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CHAPTER I
STATEMENT OF PROBLEM
The above project will focus upon constitutionality of voice spectrography, extent of the freedom granted under Art 20 (3), the unconstitutionality of the three investigative techniques as held in Selvi’s case, the extent of application of Art 20 (3) w.r.t voice spectrography etc. RESEARCH QUESTIONS I. What is extent of Art 20 (3)? Will it act as estoppel in presenting evidence by voice spectrography? II. Whether or not voice spectrography is constitutionally valid or not? III. Whether the voice spectrography can be done without consent of the person? RESEARCH OBJECTIVES The objective of the research is to determine the relevance of the scientific techniques, which are used to present evidence in court of law. The project will also help to determine the relevance and admissibility of such evidence.
RESEARCH METHODOLOGY
The analyst approach has been used in the present case, to analyze all the research issues and the judgment given in various cases. SCOPE OF STUDY The study analyzes the relevant articles of Constitution along with the relevant provisions of the Evidence Act, the provisions of Code of Criminal Procedure,1973, with various decides cases by the Apex Court. The study discusses the landmark cases in which admissibility of scientific evidence in court is taken in consideration i.e. Selvi’s case and Kathi Kalu Oghad’s case. The study also discusses the case of Ritesh Sinha which makes it permissible to take without consent of the person the voice sample. LIMITATION OF RESEARCH The research has been restricted to analyzing of the judgments given by the apex court. The research has a limited scope, to analyze by using only the analyst method of approach.
amount of ambiguity regarding the position of the evidence accorded punishment and thus a conflict between Article 20 (3) and the provisions of the Indian Evidence Act, 1872 started eventually. As a consequence, the Supreme Court with its judgments tried to narrow down the abovementioned gap by pronouncing judgments in the context regarding imbalance between the right against self incrimination under Article 20 (3) and the necessity of the investigating trial agencies to collect evidence. The journey of this conflict commenced with the case of M.P. Sharma v. Satish Chandra,^3 which had apparently answered the question as to what constitutes ‘to be a witness against himself’ with relation to the testimonial compulsion. Then the land mark judgment, given by eleven-judge bench, in State of Bombay v. Kathi kalu Oghad,^4 marks an important contribution as to the matter in discussion. This case resolved the issue regarding admissibility of the physical evidence of the accused (fingerprints, handwriting etc.) and the privilege available against self-incrimination. Then the judgment of the Supreme Court in Selvi v. State of Karnataka^5 had given precedence of humanity against technology, when due to this technological advancement new dimensions were opened as to whether the practice of narcoanalysis, brain mapping, FMRI and polygraph test can be made admissible in evidence or a right against self incrimination. This judgment however, gave a new aspect of privacy vis-à-vis technology. These three tests are considered to be an alternative so as to tap out the information from the accused. But, then Article 20(3) comes into play and plays a major part by protecting the right of the accused. Therefore, there are two conflicts. One conflict opines that of social interest, which compels the Court to admit this kind of evidence in the court so as to reach the truth of the matter. The second interest is the right of the accused against self incrimination. On the same pretext as mentioned above, similarly in the case of Natwarlal Amarshibhai Devani v. State of Gujarat^6 , again the question related to the (^3) M.P. Sharma v. Satish Chandra , AIR 1954 SC 300. (^4) State of Bombay v. Kathi Kalu Oghad , AIR 1961 SC 1808. (^5) Selvi v. State of Karnataka, (2010) 7 SCC 263. (^6) Natwarlal Amarshibai Devani v. State of Gujarat, R/CR.MA/2347/2015.
