Supreme Court - Daily Orders
State Of Haryana vs Ram Kishan Fauji on 11 December, 2021
Bench: Dinesh Maheshwari, Vikram Nath
1
ITEM NO.24 Court 15 (Video Conferencing) SECTION IV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No. 6089/2018
STATE OF HARYANA & ANR. Appellant(s)
VERSUS
RAM KISHAN FAUJI & ORS. Respondent(s)
(IA No. 4865/2021 - APPROPRIATE ORDERS/DIRECTIONS)
Date : 11-12-2021 These matters were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE DINESH MAHESHWARI
HON'BLE MR. JUSTICE VIKRAM NATH
For Appellant(s) Mr. Arun Bhardwaj, Sr. Adv./Addl. AG
Mr. Vishwa Pal Singh, AOR
Mr. Rahul Kumar Sharma, Adv.
Ms. Gauraan Bhardwaj, Adv.
Mr. Abhishek Sharma, Adv.
Mr. Nikhil Bhardwaj, Adv.
Ms. Kiran Bala Dewangan, Adv.
Mr. Jhingan Ashwani Omprakash, Adv.
Mr. Dinesh Kumar Mudgal, Adv.
Mr. Brijender Singh Dhull, Adv.
Mr. Arihant Mehta, Adv.
For Respondent(s) Mr. Arunabh Chowdhury, Adv.
Mr. Karma Dorjee, Adv.
Mrs.Pragya Baghel, AOR
Mr. Mohit Rai, Adv.
UPON hearing the counsel the Court made the following
O R D E R
We have heard learned senior counsel for the parties at length on the application filed by the respondent No. 1 for directions, being IA No. 4865 of 2021. We have also heard on another unnumbered Signature Not Verified Digitally signed by Dr. Mukesh Nasa Date: 2021.12.17 application filed by the respondent No. 1 on 10.12.2021, after 11:02:44 IST Reason:
conclusion of hearing on the aforesaid IA No. 4865 of 2021. 2 By way of this Order, the aforesaid IAs are proposed to be decided while, of course, the main matter, being Civil Appeal No. 6089 of 2018 remains pending. Having regard to the subject matter and the issues involved, we are not commenting either way on the merits of the issues likely to arise in appeal; and the observations occurring in this order shall be construed as relevant only for the purpose of disposal of these applications.
Shorn of unnecessary details, the relevant background aspects of the matter are as follows: The Government of Haryana made a reference to Lokayukta, Haryana in terms of Section 8(1) of the Haryana Lokayukta Act, 2002, in the wake of certain media reports and videos in circulation, whereby allegations were levelled against the Members of the State Legislative Assembly and their relatives, of demanding bribe for official works, including that of ‘Change of land use’. The Lokayukta registered the matter in Complaint Case No. 773 of 2013 and after having heard the parties, recorded the answer to the reference in his order dated 20.01.2014 in the following terms:-
“The allegations of taking bribery by exchanging the hands of money and granting of C.L.U./ Licence in lieu thereof have not been established. Hence, the Reference is answering accordingly” However, thereafter, the learned Lokayukta referred to the other factors emanating from the CDs and affidavits of two persons, who has allegedly conducted the sting operation; and found it to be prima facie case of cognizable offence punishable under the Prevention of Corruption Act, 1988 (‘the Act of 1988’) against the respondent No. 1. In this regard, the learned Lokayukta observed and 3 recommended for investigation in the following terms: -
“However, at the same time, this institution of Lokayukta cannot close its eyes from the other allegations brought before it, as discussed above in the form of C.D. and affidavits of two persons, who are stated to have conducted sting operation, as mentioned above in the transcript marked ‘J’, wherein Shri Ram Kishan Fauji, who is the Chief Parliamentary Secretary in the State of Haryana is shown to have made a demand of Rs. 5.00 crores in lieu of helping the deponents for the grant of C.L.U. in respect of a hotel to be constructed of about 70-80 rooms in 4 acres of land situated in front of Haldi Ram’s shop at a distance of 8 kilometers from Gurgaon at Delhi- Jaipur Highway. From the transcript version, after seeing the C.D. and going through the averments of the above affidavits, which go un-rebutted at this stage, it prima facie appears that Shri Ram Kishan Fauji, Chief Parliamentary Secretary, Haryana has committed a cognizable offence punishable under the provisions of Prevention of Corruption Act, 1988.
