Uttarakhand High Court
Ashish Mohan Tiwari vs State Of Uttarakhand on 7 June, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
HIGH COURT OF UTTARAKHAND AT
NAINITAL
THE HON'BLE SRI JUSTICE RAKESH THAPLIYAL
C482 Application No. 1033 of 2024
Ashish Mohan Tiwari ........Applicant
Versus
State of Uttarakhand ....Respondent
Counsel for the applicant : Mr. Lalit Sharma, learned counsel
Counsel for the State : Mr. Saurabh Pandey, learned Brief Holder
Hon'ble Rakesh Thapliyal, J. (Oral)
1. By the instant C482 Application, the applicant is challenging the order dated 29.05.2024 passed by Special Judge (Prevention of Corruption Act)/2nd Additional Sessions Judge, Haldwani, District Nainital in Misc. Application No. 15 of 2024, arising out of FIR No. 217 of 2021, P.S. Khatima, District Udham Singh Nagar.
2. A First Information Report was lodged by the Deputy Divisional Forest Officer, Khatima, District U.S. Nagar on 23.08.2021 against the applicant with the allegation that he made a demand of extortion. During investigation, the Investigating Agency, added Sections 30(1)(d) and 13(2) of Prevention of Corruption Act, 1988 and subsequently, the said Sections were replaced by Section 7 of the Prevention of Corruption Act, 1988. 2
3. During investigation, an application was filed by the Investigating Agency in the Court of Special Judge (Prevention of Corruption Act)/2nd Additional Sessions Judge, Haldwani, District Nainital for taking voice sample of the applicant to match the same from the viral audio through F.S.L. Dehradun. The said application was allowed on 01.09.2023, whereby the applicant was directed to appear before the F.S.L. Dehradun on 11.09.2023 for giving his voice sample. The applicant gave his consent for taking his voice sample and on 12.09.2023, the applicant appeared before the F.S.L. Dehradun, where, in the presence of Investigating Officer as well as Executive Magistrate, the experts of F.S.L. Dehradun, taken the voice sample of the applicant. After obtaining the voice sample of the applicant on 22.09.2023, the Investigating Officer moved another application by submitting that the applicant is posted in Uttarakhand and he might affect the examination of his voice sampling at F.S.L. Dehradun and sought permission of examination of voice sample through Central Forensic Science Laboratory (CFSL).
4. Thereafter, the voice sample of the applicant was sent to CFSL Chandigarh and the CFSL Chandigarh gave its report dated 20.11.2023. In its report, the CFSL, 3 Chandigarh opined that if the voice sampling be done on a voice recorded rate more than 22K Hertz, then further attempt could be made.
5. It is submitted by the learned counsel for the applicant that the opinion as given by the CFSL Chandigarh is not acceptable since the questioned voice was examined by CFSL, Chandigarh without the original device.
6. On 11.05.2024, the Investigating Officer submitted another application before the Court to summon the applicant for taking his fresh voice sample and said application was registered as Misc. Application No. 15 of 2023, in which the applicant filed a detailed objection on 29.05.2024. However, the learned trial Court vide order dated 29.05.2024 allowed the application of the Investigating Officer and permit the Investigating Officer to obtain fresh voice sample of the applicant.
7. Being aggrieved with the order passed by the Special Judge (Prevention of Corruption Act)/2nd Additional Sessions Judge, Haldwani, District Nainital dated 29.05.2024, the present C482 Application has been preferred.
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8. Learned counsel for the applicant submits that there is a complete guideline which was supplied to the applicant along with the CFSL Report dated 20.11.2023, which is enclosed as Annexure-9 and the copy of which was supplied along with CFSL Report which is also enclosed as Annexure-4.
9. Learned counsel for the applicant placed reliance on the guideline framed under the head "Recording of questioned and specimen voice samples" which is reproduced herein as below:-
"GUIDELINES FOR RECORDING THE VOICE SAMPLES FOR SPEAKER IDENTIFICATION Recording of questioned and specimen voice samples * Questioned samples can be obtained through a high quality tape recorder such as Telephone Information Recorder (TIR) installed at police station or police Hars. This instrument has the facility for recording incoming and outgoing telephone numbers, date, time, duration as well as the recorded conversation.
* For telephone calls TIR should be connected to the victim's telephone lines directly. A good quality tape cassette of sixty minutes should always be available in the tape recorder. * Mobile phone calls may be through mobile-to-mobile phone or through telephone to mobile or mobile to telephone. In case of mobile to mobile and telephone to mobile calls, the conversation can be recorded on receiving mobile phone itself in built chip or by taking the output from the mobile at receiving end through a cable-jack for input in the computer or tape recording device. In case of mobile to telephone calls, the conversation can be recorded on telephone information recorder (TIR). * The recorded questioned samples can also be obtained by using hidden or under cover tape recorder or a transmitter. In such cases the voice activated recorder or digital pen recorder is preferred. Sometimes FM transmitter microphone is preferred to 5 record a conversation so that the process of recording can be done remotely.
