1

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Judgment Reserved on : 14.11.2017

Judgment Pronounced on: 28.11.2017

CORAM:

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

Criminal Revision Case Nos.808, 816 and 823 of 2015 and

M.P.No.1 of 2015 (3 petitions)

Shri Rabindra Kumar Bhalotia .. Petitioner in Crl.R.C.808/2015

N.Balamurugan .. Petitioner in Crl.R.C.816/2015
V.Venkatesan .. Petitioner in Crl.R.C.No.823/2015

Vs

1.State rep.,by Inspector of Police,

Central Bureau of Investigation,
Anti-Corruption Branch,
Chennai. .. 1st Respondent/Complainant

2.Sri V.Venkatesan,
Chief Depot Material
Superintendent,
Electric Loco Stores Depot
Southern Railway,Arakkonam. .. 2nd Respondent/Accused

3.Sri N.Balamurugan
Depot Material Superintendent
Electric Loco Stores Depot,
Southern Railway, Erode. .. 3rd Respondent/Accused

Criminal Revisions filed under Sections 397 and 401 of Criminal

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Procedure Code against the order dated 01.08.2015 passed by the

Principal Special Judge for CBI Cases, Chennai, in M.P.No.2053 of

2015 in RC.MA.12014 A 0026 (CBI/ACB/Chennai).

For Petitioner : Mr.Vishnu Mohan (Crl.R.C.808/2015)

Mr.N.Ramesh (Crl.R.C.816/2015)
Mrs.R.Vetriselvi (Crl.R.C.823/2015)

For Respondent : Mr.K.Srinivasan,

Special Public Prosecutor (CBI cases)

ORDER

These Criminal Revision petitions are directed against the

order passed by the trial court, allowing the petition filed by the

prosecution to draw voice sample of the accused persons for

comparison with that of the questionable voice recorded in the course

of intercepted telephonic conversion between the Accused (A1, A2 and

A3).

2.The petition filed by the prosecution was contested by the

accused persons on the ground that the accused cannot be compelled

to give voice sample. The statutory provision which enables medical

examination of accused persons through investigation in certain cases.

However, Explanation to Section 53A and 54 of the Code does not

enable the prosecution to draw voice sample of the accused person

against their wish. Neither Section 5 of the Identification of Prisoners

Act, 1920 nor Section 53-A and 311-A of Criminal Procedure Code

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empowers the court to direct the accused persons to give their voice

sample. In the absence of specific legal provision the trial Court ought

not to have allowed the application filed by the prosecution directing

the accused persons to give voice sample.

3.The background of the facts of the case is that after

obtaining due permission from the Union Home Secretary, telephonic

conversation between A3 and A1 and A3 and A2 were intercepted by

the investigation agency and on such interception the demand of illegal

gratification by the public servant and private individual had been

come to light. Hence, the prosecution has launched criminal case

against the Revision Petitioners.

4.In the course of the investigation request has been made to

the trial court for drawing voice sample of the accused persons for

comparison with that of the questionable voice recorded in the course

of intercepted telephonic conversion between the Accused. The trial

court after going through the provisions of law and the

pronouncements of the High Courts and the Hon'ble Supreme Court

also considering the judgment of the Supreme Court in Ritish Sinha

v. State of U.P reported in (2013 (2) SCC 357), has concluded

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pending decision of the Larger Bench in Ritish Sinha, that the

accused persons are to be directed to give their voice sample directly

to the investigating officer.

5.Aggrieved by the order passed by the trial court, the present

Revision Petitions have been filed on the ground that compelling the

accused persons to give their voice sample to compare with that of the

questionable voice recorded in the course of intercepted telephonic

conversion between them is violative of Article 20(3) of the Indian

Constitution. There is no provision in the Code for any other law for

authorizing the prosecution to make application for an order directing

the accused persons to give their voice sample for comparison with

that of the questionable voice recorded in the course of intercepted

telephonic conversion between them. The Judicial Magistrate has no

inherent power to pass an order issuing such direction when he is not

empowered to do so in any of the provisions of law. The word

'measurement' as defined under Section 2(a) of the Identification of

Prisoners Act does not cover voice measurement and it is only

pertaining physical measurement namely finger impressions and foot

print impressions. Similarly the Amendment to the Code by insertion

of Section 311-A includes only handwriting but no voice samples.

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While the framers of the statute had consciously omitted the drawing

of voice sample within the meaning of 'measurement' or within the

meaning of 'such other tests' by registered medical practitioner, the

order of the trial court is illegal and it has to be set aside.

