Gujarat High Court
Yogeshbhai Janardanhai Patel vs State Of Gujarat on 30 November, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/10292/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 10292 of 2018
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YOGESHBHAI JANARDANHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR JOHNSEY P MACWAN(5498) for the PETITIONER(s) No. 1
MS. KETKI P JHA(9864) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 2
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 30/11/2018
ORAL ORDER
1.By way of this petition, the petitioner challenges the letter issued by the respondent No.2Investigating Agency to the petitioner asking him to remain present at the Forensic Science Laboratory ('the FSL' hereinafter) for Voice Spectrography Test on 20.12.2018.
2. The first information report being I C.R.NO.03 of 2018 came to be lodged by the complainant on 11.08.2018 with A.C.B. Police Station, Anand, for the offences punishable under Section 8 of the Prevention of Corruptions Act stating therein that the Page 1 of 8 R/SCR.A/10292/2018 ORDER complainant is a civil contractor and a partner of a proprietary firm called 'Maruti Infra' had entered into a work contract for a company by name Bindra Infrastructure on 26.11.2017.
3. 80% of the work had been completed by the complainant after it received a tender from the Sojitra Municipal Council. It is the say of the complainant that after 80% of the works, as per the work order, was over for the outstanding amount of Rs.49,188/ (Rupees Fourty Nine Thousand One Hundred Eighty Eight) along with two deposits of Rs.5,00,000/(Rupees Five Lakh) and Rs.1,00,000/(Rupees One Lakh) respectively pending with the Sojitra Municipal Council, the complainant approached the Chairman of the Municipal Council. It is the case of the prosecution that the petitioner, as a member of the Sojitra Municipal Council, had demanded a sum of Rs.2,00,000/(Rupees Two Page 2 of 8 R/SCR.A/10292/2018 ORDER Lakh) from the complainant as bribe. The complainant has therefore approached the local A.C.B. Police Station and in the trap organized by the A.C.B. Police Station, the petitioner was caught in the process of receiving bribe.
4.A letter has been issued to the petitioner on 07.10.2018 by the Police Inspector, Kheda A.C.B.Police Station for giving a voice sample for the Voice Spectrography Test. Another letter has been issued on 04.11.2018 by the Police Inspector, Kheda A.C.B. Police Station on 04.11.2018 informing the petitioner that if he does not remain present for giving Voice Spectrography Test, it will be presumed that he agrees to the voice in the audiovideo recorded C.D. and further course of action will be resorted to him.
5. The petitioner is before this Court questioning this communication on the ground that compelling the petitioner to give voice Page 3 of 8 R/SCR.A/10292/2018 ORDER sample, is violative of right against his self incrimination as enshrined under Article 20(3) of the Constitution of India. The petitioner has also challenged it on the ground that it is his right to mental privacy and bodily integrity as enshrined in Article 21 of the Constitution of India.
6. Reliance is also placed on the decision of the Apex Court rendered in case of Selvi & Ors vs. State of Karnataka, reported in AIR 2010 SC 1974 to urge that the physcatric test also would be violative and intrusive of right to privacy. In absence of any statutory sanction given to the Investigating Agency it is urged that the voice sample cannot be compelled as that would tantamount to self incrimination under Article 20(3) of the Constitution of India. Therefore, the following prayers are sought in the present petition.
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R/SCR.A/10292/2018 ORDER
"10...
A. This Hon'ble Court may be pleased to
admit and allow this petition.
B. Be pleased to issue a writ of Mandamus or any other appropriate writ, order or direction in the nature of Mandamus, and direct the Respondent No.2 to not call the petitioner for undergoing Voice Spectrograph Test in connection with FIR being IC.R.No.03 of 2018 registered with ACB (Division 'A') Police Station, Anand.
C. Pending admission and final disposal of the present petition, be pleased to restrain the Respondent No.2 from compelling and/or calling the Petitioner for undergoing Voice Spectrography Test in connection with FIR being IC.R.No.03 of 2018 registered with ACB (Division 'A') Police Station, Anand.
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R/SCR.A/10292/2018 ORDER
D. Any other and further relief/s as
deemed just and proper looking to the facts of this case may kindly be granted in favour of the petitioner in the interest of justice."
7. This Court on 20.11.2018 had issued notice and directed the Investigating Officer to remain present with the papers of investigation before this Court. Today, the Investigating Officer is present and on instructions, learned Additional Public Prosecutor has submitted that during the course of the investigation, the Investigating Officer had required the voice test of the present petitioner and therefore, two communications have been sent to him. It is the right of the Investigating Officer to ask the petitioneraccused for the voice sample for Spectrography Test. Nothing beyond is intended in the communication. She has also denied that there is any compulsion to Page 6 of 8 R/SCR.A/10292/2018 ORDER the petitioner to give his evidence against himself violating his right to self preservation. She has reiterated that no compulsion has been asserted in communicating to him the requirement of the voice sample for the Voice Spectrography Test. She also, on a query raised by the Court, has pleaded not to have any instructions with regard to the making of the rules in this regard. Consequent upon the judgment of this Court in case of Natvarlal Amarshibhai Devani vs. State of Gujarat & Anr., reported in 2017 1 GLH 576, both the sides have agreed that said decision has not been challenged before the Apex Court and so far no specific provisions have been made nor any rules made in this regard.
8. Learned advocates for respective parties have been heard. In wake of the submissions made by the learned Additional Public Prosecutor, learned advocate, Ms.Ketki Jha appearing for Page 7 of 8 R/SCR.A/10292/2018 ORDER the petitioner does not press this petition. It is being clarified so as not to give any rise to confusion in the future that the decision rendered in case of Natvarlal Amarshibhai Devani (supra) holds the field where the Court has concluded thus:
"101.
[a] The Voice Spectrography Test does
not fall within the ambit of a
psychiatric treatment. The Voice
Spectrography Test is in no manner
violative of Article 20(3) of the
Constitution of India.
[b] However, in the absence of any
specific provision empowering the police officer or the Court in law, it is not permissible to subject an accused to the Voice Spectrography Test."
9.This petition since is not being pressed stands disposed of as not pressed. Notice is discharged.
(MS SONIA GOKANI, J) M.M.MIRZA Page 8 of 8