TMI Blog2012 (12) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... 2010, learned Chief Judicial Magistrate, Saharanpur issued summons to the Appellant to appear before the investigating officer and give his voice sample. The Appellant approached the Allahabad High Court under Section 482 of the Code of Criminal Procedure, 1973 (for short, the Code ) for quashing of the said order. The High Court by the impugned order dated 9/7/2010 rejected the said application, hence, this appeal by special leave. 3. In my view, two important questions of law raised in this appeal, which we need to address, are as under: (i) Whether Article 20(3) of the Constitution of India, which protects a person accused of an offence from being compelled to be a witness against himself, extends to protecting such an accused from being compelled to give his voice sample during the course of investigation into an offence? (ii) Assuming that there is no violation of Article 20(3) of the Constitution of India, 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? 4. We have heard, at considerable length, Mr. Siddhartha Dave, learned Counsel for the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot uncontrolled and unfettered (State of West Bengal v. Swapan (1982) 1 SCC 561). Counsel submitted that the High Court judgments, where unamended Section 53 of the Code is involved, are not relevant. Counsel submitted that Explanation (a) to Section 53 of the Code was introduced in 2005 and, therefore, those judgments cannot be relied upon for interpreting the said Section as it stands today. Counsel submitted that various examinations listed in the said Explanation are the ones for which the police can have the accused examined by a medical practitioner. These tests are all of physical attributes present in the body of a person like blood, nail, hair etc., which once taken can be examined by modern and scientific techniques. Voice sample specifically has not been included as one of the tests in the said Explanation even though the amendment was made in 2005 when Parliament was well aware of such test being available and, has, therefore, been intentionally omitted. Counsel submitted that the words such other tests mentioned in the said Explanation are controlled by the words which the registered medical practitioner thinks necessary . Therefore, the discretion, as to the choice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urement appearing in Section 5 of the Prisoners Act expansively and purposefully to include measurement of voice i.e. speech sound waves. Counsel submitted that Section 53 of the Code could be construed expansively on the basis of presumption that an updating construction can be given to the statute (Bennion on Statutory Interpretation 5th Edition at P. 516). Relying on Selvi, counsel submitted that for the purpose of Section 53 of the Code, persons on anticipatory bail would be deemed to be arrested persons. It is, therefore, reasonable to assume that where the person is not actually in the physical custody of the police, the investigating agency could approach the Magistrate for an order directing the person to submit himself for examination under Section 53 of the Code. Counsel also submitted that in Sakiri Vasu, this Court has referred to the incidental and implied powers of a Magistrate during investigation. Counsel submitted that in Selvi, Explanation to Section 53 has been given a restrictive meaning to include physical evidence. Since voice is physical evidence, it would fall within the ambit of Section 53 of the Code. The Magistrate has, therefore, ancillary or implied po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a purposive interpretation needs to be put on the relevant sections to strengthen the hands of the investigating agency to deal with the modern crimes where tape recorded conversations are often very crucial. 8. Though, Mr. Dave, learned Counsel for the Appellant has not pressed the submission relating to infringement of guarantee enshrined in Article 20(3) of the Constitution, since extensive arguments have been advanced on Article 20(3) and since the right against self-incrimination enshrined therein is of great importance to criminal justice system, I deem it appropriate to deal with the said question also to make the legal position clear. 9. Article 20(3) of the Constitution reads thus: Article 20: Protection in respect of conviction for offences. (1) ... ... ... (2) ... ... ... (3) No person accused of any offence shall be compelled to be a witness against himself. 10. In M.P. Sharma v. Satish Chandra and Ors. 1954 SCR 1077, a seven Judges Bench of this Court did not accept the contention that the guarantee against testimonial compulsion is to be confined to oral testimony while facing trial in the court. The guarantee was held to include not only oral tes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n M.P. Sharma that to be witness is nothing more than to furnish evidence and such evidence can be furnished through lips or by production of a thing or of a document or in other modes, in Kathi Kalu Oghad this Court was alive to the fact that the investigating agencies cannot be denied their legitimate power to investigate a case properly and on a proper analysis of relevant legal provisions it gave a restricted meaning to the term to be witness . The relevant observations may be quoted. 'To be a witness' may be equivalent to 'furnishing evidence' in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body. 