Madhya Pradesh High Court
Baliram Barman vs The State Of Madhya Pradesh on 3 April, 2023
Author: Virender Singh
Bench: Sheel Nagu, Virender Singh
1
IN T HE HI GH C OU RT OF M AD HYA P RA D E SH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE VIRENDER SINGH
MISC. CRIMINAL CASE No. 54639 of 2022
BETWEEN:-
BALIRAM BARMAN S/O HARI PRASAD BARMAN, AGED
ABOUT 56 YEARS, OCCUPATION: PATWARI AZAAD
CHOWK KATNI POLICE STATION CITY KOTWALI
KATNI (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ANIL KHARE - SENIOR ADVOCATE WITH
MS. KRATIKA INDURKHYA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH SPECIAL
POLICE ESTABLISHMENT (LOKAYUKTA) JABALPUR
DISTRICT JABALPUR (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SATYAM AGRAWAL - ADVOCATE)
..........................................................................................................................................................................................................................................................................................................................................
Reserved on : 19.01.2023
Pronounced on : 03.04.2023
..........................................................................................................................................................................................................................................................................................................................................
This petition having been heard and reserved for orders, coming on for
pronouncement this day, Hon'ble Shri Justice Virender Singh pronounced the
following :
ORDER
[ The petitioner has invoked inherent power of this Court conferred under Section 482 CrPC seeking quashment of order dated 09.11.2022 Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 4/3/2023 4:58:33 PM 2 passed by Special Judge (under the PC Act), Jabalpur in Special Case No.01/2020 so far as it relates to obtaining the voice sample of petitioner-accused.
2. The factual background necessary to mention for disposal of present petition may be summarized thus :
(i) On 25.04.2018, complainant Ram Manohar Soni filed a complaint before S.P. SPE (Lokayukta) Jabalpur stating therein that 4-5 days' ago when he approached the petitioner, who was Patwari, Tahsil Sihora, District Jabalpur for getting new Bahi of his land, the petitioner demanded Rs.3,000/- as bribe for the said purpose. To test the veracity of the complaint, the complainant was given a voice recorder to tape the conversation with the petitioner demanding money. On 25.04.2018, after recording the conversation, he handed over the tape to the SPE whereon it was sealed. The complainant informed the SPE that the petitioner has demanded bribe of Rs.2,000/-. On 17.05.2018, the complainant apprised the Lokayukta office that the petitioner told him that new Bahi has been prepared and asked him to come on the next date to collect the same.
(ii) Accordingly, a trap was set up and petitioner alongwith co-accused were caught red-handed, whereon, a case was registered and investigation was triggered.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 4/3/2023 4:58:33 PM 3(iii) The petitioner was asked to give his voice sample; however, he refused to do so. A panchnama to the effect was prepared.
(iv) Upon completion of investigation, on 20.02.2020, charge-sheet was presented for the offences under Sections 7, 8, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and learned Special Judge (Lokayukt) took cognizance of the offence punishable under Sections 7(a), 13(1)(b) read with 13(2) of the PC Act.
(v) Subsequently, the trial started and statements of witnesses were recorded. Even examination-in-chief of Investigating Officer has been recorded. At that stage, the prosecution moved an application praying that voice sample of petitioner-accused be directed to be collected in order to get it compared with audio C.D., which was already placed on record with the charge-sheet and was exhibited during examination of the prosecution witnesses, for just determination of the case. The application was contested by the petitioner-accused. However, ld. Special Court per impugned order dated 09.11.2022, allowed the application and directed the accused/petitioner to give the voice sample. This order is under challenge.
3. Feeling aggrieved, the petitioner knocked the door of this Court by way of filing present petition, reiterating the contentions raised Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 4/3/2023 4:58:33 PM 4 before the Special Court. The petitioner herein is aggrieved of the delay in filing such application as the trial is at its fag end.
