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.
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.