'Furnishing evidence' in the latter sense could not have been within the contemplation of the Constitution-makers for the simple reason that - thought they may have intended to protect an accused person from the hazards of self-incrimination, in the light of the English Law on the subject - they could not have intended to put obstacles in the way of efficient and effective inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression 'to be a witness. 15. Four of the conclusions drawn by this Court, which are relevant for our purpose, could be quoted: (3) 'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused. (4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness'. (5) 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in court or otherwise. (6) 'To be a witness' in its ordinary grammatical sense means giving oral testimony in court. Case law has gone beyond this strict literal interpretation of the expression whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused cannot be compelled to produce documents which are incriminatory and based on his own knowledge has been restated. I, therefore, feel that it is not necessary to go into the question of alleged conflict. 17. In Selvi a three Judge Bench of this Court was considering whether involuntary administration of certain scientific techniques like narco-analysis, polygraph examination and the Brain Electrical Activation Profile (BEAP) tests and the results thereof are of a 'testimonial character' attracting the bar of Article 20(3) of the Constitution. This Court considered the protective scope of right against self-incrimination, that is whether it extends to the investigation stage and came to the conclusion that even the investigation at the police level is embraced by Article 20(3). After quoting extensively from Kathi Kalu Oghad, it was observed that the scope of 'testimonial compulsion' is made clear by two premises. The first is that ordinarily it is the oral or written statements which convey the personal knowledge of a person in respect of relevant facts that amount to 'personal testimony' thereby coming within the prohibition contemplated by Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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. 19. The next question which needs to be answered is whether there is any provision in the Code, or in any other law under which a Magistrate can authorize the investigating agency to record voice sample of a person accused of an offence. Counsel are ad idem on the point that there is no specific provision either in the Code or in any other law in that behalf. In its 87th Report, the Law Commission suggested that the Prisoners Act should be amended inter alia to include voice sample within the ambit of Section 5 thereof. Parliament however has not amended the Prisoners Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son (other than a Magistrate) who is authorized by a Magistrate in this behalf. 22. It is the duty of a Police Officer or any person (other than a Magistrate) authorized by a Magistrate to collect evidence and proceedings under the Code for the collection of evidence are included in 'Investigation'. Collection of voice sample of an accused is a step in investigation. It was argued by learned Counsel for the State that various steps which the police take during investigation are not specifically provided in the Code, yet they fall within the wider definition of the term 'investigation' and investigation has been held to include measures that had not been enumerated in statutory provisions and the decisions to that effect of the Rajasthan High Court in Mahipal Maderna and Allahabad High Court in Jamshed have been noticed by this Court in Selvi and, therefore, no legal provision need be located under which voice sample can be taken. I find it difficult to accept this submission. In the course of investigation, the police do use force. In a country governed by rule of law police actions which are likely to affect the bodily integrity of a person or likely to affect h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out whether a Magistrate has implied or ancillary power under any provisions of the Code to pass such order for the purpose of proper investigation of the case. 23. In search for such a power, I shall first deal with the Prisoners Act. As its short title and preamble suggests it is aimed at securing identification of the accused. It is an Act to authorize the taking of measurements and photographs of convicts and others. Section 2(a) defines the term 'measurements' to include finger-impressions and foot-print impressions. Section 3 provides for taking of measurements, etc., of convicted persons and Section 4 provides for taking of measurements, etc., of non-convicted persons. Section 5 provides for power of a Magistrate to order a person to be measured or photographed. Section 6 permits the police officer to use all means necessary to secure measurements etc. if such person puts up resistance. Section 7 states that all measurements and photographs taken of a person who has not been previously convicted shall be destroyed unless the court directs otherwise, if such person is acquitted or discharged. In Kathi Kalu Oghad, this Court referred to the Prisoners Act as a statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no provision express or implied in the Prisoners Act under which such a hair sample can be taken. That is not so with voice sample. 