4. The grievance of the ld. Senior Counsel appearing for the petitioner is that the trial is nearing completion as most of the witnesses have been examined and as such, the prosecution's application directing collection of voice sample of the petitioner ought to have been dismissed by the ld. Special Court. It is submitted that during cross- examination of the prosecution witnesses, entire defence of the petitioner-accused has been disclosed and at such a belated stage, more so, when the trial is nearing completion, direction by the Special Court certainly prejudice the defence of the petitioner. Such direction for obtaining the voice sample amounts to 'further investigation' which is impermissible in law. To substantiate his submissions, the ld. Senior Counsel has placed reliance upon decision rendered in Vinubhai Haribhai Malaviya vs. State of Gujarat (2019) 17 SCC 1 and submitted that Magistrate has power to direct 'further investigation' at all stages but only until the 'commencement of trial', but, in the case on hand, the trial is at fag end and most of the important witnesses have already been examined.
5. It is further submitted that the Special Court while allowing the application to collect the voice sample of the petitioner-accused to get it compared with C.D. of Article 'A' relied upon the judgments in Buddha Sen Kumhar vs. State of M.P. (2018) 1 Crime 414 and Ritesh Sinha vs. State of Uttar Pradesh 2019 CrLJ 3964, however, in Buddha Sen Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 4/3/2023 4:58:33 PM 5 Kumhar (supra), the application to collect the voice sample of the accused was moved at the stage when only charge sheet was filed. And, in Ritesh Sinha (supra), it is held that power to order a person to give sample of voice is for the purpose of 'investigation' of crime.
6. It is also averred that the application filed by the prosecution is only an attempt to 'delay the proceedings' and to 'fill up the lacuna' in the prosecution case.
7. On these grounds, prayer is made to quash the impugned order qua obtaining of voice sample of the petitioner.
8. Per contra, learned counsel appearing for the respondent/SPE has opposed the prayer and supported the impugned order. A detailed reply has been filed wherein it is stated that during investigation, the petitioner was asked to lend voice sample but he refused to do so for which a Panchnama was prepared.
9. It is pointed out that the petitioner-accused filed reply to the application and deliberately objected the same as he apprehended that the same would match with the questioned voice and scientific evidence would come on record.
10. It is stated that voice analysis of an accused is necessary to test veracity of the conversation between him and the complainant. It does not amount to 'further investigation'. It is submitted that as regards the term 'further investigation', at the most it may be construed as to bring something new on record while in the case on hand, the investigating agency was intended only to get tested veracity of the evidence already Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 4/3/2023 4:58:33 PM 6 placed on record since the beginning of the trial. They are only repeating the process which they had already undertaken. The order of the Court directing the accused to record his voice sample would not amount to 'further investigation' as no new fact which is not known to the petitioner-accused is desired to bring on record as the C.D. with which the voice of the petitioner is to be matched had already been placed on record and has been proved by exhibiting it during examination of the prosecution witnesses.
11. It is submitted that the prosecution is only attempting to bring forth the truth before the Court. Acoustic Analysis report is a piece of evidence to be brought before the Court for just and proper adjudication of the case.
12. It is also submitted that during course of the investigation, the accused refused to give his voice sample, therefore, presumption is available against him and he may be presumed to be guilty of the alleged offence. Reference may be made in this behalf of a three Judge Bench decision rendered in Sharda vs Dharampal (2003) 4 SCC 493. Even then, with a bonafide intention, the prosecution wants to ensure that no innocence would be punished for any fault on its part. Therefore, they opted to go for said voice test. It does not or will not, in any manner whatsoever, prejudice his defence; rather may help him to prove his innocence. Therefore, it is prayed to dismiss the petition.
13. We have heard the ld. counsel appearing for the parties and have gone through the record.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 4/3/2023 4:58:33 PM 714. Admittedly, the trial in this case is near to completion as after examining all the prosecution witnesses, examination-in-chief of the Investigating Officer has also been recorded and at that stage the prosecution has moved the application in question.
