping cases etc. Speech sounds come from

the vibration of the vocal cords inside the larynx or voice box. The cavities of the mouth, nose, and throat act as resonators, making the sounds louder. The

teeth, lips, tongue, hard and soft palate are the articulators that shape the sounds into speech.

It may be mentioned here that the crime scenario in the country has undergone a sea change in the recent times. Criminals are using the most

sophisticated weapons and highly specialised means to achieve their objective. Highly sophisticated devices like blasting of land mines by remote control

are being used to thwart the law enforcement machinery from doing its duty. The change in the pattern of crime and mode of its commission requires

modern scientific methods of crime detection so that the criminals may not move about with impunity holding the entire community at ransom.

The Kerala High Court in Rupesh @ Praveen vs. Union of India (supra) has observed in clear terms that if the investigating agency proceeds on the

basis of tape recorded conversation belonging to the accused, the said fact requires proof which can be obtained only by method of scientific examination

after obtaining voice sample.

Now the question is that despite realising the need of use of scientific methods in an investigation by the police or any investigating agency can any court of

law refuse to act just because there is no provision under any law which empowers a Magistrate to direct an accused to give his voice sample to the

investigating agency or police during the course of investigation.

My answer is in negative. First of all by directing an accused to give his/her voice sample to the police, he/she is not forced to give evidence against

himself/herself which may be incriminatory. It is settled that voice spectography test is in no manner violative of Article 20(3) of the Constitution of India

and voice sample is not a substantial evidence but can only be used for the purpose of comparing the voice of accused with the tape recorded

conversation.

Certainly, we cannot stop any person, including the criminals, from using modern technology. When the criminals are using modern technologies to commit

the crime, it is not justified to restrain the police or investigating agency to counter it with the aid of scientific methods or modern technology on the ground

that there is no provision of this effect under any law. Rules of the game should be equal for all the players.

In the past also, the Courts have laid down guidelines and procedures to be followed in the matters, where the law is silent.

Hon'ble Supreme Court in Vishaka and Ors. vs. State of Rajasthan and Ors., reported in AIR 1997 SC 3011 has laid down guidelines on the subject of

sexual harassment of women at working place when there was no law on the subject. The Hon'ble Supreme Court has made a reference of objectives and

functions of the judiciary, mentioned in Beijing Statements of Principles of the Independence of Judiciary, which reads as under:

10......

(a) to ensure that all persons are able to live securely under the Rule of Law;

(b) to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and

(c) to administer the law impartially among persons and between persons and the State.

From the above, it is clear that one of the prime functions of the judiciary is to ensure the security of all the persons under the rule of law.

The phrase ""law has long arms"" should not only be left to be used in movies or stories but long arms of law should also be stretched to secure all persons

from any kind of crime.

Mr Farzand Ali, counsel appearing for the respondent has made an attempt to pursuade this Court not to decide this criminal misc. petition finally because

certain other cases, involving same issue, are pending before this Court and in those cases, the orders passed by the courts below of directing the persons,

who are accused in criminal cases to give their voice sample to the police or investigating agency, have been stayed.

I am of the view that the pendency of a case involving similar issue cannot detain me to decide this petition when both the parties have finally argued the

matter.

Learned counsel for the respondent has also submitted that now there will be no purpose in collecting the voice sample of the respondent because the

police has already concluded investigation and charge-sheet has also been filed against the respondent before the concerned Magistrate, who has already

committed the case to the Court of Sessions and, therefore, there is no question of any further investigation in the case.

I don't find any merit in the above submission of the counsel for the respondent because it is settled that even after filing of the charge-sheet in a criminal

case, the investigating agency can conduct further investigation with the approval of the court. It is to be noticed that when the police filed the application

before the Magistrate, the charge-sheet was not filed against the respondent and it was filed on later date. In any case, I see no reason why the police

should not be allowed to complete the investigation with reference to its application preferred before the Magistrate with the prayer for directing the

respondent to give his voice sample.

In the present case, tape recorded conversation of the respondent is in possession of the police and the only requirement is to direct the respondent to give

his voice sample, so that it can be compared with the tape recorded conversation.

In view of the above discussions, I allow this criminal misc. petition. The impugned orders passed by Additional Chief Judicial Magistrate No.2, Jodhpur

Metropolitan as well as by Additional Sessions Judge No.6, Jodhpur Metropolitan are set aside and the following directions are issued:

(i) The police is directed to submit passage of written text which the respondent shall be required to read out for the purpose of giving his voice

sample before the court, where the case against the respondent is pending after committal, within a period of one week from today. However, it may be

ensured that the said passage should not contain the sentences appearing in the tape recorded version but can contain only some words from the tape

recorded version.

(ii) After receiving the proposed passage of a written text from the police, the court concerned, after verifying that the said passage does not contain any

sentence of the tape recorded version and only contains some words from the said tape recorded version, shall summon the respondent for giving his

voice sample within a period of two weeks thereafter.

(iii) After recording of the voice sample of the respondent, the court shall hand over the same to the police along with the tape recorded version in sealed

condition for examination by the authorized laboratory of the State of Rajasthan.

(iv) The police after receiving report from the Laboratory shall submit it before the court concerned immediately.

Before parting, I appreciate the assistance provided by the Commissioner of Police, Jodhpur and team of the Officers with him.