Recording of specimen voice samples:
* A good quality of analog or digital voice recorder may be used to record the specimen voice sample. If the Digital voice recorder is used the sampling rate to be fixed 44.1KHZ & 16 bit.
* Make the accurate transcript of the questioned call/conversation.
* The specimen voice sample to be recorded in almost the same text.
* Investigating Officer should become familiar with the transcript (the rate of speaking and oral characteristics of the criminal's voice) prior to obtaining samples of the known persons.
* Recording system should be set up with a telephone line if the recording of the criminal call is to be obtained through the telephone.
* The Investigating Officer should state the date, time, place, his name and the name of the suspect.
* The specimen voice sample should be recorded in presence of two independent witnesses.
* In case suspect is not educated and he/she can't read the prepared text or transcript, the samples can be recorded by making the conversation with the suspect.
* The recording should be repeated as many times as felt necessary.
* A reasonably quiet environment should be maintained.
The microphone/recorder should be placed about 30 cm from the mouth of the suspect. The recording system should ensure a frequency response as same as or better than the telephone line.
* Information about the recording environment, recording system used in questioned samples if known to the 1.0. should be collected. If it is possible, the same should be maintained in recording of specimen samples and the information regarding recording environment and device should be provided to the laboratory.
* Make the suspect should be conversant with the transcript before the recording starts.
* If the suspect is not cooperating in giving the samples, it can be done by court order, if necessary.6
* The speaker should be at a distance of about one foot from the microphone and should speak with normal speed and loudness. It is an essential requirement to stabilize the speech of the speaker for which he may be asked to speak continuously for two minutes before he reads the prepared text. The speaker should be directed not to speak too fast or too slow but he should read/speak normally.
* The investigator should make all efforts to eliminate as much background noise as possible by not playing radio, TV and Air conditioners, fans or overlapping conversation.
* In the event of a suspect disguising his voice the 1.0. should ask for the repetition Of disguised words, until he feels satisfied.
* Recording should be played back before the defendant or suspect leaves so that any deficiency of the sample can be corrected.
* In case any clarification is required, the investigating officer may get in touch with the CFSL, Sector 36-A, Chandigarh (Phone No.0172-2605933, 2610334) Precautions:
1. A good quality of digital voice recorder to be used in recording the specimen voice sample.
2.The recording system should be tested prior to the actual recording of the samples.
3. After recorder the of voice sample using digital voice recorder a CD may also be prepared of voice sample.
4. Original recordings should be sent to the laboratory for examination.
5. The memory card and CD containing the questioned and specimen voice sample to be sealed separately."
10. Learned counsel for the applicant submits that as per this guideline, further directions of the trial Court for taking voice sample is contrary to the guideline and is not permissible.
11. He further submits that once the applicant has given his voice samples and that was examined without 7 obtaining the original device therefore, the subsequent directions cannot be issued to give voice samples of the applicant.
12. In response to this, Mr. Saurabh Pandey, learned Brief Holder for the State submits that the said guidelines prescribed the procedures for recording of specimen voice samples and he particularly refers the guideline framed under the heading of recording of specimen voice sample.
13. He further pointing out clause 11(iv) of the CFSL report dated 20.11.2023 which in fact is a further suggestion of the expert of the CFSL, Chandigarh, the extracts of which is also being reproduced herein as below:-
"iv. Further attempt could be made, if the fresh specimen voice sample of the accused is recorded in appropriate condition using good quality of voice recorder at the sampling rate more than 22K Hertz. The guideline to record the voice sample is enclosed with this report"
14. Mr. Saurabh Pandey, learned Brief Holder for the State further submits that in the light of the aforesaid guidelines and as per the suggestion as given by the expert of the CFSL, Chandigarh the further sample can be taken which is permissible as per the guideline and 8 why it is necessary that aspect has also been dealt with by the Special Judge (Prevention of Corruption Act)/2nd Additional Sessions Judge, Haldwani, District Nainital in its order dated 29.05.2024. I perused the same.
15. Learned counsel for the applicant in response to this submits that until and unless the original device is not traceable, there is no any justification for taking voice sample again.
16. Put up this matter on 11.06.2024 as fresh for further arguments.
___________________________ Rakesh Thapliyal, J.
Dt: 07.06.2024 Mahinder/