In this view of my above discussion and observations, after answering the Reference of the Government, it is recommended to the competent authority that a criminal case for commission of offence punishable under the Prevention of Corruption Act, 1988 be immediately registered against Shri Ram Kishan Fauji, Chief Parliamentary Secretary, Haryana and, thereafter, a Senior Competent Police Officer enjoying the reputation of being impeccable integrity, be deputed to investigate the entire case expeditiously on all counts of allegations of corruption as alleged narrated in the C.D. during the sting operation.” A review application filed by the respondent No. 1 was also rejected by the Lokayukta on 10.02.2014. The respondent No. 1 challenged the aforesaid orders and recommendation of Lokayukta by way of writ petition, being CWP No. 4554 of 2014 in the High Court of Punjab and Haryana at Chandigarh. In the said writ petition, while issuing notice of motion, the High Court directed the Government to look into the authenticity of the CD and to file a status report. Thereupon, the State produced an examination report from CSFL Chandigarh to the following effect: -4
“11. Result of the Examination:
1) The video file ‘rkf.avi’ under reference was thoroughly examined using audio-video analysis tools and techniques available in the laboratory. On frame by frame examination of the video contents and the auditory, spectrographic and waveform examination of the audio contents of the video file ‘rkf.avi’ under reference, no tampering could be detected.” However, the respondent No. 1 (writ petitioner) produced his own report from a private scientific laboratory that opined against the authenticity of the recording in question.
In view of the fact that the report produced by the respondent No. 1 (writ petitioner) contradicted the report of the CSFL, Chandigarh as produced by the State, the High Court directed the matter to be referred to the CFSL at Hyderabad. The said laboratory at Hyderabad stated in its report, inter alia, as under:-
“4. a. Video footage with the same MD5 Hash value as of ‘rkf.AVI’ could not be retrieved/recovered from the Digital Evidence Storage Media marked Y (Submitted in CAH-06/2015).
b. No link could be possible between the digital evidence storage media marked A/10 and Y as no files bearing the same MD5 hash value are found.
5. This laboratory does not have the facility to compare and authenticate the Audio and Video files.” After the aforesaid proceedings and reports, the High Court heard the parties at length and formed an opinion against the order/recommendation of the learned Lokayukta; and, while allowing the writ petition, proceeded to set aside the impugned order of Lokayukta dated 20.01.2014 and subsequent order passed in the review application on 10.02.2014. However, the High Court left it open for the State to carry out investigation as per law, if there be any other material or information of corrupt practice against the writ petitioner.5
The State of Haryana and Lokayukta, Haryana have approached this Court against the aforesaid order dated 27.02.2015 passed by the High Court.
On 03.07.2018, taking up the petition seeking leave to appeal for consideration, this Court condoned the delay and granted leave to appeal; and stayed the operation of the impugned order of the High Court. This Court further directed that investigation shall go on but while providing that the ultimate report based on the investigation shall be submitted before this Court before taking any further action. The order dated 03.07.2018 reads as under: -
“There shall be stay of operation of the judgment and order passed by the High Court.
The investigation is to go on and the ultimate report based on the investigation to be submitted before this court before any further action is taken.” Though, further steps ought to have been taken immediately after passing of the order by this Court on 03.07.2018 but, when no report was filed for a long time, the registry took note of the fact that the investigation report had not been filed by the agency concerned despite repeated reminders and hence, placed the matter before the Court. Thereupon, by the order dated 10.02.2020, this Court granted further four weeks’ time for filing the report.