technological advancement has been raised but this time it was in regard to the admissibility of wave spectrography of an accused in evidence. This project reviews the instant matter in this case in respect to the admissibility of wave spectrography as an evidence vis-à-vis right against self incrimination. Also, this project will point out towards the wrong interpretation of Selvi v. State of Karnataka^7 by the Gujarat High Court, then the nature of the evidence protected under Article 20(3) and the emerging issue of techno-sociological phenomenon. POLICY OF THE PRIVILEGE GRANTED UNDER ARTICLE 20(3) The adversial system of jurisprudence was the law that was afforded by the courts so to make it in consonance with the right against self incrimination. It should be understood that the privilege of this right developed with the abolition from the ecclesiastical courts of oath ex- officio and its compulsory examinations. Moreover, it should be understood that the privilege against self-incrimination and the rule excluding untrustworthy confessions are separate as to development and principle. (^8) The mid-18th and mid-19th centuries’ criminal trials saw the origins of this privilege and other tools to the accused such as the ‘beyond-reasonable-doubt’ and ‘burden of proof on the prosecution’ doctrines which equipped him with political liberties that could be used to defend himself in trial against the State, in a way minimizing the relative disadvantage which the individual defendants would face, as compared to the vast trial resources of the State.^9 Accordingly, the policy of this right is much dependent upon two aspects – ethics and reliability. Ethics opines the right of the victim to be protected against the torture of the investigating agencies and the rationale behind it is that it would lead to miscarriage of justice, when these agencies will be provided with a strong incentive (^7) Selvi v. State of Karnataka, (2010) 7 SCC 263. (^8) Wigmore, EVIDENCE, 2264 (2nd edn, 1923) as cited in Fred Inbau, Self-Incrimination: what can a Accused Person be compelled to do?, 28(2) JOURNAL OF CRIMINAL LAW AND CRIMINOLOGY 261, 264 (1937). (^9) Gautam Swarup, Narco Analysis and Article 20(3) of the Constitution of India: Blending the Much Awaited, (2009), available at: http://works.bepress.com/gautam_swarup/2 (Last visited on 22nd March, 2017).
CHAPTER III
REDIFINING THE SCOPE OF TAKING EVIDENCE
It has always been a question of controversy as to what evidence can be made admissible before the Court of law, not making it self-incriminatory against the accused. In order to determine this, the meaning of the phrase ‘to be a witness’ in Article 20(3) needs to be taken into consideration. As a consequence, the Apex Court has defined this phrase in a number of cases, as has been discussed below. MEANING OF ‘TO BE A WITNESS’ It is pertinent to note that the journey of Article 20(3) began from the broad interpretation, given in the case of M.P. Sharma v. Satish Chandra^15_._ What can be persistently seen is these cases are that how the Court has been constantly interpreting that the right to privacy means each individual’s right to bodily integrity. The Supreme Court was called upon to interpret the meaning of three phases: “accused of an offence”, “compelled” and “witness against himself”. The question before the Court was whether search and seizure as prescribed under sections 94 and 96 of the Code of Criminal Procedure, 1908 fell foul of Article 20(3) or not? It is pertinent to point out as to what has been pointed out by J. Jagannadhadas: “The fundamental guarantee in Article 20(3) comprehends within its scope not merely oral testimony given by an accused in a criminal case pending against him, but also evidence of whatever character compelled out of a person who is or is likely to become incriminated thereby as an accused.” The Court clarified that “to be a witness” means nothing more than “to furnish evidence”. This kind of evidence can be furnished through lips or either by (^15) M.P. Sharma v. Satish Chandra , AIR 1954 SC 300.
production of a document or production of a thing. It further referred to the fact that: “ every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the, negative attitude of silence or submission on his part… [the guarantee under Article 20(3) therefore] would extend to any compulsory process for production of evidentiary documents which are reasonably likely to support a prosecution against [an accused individual].”^16 As a consequence, the Court held that the search and seizure did not violate the right guaranteed against self-incrimination and there is no provision in the Constitution which could such regulation o constitutional limitations on the ambit of fundamental right to privacy, which is analogous to the American Fourth Amendment. However, the judgment of Satish Chandra failed to settle the scope of non-verbal evidence within the ambit of Article 20(3). As a consequence, the phase after Satish Chandra and which preceded Kathi Kalu Oghad had faced many differences in judicial interpretations. For example, in the case of Farid Ahmed v. State^17 it was held that a handwriting sample by an accused amounts to compelling to be a witness, thereby coming under the ambit of Article 20(3). Then, in the case of Pakhar Singh and Anr. v. State^18 , the Supreme Court held that: “the word witness should be understood in its natural sense i.e. as referring to a person who furnishes evidence. Indeed, every positive volitional act which furnishes evidence is testimony.” So, the Supreme Court in the case of State of Bombay v. Kathi Kalu Oghad 19 decided to re- interpret the above laid down principle so as to narrow it down with (^16) Ibid. (^17) Farid Ahmed v. State, AIR 1960 Cal 32. (^18) Pakhar Singh & Anr. v. State, 1958 CrLJ 1084. (^19) State of Bombay v. Kathi Kalu Oghad , AIR 1961 SC 1808.
