Coming to the second question, the Indian Parliament, despite the 87th Report of the Law Commission of India suggesting to amend the Prisoners Act to include voice samples within the ambit of Section 5, had failed to act upon it. This inaction had created a great void between the efforts of investigating authorities for proper identification of accused through voice sample and the power of the court to order taking of such a voice sample. The accused could simply refuse to give his consent for the recording of voice sample and thwart the efforts of the police to ensure the correct identity. Justice Desai, therefore, took upon the task of exploring the available legal mechanisms to bestow upon the Magistrates the power to order recording of voice samples of the accused person.
A reference to Section 2(h) of the Cr.P.C, 1973, defining the term ‘investigation’ by the learned Judge revealed that the investigating officer did not have the power to record physical evidence unless he is authorized to do so by a Magistrate. The only way of giving such a direction was under Section 156(3), which allows incidental powers as are necessary to ensure proper investigation, as upheld in Sakiri Vasu vs. State of Uttar Pradesh [(2009) 2 SCC 409]. Justice Desai, therefore, began navigating through provisions of the Criminal Procedure Code to bestow upon the Magistrates such implied or ancillary powers, which could allow him to direct recording of voice samples of the accused person.
The Bombay High Court had previously made a similar attempt in the Central Bureau of Investigation, New Delhi v. Abdul Karim Ladsab Telgi and others [2005 Crl. L.J. 2868]. The High Court had relied upon the Prisoners Act, which authorizes taking of measurements and photographs of convicts and others. It had held that measuring frequency or intensity of the speech sound waves fall within the ambit of the scope of the term “measurement” as defined in Section 2(a) of the Prisoners Act. However, when the Delhi high court heard a similar kind of issue two years later in Rakesh Bisht, it disagreed with the Bombay High Court’s judgment in Telgi. The Delhi High Court held that “if after investigation, charges are framed and in the proceedings before the court, the court feels that voice sample ought to be taken for the purposes of establishing identity, then such a direction may be given provided the voice sample is taken only for the purposes of identification and it does not contain inculpatory statement so as to be hit by Article 20(3) of the constitution.” Noteworthy is the qualification ‘proceeding before the court’, meaning simply that it could be done only post-investigation and not at the stage of the investigation. The ratio laid down by the Delhi High Court also created a technical strain on the forensic voice identification process, as sample recording of the inculpatory statements had to be avoided, which could in some cases be the entire conversation available as evidence!
Justice Desai adopted the view taken by the Bombay High Court in Telgi and after briefly discussing Section 7 and 73 of the Evidence Act, 1872; she rested her conclusion on the interpretation of Section 53 of Cr.P.C and Section 5 of the Prisoners Act. Section 7 was found to be insufficient for the purpose as in In R.M. Malkani v. State of Maharashtra [(1973) 1 SCC 471], the Supreme Court had held that tape-recorded evidence is admissible provided:
- the conversation is relevant to the matters in issue;
- there is an identification of the voice; and
- the tape-recorded conversation is proved by eliminating the possibility of erasing the tape-recorded conversation.
Once again, the issue remained whether the police have the power to take a voice sample for identification of the voice. Referring to Section 73 in State of U.P v. Ram Babu Misra [(1980) 2 SCC 242], the Supreme Court had observed that the second paragraph of Section 73 enables the court to direct any person present in court to give specimen writings “for the purpose of enabling the court to compare”. Therefore, on similar lines of Rakesh Bisht, some proceeding before the court had to be existing, which was possible only after investigation and not during the investigation. Finally, not interpreting the provisions strictly, Justice Desai held that a Magistrate has an ancillary power under section 53 to pass an order permitting the taking of voice sample to aid the investigation. Relying upon Kathi Kalu Oghad, she observed 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. However, Justice Aftab Alam dissented on the second question.
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