Rajasthan High Court - Jaipur
Manoj Kumar Meena Son Of Shri Ram Prasad ... vs State Of Rajasthan on 14 November, 2024
Author: Sameer Jain
Bench: Sameer Jain
[2024:RJ-JP:43286]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 6518/2024
Badri Prasad Meena Son of Shri Moola Meena, Resident of
Quarter No. C-1/1 Ajaymeru, P.C.D.A. Quarters, In front of Haldi
Ghati Gate, Khatipura Jaipur (Rajasthan).
........Accused Petitioner
Versus
Central Bureau of Investigation through PP
----Non petitioner
Connected With
S.B. Criminal Miscellaneous (Petition) No. 6519/2024
Manoj Kumar Meena Son of Shri Ram Prasad Meena, Resident of
Meena Colony, Udai Mod, Gangapur City, District Gangapur City
(Rajasthan), the then Senior Auditor, Office of A.O.G.E.
(Airforce) Suratgarh (Rajasthan), Presently posted as L.A.O.
Army, Jaisalmer (Rajasthan).
........Accused Petitioner
Versus
Central Bureau of Investigation through PP
----Non petitioner
For Petitioner(s) : Mr. D.K. Garg
Mr. Rahul Sharma for
Mr. Rajneesh Gupta
For Respondent(s) : Mr. Shyam Singh Yadav, Spl. P.P.
HON'BLE MR. JUSTICE SAMEER JAIN
Judgment
REPORTABLE
Reserved on 10/10/2024
Pronounced on 14/11/2024
1. The present petition is filed under Section 528 of B.N.S.S.
2023, assailing the impugned order dated 04.09.2024 passed in
Criminal Misc. Case No. 34/2024, arising out of FIR, qua which
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directions were issued for recording of voice sample of the
accused-petitioners by the learned Chief Metropolitan Magistrate,
Jaipur Metropolitan-1 on 20.09.2024.
2. Bereft of elaborate details, the brief facts giving rise to the
instant petition are that a complaint was registered with the Anti-
Corruption Bureau (for short 'ACB') against the accused-
petitioners wherein, allegations qua clearing bills of contractors for
a consideration of one percent commission, which constitutes as
illegal enrichment and gratifications. For the said allegation an FIR
was made to be registered on 10.11.2022 for the offences under
Section 120-B of IPC read with Section 7-A and 8 of the
Prevention of Corruption Act 1988 (amended by 2018 Act).
Thereafter, the Investigation Agency after thorough investigation
has submitted a charge sheet against the accused-petitioners
wherein, voice recording was collected by the investigating agency
qua the exchange of communication between the employees and
the contractor during a telephonic conversation. Subsequently, an
application was filed by the learned Special Public Prosecutor
before the Special Judge, CBI No.1, for collecting voice samples of the accused-petitioners.
3. At this juncture, the learned counsel appearing for the petitioners had submitted that the accused- petitioners were working as a Senior Auditor(s). It was further submitted that during the investigation an order was passed for recording of voice sample of the accused- petitioners.
4. Further, it was submitted that accused-petitioners had denied to provide the voice samples, however voice samples qua other person(s) are already sent to the Central Forensic Science (Downloaded on 19/11/2024 at 10:07:37 PM) [2024:RJ-JP:43286] (3 of 10) [CRLMP-6518/2024] Laboratory, New Delhi. Moreover, an investigation is pending under Section 173(8) of Cr.P.C. qua contractors and other people till the report is received from the Central Forensic Science Laboratory (CFSL).
5. Furthermore, it was submitted that an application dated 24.04.2024 was filed by the learned Public Prosecutor before the Special Judge, C.B.I No. 1, Jaipur for collecting voice samples of the accused-petitioners and directions were sought to order the accused- petitioners to remain present before the Chief Metropolitan Magistrate, for the purpose of recording of voice sample moreover, qua the same, reliance was placed by the opposite side upon the judgments passed by Hon'ble Apex Court in Ritesh Kumar vs. State of Uttar Pradesh reported in (2019) 8 SCC 1 and Pravinsinh Nrupatisinh Chauhan vs. State of Gujrat reported in 2023 LiveLaw (SC)463, wherein, it was opined that the Court has the power to order for collections of voice sample for the purpose of investigation of a crime, however learned counsel had refuted the same and submitted that the Court cannot compel the accused to provide voice sample against his/her will.
