Criminal Writ Petition No.101 of 2016

18th February, 2016.

Petitioner Counsel: Shri AMOL S. MARDIKAR
Respondent Counsel: Shri T.A. MIRZA, A.P.P.

Cases Cited:
C.B.I. Vs. Abdul Karim Ladsab Telgi, 2005 CRI. L.J. 2868 [Para 6]
Ritesh Sinha Vs. State of Uttar Pradesh, 2013 CRI. L.J. 1301 [Para 6]

JUDGMENT

JUDGMENT :- Heard.

2. RULE. Rule made returnable forthwith.

3. The petitioner has challenged the order passed by the learned Additional Sessions Judge on 22nd January, 2016 by which the petitioner (accused) is directed to give voice sample.

Crime No. 3033 of 2015 is registered against the petitioner and another accused for the offences punishable under Sections 7, 13(1)(d), 13(2) and 15 of the Prevention of Corruption Act, 1988. The accused are released on bail on 2nd August, 2015 subject to conditions.

The Investigating Officer had issued notice to the accused calling upon them to attend his office on 8th December, 2015 at 10.00 a.m. for giving voice sample, however, the accused did not remain present. The prosecution moved the application before the Sessions Court seeking directions against the accused to cooperate with the investigation and to give the voice sample. The learned Additional Sessions Judge, by the impugned order, has directed the accused to give their voice sample by reading any passage of their choice in the language in which their recorded conversation took place. The petitioner has challenged this order.

4. Shri Amol S. Mardikar, learned advocate has submitted that the petitioner has given voice sample on 2nd August, 2015 and the memory card containing voice sample was sent to the Regional Forensic Science Laboratory, Nagpur on 23rd October, 2015. It is submitted that the chargesheet has not been filed and directing the petitioner to give voice sample again amounts to permitting the prosecution to reinvestigate, which is not permissible as per the scheme of the provisions from Section 156 to Section 178 of the Code of Criminal Procedure. It is submitted that as the chargesheet is not yet filed, the petitioner apprehends that the voice sample, if given by the petitioner at this stage, may be misused. It is further submitted that the petitioner is given transcription of the voice sample recorded on 2nd August, 2015 and again if the prosecution is permitted to collect the voice sample it would cause prejudice to the defence of the petitioner. On these challenges, the petitioner prays that the impugned order be set aside.

5. Shri T.A. Mirza, learned A.P.P. has submitted that the challenges raised on behalf of the petitioner are misconceived. It is submitted that the petitioner had not objected for giving voice sample on 2nd August, 2015 and he is now trying to take undue advantage of the fact that the Regional Forensic Science Laboratory, Nagpur has reported that the memory card is empty because of some technical fault. It is submitted that it is not open to the petitioner to oppose the claim of the prosecution for collection of voice sample of the petitioner. It is submitted that the apprehension expressed by the petitioner that his voice sample may be misused, is baseless and in any case irrelevant for deciding the legality of the impugned order. It is further submitted that the defence of the petitioner will not be prejudiced if the voice sample of the petitioner is collected by the prosecution. It is further submitted that the attempt of the petitioner is to thwart the investigation. It is prayed that the petition be dismissed with costs.

6. After hearing the learned advocate for the petitioner and the learned A.P.P. for the respondents, I find that the objection raised on behalf of the petitioner is unsustainable.

The issue, as to whether the directions to the accused to give his voice sample are violative of Article 20(3) of the Constitution of India is considered by this Court in the judgment given in the case of C.B.I. Vs. Abdul Karim Ladsab Telgi, reported in 2005 CRI. L.J. 2868. This Court has held that the directions given to the accused requiring him to give voice sample will not infringe article 20(3) of the Constitution of India. The issue is considered by the Hon'ble Supreme Court in the case of Ritesh Sinha Vs. State of Uttar Pradesh, reported in 2013 CRI. L.J. 1301. Hon'ble Smt. Justice Ranjana Prakash Desai has held that the directions given to the accused to give voice sample for investigation, do not offend article 20(3) of the Constitution of India. However, Hon'ble Shri Justice Aftab Alam dissented and concluded that voice sample is not included in the explanation which is added to Section 53 or Section 311(a) of the Code of Criminal Procedure by the 2005 amendment and therefore, it would not be proper to stretch the definition of "measurement" under the Identification of Prisoners Act, 1929 and in explanation to Section 53 to include voice sample.

In view of the difference of opinion, the Hon'ble Judges recorded that the matter be listed for hearing before the Bench of three Judges after obtaining necessary directions from the Hon'ble the Chief Justice of India. The matter is perhaps pending.

7. Be that as it may, in the facts of the present case, the petitioner had given voice sample on 2nd August, 2015. The Regional Forensic Science Laboratory, Nagpur has sent a communication dated 3rd December, 2015 to the office of the Deputy Superintendent of Police, AntiCorruption Bureau, Chandrapur informing that the memory card containing the voice sample is found to be empty because of some technical reasons. In view of this, the prosecution had filed application before the Sessions Court seeking directions against the petitioner to give voice sample.

8. In my view, the petitioner cannot be permitted to object and refuse to give the voice sample on the ground that it will amount to reinvestigation which is not permissible as chargesheet is not yet filed. As far as apprehension expressed on behalf of the petitioner that the voice sample of the petitioner may be misused, there is no basis for it and wild allegations against the prosecution, without there being material on record to substantiate them, cannot be accepted.

9. In view of the above, I see no reason to interfere with the impugned order.

The petition is dismissed. In the circumstances, the parties to bear their own costs.

This Court, by order dated 29th January, 2016, directed issuance of notice to the respondents and directed the petitioner to appear before the Investigating Officer for giving voice sample. This Court directed that the voice sample shall not be sent to Forensic Science Laboratory till the objection raised by the petitioner is decided.

The learned advocate for the petitioner and the learned A.P.P. have submitted that the petitioner has given voice sample. The Investigating Officer would be at liberty to forward it to the Laboratory for further process in the matter.

Petition dismissed.