advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Friday, July 29, 2016

Monitoring Investigation = Sample Voice - to avoid inculpatory meterial - it is just and necessary to brought the sample/modal text/script for verification of court before read out by accused = the only surviving issue for this Court is to ensure that the underlying process for drawing the voice samples is fair and reasonable, having due regard to the mandate of Article 21. On the one hand, it is not open to the accused to dictate the course of investigation. Hence, we do not find substance in the submission that the text which is to be read by the Appellants in the course of drawing their voice samples should contain no part of the inculpatory words which are a part of the disputed conversation. A commonality of words is necessary to facilitate a spectrographic examination. =FIR (FIR 240 of 2012) is that the Appellants demanded a sum of money to refrain from telecasting programmes on a television channel pertaining to the alleged involvement of a corporate entity in a wrongful activity pertaining to the allocation of coal blocks. The FIR was registered against the Appellants for offences under Sections 384, 511, 420 and 120B of the Penal code.= an application requesting the court to seek the consent of the Appellants for obtaining their voice samples at the Central Forensic Science Laboratory, CBI (CFSL-CBI) for the purpose of comparing it with a recording which had been made in the course of a sting operation.= The grievance of the Appellants was that they were being made to read out inculpatory material drawn from an audio recording of the alleged sting operation. The Appellants objected to do so and moved an application under the Code of Criminal Procedure, 1973 for monitoring the investigation and for a direction to the Investigating officer to provide material for the purpose of a voice sample “which does not contain any inculpatory statement” in the presence of a judicial magistrate. = whether or not a sample of words in such number as the expert may suggest would suffice for the experts to give their opinion by scientific voice sampling methods. Accordingly, a brief note has been filed on the record stating that: “That the experts of the Central Forensic Science Laboratory (CFSL) have informed that two separate texts/scripts have been prepared in the laboratory from each Speaker/Accused, which are different from the received transcripts. That the text/script prepared by the CFSL experts cannot be provided to the petitioners in advance as there is apprehension that the petitioner may practice the texts/scripts thereby adversely affecting the voice sampling examination. Accordingly it is submitted that the sample/modal text/script can only be supplied to the speakers/Accused if this Hon’ble Court deems it appropriate.” By an Order of this Court dated 1 July 2016, the Investigating officer was directed to file a transcript of the disputed conversation in a sealed cover. The Director CFSL-CBI, was called upon to file in a sealed cover a proposed passage of a written text which the Appellants shall be required to read out for the purpose of giving their voice samples using words, but not the sentences, appearing in the disputed conversation in such number as the Director/Scientific Officer may consider necessary for the purpose of comparison. We are of the view that the aforesaid directions which have been issued by this Court would allay the apprehension of the Appellants in regard to the fairness of the process involved in drawing the voice sample. Our directions ensure that the text which the Appellants would be called upon to read out for the purpose of drawing their voice samples will not have sentences from the inculpatory text. Similarly, permitting the text to contain words drawn from the disputed conversation would meet the legitimate concern of the investigating authorities for making a fair comparison. In pursuance of the directions issued by this Court the Investigating officer has filed in sealed cover: (i) transcripts of the disputed conversations; and (ii) a proposed passage of a written text required to be read out by the Appellants for the purpose of giving their voice samples. The passage contains words but not the sentences appearing in the disputed conversation. Having perused the contents of the sealed covers, we are satisfied that the Investigating officer has complied with our directions. We order accordingly.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                   CRIMINAL APPEAL Nos. 700-701   OF 2016
              [Arising out of SLP (Crl) Nos.3009-3010 of 2015]



SUDHIR CHAUDHARY ETC. ETC.        .....APPELLANTS

                                   Versus

STATE (NCT OF DELHI)          .....RESPONDENT







                           J  U  D  G  M  E  N  T



Dr. D Y CHANDRACHUD, J.

           Leave granted.

2           A judgment of the High Court of Delhi  dated  11  February  2015
has given rise to these proceedings. The High  Court  dismissed  a  petition
instituted under Section 482 of the Code  of  Criminal  Procedure  1973  and
affirmed an order dated 7 July 2014  of  the  Additional  Sessions  Judge–01
Patiala House Courts, New Delhi, in a Criminal Revision.

3           On 2 October  2012,  a  First  Information  Report  (‘FIR’)  was
registered at P.S. Crime Branch New Delhi, on  a  complaint  made  by  Rajiv
Bhadauria of Jindal Steel  Company  Private  Limited.  Briefly  stated,  the
allegation in the FIR (FIR 240 of 2012) is that the  Appellants  demanded  a
sum of money to refrain from telecasting programmes on a television  channel
pertaining to the alleged involvement of a corporate entity  in  a  wrongful
activity  pertaining  to  the  allocation  of  coal  blocks.  The  FIR   was
registered against the Appellants for offences under Sections 384, 511,  420
and 120B of the Penal code.  The Appellants were  arrested  on  27  November
2012.