15. There is also no dispute between the parties as the power of the Court to direct an accused to give his voice sample for corroboration of evidence collected during investigation. The dispute is only with regard to the stage as to when or up to what stage of trial such direction can be given?
16. The concerns of the petitioner regarding the fact that by filing this application the prosecution is 'causing delay in trial' and that this is an attempt to 'fill up lacunas' or that it may cause prejudice to the accused have been addressed by the Hon'ble Supreme Court in the State (Delhi Admn.) v. Pali Ram, (1979) 2 SCC 158 : 1979 SCC (Cri) 389 at page
167. The Supreme Court while giving paramount importance to "doing justice" observed that the "likelihood of filling up of loopholes in prosecution case" was a subsidiary factor if the trial Court, that was in seisin of the case, formed an opinion that the assistance of an expert was essential to enable the Court to arrive at a just determination of the issue. We quote para 26 & 28 here-in-below wherein both the concerns have been dealt with and dismissed.
26. Section 73 is therefore to be read as a whole, in the light of Section 45. Thus read, it is clear that a court holding an inquiry under the Code of Criminal Procedure in respect of an offence triable by itself or by the Court of Session, does not Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 4/3/2023 4:58:33 PM 8 exceed its powers under Section 73 if, in the interests of justice, it directs an accused person appearing before it, to give his sample writing to enabling the same to be compared by a handwriting expert chosen or approved by the court, irrespective of whether his name was suggested by the prosecution or the defence, because even in adopting this course, the purpose is to enable the court before which he is ultimately put up for trial, to compare the disputed writing with his (accused's) admitted writing, and to reach its own conclusion with the assistance of the expert.
28. In the revision petition filed by the accused before the High Court a grievance is sought to be made out that the Magistrate's order will work prejudice to the defence and enable the prosecution to fill gaps and loopholes in its case. This contention was devoid of force. Once a Magistrate in seisin of a case, duly forms an opinion that the assistance of an expert is essential to enable the court to arrive at a just determination of the issue of the identity of the disputed writing, the fact that this may result in the "filling of loopholes" in the prosecution case is purely a subsidiary factor which must give way to the paramount consideration of doing justice. Moreover, it could not be predicated at this stage whether the opinion of the Government Expert of Questioned Documents would go in favour of the prosecution or the defence. The argument raised before the High Court was thus purely speculative.
17. So far as the petitioner's contention that the impugned direction would result in delaying the trial, we deem it apposite to refer to the following illuminating observations made in Hasanbhai Valibhai Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 4/3/2023 4:58:33 PM 9 Qureshi v. State of Gujarat (2004) 5 SCC 347 qua further investigation:
"13. ... if there is necessity for further investigation, the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand in the way of further investigation if that would help the court in arriving at the truth and do real and substantial as well as effective justice...."
18. Thus, the assurance of a fair trial is to be the first imperative in the dispensation of justice (Commissioner of Police, Delhi and Another v. Registrar, Delhi High Court, New Delhi (1996) 6 SCC 323 relied on). The need for fair investigation has also been emphasized in Vinay Tyagi v. Irshad Ali alias Deepak (2013) 5 SCC 762 where it was observed thus:
"48. What ultimately is the aim or significance of the expression "fair and proper investigation" in criminal jurisprudence? It has a twin purpose: Firstly, the investigation must be unbiased, honest, just and in accordance with law; secondly, the entire emphasis on a fair investigation has to be to bring out the truth of the case before the court of competent jurisdiction...."
