A.K. Pratap and D.S Jadav v. Central Bureau of Investigation

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.UBAID** **FRIDAY, THE 7TH DAY OF JULY 2017/16TH ASHADHA, 1939** **Crl.MC.No. 4013 of 2017** **------------------------AGAINST THE ORDER IN CRL.M.P NO.321/2017 IN RC NO.01/(A)/ 2017/CBI/ACB/COCHIN OF THE SPECIAL JUDGE SPE/CBI-II, ERNAKULAM** **PETITIONERS/1ST AND 2ND ACCUSED:** **---------------------------------** **1. A.K. PRATAP, AGED 58 YEARS, S/O. LATE A.NARAYANA RAO, NOEL TOUCH STONE, CRASH ROAD, VAZHAKKALA, COCHIN (DY. CHIEF LABOUR COMMISSIONER, GOVERNMENT OF INDIA, MINISTRY OF LABOUR & EMPLOYMENT COCHIN), KERALA** **2. D.S JADAV S/O. LATE SHIVAJI RAO, D-12, BLOCK 03 CPWD QUARTERS, KUNNUMPURAM, KAKKANAD, KOCHI (ASST. LABOUR COMMISSIONER, O/O CHIEF LABOUR COMMISSIONER, MINISTRY OF LABOUR & EMPLOYMENT, COCHIN)** **BY ADVS.SRI.GEO PAUL SRI.SANU MATHEW SRI.RADHIKA RAJASEKHARAN P. SRI.C.R.PRAMOD SRI.K.S.SREENATH KUM.LAYA MARY JOSEPH** ## **RESPONDENT/COMPLAINANT:** **-----------------------** **CENTRAL BUREAU OF INVESTIGATION ANTI CORRUPTION BRANCH, COCHIN, REPRESENTED BY THE STANDING COUNSEL, CBI,HIGH COURT OF KERAL, ERNAKULAM PIN 682 031** **BY ADV. SRI.P.CHANDRASEKHARA PILLAI, SC FOR C.B.I.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 4013 of 2017 ------------------------** ## **APPENDIX** **PETITIONERS' ANNEXURES: ----------------------ANNEXURE A1: COPY OF THE CRL MP FILED BY THE RESPONDENT** **ANNEXURE A2: COPY OF THE ORDER PASSED BY THE COURT OF THE SPECIAL JUDGE/SPE/CBI-II,ERNAKULAM IN RC NO 01(A)/ 2017/CBI ACB/COCHIN** **RESPONDENT'S ANNEXURES: -----------------------** ## **NIL** **//TRUE COPY//** **P.A TO JUDGE** **ab** ## **CR** ## **P.UBAID, J.** **--------------------------------------Crl.M.C No.4013 of 2017 ---------------------------------------** Dated this the 7[th] day of July, 2017 ## **O R D E R** The petitioner herein is the first accused in a crime now being investigated by the CBI. As part of investigation, the CBI wanted to conduct identification of the voice of the accused by comparing it with the voice in a device. Accordingly, the CBI made an application before the learned Special Judge, Ernakulam as C.M.P No.321/2017 for a direction to the accused to give his voice samples. The said application was seriously opposed by the first accused on the ground, that allowing such a request will amount to testimonial compulsion, and that there is no provision in the Code of Criminal Procedure to authorise such a course. 2. After hearing both sides the learned trial judge allowed the application by order dated 24.5.2017, and directed the petitioner to provide his voice sample for Crl.M.C No.4013 of 2017 2 comparison. The said order is under challenge in this petition brought under Section 482 Cr.P.C. 3. The impugned order is assailed by the petitioner on two grounds. One is that such an order, directing the accused to give voice specimen will amount to testimonial compulsion under Article 20(3) of the Constitution of India, and the other is that there is no provision anywhere authorising such a direction by the court. 4. First let me see whether there is any element of testimonial compulsion in this matter. The learned counsel for the petitioner relies on the decision of the Hon'ble Supreme Court in **Ritesh Sinha v. State of Uttar Pradesh and another (AIR 2013 SC 1132)** , a Single Bench decision of the Delhi High Court in **Rakesh Bisht etc. v. Central Bureau of Investigation (2007 Crl.L.J 1530)** and another latest Single Bench decision of the Gujarat High Court in **Natvarlal Amarshibhai Devani v. State of Gujarat [2017(3) KLT SN 1 (C.No.1)** to contend that the impugned direction will amount to testimonial compulsion, 3 Crl.M.C No.4013 of 2017 and that the impugned order will not stand the test of any provision under the Code of Criminal Procedure, or the Evidence Act. ## 5. In **State of Bombay v. Kathi Kalu Oghadi (AIR** **1961 SC 1808)** a larger Bench of the Hon'ble Supreme Court explained what is meant by testimonial compulsion. The spirit and purport of the said decision is that any direction to the accused to do anything or to make any statement indicating his complicity in an offence in any manner, will amount to testimonial compulsion. The Hon'ble Supreme Court held that a direction to the accused to provide his specimen thumb impression, or impression of foot or palm or fingers, or specimen writing will not in any manner amount to testimonial compulsion under Article 20 (3) of the Constitution of India. What the trial court did in this case is to direct the accused to provide his voice sample for comparison with the voice, contained in an electronic device. The direction is not to give any statement touching the offence, or concerning his role or complicity in the Crl.M.C No.4013 of 2017 4 alleged offence. A mere direction to provide specimen voice for comparison will never amount to testimonial compulsion as meant