6. Learned counsel appearing for the petitioners in support of the above said contention had placed reliance upon the judgment passed by the Co-ordinate Bench of this Court titled as Omkar Sapre vs. State of Rajasthan reported in S.B. Criminal Misc. Petition No. 4474/2021, and submitted that no person can be compelled for giving voice samples against himself and further stated that even learned Trial Court is not empowered to make (Downloaded on 19/11/2024 at 10:07:37 PM) [2024:RJ-JP:43286] (4 of 10) [CRLMP-6518/2024] any observation qua drawing any adverse inference against the accused as a consequence of denial for providing voice sample.
7. It was further submitted that the above-mentioned application filed by the leaned Public Prosecutor was duly replied to by the accused-petitioners.
8. In this background, learned counsel for the accused- petitioners had submitted that the said impugned order is illegal and prayed to set aside the same for the following reasons:
8.1 That compelling accused-petitioners to provide evidence against themselves is violative of provisions of Article 20 (3) of the Constitution of India, wherein it is stated that no person can be ordered to give evidence against himself.
8.2 That collecting voice samples against the wish of the accused-
petitioners is violating the fundamental right to privacy, therefore the accused-petitioners can deny the same on account of privacy rights.
9. Per contra, learned counsel appearing for CBI had submitted that there are various incriminating conversations amongst accused-petitioners qua demand, negotiation and acceptance of bribe amount, therefore collection of voice sample qua accused- petitioners and their forensic comparison with alleged voices is crucial to conclude the investigation in fair and just manner.
10. Learned counsel had vehemently opposed the argument qua right to privacy and submitted that the said right cannot be constituted as an absolute right and for justified reasons permission qua recording of voice sample can be granted in the interest of the public.
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11. Furthermore, learned counsel had placed reliance upon the ratio encapsulated in the Judgments passed by the Co-ordinate Bench of this Court in S.B. Criminal Misc. Petition No. 81/2011 titled as Fateh Singh Meena vs. CBI, Omkar Sapre vs. State of Rajasthan reported in S.B. Criminal Misc. Petition No. 4474/2021 and Judgments passed by Hon'ble Apex Court in Pravin Sinh Nrupat Sinh Chauhan vs. State of Gujrat reported in 2023 LiveLaw SC 463, Ritesh Kumar vs. State of Uttar Pradesh reported in (2019) 8 SCC 1 and provisions of Section 349 of B.N.S.S., 2023.
12. Heard and Considered the rival submissions, upon assiduous scanning of the material available on record and considering the Judgments cited at the Bar, this Court has noted the following material facts: -
12.1 That complaint was registered against the accused-
petitioners with the ACB, alleging that the accused- petitioners were indulged in receiving/accepting undue advantage of one percent of the bill amount from contractors, and the same amounts to illegal enrichment and gratification and corrupt practices.
12.2 That the charge- sheet was filed under Sections 7-A and 8 of Prevention of Corruption Act, 1988 (as amended) read with Section 120-B of IPC.
12.3 That to conclude the investigation in a fair and just manner, an application was filed by the Public Prosecutor for collecting voice sample of the accused-petitioners.
12.4 That some of the voice samples qua other persons are already sent to CFSL.
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13. This Court has analyzed that recording of voice sample for the purpose of investigation into the instant matter, that is Anti- Corruption, is required in public interest.
14. In this background, the question of law which calls for interference before this Court pertains to whether recording of voice sample violates the provisions of Article 20(3) of Constitution of India or any other rights of the accused- petitioners. Qua the same Hon'ble Apex Court in Pravinsinh (supra) has categorically held that collection of voice sample would not infringe upon the right to privacy, and the said inference was drawn upon while placing reliance upon in the Judgment cited in the said case titled as Ritesh (supra) wherein, it is held that the fundamental right to privacy cannot be construed as absolute and must bow down to compelling public interest.
15. In the facts and circumstances of the case, while interpreting the Article 20(3) of the Constitution of India, this Court has noted that the said Article does not state that an accused person shall not be compelled to be a witness. It only states that such a person shall not be compelled to be a witness against himself therefore, in the instant matter recording of voice sample does not, in and of itself, establish incrimination qua the accused-petitioners, and the result qua incrimination is contingent upon comparison of such recording with the record available. Moreover, the accused- petitioners can rebut the ultimate result, therefore, they will always have a right to defend themselves. The said Article is reproduced herein for convenience: -
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[2024:RJ-JP:43286] (7 of 10) [CRLMP-6518/2024] "A No person accused of any offence shall be compelled to be a witness against himself."