28. The purpose of taking voice sample which is non-testimonial physical evidence is to compare it with tape recorded conversation. It is a physical characteristic of the accused. It is identificatory evidence. In R.M. Malkani, this Court has taken a view that tape recorded conversation is admissible provided the conversation is relevant to the matters in issue; there is identification of the voice and the tape recorded conversation is proved by eliminating the possibility of erasing the tape recorded conversation. It is a relevant fact and is admissible under Section 7 of the Evidence Act. In view of this legal position, to make the tape recorded conversation admissible in evidence, there must be provision under which the police can get it identified. For that purpose, the police must get the voice sample of the accused. 29. The dictionary meaning of the term 'measurement' is the act or process of measuring. The voice sample is analysed or measured on the basis of time, frequency and intensity of the speech-sound waves. A voice print is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definition of the term 'measurement' appearing in the Prisoners Act. 31. There is another angle of looking at this issue. Voice prints are like finger prints. Each person has a distinctive voice with characteristic features. Voice print experts have to compare spectrographic prints to arrive at an identification. In this connection, it would be useful to read following paragraphs from the book Law Enforcement and Criminal Justice - an introduction by Bennett-Sandler, Frazier, Torres, Waldron. Voiceprints. The voiceprint method of speaker identification involves the aural and visual comparison of one or more identified voice patterns with a questioned or unknown voice. Factors such as pitch, rate of speech, accent, articulation, and other items are evaluated and identified, even though a speaker may attempt to disguise his or her voice. Through means of a sound spectrograph, voice signals can be recorded magnetically to produce a permanent image on electrically sensitive paper. This visual recording is called a voiceprint. A voiceprint indicates resonance bars of a person's voice (called formants), along with the spoken word and how it is articulated. Figure 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. [This section applies also, with any necessary modifications, to finger-impressions.] 33. In Ram Babu Misra, the investigating officer made an application to the Chief Judicial Magistrate, Lucknow seeking a direction to the accused to give his specimen writing for the purpose of comparison with certain disputed writings. Learned Magistrate held that he had no power to do so when the case was still under investigation. His view was upheld by the High Court. This Court held 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 such writings with writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used of rape by medical practitioner and Section 54 refers to examination of arrested person by a medical officer. Section 53 is material. It reads as under: Section 53 - Examination of accused by medical practitioner at the request of police officer (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonable necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose. (2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner. Explanation: In this section and in Sections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that Explanation (a) vests the discretion to conduct examination of the accused in the registered medical practitioner and not in the investigating officer and therefore the doctrine of 'ejusdem generis' cannot be pressed into service. Under Section 53(1) the registered medical practitioner can act only at the request of a police officer. Obviously, he can have no say in the process of investigation. The decision to get the accused examined is to be taken by the investigating officer and not by the medical practitioner. It is the expertise of the medical practitioner which the investigator uses to decide the method of the test. It would be wrong, therefore, to state that the discretion to get the accused examined vests in the medical practitioner. This submission must, therefore, be rejected. 38. It is argued that voice sample test cannot be included in the definition of 'examination' because in Selvi, this Court has held that Section 53 needs to be given a restrictive interpretation. I must, therefore, revisit Selvi. 39. In Selvi, it was contended that the phrase modern and scientific techniques including DNA profiling and such other tests should be libe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be treated as a part of human body and thus could be called a bodily substance. But, I feel that there is no need to stretch the meaning of the term 'bodily substance' in this case. I have already expressed my opinion that voice sample is physical non-testimonial evidence. It does not communicate to the investigator any information based on personal knowledge of the accused which can incriminate him. Voice sample cannot be held to be conceptually different from physical non-testimonial evidence like blood, semen, sputum, hair etc. Taking of voice sample does not involve any testimonial responses. The observation of this Court in Selvi that it would not be prudent to read Explanation (a) to Section 53 of the Code in an expansive manner is qualified by the words so as to include the impugned techniques . What must be borne in mind is that the impugned techniques were held to be testimonial and hit by Article 20(3) of the Constitution. This Court emphasized that Explanation (a) to Section 53 does not enumerate certain other kinds of medical examination that involve testimonial acts, such as psychiatric examination among others and this demonstrates that the amendment made t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbit of Section 53 of the Code but this Court did not restrict examination of person contemplated in Section 53 to medical examination by a medical practitioner even though the tests impugned therein were tests that were clearly not to be conducted by the medical practitioner. It must be remembered that Section 53 is primarily meant to serve as aid in the investigation. Examination of the accused is to be conducted by a medical practitioner at the instance of the police officer, who is in charge of the investigation. On a fair reading of Section 53 of the Code, I am of the opinion that under that Section, the medical practitioner can conduct the examination or suggest the method of examination. 