19. Examining the issue from another point of view that whether by passing of the impugned order, any prejudice is caused to the petitioner. Still, the same fails to satisfy this Court and the answer is in negative for the reason that during investigation, though the petitioner had been asked to give his voice sample, he refused to do the same for the reason Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 4/3/2023 4:58:33 PM 10 best known to him and subsequently, during the course of trial, by filing the application at the instance of prosecution shall in no manner prejudice his case. It is rather preposterous to forestall forensic examination in anticipation of an unfavorable outcome. If favorable, the outcome will help the petitioner himself in substantiating his defence. The voice sample of the petitioner is a vital piece of evidence. At this stage, no one knows as the sample would match with the specimen or not. Such argument is, thus, purely speculative. If the C.D., already exhibited, matches with the voice sample so obtained, the result would corroborate the version of the prosecution. If not, the same would come to the aid of the petitioner. Therefore, it cannot be said that comparing the voice sample with the specimen will result in illegal harm to the accused.
20. Based on the law laid down by the Apex Court in Vinubhai Haribhai Malaviya vs. State of Gujarat (2019) 17 SCC 1, the core contention of the petitioner is that such direction amounts to 'further investigation' and direction for 'further investigation' can be given only till 'trial commences i.e. the charges are framed', but as in the case on hand, the trial is at fag end, such direction cannot be given and it is illegal to issue such direction. But this judgement deals with altogether different field of law as well as different fact situation and cannot be read out of context. It has been rendered in reference to the powers of the magistrate conferred under Section 156(3), 173(8) of the Cr.P.C. It says that such powers can be exercised by the magistrate till the charges Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 4/3/2023 4:58:33 PM 11 are framed, while the present case deals with the powers of a Court bestowed on by Section 311A Cr.P.C. Reference in this regard may also be made to the provision of Section 53, 53A, 54, 91, 311 of the CrPC and Section 73, 165 of the Evidence Act. A bare reading of all these provisions would reveal that no bar, rider or restriction, such as asserted by the petitioner, on exercise of these powers by the Courts has been created, crafted or carved out by any law or by any pronouncement of the Hon'ble Supreme Court, rather it scripted in Section 311 CrPC that the power can be used "at any stage of any inquiry, trial or other proceeding". Section 311A Cr.P.C., is nothing but an extension of Section 311 Cr.P.C. It empowers a magistrate to direct any person to give even his blood sample in accordance with Sections 53 and 53A of the Cr.P.C. at any stage whether pre-cognizance or post-cognizance. Section 165 of the Evidence Act, 1872 has entrusted almost similar; rather wider powers to the Courts. All these provisions show that no restriction, whatsoever, has been imposed over the power of the courts, which have been felt necessary to reach out the truth, for fair and just disposal of the case and to do complete justice.
21. Reliance in this regard may also be placed on the decision in Pooja Pal v. Union of India (2016) 3 SCC 135, where the fundamental rights enshrined under Article 21 of the Constitution of India were discussed in the context of "speedy trial" juxtaposed to "fair trial" in the following manner and sets that everything has to be done by the Court to secure justice on the basis of true facts:
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 4/3/2023 4:58:33 PM 1283. A "speedy trial", albeit the essence of the fundamental right to life entrenched in Article 21 of the Constitution of India has a companion in concept in "fair trial", both being inalienable constituents of an adjudicative process, to culminate in a judicial decision by a court of law as the final arbiter. There is indeed a qualitative difference between right to speedy trial and fair trial so much so that denial of the former by itself would not be prejudicial to the accused, when pitted against the imperative of fair trial. As fundamentally, justice not only has to be done but also must appear to have been done, the residuary jurisdiction of a court to direct further investigation or reinvestigation by any impartial agency, probe by the State Police notwithstanding, has to be essentially invoked if the statutory agency already in charge of the investigation appears to have been ineffective or is presumed or inferred to be not being able to discharge its functions fairly, meaningfully and fructuously. As the cause of justice has to reign supreme, a court of law cannot reduce itself to be a resigned and a helpless spectator and with the foreseen consequences apparently unjust, in the face of a faulty investigation, meekly complete the formalities to record a foregone conclusion. Justice then would become a casualty.