It appears that the investigating agency thereafter took up the requisite proceedings and, in that regard, issued notice under Section 160 of the Code of Criminal Procedure, 1973 (‘CrPC’ or ‘the Code’) to the respondent No. 1 to the effect that his voice sample was to be taken in the investigation; and it was also indicated that he had not responded to the earlier notices given to him for this purpose. Hence, he was called upon to appear in the Court of 6 Chief Judicial Magistrate, Panchkula (‘CJM’) on 28.02.2020 for the purpose of necessary orders. In response to the aforesaid notice, the respondent No. 1 referred to the report of CFSL, Hyderabad and stated that once it was found that the alleged video recording and memory card were not genuine, the question of taking any voice sample for the purpose of comparison with any footage would not arise.
It appears that the Investigating Officer had already filed an application before the CJM on 12.04.2019, seeking permission to obtain voice sample of the respondent No. 1 and the respondent No. 1 had filed a reply to the said application. Ultimately, the said proceedings before the CJM culminated in the order dated 05.03.2020. In this order, the learned CJM rejected the contentions urged on behalf of the respondent No. 1 and allowed the Investigating Officer to move appropriate application mentioning specific time and date for the visit of respondent No. 1 at FSL, Chandigarh. The learned CJM also issued further directions so as to safeguard against any fault or foul play in the process of collecting the voice sample. The relevant part of the order dated 05.03.2020 reads as follows: -
“7. It is also pertinent to mention that giving voice sample by accused is just another step in the investigation proceeding where it does not amount to self-incrimination and does not violate Article 20(3) of the Constitution. It is also settled proposition of law that Magistrate can very well make an order to this effect. Reliance placed upon the authority titled as Ritesh Sinha Vs. State of U.P. Criminal appeal No.2003 of 2012 decided on 02.08.2019.
Hence application stands allowed where Investigating Officer is allowed to move appropriate application, mentioning specific time and date, for the visit of the accused at FSL, Chandigarh.7
As a matter of abundant caution, it would also be appropriate to mention that, drawing strengthen from the order passed by the Hon’ble Supreme Court of India in case title as Sudhir Chaudhary Vs. NCT Delhi, Criminal Appeal Nos. 700-201 of 2016(arising out of SLP (Crl) Nos. 3009-3010 of 2015), decided on 29.07.2016, the text to be made to read by the accused shall be intermixed with sufficient sentences from the questioned text which may facilitate examination of voice sample identification by him. The said text shall be prepared by FSL, Chandigarh, themselves after the Investigating Agency first provides them with the questioned recording. The collection of voice sample of the accused shall also be done at FSL, chandigarh, in the presence of the expert as it would not only provide them a controlled environment suitably collect the voice sample, but it will also clear the apprehension of the accused that the Investigating Agency may play some mischievous role by collecting voice sample.
The Director FSL, Chandigarh is also directed accordingly.” Pursuant to the order aforesaid, respondent No. 1 was served with another notice dated 18.03.2020, under Section 160 CrPC, calling upon him to appear on 23.03.2020 for the purpose of taking the voice sample. In response to this notice, the respondent no. 1 stated his inability to appear in view of the rapid increase in Covid-19 cases and the advisories issued by the Central Government and the State Government. Thereafter, the matter remained pending with the nationwide lockdown having been announced. Later on, the Investigating Officer again issued notice dated 01.12.2020 to the respondent No. 1 for his appearance on 04.12.2020 for the purpose of taking the voice sample. The respondent No. 1 again expressed his inability to appear, this time for the reason that his son was getting married on 06.12.2020.