43. I must also deal with the submission of learned Counsel for the Appellant that non-inclusion of voice sample in Explanation (a) displays legislative intent not to include it though legislature was aware of such test. In Selvi, this Court has made it clear that it was not examining the question regarding legislative intent in not including the test impugned before it in Explanation (a). Therefore, Selvi does not help the Appellant on this point. On the contrary, in my opinion, by addin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t identification by voice has to be considered carefully by the court. This, however, is no answer to the question of availability of a legal provision to pass an order directing the accused to give voice sample during investigation. The legal provision, in my opinion, can be traced to the Prisoners Act and Section 53 of the Code. 46. I am mindful of the fact that foreign decisions are not binding on our courts. But, I must refer to the judgment of the Supreme Court of Appeal of South Africa in Levack, Hamilton Caesar and Ors. v. Regional Magistrate, Wynberg and Anr. [2003] 1 All SA 22 (SCA) (28th November 2002) because it throws some light on the issue involved in the case. In that case, the Magistrate had granted an order under Section 37(3) of the Criminal Procedure Act 51 of 1977 (for short, South African Act ) directing the accused to give voice samples as specified by a named 'voice expert' in the presence of the legal representatives of the accused. The object was to compare the samples with tape recordings of telephone conversations in the State's possession, for possible later use during the trial. The accused were unsuccessful in the High Court in their ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s further observed that it is true that the voice, unlike palm or other prints, is not itself part of the body. It is a sound. But, the sound is a bodily emanation. and the body from which it emanates determines its timbre, volume and distinctive modulations. It was further observed that nothing in the provision suggests that the 'distinguishing features' it envisages should be limited to those capable of apprehension through the senses of touch and sight (or even taste or smell). Relevant observation of the Supreme Court of South Africa could be quoted. 14. Hearing is as much a mode of physical apprehension as feeling or seeing. For the sight-impaired it is indeed the most important means of distinguishing between people. It would therefore be counter-literal to interpret the section as though the ways of 'ascertaining' bodily features it contemplates extend only to what is visible or tangible. The Supreme Court of South Africa then considered the question of self-incrimination. It observed that it is wrong to suppose that requiring the accused to submit voice samples infringes their right either to remain silent in the court proceedings against them or not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode 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. 48. The principle that a penal statute should be strictly construed is not of universal application. In Murlidhar Meghraj Loya v. State of Maharashtra AIR 1976 SC 1929, 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 Laws 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 and Ors. v. State of Maharashtra AIR 1977 SC 435. In State of Maharashtra v. Natwarlal Damodardas Soni AIR 1980 SC 593, while dealing with Section 135 of the Customs Act and Rule 126-H(2)(d) of the Defence of India Rules, a narrow c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... voice. The appeal is dismissed. 50. Before I part with this judgment, I must express my sincere thanks to learned Counsel Mr. Siddhartha Dave, Mr. Aman Ahluwalia and Mr. R.K. Dash, who have very ably assisted the court. Aftab Alam, J. 51. Leave granted. 52. 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 to-day to say whether two voice-recordings are of the same person or of two different people and, thus, to provide valuable aid in investigation. But, the question is whether the law has any provision under which a person, suspected of having committed an offence, may be compelled to give his voice sample to aid the police in investigation of the case. The next and the more important question is, in case there is no express or evidently applicable provision in law in that regard, should the court invent one by the process of interpretation. My sister Desai J. seems to think that the gap in the law is so vital that the court must step in to bridge the gap. I hesitate to do so. 53. There are, indeed, precedents where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itution. 57. 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. 58. Coming to the second question, as may be seen, it has the recognition that there is no provision in the Code of Criminal Procedure to compel the accused to give his voice sample. That being the position, to my mind the answer to the question can only be in the negative, regardless of the constitutional guarantee against self-incrimination 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. 