person holding an enquiry or investigation on matters relevant to the subject under inquiry.” Therefore, what can be inferred from the observation of the Court is that self- incrimination refers to the situation of conveying knowledge by the person, who has the personal knowledge of that information. Further, the court opined that the accused had the choice of making the statement or refusing to make the same. Therefore, it is the volition, upon which the personal testimony of the accused depends. This was the limit imposed by this case, while defining ‘to be a witness’. As a consequence of the above attached meaning, it is perceived from the judgment that all other kinds of evidences, for example physical, material or forensic evidence cannot be considered as ‘personal testimony’ and thus do not fell foul of Article 20(3) i.e. right against self incrimination. The Court further stated that the ‘intrinsic character’ of this evidence will not change even if the true nature is concealed. Consequently, handwriting samples, fingerprints, thumb-prints, palmprints, footprints or signatures, were declared as material evidence, not incriminating the accused and falling outside the scope of Article 20(3), thereby subjecting them to compulsion in the due process of law.^23 In the case of People’s Union for Civil Liberties v. Union of India^24 , the Supreme Court reiterated the fact that giving of any thumb impression or foot impression or finger prints or handwriting specimen is not hit by the bar of Article 20(3). However, the personal knowledge given by the person is the acid test to determine the testimonial compulsion. Then, in 2006, the Madras High Court in the case of Dinesh Dalmia v. State of Maharashtra,^25 held that narco-analysis is not hit by compulsion because of the very fact that the accused, despite of the fact being taken to the laboratory for tests against his will but the revelation during such tests are termed to be compulsory. This scope of (^23) Ibid. (^24) People’s Union for Civil Liberties v. Union of India, AIR 2004 SC 456. (^25) Dinesh Dalmia v. State of Maharashtra, CrLJ (2006) 2401.
the Article is reflected on the doctrine of ‘Minimal Body Harm Doctrine’. The same is evident from the judgment of the Bombay High Court, where in the case of Ramachandran Reddy & Ors. v. State of Maharashtra^26 , the use of narco analysis, lie detector test, brain finger printing and use of truth serum was upheld by the Court. (^26) Ramachandran Reddy & Ors. v. State of Maharashtra, Cr. W.P(C) No. 1924 of 2003.
(a) “Examination” shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case. Therefore, from the above discussion, the question that arises is regarding the admissibility of the three investigative techniques i.e. narco-analysis, BEAP test and polygraph test or for that matter taking of voice samples of the accused as these techniques would help in carrying out the investigations and inquiries effectively by the concerned authorities, on the premise that the Courts can compel an accused to give handwriting specimen, fingerprints, DNA tests or foot impressions. The question regarding the three investigative techniques was given by the Supreme Court in 2010 , in the case of Selvi v. State of Karnataka.^29 THE UNCONSTITUTIONALITY OF THE THREE INVESTIGATIVE TECHNIQUES IN SELVI V. STATE OF KARNATAKA Then, in 2010, the scope of Article 20(3) was again considered by the three judge bench of the Supreme Court. Here, the question arose before the Court was regarding the constitutionality of the three investigative techniques – narco-analysis, Brain Electric Activation Profile (BEAP) and the polygraph test. This case, further redefined the aspect of privacy under the Constitution by incorporating this right under Article 21. In this context, Justice Mathew stated that: “Rights and freedoms of citizens are set forth in the Constitution in order to guarantee that the individual, his personality and those things stamped with his personality shall be free from official interference except where a reasonable basis for intrusion exists. In (^29) Selvi v. State of Karnataka, (2010) 7 SCC 263.