6.Further, it has been contended by the learned counsel for

the petitioners that taking note of this anomaly, the Hon'ble Supreme

Court had referred the matter for the Larger Bench to decide.

Therefore, the trial court even after placing the order to reference

passed by the Hon'ble Supreme Court in Ritish Sinha case had

passed the impugned order which is unconstitutional, illegal and liable

to be set aside.

7.This Court had an opportunity of hearing the learned

counsels for the accused persons in a identically similar case. The

judgment of the Supreme Court which is now under consideration for

Larger Bench in Ritish Sinha case was referred and pleaded to

interfere the trial Court Order directing the accused persons to give

their voice sample. However, this Court has held that directing the

accused person to give his voice sample for comparison is neither

violation of Article 20(3) of the Indian Constitution nor beyond the

scope of Section 53 or 311-A of the Code.

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8.In the Judgment of P.Kishore vs. State represented by

the Additional Superintendent of Police, SPE/CBI/ACB,

Chennai, Crl.R.C.No.1752 of 2011 dated 16.11.2017, similar plea

has been raised. Therefore, this Court is of the opinion extract from

the said order is suffice to this Revision Petition:-

3. This Criminal Revision Case is filed,

challenging the trial court order permitting the
prosecution to compel the accused to undergo voice
spectrograph test. The prime submission made in
this revision petition is that, compelling an accused
to give his voice sample for comparison is
unconstitutional. Ultra vires to Article 20(3) of the
Constitution of India. No law provides for drawing
samples. In such circumstances, without any
authority of law, Magistrate directing the prosecution
to record voice sample of the accused person is
illegal. Further, In view of the judgment rendered
by the Hon'ble Supreme Court in the Ritish Sinha
case, wherein, the learned Judges due to difference
of opinion regarding the constitutional validity of
drawing voice sample had referred the matter to the
Larger Bench of the Hon'ble Supreme Court and
pending. In such circumstances, the order passed by
the trial court granting permission to the
investigating officer to take voice sample is ultra-
vires to the constitution.
4.The learned counsel for the petitioner

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submitted that even though law does empowers the

Magistrate to grant direction to give voice sample of
the accused, unmindful of that, the trial Court
referring the judgment of the Hon'ble Supreme
Court in State of Karnataka v. Selvi reported in
(2010 (7) SCC 263 ) (hereinafter referred to as
“the Selvi case”) had allowed the petition on the
ground that the judgment in Selvi case pertains to
Narco Analysis, polygraph test, and brain mapping.
Drawing voice sample was not the subject matter,
hence, it is not applicable to the facts of this case.
Further, the trial court relying upon R.M.Malkani
-vs- State of Maharahtra reported in (AIR 1973
SC 157) had allowed the petition erroneously
holding that, the nature of obtaining the voice
samples is nothing but obtaining specimen
signatures, as contemplated under Section 311 A of
the Code of Criminal Procedure. Pursuant to to this
impugned order, the accused was forced to give his
voice sample and the same has been recorded
against his consent.
5.According to the learned counsel for the
petitioner, subsequent to this impugned order
( 12.09.2011) , the Hon'ble Supreme Court in
Ritish Sinha v. State of U.P reported in (2013
(2) SCC 357) (hereinafter referred to as “the Ritish
Sinha case”), the Constitutional validity of
compelling the accused to give voice sample came

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up for consideration, the learned Judge disagreed

with each other and had referred the matter for
larger Bench and the same is pending. In the said
circumstances, the order passed by the trial Court in
Crl.M.P.No.5647 of 2011, dated 12.09.2011 is liable
to be set aside.
6.This Court is concerned about the nagging
issue not only to this State but to the entire
country, since the larger Bench of the Hon'ble
Supreme Court has not yet passed for the reference
made in Ritish Sinha case, whether the trial Court
should entertain to permit the petitions for drawing
voice samples of the accused or not. Some of the
High Courts have made it clear that reference of the
issue to the Larger Bench of the Hon'ble Supreme
Court is no bar for the trial Court to order recording
of voice sample of the accused. Whereas, some of
the High Courts has taken a different view. This
Court ventures to analyse both the views and also
the principle of 'precedent' which is the back bone of
Indian judiciary to ensure consistency.
7.The learned counsel for the petitioner
pointed out the area of operation of Sections 53 and
311A of Cr.P.C., are different and one cannot
replace the other. Section 53 Cr.P.C., in the course
of investigation, while a person is examined by
medical practitioner at the request of police officer
and whereas Section 311A Cr.P.C., is at the instance