4            On  10  December  2012,  an  application  was  moved   by   the
Investigating officer in  the  Crime  Branch  before  the  Additional  Chief
Metropolitan Magistrate (South), when the Appellants were in police  custody
in pursuance of an order  of  remand,  requesting  the  court  to  seek  the
consent of the Appellants for obtaining their voice samples at  the  Central
Forensic Science Laboratory, CBI (CFSL-CBI) for the purpose of comparing  it
with a recording which had been made in the course  of  a  sting  operation.
In their replies to the application the Appellants furnished  their  consent
for tendering their voice samples.  Consequently, on  13 December  2012  the
Metropolitan Magistrate disposed of the application by  directing  that  the
Investigating officer may move an appropriate application for the  visit  of
the accused to the place or office where he proposes to  collect  the  voice
samples with a specification of time, date and place.  The  Appellants  were
required by the Investigating officer to furnish their voice samples  on  21
December 2012.  When they reported at the police station, the  Investigating
officer directed them to read out from a paper.

5           The grievance of the Appellants was that they  were  being  made
to read out inculpatory material  drawn  from  an  audio  recording  of  the
alleged sting operation.  The Appellants objected to  do  so  and  moved  an
application under the Code of Criminal Procedure, 1973  for  monitoring  the
investigation and for a direction to the Investigating  officer  to  provide
material for the purpose of a voice  sample  “which  does  not  contain  any
inculpatory statement” in  the  presence  of  a  judicial  magistrate.   The
Additional Chief Metropolitan Magistrate (for brevity ‘ACMM’) dismissed  the
application on 4 February 2013, observing that while  it  was  open  to  the
accused to decide whether or not to grant their consent,  once  consent  was
granted the  accused  would  have  to  abide  by  the  instructions  of  the
Investigating officer and cannot  dictate  the  terms  on  which  the  voice
sample has to be given.

6           A Criminal Revision was filed against the  order  of  the  ACMM.
The Revision was heard and decided by an order dated 7  July  2014.   During
the course of the proceedings before the ACMM, the State agreed  to  provide
a text which was not an exact reproduction of the earlier text given to  the
accused but which was stated to be a mixture of some  sentences  drawn  from
the inculpatory material, besides some general statements.   After  perusing
the draft text,  the  Appellants  objected  to  the  text  stating  that  it
contained portions of the audio recording.    Before  the  ACMM  an  opinion
furnished by the CFSL expert was produced.  The opinion, inter alia,  stated
that:

“(A)  It is not mandatory to have vis-à-vis  same  text  to  be  read  by  a
suspect.  However, sufficient common sentences/words should  be  present  in
the sample voice recording with respect to the  questioned  voice  recording
for spectrographic examination.

(B)   In  case  there  are  sufficient  common  sentences/words  in  between
questioned & specimen voice recording, then  a  complete  opinion  could  be
offered.  However, in case of complete different text and sufficient  common
sentences/words are  not  available;  opinion  could  be  offered  based  on
auditory examination only.

(C)   For auditory  comparison,  the  whole  recording/text  is  used.   For
spectrographic examination, some  selected  sentences/words  are  taken  for
comparison.”

7           The ACMM by an order dated 7 July 2014, came to  the  conclusion
that it will not be appropriate if the accused are required to  read  out  a
transcript of the questioned text.   At the same time,  the  ACMM  took  the
view that in the interest of a proper investigation it would not  be  proper
to direct that a text completely different from the questioned text is  used
for drawing a voice sample.  The ACMM issued a direction  in  the  following
terms:

“….it will be  appropriate  if  the  CFSL  experts  at  CBI  Laboratory  are
directed to prepare a text inter-mixed with sufficient  sentences  from  the
questioned text  which  may  facilitate  the  examination  of  voice  sample
identification by them.  The  said  text  shall  be  prepared  by  the  CFSL
experts themselves only after the investigating agency first  provides  them
with the questioned recording.   The  collection  of  voice  sample  of  the
accused persons shall also be done in the CFSL  Laboratory  in  presence  of
the experts as not only it will provide them  a  controlled  environment  to
suitably collect the samples but it will also clear the apprehension of  the
accused persons that the investigating  agency  may  play  some  mischievous
role while collecting the voice samples.”



8           The order of the ACMM  was  questioned  before  the  Delhi  High
Court.  By a judgment and order dated 11 February  2015,  a  learned  Single
Judge held that the purpose of a voice sample is to facilitate  the  process
of comparing it with a recorded conversation.  The voice  sample  is  not  a
testimony in  itself  since  it  only  constitutes  what  was  described  as
‘identification data’.  A voice sample, in the view of  the  High  Court  is
not  a  substantive  piece  of  evidence.   The  High  Court  rejected   the
submission that the direction to furnish a voice sample was in violation  of
the  fundamental  right  under  Article  20(3)  of  the  Constitution  since
firstly, the Appellants had not been forced or coerced into furnishing  such
a sample since it was they who had  furnished  their  consent;  secondly,  a
voice sample is not evidence since its purpose is only to  compare  it  with
the questioned text.  In the view of the High  Court,  once  the  Appellants
had furnished their consent to furnishing their voice samples,  it  was  not
open to them to dictate the course of investigation.  This order  is  called
into question.

