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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.

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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

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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

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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

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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

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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

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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

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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

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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,

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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

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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.