The aforesaid had been the nature of proceedings that the process of investigation had undergone. Noticeably, after 8 10.02.2020, the main appeal pending in this Court (Civil Appeal No. 6089 of 2018) was listed before us 06.12.2021. In the meantime, on 11.01.2021, the respondent No. 1 filed the application under consideration, being IA No. 4865 of 2021, wherein, after narrating all the aforesaid background aspects and taking exception in relation to the notice issued, the respondent No. 1 has made the following prayers: -
“In view of the facts and circumstances aforesaid, the Respondent No.1/ Applicant most humbly prays that this Hon'ble Court may graciously be pleased to:-
a. allow the present Application and stay the Notice dated 01.12.2020 bearing No. 570/ P.S State Vigilance, Bureau, Panchkula issued by the Investigating Agency under Section 160 of the Code of Criminal Procedure. 1973 (Annexure-J hereto) and further restrain the Appellants and its Officers from acting and/ or taking any steps in terms of the said Notice dated 01.12.2020 bearing No. 570/ P.S State Vigilance, Bureau, Panchkula;
b. In the meanwhile, direct the Appellants to maintain status quo till the disposal of the Appeal;” The appellants have filed reply to the said application as also an affidavit of the Deputy Superintendent of Police, Police Station State Vigilance Bureau, Panchkula defending the action of sending notices to the respondent No. 1 for collection of voice sample and stating, inter alia, that in the investigation conducted hitherto, there was sufficient evidence to charge sheet the respondent No. 1 under Sections 7 and 8 of the Act of 1988.
Yesterday, i.e., on 10.12.2021, we had heard learned senior counsel for the parties at length in relation to this application, but for time constraints, ordered the matter to be posted for 9 dictation of order today i.e., 11.12.2021. However, after conclusion of the submissions, we did pose a query to the learned counsel for the parties as regards effect of the order dated 05.03.2020 passed by the learned CJM, which had not been challenged in any proceedings. In regard to this query and while making submissions against the validity of the said order dated 05.03.2020, learned senior counsel for the respondent No. 1 prayed for yet another opportunity for his client to file additional affidavit in the matter. Though, learned senior counsel for the appellants expressed reservations on the prayers so made but, in the interest of justice, we allowed filing of further affidavit, subject to all just exceptions.
Pursuant to the liberty so granted, another application for directions has been filed on behalf of the respondent No. 1 wherein, while elaborating on the submissions sought to be made on his behalf, further leave is sought to assail the legality and validity of the said order dated 05.03.2020 and a prayer for stay of operation of the said order has also been made. In this unnumbered application filed on 10.12.2021, respondent No. 1 has made the following prayers: -
“In view of the facts and circumstances aforesaid, the Respondent No.1/Applicant most humbly prays that this Hon'ble Court may graciously be pleased to:-
a. recall the interim order dated 03.07.2018 passed by this Hon'ble Court in SLP Diary No.15562/2017 (now numbered as Civil Appeal No.6089/2018) in so far as it stayed the operation of impugned judgment of the High Court and has permitted the investigation to go on with a condition that "the ultimate report based on the 10 investigation to be submitted before this Court before any further action is taken.";
b. direct the Appellants, its officers, employees and agents to maintain status quo in regard to FIR No.10 dated 04.12.2014 registered by P.S. State Vigilance Bureau, Panchkula, Haryana;
c. set aside the order dated 05.03.2020 passed by the Court of the Ld. Chief Judicial Magistrate, Panchkula, Haryana in FIR No.10 dated 04.12.2014 under Sections 7 & 8 of the Prevention of Corruption Act, 1988;
d. list the Civil Appeal being Civil Appeal
No.6089/2018 for final hearing;
e. in the interim, stay the operation and effect of
the order dated 05.03.2020 passed by the Court of the Ld. Chief Judicial Magistrate, Panchkula, Haryana in FIR No.10 dated 04.12.2014 under Sections 7 & 8 of the Prevention of Corruption Act, 1988; and f. pass such other or further Order/s as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice.” While taking up the matter for dictation of order today, we have posed the query to the learned senior counsel appearing for the appellants, if they would seek to file any response to this newly moved application. Learned senior counsel has frankly submitted that the appellants have already advanced their submissions and they do not propose to file any response to this application.
We have given anxious consideration to the rival submissions and have examined the record.