16. This Court has further opined that recording a voice sample in the present case is necessary to facilitate a fair, independent, and impartial investigation. Like other methods of identification-- such as fingerprints, blood samples, and DNA tests--voice is a unique personal trait that can aid in verifying identity through scientific means, essential for the admissibility of evidence. Importantly, the accused-petitioners are not required to provide any additional self-incriminatory information but are only asked to furnish a voice sample, akin to providing a blood sample. This voice recording by the investigating agency cannot be equated with a statement by the accused and should not relate to the crime's subject matter. In interpreting this, reliance is placed on the Co-ordinate Bench judgment in Fateh Singh vs. CBI (supra), which reiterates the lawful and procedural validity of such scientific methods in evidence collection, relevant portions of the same are reiterated as under: -
"8.tgka rd fo}ku vf/koDrk vfHk;qDr }kjk izLrqr ekuuh; mPpre U;k;ky; ds fofu.kZ; Jherh lsyoh ,oa vU; cuke dukZVd jkT; 2010 ¼2½ W.L.C. 99 dk iz"u gS blesa vUos'k.k ds nkSjku ukjdks ,usfyfll ikWyhxzkQ vkSj czsu bysfDVªdy ,fDVos"ku izksQkbZy rhuksa oSKkfud rduhd ,oa i)fr dks vekuoh; gksuk fu/kkZfjr djrs gq, vlaoS/kkfud djkj fn;k x;k gSA bl fofu.kZ; esa bl fLFkfr dk Hkh foospu fd;k x;k gS fd ,slh rduhd ds }kjk ijh{k.k ds QyLo:i O;fDr dks "kkjhfjd {kfr Hkh igqap ldrh gS D;ksafd blds fy;s nok fiykus ckjEckj tkap djus ,oa dbZ rduhdksa dk vfHk;qDr ij iz;ksx fd;k tkuk vko";d gks tkrk gSA blesa ;g Hkh izfrikfnr fd;k x;k gS fd fdlh Hkh O;fDr ij mldh bPNk ds fcuk ,slh rduhd dk iz;ksx mldh xksiuh;rk ,oa ,dkUrrk dk vfrØe.k djrk gS tks lafo/kku }kjk iznRr mlds cgqewY; vf/kdkj gSaA bu rduhdksa dks iz;ksx vfHk;qDr ds izfr vekuoh;] viekutud ,oa Øwj gS vkSj bl dkj.k t?kU; vijk/kksa ds vuqla/kku esa Hkh bUgsa Lohdkj djus ;k O;ogkj esa ykus dh vuqefr dk dksbZ U;k;laxr vk/kkj ugha gSA bldk rkRi;Z rks ,d izdkj ls vfHk;qDr dks vius fo#) lk{; nsus ds fy;s ck/; djuk gks tk;sxkA blesa vUos'k.k ds nkSjku >wqB ifjekid ;U= dk iz;ksx Hkh dsoy vfHk;qDr dh (Downloaded on 19/11/2024 at 10:07:37 PM) [2024:RJ-JP:43286] (8 of 10) [CRLMP-6518/2024] lgefr ls gh fd;s tk ldus dk fn"kk funsZ"k iznku fd;k x;k gSA bl izdkj ;g fof/k n`'VkUr gesa ;gh ekxZn"kZu iznku djrk gS fd fdlh Hkh vkijkf/kd ekeys ds vUos'k.k esa ukjdks ,usfyfl] ikWyhxzkQ vkSj czsu bysfDVªdy ,fDVos"ku izksQkbZy tSlh rhuksa rduhdksa dk iz;ksx Hkkjrh; lafo/kku ds vuqPNsn 20 ¼3½ ,oa 21 dk mYya?ku gSA bl fofu.kZ; dk eSaus /;kuiwoZd voyksdu fd;kA blesa vkokt ds uewus ds laca/k esa dgha Hkh fopkj fd;k tkuk izdV ugha gksrk gS vkSj bl izdkj ekuuh; mPpre U;k;ky; dk ;g fof/k n`'VkUr gLrxr ekeys esa izkFkhZ dks dksbZ lgk;rk iznku ugha djrkA 9- fo}ku vf/koDrk izR;FkhZ dh vksj ls izLrqr fofu.kZ; dsUnzh; tkap C;wjks] ubZ fnYyh cuke vCnqy djhe ykMlkc rsyxh ,oa vU; 2005 Cr. L.J.2868¼eqEcbZ mPp U;k;ky;½ dk eSaus voyksdu fd;k ftlesa vfHk;qDr dks viuh vkokt dk uewuk fjdkWMZ djokus ds vkns"k dks Hkkjrh; lafo/kku ds vuqPNsn 20 ¼3½ dk mYya?ku ugha ekuk vfirqq ;g fu/kkZfjr fd;k x;k fd blds ek/;e ls rks dsoy bl lR; fu'd'kZ ij igqapus esa lgk;rk feyrh gS fd nwjHkk'k ls Vsi dh x;h vkokt vfHk;qDr dh gS ;k ughaA ;fn ;g vkokt vfHk;qDr dh uewuk vkokt ls esy ugha [kkrh gS rks vfHk;qDr ds fo#) dksbZ vijk/k cuuk ugha ik;k tk;sxk vkSj ;fn ;g vkokt vfHk;qDr dh gksuk ik;h tkrh gS rks Hkh bl uewus dh vkokt dks mlds fo#) lk{; ekudj ugha i<k tk;sxkA blls rks iqfyl dks vuqla/kku ds nkSjku lR; oLrqfLFkfr ij igqapus esa lgk;rk feyrh gSA ;g fLFkfr fdlh Hkh i{k fo"ks'k ds fo#) ugha gS vfirq okLrfod fLFkfr ,oa lR; fu'd'kZ ij igqapus esa lgk;d gSA bl fofu.kZ; ds iSjk la[;k 11] 12 ,oa 13 gLrxr ekeys esa lqlaxr gSa ftUgsa ;Fkkor uhps mn/k`r fd;k tk jgk gS%& "