this sense, many of the fundamental rights of citizens can be described as contributing to the right to privacy.” It is important to determine the nature of these three tests. In narco-analysis, an injection of a drug is subjected into the blood stream of the person, which thereby send him into a hypnotic state, lowering the inhibitions and making him to give information. Whereas, in a polygraph test, the physiological responses are measured during the questioning so as to determine the truth or falsity of the statements, subject to the responses so made. On the other hand in BEAP test, the responses are measured within the brain so as to determine the recognition of the stimuli to which he has been exposed. So the question arose as to whether the recording of physical stimuli amounted ‘to be a witness against himself’. And whether these investigative procedures violated Article 20(3) or not? In this context, it is important to reiterate Para 91 and 92 of the judgment: “Its underlying rationale broadly corresponds with two objectives – firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily… when a person is compelled to testify on his/her own behalf, there is a higher likelihood of such testimony being false. False testimony is undesirable since it impedes the integrity of the trial and the subsequent verdict. Therefore, the purpose of the rule against involuntary confessions’ is to ensure that the testimony considered during trial is reliable… the concerns about thevoluntariness’ of statements allow a more comprehensive account of this right. If involuntary statements were readily given weightage during trial, the investigators would have a strong incentive to compel such statements – often through methods involving coercion, threats, inducement or deception. Even if such involuntary statements are proved to be true, the law should not incentivise the use of interrogation tactics that violate the dignity and bodily integrity of the person being examined. In this sense, the right against self-incrimination’ is a vital safeguard against torture and otherthird-degree methods’ that could be used to elicit information. It serves as a check on police behaviour during the course of investigation. The exclusion of compelled testimony is important, otherwise the investigators will be
or written statement, the consequences are similar. By making inferences from the results of these tests, the examiner is able to derive knowledge from the subject’s mind which otherwise would not have become available to the investigators. These two tests are different from medical examination and the analysis of bodily substances such as blood, semen and hair samples, since the test subject’s physiological responses are directly correlated to mental faculties. Through lie-detection or gauging a subject’s familiarity with the stimuli, personal knowledge is conveyed in respect of a relevant fact. The compulsory administration of the impugned tests impedes the subject’s right to choose between remaining silent and offering substantive information. The requirement of a positive volitional act’ becomes irrelevant since the subject is compelled to convey personal knowledge irrespective of his/her own volition.”_^31 What can be seen from the above discussion is that the ultimate focus of the Court was on the _privacy of one’s mind._ This becomes quite evident from Para 190-193 of the judgment, which states as follows: _“In conceptualising theright to privacy’ we must highlight the distinction between privacy in a physical sense and the privacy of one’s mental processes... so far, the judicial understanding of privacy in our country has mostly stressed on the protection of the body and physical spaces from intrusive actions by the State. While the scheme of criminal procedure as well as evidence law mandates interference with physical privacy through statutory provisions that enable arrest, detention, search and seizure among others, the same cannot be the basis for compelling a person to impart personal knowledge about a relevant fact’. Hence, our understanding of theright to privacy’ should account for its (^31) Selvi v. State of Karnataka, (2010) 7 SCC 263.
intersection with Article 20(3). Furthermore, the `rule against involuntary confessions’ as embodied in Sections 24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both the objectives of reliability as well as voluntariness of testimony given in a custodial setting. We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. An individual’s decision to make a statement is the product of a private choice and there should be no scope for any other individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties. Therefore, it is our considered opinion that subjecting a person to the impugned techniques in an involuntary manner violates the prescribed boundaries of privacy. Forcible interference with a person’s mental processes is not provided for under any statute and it most certainly comes into conflict with the right against self- incrimination .”^32 Therefore, from the above observations, the Court aptly drew distinction between mental and physical privacy and linked the word witness to that of testimony, and ultimately defined testimony as the importation of personal knowledge by a person, present in his mental sphere, to which unwarranted intrusion into personal liberty is not at all permitted. (^32) Ibid.