59. 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 skillfully. 60. First, she firmly rejects the submission advanced on behalf of the State that in the absence of any express provision in that regard, it was within the inherent and implied powers of the Magistrate to direct the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose. (2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner. 65. In the year 2005, a number of amendments were made in the Code of Criminal Procedure by Act 25 of 2005. Those amendments included the addition of an explanation to Section 53 and insertion of Sections 53-A and 311-A. The explanation added to Section 53 reads as under: [Explanation. - In this section and in Sections 53A and 54, - (a) examination shall include the examination of bloo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry in a particular case can only be decided by the medical practitioner and not the police officer referring the accused to him. In my 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. 70. Apart from Section 53 of the Code of Criminal Procedure, Desai J. finds another source for the power of the Magistrate in Section 5 of the Identification of Prisoners Act, 1920. Referring to some technical literature on voice print identification, she holds: Thus, it is clear that voiceprint identification of voice involves measurement of frequency and intensity of sound waves. In my opinion, therefore, 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. And further: Thus, my conclusion that voice sample can be included in the inclusive definition of the term measur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der: 4. Taking of measurements, etc., of non-convicted persons. - Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner. 75. Section 5 deals with the power of Magistrate to order a person to be measured or photographed. It is as under: 5. Power of Magistrate to order a person to be measured or photographed. - If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898 (5 of 1898), 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: 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sposal of records of measurements and photographs. [(3) Every rule made under this section shall be laid, as soon as may be after it is made, before State Legislature.] 79. Section 9 finally lays down the bar of suits. 80. 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 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 its much wider amplitude, the power vests in a Magistrate and not in any police officer. 81. 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 measurements is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court judgments. One is of the Bombay High Court in Central Bureau of Investigation, New Delhi v. Abdul Karim Ladsab Telgi and Ors. 2005 Cri.L.J. 2868 and the other by the Delhi High Court in Rakesh Bisht v. Central Bureau of Investigation 2007 Cri. L.J. 1530 : she has approved the Bombay High Court decision in Telgi's case and disapproved the Delhi High Court decision in Bisht's case. The Bombay decision is based on exactly the same reasoning as adopted by Desai J that the definition of measurements 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: 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 that Act .... (a) measurements include finger-impressions and foot-print impressions . The said expression is an inclusive term, which also includes finger-impressions and foot-print impressions. Besides, the term measurement, as per the dictionary meaning is the act or an instance of measuring; an amount determined by measuring; detaile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to any person, including an accused person, to give specimen signatures and writings. The suggestions made by the Court materialized 25 years later when Section 311A was introduced in the Code of Criminal Procedure. 88. The decision in Ram Babu Misra was rendered by this Court on February 19, 1980 and on August 27, the same year, the Law Commission of India submitted its 87th Report which was aimed at a complete revamp of the Identification of Prisoners Act, 1920 and to update it by including the scientific advances in the aid of investigation. In Paragraph 3.16 of the Report it was observed as under: 3.16 Often, it becomes desirable to have an accused person speak for the purposes of giving to the police an opportunity to hear his voice and try to identify it as that of the criminal offender ... However, if the accused refuses to furnish such voice, there is no legal sanction for compelling him to do so, and the use of force for that purpose would be illegal. (Emphasis added) 89. Further, in Paragraph 5.26 it was stated as under: 5.26 The scope of Section 5 needs to be expanded in another respect. The general power of investigation given to the police under the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a court has taken cognizance of an offence a Magistrate shall not under this section, give to the person accused of the offence any direction which could, under Section 73 of the Indian Evidence Act 1872, be given by such Magistrate. 92. 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 53A and 311A were inserted into the Code. Voice sample was not included either in the Explanation to Section 53 or Section 311A. 93. 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. 94. 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. 95. 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. 96. In view of the difference of opinion between ..... X X X X Extracts X X X X X X X X Extracts X X X X
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