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of the Magistrate who orders a person to give

specimen signature or handwriting.
8.In this context, it is to be noted that
Section 311A Cr.P.C., was inserted based on the
judgment of the Hon'ble Supreme Court in State of
Uttar Pradesh v. Ram Babu Misra (AIR 1980 SC
791) and suggested the legislators to bring suitable
amendment analogous to Section 5 of the
Identification of Prisoners Act, 1920 to provide for
the accused to give specimen signature and
handwriting. Pointing out the non-inclusion of voice
test in Section 311A Cr.P.C. the learned counsel
pleaded that conscious omission by the legislators
cannot be substituted by judicial pronouncement.
9.According to the learned counsel for the
petitioner, Section 311A Cr.P.C., is an insertion
based on the suggestion of the Hon'ble Supreme
Court to incorporate a provision analogous to
Section 5 of Identification of Prisoners Act, which
empowers the Magistrate of Class I to direct the
person to allow his photographs or measurements
taken by the prosecution. By way of an inclusive
definition, the word 'measurement' brought under
its fold, finger prints or foot prints. Non inclusion of
voice sample either in Section 311A Cr.P.C., or
within the meaning of 'measurement' in
Identification of Prisoners Act, will have a statutory
prohibition on the Investigating Agency or to the

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Magistrate from directing the accused to give his

voice sample on the ground that such a direction will
be invasive of the fundamental right and right of
silence available to the accused.
10.This Court is of the opinion that while
analyzing the legal provisions in the light of
individual liberty, one cannot loose sight of the fact
that modern scientific techniques available should be
made use in the investigation and unnecessary
fetters on investigation will lead to miscarriage of
justice. Comparison of voice is a supplementary
factor to enhance the conclusion of investigation to
support the final report.
11. Any person, accused of a crime can defend
his right by disproving the questionable voice by
various means. However, refusal to give voice
sample will not fall within the ambit of right of
silence. While drawing voice sample no physical
invasion takes place. It is yet another mode of
measurement. Measurement of voice frequency.
right of silence is available to the accused person if
any question posed to him and answered it must
have incriminating effect. Recording of voice sample
does not involves any question inviting incriminating
answer. The vibrations or waves caused in the
speech process alone is going to be taken for
analysis for comparison and not the dialog or the
transcript. In this aspect, this Court like to borrow

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the explanation given by the Hon'ble Judge in

Natvarlal Amarshibhai Devani v. State of
Gujarath (CDJ 2017 GHC 028) while dealing legality
of voice sampling since, it carries all technical
information about the voice test.
“38 The dictionary meaning of the term
'measurement' is the act or process of measuring.
The voice sample is analyzed or measured on the
basis of time, frequency and intensity of the speech
sound waves. A voice print is a visual recording of
voice. Spectrographic Voice Identification is
described in Chapter 12 of the Book "Scientific
Evidence in Criminal Cases" written by Andre A.
Moenssens, Ray Edward Moses and Fred E. Inbau.
The relevant extracts of this chapter could be
advantageously quoted. "Voice print identification
requires (1) a recording of the questioned voice, (2)
a recording of known origin for comparison, and (3)
a sound spectrograph machine adapted for 'voice
print' studies." 12.02 Sound and Speech In order to
properly understand the voice print technique, it is
necessary to briefly review some elementary
concepts of sound and speech. Sound, like heat, can
be defined as a vibration of air molecules or
described as energy in the form of waves or pulses,
caused by vibrations. In the speech process, the
initial wave producing vibrations originate in the
vocal cords. Each vibration causes a compression

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and corresponding rarefications of the air, which in

turn form the aforementioned wave or pulse. The
time interval between each pulse is called the
frequency of sound; it is expressed generally in
hertz, abbreviated as viz., or sometimes also in
cycles per-second, abbreviated as cps. It is this
frequency which determines the pitch of the sound.
The higher the frequency, the higher the pitch, and
vice versa . Intensity is another characteristic of
sound. In speech, intensity is the characteristic of
loudness. Intensity is a function of the amount of
energy in the sound wave or pulse. To perceive the
difference between frequency and intensity, two
activities of air molecules in an atmosphere must be
considered. The speed at which an individual
vibrating molecule bounces back and forth between
other air molecules surrounding it is the frequency.
Intensity, on the other hand, may be measured by
the number of air molecules that are being caused
to vibrate at a given frequency."
"12.03 The Sound Spectrograph The sound
spectrograph is an electromagnetic instrument which
produces a graphic display of speech in the
parameters of time, frequency and intensity. The
display is called a sound spectrogram."
39 Thus, it is clear that voice print identification of
voice involves measurement of frequency and
intensity of sound waves. In my opinion, therefore,