In the year 2012, the two judge bench of the Supreme Court in the case of Ritesh Sinha v. State of Uttar Pradesh,^36 had dissenting opinions regarding the admissibility of this kind of evidence. Justice Aftab Alam held that taking of voice sample of an accused by the police during investigation is not hit by Article 20(3). But, however there is no specific provision either in Code of Criminal Procedure or under any other law under which a Magistrate could authorize the investigating agency to record voice sample of a person accused of an offence. Moreover J. Aftab opined that the law relating to the compelling of the accused to give a voice sample or not must come from the legislature and not by the courts. Two reasons were opined for the same. First, that compelling a person to give voice samples invades the rights of the individual. Secondly, if the legislature even while making amendments in the Criminal Procedure Code, aimed at strengthening the investigation, as late as in 2005, is oblivious to something as obvious as this and despite express reminders chooses not to include voice sample either in the newly introduced explanation to section 53 or in sections 53A, and 311A, then it may even be contended that in the larger schemes of things the legislature is able to see something which perhaps the Court is missing. But eventually, Justice Ranjana Prakash Desai disagreed with Justice Alam’s opinion. He pointed out variably that even though there has been no specific mention of taking of voice sample of an accused under any statute, but the Magistrate’s power to order the investigating agency so as to authorize the recording of the voice sample of the accused can be deduced from Section 5 of the Identification of the Prisoners Act and Section 53 of the Criminal Procedure Code. J. Ranjana and pointed out that Section 53 is meant out to serve as aid in the investigation. He further opined that under Section 53 the medical practitioner can conduct the examination or suggest the method of examination. 37 He further relied on the case of Nilesh Paradkar v. State of (^36) Ritesh Sinha v. State of Uttar Pradesh, (2012) 11 SCR 683. (^37) Ibid.
Maharashtra,^38 mentioned in Paragraph 45 of the judgment, wherein voice test identification was conducted. This test was conducted in the presence of panchas, police officers and prosecution witnesses. However, the Supreme Court rejected this evidence but on the ground that precautions similar to visual identification of suspects by witnesses were not taken and not on the ground that voice identification parade is not contemplated under Section 54A of the Code of Criminal Procedure,
- Then, in the case of Mohan Singh v. State of Bihar^39 , it was held that witnesses having previous acquaintance with the voice of the accused can be relied upon but then the court has to be careful in such identification by the voice. Therefore, ultimately it was held that the Magistrate under Section 53 of the Code has ancillary or implied power regarding taking of the voice sample of the accused and hence gave a purposive interpretation to these clauses. However, this disagreement included the difference of opinion as regards the interpretation of Section 5 3 40 of Code of Criminal Procedure, 1973 and Section 5 of the Identification of the Prisoner’s Act, 1920.^41 As a consequence, the case was referred for resolution to a three-judge bench of the Supreme Court. But, this bench has not yet been constituted to resolve the matter in this regard. NATVARLAL AMARSHIBHAI DEVANI VS. STATE OF GUJARAT Then, the main focus of the project on the recent judgment related to voice spectrography is of prime concern. In the year 2015, a single judge of the Gujarat High Court, in the case of Natvarlal Amarshibhai Devani v. State of Gujarat^42 , gave the ruling related to the constitutionality on the aspect of Voice Spectrography. The brief facts are that in the instant case, the writ petitioner was charged with offences under the Prevention of Corruption Act. The evidence that was in question was a (^38) Nilesh Paradkar v. State of Maharashtra, (2011) 4 SCC 143. (^39) Mohan Singh v. State of Bihar, (2011) 9 SCC 272. (^40) The Code of Criminal Procedure, 1973, s. 53. (^41) The Identification of the Prisoner’s Act, 1920, s .5. (^42) Natvarlal Amarshibhai Devani v. State of Gujarat, R/CR.MA/2347/2015.
