WEDNESDAY SEMINAR REPORT

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

Submitted by,

Sarika.P.S

Second Semester LL.M

School Of Legal Studies

CUSAT
 FACTS OF THE CASE

The writ applicant was charged with the offence punishable under Prevention of Corruption
Act, 1988. While he was serving as superintendent of the prohibition and excise directorate,
the applicant demand bribe for the purpose of renewal of permit to the original complaint
through telephone which was recorded. The investigating agency made a transcript of the said
tape-recorded conversation and they thought that it was fit to take a voice spectrography test,
which was opposed by the writ applicant.

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

1 2010 (7) SCC 263

2 2013(2) SCC 357

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.

JUDGMENT IN BRIEF

It was held that the voice spectrography test does not fall within the ambit
of a psychiatric treatment. The voice spectrography test is in no manner
violative of Art.20 (3) of the constitution of India. However, it was held
that in the absence of any specific provision empowering the police officer
or the court in law, it is not permissible to subject an accused to the voice
spectrography test.

ANALYSIS

To answer the first question precisely, the voice spectrography test of the
accused will not amount to testimonial compulsion within the meaning of
Art.20 (3). The purpose of giving such a protection(right against self
incrimination) was stated in Smt. Selvi and Ors v. State of Karnataka 3 as
Its underlying rationale broadly corresponds with two objectives - firstly,
that of ensuring reliability of the statements made by an accused, and
secondly, ensuring that such statements are made voluntarily. It is quite
possible that a person suspected or accused of a crime may have been
compelled to testify through methods involving coercion, threats or
inducements during the investigative stage. When a person is compelled
to testify on his/her own behalf, there is a higher likelihood of such
testimony being false. False testimony is undesirable since it impedes the
integrity of the trial and the subsequent verdict. Therefore, the purpose of

3 Supra note .1
the 'rule against involuntary confessions' is to ensure that the testimony
considered during trial is reliable. The premise is that involuntary
statements are more likely to mislead the Judge and the prosecutor,
thereby resulting in a miscarriage of justice. Even during the investigative
stage, false statements are likely to cause delays and obstructions, in the
investigation efforts.

it is clear from this observation that the under laying principle of giving
fundamental right status to the right against testimonial compulsion is
nothing but ensuring that the person has made it voluntarily in order to
rule out the chances of violation of his rights otherwise guaranteed by the
constitution (Right to Life). The word voluntary itself connotes a degree of
knowledge that the person posses. He is to say whatever there in his
knowledge, to the exclusion of others. Information that, in such a direct
nature, the investigating authority would not be able to get, otherwise
than with strenuous effort. Can my knowledge as to fact be equated with
my knowledge as to my finger print or voice? My answer would, no. My
finger prints or voice (spectrograph, when displayed graphically in the
parameters of time, frequency and intensity.) cannot even qualify to be
called as knowledge. Its a physical trait that I am having, over which I
have no control. It cannot said to be even under my sole ownership as I
leave a bit of it, for I am human, behind where ever I am going. Thus it
cannot be considered as a testimonial act, which should have active
participation of my intelligence.

This position is made clear in State of Bombay v. Kathi Kalu Oghad 4, which
was reiterated in Selvis5 decision as A specimen handwriting or signature
or finger impressions by themselves are no testimony at all, being wholly
innocuous because they are unchangeable except in rare cases where the
ridges of the fingers or the style of writing have been tampered with. They
are only materials for comparison in order to lend assurance to the Court

4 AIR 1961 SC 1808

5 Selvi and others vs. State of Karnataka, 2010 (7) SCC 263
that its inference based on other pieces of evidence is reliable. They are
neither oral nor documentary evidence but belong to the third category of
material evidence which is outside the limit of 'testimony.' I cannot find
any logic in not equating a voice spectrograph with finger print.

More over it has been held in kathi kalus 6 case that to be a self
incriminatory testimony within the meaning of Art.20(3),it must be of such
a character that by itself it should have the tendency to incriminate the
accused, a tendency which the voice spectrograph lacks. It is more for
identification or corroboration with facts already known to the
investigation authority that these things (voice sample, finger print etc)
are used.

Another 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 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:

6 State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808

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.