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measuring frequency or intensity of the speech

sound waves falls within the ambit of inclusive
definition of the term 'measurement' appearing in
the Prisoners Act.”
12.As pointed out earlier, since, drawing voice
sample involves only physical examination, omission
of non inclusion of voice sample in Section 311A
Cr.P.C., has no prohibitive effect on the prosecution
to seek direction of the Magistrate under
Identification of Prisoners Act, to direct the accused
person to give his voice sample which falls within
the meaning of measurement for the purpose of
interpreting Section 5 of Identification of Prisoners
Act.
13.The contention of the petitioner is that voice
spectrograph test of the accused amongst to
testimonial compulsion within the meaning of Article
20(3) of the Constitution of India and it fall par with
the test like narco-analysis, polygraph examination
and the Brain Electrical Activation Profile (BEAP)
tests, therefore, impermissible under law. Further,
despite recommendation of the Law Commission,
the parliamentarian in the meanwhile inserting
Section 311A Cr.P.C., has specifically omitted to
include voice spectrograph test whereas, it has
empowered the Magistrate Class - I if he satisfied
for the purpose of any investigation to direct any
person including the accused person to give

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specimen signatures or handwriting.

14. In the absence of specific power to direct
the accused person to give voice sample, Court
cannot compel an accused against his wish to give
voice sample. While this view has been expressed by
one of the learned Judge who has authored the
Ritish Sinha case and referred the matter to the
Larger Bench of the Hon'ble Supreme Court, the
other learned judge has emphasised purposive
interpretation of the statute instead of narrow
interpretation and has held that, there is no
constitutionals infringement in directing the accused
person to give his voice sample.
15. Apart from relying upon the views
expressed by the Hon'ble Mr.Justice Aftab Alam in
Ritish Sinha case, the learned counsel for the
petitioner also relied upon the following judgments
of the other high Courts:
(i)Naveen Krishna Bothireddy v. State of
Telengana (CDJ 2017 APHC 143) and
(ii) Natvarlal Amarshibhai Devani v. State
of Gujarat (cited supra).
16. The question of testimonial compulsion in
Independent India in the light of Article 20(3) of the
Constitution of India came for scrutiny, before 11
Judges Bench of the Hon'ble Supreme Court in
State of Bombay v. Kathi Kalu Oghad (cited
supra). Thereafter, in view of modern technology

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which has developed in the recent past, the crime

detective agencies which were earlier adopting
certain methodology such as identifying the person
through eyes (test identification), collecting
fingerprints or foot prints of suspected person,
drawing blood samples, compelling to give specimen
signature or handwriting have now equipped with
other methodology such as polygraph test, narcotic
test and brain mapping. When use of these
technology on accused person was challenged on
the ground of privacy and testimonial compulsion, in
2005 (11) SCC 600, the Hon'ble Supreme Court
held that drawing of blood samples, pubic hair, etc.,
in the offence of rape where the prosecution has to
establish the guilt of the accused beyond reasonable
doubt is not violative of Article 20(3) of the
Constitution of India.
17. In CBI -vs- Abdul Karim Ladsab Telgi
reported in 2005 Crl.LJ 2868, the Hon'ble Bombay
High Court, reversed the order of the trial Court
allowing the Investigating Agency to record the
voice sample of the accused. The Bombay High
Court in the said judgment, held that lending voice
sample to the Investigating Officer amounts to the
testimonial compulsion and infringement of the
accused right under Article 20(3) of the Constitution
of India. The Delhi High Court in Rakesh Bisht etc
v. Central Breau of Investigation reported in

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(2007 Crl.L.J 1530) has held that, if after

investigation, charges are framed and in the
proceedings before the court. The Court opines that
voice sample ought to be given for the purposes of
establishing identity, then such a direction may be
given if the voice sample is taken only for the
purposes establishing the identity. Provided it does
not contain any inculpatory statement so as to be hit
by Article 20(3) of the Constitution of India.
18. Later, in Selvi -vs- State of Karnataka
reported in (2010 (7) SCC 263) when whether
engaging modern and scientific techniques like, DNA
mapping, Narcotic Analysis Test, Polygraph
examination etc., should be liberally used by the
prosecution, the Hon'ble Supreme Court, had
clarified that Explanation to Section 53 Cr.P.C.,
permits examination of the person includes
examination of blood, blood stains, semen, swabs in
case of sexual offences, sputum and sweat, hair
samples and finger nail clippings by the use of
modern and scientific techniques including DNA
profiling and such other tests, which the registered
medical practitioner thinks necessary in a particular
case.
19. Following the three judges decision in Selvi
case, Hon'ble Mr. Justice Ranjan Desai in Ritesh
Sinha case, has held the phrase, “such other test”
appearing in Explanation for Sub Clause (a) to