17. This Court qua the issue whether magistrate can order a person to give sample, has stated that while interpreting the precedent set in Omkar Sapre (supra) it is observed that the Trial Court retains exclusive authority to address matters regarding an accused's refusal to provide a voice sample, with the directive that no adverse inference should arise solely from such refusal. This judgment underscores the competency of the Magistrate to adjudicate applications for obtaining voice samples. Moreover, considering the authoritative guidance provided by the Hon'ble Supreme Court in Pravin Sinh (supra) and Ritesh (supra), and with the codification of Section 349 under the Bharatiya Nagarik Suraksha Sanhita (B.N.S.S.), 2023, this Court interprets that the legislature has explicitly empowered First-Class Magistrates to direct individuals, including the accused, (Downloaded on 19/11/2024 at 10:07:37 PM) [2024:RJ-JP:43286] (9 of 10) [CRLMP-6518/2024] to furnish voice samples or other specimen samples deemed necessary for the purpose of investigation. Section 349 clarifies that such an order may be issued if the individual has been previously arrested in connection with the investigation, although this requirement may be waived at the Magistrate's discretion, provided the reasons are recorded in writing. The said section is reiterated as follows: -
"349. Power of Magistrate to order person to give specimen signatures or handwriting, etc.-- If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Sanhita, it is expedient to direct any person, including an accused person, to give specimen signatures or finger impressions or handwriting or voice sample, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or finger impressions or handwriting or voice sample:
Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding:
Provided further that the Magistrate may, for the reasons to be recorded in writing, order any person to give such specimen or sample without him being arrested."
18. This provision, as construed by this Court, carefully balances investigative needs with constitutional safeguards, ensuring that the requirement to provide a voice sample does not violate Article 20(3) of the Constitution, which protects against self- incrimination. The legislative framework thus enables a lawful and structured approach for collecting voice samples, upholding the (Downloaded on 19/11/2024 at 10:07:37 PM) [2024:RJ-JP:43286] (10 of 10) [CRLMP-6518/2024] procedural and constitutional propriety of such investigative measures.
19. In summation, this Court is of the opinion that the directions issued in the impugned order by the learned Magistrate considering the above stated observation and, in the facts and circumstances of the instant matter, are appropriate, therefore this Court is not inclined to interfere.
20. Accordingly, the present petition is dismissed. Pending application(s), if any, stands disposed of.
(SAMEER JAIN),J JKP/s-14-15 (Downloaded on 19/11/2024 at 10:07:37 PM) Powered by TCPDF (www.tcpdf.org)