Mr. Mukul Rohatgi, learned senior counsel appearing for respondent No. 1 has vehemently assailed the very basic order passed by the Lokayukta with the submissions that the Lokayukta had 11 no jurisdiction to make any so called postscript, after having otherwise reached to the conclusion that the allegation of taking bribery were not established. Learned senior counsel has further strongly relied upon the report of CSFL, Hyderabad and has contended that when it has been specifically found by the said laboratory that the main memory card (primary source) and the CD (transferee source) have no link, the CD is question cannot be said to be an authentic and genuine piece of evidence; and there remains no doubt that the CD in question is a doctored one. Learned senior counsel has further submitted that invocation of Section 160 CrPC by the Investigating Officer cannot be countenanced as the accused cannot be made a witness in the course of investigation. As regards the proposition of taking voice sample and the constitutional rights of the respondent No. 1, learned senior counsel has, at the first, referred to the decision of this Court in the case of Selvi & Ors. vs. State of Karnataka:(2010) 7 SCC 263, wherein this Court has held that if the tests like Narco Analysis, Polygraph Test and Brain Electrical Activation Profile are conducted against the will of the person subjected to such tests, they violate the right against self-incrimination protected under Article 20(3) and the right to personal liberty protected under Article 21 of the Constitution of India. Learned senior counsel has particularly referred to the following passages in the said decision: -
“141. At this juncture, it must be reiterated that Indian law incorporates the “rule against adverse inferences from silence” which is operative at the trial stage. As mentioned earlier, this position is embodied in a conjunctive reading of Article 20(3) of the Constitution and Sections 161(2), 313(3) and 12 proviso (b) of Section 315(1) CrPC. The gist of this position is that even though an accused is a competent witness in his/her own trial, he/she cannot be compelled to answer questions that could expose him/her to incrimination and the trial Judge cannot draw adverse inferences from the refusal to do so. This position is cemented by prohibiting any of the parties from commenting on the failure of the accused to give evidence… *** *** ***
264. In light of these conclusions, we hold that no individual should be forcibly subjected to any of the techniques in question, whether in the context of investigation in criminal cases or otherwise. Doing so would amount to an unwarranted intrusion into personal liberty. However, we do leave room for the voluntary administration of the impugned techniques in the context of criminal justice provided that certain safeguards are in place. Even when the subject has given consent to undergo any of these tests, the test results by themselves cannot be admitted as evidence because the subject does not exercise conscious control over the responses during the administration of the test. However, any information or material that is subsequently discovered with the help of voluntary administered test results can be admitted in accordance with Section 27 of the Evidence Act, 1872.” Learned senior counsel has further referred to the decision of this Court in the case of Ritesh Sinha vs. State of Uttar Pradesh:
(2019) 8 SCC 1 and has submitted that the said decision cannot be read as an authority for the proposition that the accused could be compelled to give a sample of his voice. Learned senior counsel has referred to the following passages: -
“26. Would a judicial order compelling a person to give a sample of his voice violate the fundamental right to privacy under Article 20(3) of the Constitution, is the next question. The issue is interesting and debatable but not having been argued before us it will suffice to note that in view of the opinion rendered by this Court in Modern Dental College & Research Centre v. State of M.P. [Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353 : 7 SCEC 1] , Gobind v. State of M.P. [Gobind v. State of M.P., (1975) 2 SCC 148 : 1975 SCC (Cri) 468] and the nine-
Judge Bench of this Court in K.S. Puttaswamy (Privacy- 13 9J.) v. Union of India [K.S. Puttaswamy (Privacy- 9J.) v. Union of India, (2017) 10 SCC 1] the fundamental right to privacy cannot be construed as absolute but must bow down to compelling public interest. We refrain from any further discussion and consider it appropriate not to record any further observation on an issue not specifically raised before us.
27. In the light of the above discussions, we unhesitatingly take the view that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India. We order accordingly and consequently dispose of the appeals in terms of the above.” Learned senior counsel would submit that the observations aforesaid cannot be construed as binding declaration of law; rather the directions as contained in paragraph 27 cannot be issued even under Article 142 of the Constitution of India, particularly when they are rather incompatible with the scheme of the Code and such a proposition, of conceding the power to the Magistrate to order a person to give sample of his voice, is not envisaged by the Code. Mr. Mukul Rohatgi, learned senior counsel has also submitted that the respondent no. 1 is ready to proceed with the hearing of the appeal but until final decision of the appeal, adopting of the process under contemplation by the appellants would operate prejudicial to the interest of the respondent No. 1 and the proceeding in question, particularly of compelling the respondent No. 1 for voice sample, deserve to be stayed and the appeal may be taken up for hearing at the earliest.