Though a court's satisfaction of want of proper, fair, impartial and effective investigation eroding its credence and reliability is the precondition for a direction for further investigation or reinvestigation, submission of the charge-sheet ipso facto or the pendency of the trial can by no means be a prohibitive impediment. The contextual facts and the attendant circumstances have to be singularly evaluated and analysed to decide the needfulness of further investigation or reinvestigation to unravel the truth and mete out justice to the parties. The prime concern and the endeavour of the court of Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 4/3/2023 4:58:33 PM 13 law is to secure justice on the basis of true facts which ought to be unearthed through a committed, resolved and a competent investigating agency.
(Emphasis added)
22. Let us now examine whether the direction in dispute amounts to 'further investigation'?
23. It is to be noted that the word "further" means additional, more, or supplemental; and "further investigation", therefore, would mean continuation of the earlier investigation. The facts of the present case are peculiar. It is further to be noted that during the investigation, voice of the petitioner got recorded in the form of conversation between him and the complainant with regard to the demand of illegal gratification. The petitioner was asked to give his voice sample to compare it with the conversation so recorded, but he refused to do so. A compact disc of this conversation was prepared and was filed with charge-sheet with a copy thereof supplied to the petitioner. This CD was proved during examination of the prosecution witnesses by marking exhibit. Hence, the sample to be taken would not amount to collect evidence rather it would be for comparing the evidence already on record. Pithily put, the prosecution had not come across any additional, more or supplemental material. There was no subsequent disclosure/ discovery of any new or additional material whatsoever. By filing the application, the prosecution was only repeating the step which it had already taken during the course of investigation. In the peculiar facts and Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 4/3/2023 4:58:33 PM 14 circumstances of this case, this Court is of the opinion that the impugned direction does not amount to directing 'further investigation'. While dealing with almost the identical fact situation, discussing various judgements on the subject including Vinubhai Haribhai Malaviya case (supra) relied upon by the learned Sr. Counsel of the petitioner and the law on the subject exhaustively, a single bench of Delhi High Court in the matter of Ram Udagar Mahto v State reported in 2021 SCC OnLine Del 4368 : 2022 Cri LJ 1127 has taken a view that that in the peculiar facts and circumstances of the case the impugned direction does not amount to 'further investigation'.
24. Thus, there is no dispute as the power of the Court to direct an accused to give his voice sample for corroboration of evidence collected during investigation. The ultimate aim is fair and proper investigation which is unbiased, just and in accordance with law to bring out the truth before the court. The law is well settled that seeking voice sample from an accused does not amount to compelling him to be a witness against him. In the present case, the voice sample of the accused which is to be matched with the voice in C.D. recorded by the complainant and has been exhibited before the Court will help the Court to bring out the truth. If the accused refuses to give his voice sample before the police and thereafter, on an application filed by the prosecution, the Court directs the accused to give his voice sample, no prejudice is caused to him as the same is necessary for fair and proper adjudication of the case. True it is that the application for taking sample has been filed by the Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 4/3/2023 4:58:33 PM 15 prosecution at a belated stage; however, if any piece of evidence is helpful to the Court for just decision of the case, then in the interest of justice, at any stage, the Court may order for collection of such evidence/voice sample.
25. In view of the foregoing discussion, it has to be concluded that in the peculiar facts and circumstances of the present case, the impugned direction does not amount to further investigation; rather constitutes a step which was essential to reach to the truth and impart fair, unprejudiced and objective justice and we hold that there is no such restriction or limit on the Courts in exercise of powers conferred under Section 311A of CrPC that it can only be used upto any particular stage of trial. Such powers of the Courts are unfettered and unaffected with the stage of the trial.
26. Consequently, the impugned order is upheld and the petition is dismissed.
(SHEEL NAGU) (VIRENDER SINGH)
JUDGE JUDGE
vinod
Signature Not Verified
Signed by: VINOD
VISHWAKARMA
Signing time: 4/3/2023
4:58:33 PM