9           Learned senior counsel appearing on  behalf  of  the  Appellants
submitted that while it is true that the Appellants have  consented  to  the
drawing of their voice samples (a concession  which  was  reiterated  before
this Court in the course of the submissions) yet the process of drawing  the
samples must be fair,  so  as  to  be  consistent  with  the  right  of  the
Appellants under Article 21 of the Constitution.  The requirement of a  fair
investigation, it was urged, is implicit in Article  21  and  the  procedure
which is adopted for drawing a voice sample must be fair and reasonable.

10    The Appellants expressly consented to a voice sample being  drawn,  in
their response to the  application  that  was  filed  by  the  Investigating
officer before the Court of Metropolitan Magistrate.   This  was  reiterated
before the High Court.  In the submissions which have been  urged  in  these
proceedings, learned counsel has specifically  stated  that  the  Appellants
would abide by the consent which they had furnished to their  voice  samples
being drawn.  That being the position, the only  surviving  issue  for  this
Court is to ensure  that  the  underlying  process  for  drawing  the  voice
samples is fair and reasonable, having due regard to the mandate of  Article
21.  On the one hand, it is not open to the accused to  dictate  the  course
of investigation.  Hence, we do not find substance in  the  submission  that
the text which is to be read by the Appellants  in  the  course  of  drawing
their voice samples should contain no part of the  inculpatory  words  which
are a part  of  the  disputed  conversation.   A  commonality  of  words  is
necessary to facilitate a spectrographic examination.

11     By  our  order  dated  17  November  2015,  this  Court  allowed   an
adjournment  to  the  Respondent  to  seek  instructions  from  the   expert
concerned whether or not a sample of words in such number as the expert  may
suggest would suffice for the experts to give their  opinion  by  scientific
voice sampling methods.  Accordingly, a brief note has  been  filed  on  the
record stating that:

“That the experts of the Central Forensic  Science  Laboratory  (CFSL)  have
informed  that  two  separate  texts/scripts  have  been  prepared  in   the
laboratory from each Speaker/Accused, which are different from the  received
transcripts.

That the text/script prepared by the CFSL experts cannot be provided to  the
petitioners in advance as there is  apprehension  that  the  petitioner  may
practice the texts/scripts thereby adversely affecting  the  voice  sampling
examination.  Accordingly it is submitted that the sample/modal  text/script
can only be supplied to the speakers/Accused if this Hon’ble Court deems  it
appropriate.”



12    By an Order of  this  Court  dated  1  July  2016,  the  Investigating
officer was directed to file a transcript of the disputed conversation in  a
sealed cover.  The Director CFSL-CBI, was called upon to file  in  a  sealed
cover a proposed passage of a written text which  the  Appellants  shall  be
required to read out for the purpose of giving  their  voice  samples  using
words, but not the sentences, appearing  in  the  disputed  conversation  in
such number as the Director/Scientific Officer may  consider  necessary  for
the purpose of comparison.

13    We are of the view that  the  aforesaid  directions  which  have  been
issued by this Court would allay  the  apprehension  of  the  Appellants  in
regard to the fairness of the process involved in drawing the voice  sample.
 Our directions ensure that the text which the Appellants  would  be  called
upon to read out for the purpose of drawing their  voice  samples  will  not
have sentences from the inculpatory text.  Similarly,  permitting  the  text
to contain words  drawn  from  the  disputed  conversation  would  meet  the
legitimate concern of  the  investigating  authorities  for  making  a  fair
comparison.

14    In pursuance of the directions issued by this Court the  Investigating
officer  has  filed  in  sealed  cover:  (i)  transcripts  of  the  disputed
conversations; and (ii) a proposed passage of a written text required to  be
read out by the Appellants for the purpose of giving  their  voice  samples.
The passage contains words but not the sentences appearing in  the  disputed
conversation. Having perused the contents  of  the  sealed  covers,  we  are
satisfied that the Investigating officer has complied with  our  directions.
We order accordingly.

15    The order passed by the High Court shall  accordingly  stand  modified
and be substituted by the aforesaid directions.

16    The Appeals are disposed of in the above terms.



                  ..................................... CJI
                                             [T.S. THAKUR]



                                  .........................................J
                                              [A.M. KHANWILKAR]



........................................J
                                              [Dr. D.Y. CHANDRACHUD]

New Delhi
JULY 29, 2016.


No comments:

Post a Comment

Note: Only a member of this blog may post a comment.