14
While opposing the prayers made against the process for collecting voice sample, learned senior counsel Mr. Arun Bhardwaj appearing for the appellants has referred to the report of CSFL, Chandigarh and has submitted that the said report effectively quells any doubt about the genuineness and authenticity of the CD in question. Learned senior counsel for the appellants has further referred to the last part of the report of the CFSL, Hyderabad to submit that when the said laboratory had no facility to compare and authenticate the audio and video files, it cannot be concluded on the basis of its report that the CD in question is not a genuine one.
Learned senior counsel has further submitted that the decision in Selvi’s case (supra) has no application for the simple reason that the present one is a matter only of collection of voice sample and the respondent No. 1 is neither being called upon to answer any question nor is being called upon to make any deposition.
Having given anxious consideration to the rival submissions and having examined the record with reference to the law applicable, we are clearly of the view that neither the prayers made in the applications moved by the respondent No. 1 (for not giving his voice sample) could be granted nor the order dated 05.03.2020 as passed by the Chief Judicial Magistrate, Panchkula calls for any interference at this stage.
A reference to the background aspects makes it clear that this Court had cautiously taken note of the relevant factors at the initial stage, when delay in filing the petition was condoned and leave was granted. While granting leave, this Court not only stayed 15 the operation of the impugned order passed by the High Court but also specifically directed that the investigation shall go on. However, in the interest of justice, it was also provided that the ultimate report based on investigation shall be submitted in this Court before taking any further action. Obviously, the anxiety of this Court had been that the investigation should be completed but at the same time, no further steps pursuant to the result of the investigation ought to be taken until further orders.
A perusal of the material placed on record further makes it clear that after passing of the said order dated 03.07.2018 by this Court, the matter remained pending in investigation for a long length of time. The CD in question being a material part of the investigation contemplated by this Court, and looking to the nature of allegations, the requirement of voice sampling cannot be gainsaid. All these relevant aspects of the matter as also the legal requirements were primarily examined by the learned CJM in the order dated 05.03.2020 before issuing the directions as quoted above. May be, after passing of the said order dated 05.03.2020, respondent No. 1 could not respond to the notices because of the circumstances related with pandemic or his own personal engagements but, for that matter, respondent No. 1 cannot perpetually avoid adherence to the requirements of law, including that of co- operating with the investigation.
As regards the reports of CSFL, Hyderabad and CFSL, Chandigarh or any other report for that matter, we do not propose to make any comment at this stage but, at the same time, we cannot accept the submission made on behalf of the respondent No. 1, that the CD in 16 question being not genuine is a conclusion foregone. That aspect of the matter could be an issue for examination in the pending appeal but, at this juncture, the CD in question cannot be rejected outright. The other submission as regards the legality and validity of the order passed by the Lokayukta would also be a matter for examination in the pending appeal and we do not propose to make any comment in that regard at this stage.
So far the decision in Selvi (supra) is concerned, the same being related to “testimonial compulsion”, we find it difficult to import the principles therein directly for the purpose of the question at hand i.e., collection of voice sample for the purpose of comparison. Prima facie, we are of the view that the present matter is not that of “testimonial compulsion” so as to attract Article 20(3) of the Constitution of India.
Though, Mr. Mukul Rohatgi, learned senior counsel has expressed his reservations as regards correctness of the mandate in paragraph 27 of the decision in the case of Ritesh Sinha (supra) but at this stage, suffice it to observe that the said decision by a 3-Judge Bench of this Court remains binding on us and there is no reason or justification for us to make any comment or adopt any such course which may not be in conformity with the said paragraph 27 in Ritesh Sinha (supra).