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Section 53 of Cr.P.C., should include examination of

voice sample, by applying the principle of Ejusdem
Generis. Thus, in the light of the three Judges Bench
in Selvi case, which has distinguished the physical
evidence and testimonial act, and by liberal
interpretation of the words such other test found in
the explanation to Section 53 Cr.P.C., by applying
the doctrine of Ejusdem Generis directing the
accused to give voice sample is legally permissible
and constitutionally valid, since the three Judges
Bench have clearly distinguished the examination of
physical evidence and testimonial act.
20. The judgments cited by the learned counsel
for the petitioner as well as the judgments
submitted by the prosecution, no doubt, had gone at
length about the legality or otherwise of drawing
voice sample from the accused person. Finally, in
the light of Article 20(3) of the Constitution of India,
provisions under the Prisoners Identification Act,
Sections 53 and 311A of Cr.P.C., and the litmus test
as laid down by the three Bench Judges in Selvi
case, it is amply clear that drawing voice sample fall
within the meaning of physical evidence of non-
testimonial character and not within the meaning of
testimonial compulsion.
21. In the opinion of this Court, the voice test is
done by spectrograph method, where the waves
emanating from the human body voice is recorded.

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Since it emanates from the body, though not visible

but audible, it has to be termed as bodily substance.
It cannot be considered as testimonial evidence.
Only the Investigating Officer asked the accused
person to speak the questionable passage verbatim
sought to be compared with the specimen sample.
Taking of voice sample does not involve any physical
or psychiatric extortion upon the accused person.
Therefore, as long as the law on this point is settled
through the interpretation of the Constitution Bench
as well as three Judges Bench dissent the voice of
one each other in the judgment and referred to
larger bench cannot put on hold, the investigations
pending in the country. There are judgments
delivered by the other high Courts, which in support
of the views expressed by this Court and contra
either of them only have a persuasive value and not
binding the law of precedent is mandates Courts
below to follow the judgment of the Hon'ble
Supreme Court, till it is reversed.

9.Requesting the accused persons to give their voice sample for

comparison with that of the questionable voice recorded in the course

of intercepted telephonic conversion between them by no stretch of

imagination fall within the mischief of testimonial compulsion.

Therefore, the plea that the direction to the accused persons to give

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their voice sample for comparison with that of the questionable voice

recorded in the course of intercepted telephonic conversion between

them, is ultra vires to Constitution has no legs to stand. Regarding the

wordings used in Section 53 of the Code which permits the

investigating officer to examine the accused person through medical

practitioner is not restricted to the examinations, referred in

Explanation (A) for Sections 53, 53A, and 54 alone. Since the word

'such other tests' has been consciously inserted, it cannot be

interpreted narrowly to say that 'such other tests' does not include

“voice test”.

10.As held by the Hon'ble Supreme Court the phrase 'such other

tests' found in the Explanation to Section 53 and 53A of the Code

should be given broad and purposive interpretation. In the era of fast

scientific development, narrow interpretation for the phrase 'such

other tests' will be detrimental to the society.

11.Similarly, while looking at Section 311(A) of the Code non

inclusion of voice test in the said Section which was inserted through

Amendment Act, 2005 does not give an impression that the

Parliamentarians had consciously omitted the voice test. Drawing of

voice sample is only a measurement of waves emanating through

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vocal cord. It is only a measurement and fall within the meaning of

physical examination and not testimonial compulsion. While so, it is

incorrect to plead that in the absence of express provision enabling the

investigation agency to draw the voice sample prohibits them to do so.

Any methodology which does not have the trappings of invasiveness is

permissible in law. Therefore, this Court finds no merit in these

Revision Petitions. Hence all these Criminal Revision Petitions are

liable to be dismissed.

12.In the result, all these Criminal Revision Petitions are

dismissed and the order passed by the learned Principal Special

Judge for CBI cases, Chennai in in M.P.No.2053 of 2015 is confirmed.

Consequently, connected miscellaneous petitions are closed.

28.11.2017
gr.

Index: Yes/No
Speaking Order/non speaking order
To

1.The Additional Superintendent of Police,

SPE/CBI/ACB/Chennai.

2.The Special Public Prosecutor (CBI cases),

High Court, Madras.

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Dr.G.JAYACHANDRAN.J.,

gr.

Crl.R.C.Nos.808, 816
and 823 of 2015

28.11.2017

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