under Section 20(3) of the Constitution of India in view of the position settled by the larger Bench of the Hon'ble Supreme Court in **Kathi Kalu's** case. To amount to such compulsion there must be a positive direction to the accused, to make some statements or to do something against his will or without his consent, touching the allegations in the case against him, or the alleged complicity or involvement or culpability of the accused in the crime. There is no such a situation here. 6. In the Gujarat decision cited by the learned counsel, the Gujarat High Court held that a direction to provide voice sample will not amount to testimonial compulsion under Article 20(3) of the Constitution of India. That part of the decision is against the petitioner. But the petitioner relies on the other limb of the decision, that when there is no provision anywhere authorising such a course, the accused cannot be directed to provide voice sample for 5 Crl.M.C No.4013 of 2017 comparison. 7. In **Rakesh Bisht'** s case the Delhi High Court considered the legality of the direction of a subordinate court to provide voice sample for comparison. The prosecution relied on Section 311A Cr.P.C newly introduced in the Code. The Delhi High Court set aside the order of the trial court mainly on the ground that the impugned order was passed before the insertion of Section 311A in the Cr.P.C. However, incidentally, the Delhi High Court held that such a course cannot be authorised under Section 311A of Cr.P.C. 8. It is well settled by the Hon'ble Supreme Court that even in cases where there is no specific provision in any law to authorise a particular course of action, the trial court can use its inherent or ancillary powers in a given situation to do justice. The Hon'ble Supreme Court has also settled the legal proposition that identification of the accused during trial by voice is well acceptable under the law. When identification of an accused by voice is permissible under Crl.M.C No.4013 of 2017 6 the law, the contention that specimen voice cannot be directed to be given for comparison for the purpose of identification during investigation, cannot be accepted. The direction of the court below is not to give any statement touching the allegations against the accused. The direction is only to provide his voice sample for comparison, to identify whether the voice contained in the electronic devise is that of the accused. 9. The question of legal authority for direction to provide voice sample for comparison now stands referred to a larger bench by the Hon'ble Supreme Court in **Ritesh Sinha'** s case. However there is a clear observation by Hon'ble Supreme Court that though Section 311A of Cr.P.C may not be applicable, the court can exercise the ancillary or inherent powers for such a course, with the object of doing justice, or with the object of identifying the voice in question. 10. Section 311A was introduced in the Code of Criminal Procedure only with effect from 23.6.2006. This Crl.M.C No.4013 of 2017 7 provision authorises orders directing the accused to provide specimen signatures or specimen handwriting for comparison as part of investigation. This was the issue that came up before the Hon'ble Supreme Court in **Kathi Kalu'** s case. Anyway, now there is legislative sanction under Section 311A of Cr.P.C for directing the accused in criminal cases to provide specimen handwriting and specimen signature. If the law so authorises, and makes such direction legal, why cannot the court direct the accused to provide voice samples also, in exercise of its ancillary powers with the object of doing justice, or for the purpose of identifying the maker of the voice in question? If the accused in a criminal case can be directed to provide his handwriting or signature for comparison, there will be nothing wrong in directing the accused to provide his specimen voice also. Though there is no specific provision, the courts can make such orders in exercise of the ancillary or inherent powers in a situation where there is no specific prohibition in law. Thus I find that there is nothing wrong in Crl.M.C No.4013 of 2017 8 the order passed by the court below directing the accused to provide his voice sample. 11. The real legal effect and application, and also the spirit of Section 311A of Cr.P.C authorising collection of specimen handwritting and specimen signature can very well be applied in the case of voice samples also, though there is no specific provision on the subject, when there is no prohibition in law. Imbibing the spirit of Section 311A of Cr.P.C which was newly introduced in the Code of Criminal Procedure I find that the court can apply or exercise its inherent or ancillary powers to give such directions, so long as such directions will not in any manner amount to testimonial compulsion under Article 20(3) of the Constitution of India. In the result, this Crl.M.C is dismissed. **P.UBAID, JUDGE** ab