Moreover, it is significant to notice that in the decision as cited, the 3-Judge Bench had examined the matter in the wake of a slight divergence of views in the previous 2-Judge Bench decision of this Court. The divergence only related to the question as to whether in the absence of any provision in the Code, the Magistrate 17 could authorize the investigating agency to record the voice sample. As regards this aspect, as noticed, the 3-Judge Bench of this Court has made it clear that until explicit provisions are engrafted in the Code, a Judicial Magistrate should be conceded the power to order a person to give the sample of his voice for the purpose of investigation of a crime. Significantly, in the said previous 2-Judge Bench decision of this Court, even while there had been a divergence as regards this part of the matter, the Bench had rendered a unanimous verdict as regard the first question i.e., as to whether Article 20(3) of the Constitution of India, which protects a person accused of an offence from being compelled to be a witness against him, extends to protect him from being compelled to give voice sample during the course of investigation. This question was answered in the negative by both the learned Judges, as distinctly noticed in paragraph 5 and 6 of the 3-Judge Bench decision of this Court, as under: -
“5. Two principal questions arose for determination of the appeal which have been set out in the order of Ranjana Prakash Desai, J. dated 7-12-2012 [Ritesh Sinha v. State of U.P., (2013) 2 SCC 357]: in the following terms:
“3.1. Whether Article 20(3) of the Constitution of India, which protects a person accused of an offence from being compelled to be a witness against himself, extends to protecting such an accused from being compelled to give his voice sample during the course of investigation into an offence?
3.2. Assuming that there is no violation of Article 20(3) of the Constitution of India, whether in the absence of any provision in the Code, can a Magistrate authorise the investigating agency to record the voice sample of the person accused of an offence?” (emphasis in original)
6. While the first question was answered in the negative by both the learned Judges (Ranjana Prakash Desai and Aftab Alam, JJ.) following the ratio of the law laid down in State of Bombay v. Kathi Kalu Oghad [State of 18 Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808 : (1961) 2 Cri LJ 856] , difference of opinion has occurred insofar as the second question is concerned.” In the aforesaid view of the matter, the submissions made with reference to the said two decisions do not make out any case in favour of the respondent No. 1. Thus, the other submissions as regards the provision of Section 160 CrPC are also of no avail for the respondent No. 1.
Accordingly, and in view of the above, these applications stand disposed of with the following orders, directions and requirements: -
(I) The prayer of respondent No. 1 for recalling the interim order dated 03.07.2018 is declined. (II) The prayer of the respondent No. 1 for setting aside the order dated 05.03.2020 passed by the Chief Judicial Magistrate, Panchkula is also declined at this stage but challenge to the said order by the respondent No. 1 is kept pending, to be examined at the time of final hearing of the appeal.
(III) The prayer of the respondent No. 1 for staying the notice dated 01.12.2020 bearing No. 570-PS-State Vigilance Bureau, Panchkula is also declined. (IV) As regards the requirements of order dated 05.03.2020, it is provided that the respondent No. 1 and the Investigating Officer shall remain present before the Chief Judicial Magistrate, Panchkula on 22.12.2021, who shall, thereafter, issue necessary orders/directions in term of the order dated 05.03.2020.
(V) (a) After completion of the process of collecting 19 voice sample and obtaining the necessary report, the Investigation Officer shall complete the proceedings of investigation and finalise his report.
(b) If the respondent No. 1 fails to appear on the date fixed or fails to submit his voice sample as required, the Investigating Officer shall mention such facts while finalising his report.
(VI) The report so finalised shall be placed in this Court in a sealed cover but, no further action shall be taken thereupon, until further orders of this Court. (VII) All the processes contemplated by this order shall be completed and report shall be submitted by the Investigating Officer within a period of six weeks from the first date of appearance of respondent No. 1 before the CJM (i.e., within six weeks from 22.12.2021). Civil Appeal No. 6089/2018 be posted for hearing in the first week of March, 2022.
(SHRADDHA MISHRA) (RAM SUBHAG SINGH) SENIOR PERSONAL ASSISTANT BRANCH OFFICER