Madhya Pradesh High Court
Manjusha Dhurvey vs The State Of Madhya Pradesh on 8 March, 2022
Author: Sheel Nagu
Bench: Sheel Nagu
IN THE HIGH COURT OF JUDICATURE FOR MADHYA PRADESH AT
JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU & HON'BLE SHRI JUSTICE
PURUSHAINDRA KUMAR KAURAV
MCRC No.62129 of 2021
Between:-
MANJUSHA DHURVEY
AGED ABOUT 29 YEARS,
D/O SHRI SHIVLAL DHURVE,
OCCUPATION-SUB INSPECTOR
AT PRESENT P.S. MADAN MAHAL,
JABALPUR, R/O 109, GRAM POST JABERA,
DISTRICT DAMOH(MP).
.....PETITIONER
(BY SHRI NIKHIL TIWARI, ADVOCATE)
AND
1. STATE OF MADHYA PRADESH
THR. SPECIAL POLICE ESTABLISHMENT,
LOKAYUKT REWA,
DISTRICT REWA(MP).
.....RESPONDENT
(SHRI SATYAM AGRAWAL, ADVOCATE)
--------------------------------------------------------------------------------------------------------
Reserved on : 21.12.2021
Passed on : 08.03.2022
PER : SHEEL NAGU, J.
ORDER
This petition invoking the inherent powers of the Court under Section 482 of Cr.P.C. assailing the order dated 27.09.2021 passed by Special Judge(PC Act), Satna by which an application preferred by prosecution for a direction to accused petitioner to furnish voice sample has been allowed and petitioner accused has been directed to appear before investigating agency and do the needful.
M.Cr.C. No.62129/2021- 2 -
2. Learned counsel for petitioner Shri Nikhil Tiwari relying upon (2010) 7 SCC 263 (Selvi and others vs. State of Karnataka) submits that none except trial Court can direct furnishing of voice sample by the accused. It is submitted that investigating agency on its own cannot direct accused to give voice sample. It is further submitted that on earlier occasion by order dated 06.06.2019, the trial Court had passed similar direction while granting bail to petitioner accused and subjecting the order of bail inter alia to the condition that petitioner accused shall furnish voice sample. Pursuant thereto, petitioner accused has furnished voice sample but report submitted by Forensic Science Laboratory opined that sufficient voice data was not furnished and; therefore, no opinion can be given as to whether the recorded voice alleged to be that of petitioner and the voice in the voice sample are of the same person or not. In this factual background, it is submitted by learned counsel for petitioner that yet again direction has been passed by trial Court on behest of prosecution for furnishing voice sample, which is unlawful.
3. Though learned counsel for petitioner has relied upon Selvi and others (supra), but the said verdict of Apex Court is of no assistance to petitioner since it exclusively relates to the question as to whether narcoanalysis, polygraph and Brain Electrical Activation Profile test for the purpose of collecting evidence in investigation, cause intrusion into the right to privacy under Article 21 of the Constitution. The other case of Single Bench of High of Karnataka in 2021 SCC OnLine Kar 5032 (Virendra Khanna vs. State of Karnataka) relied upon by petitioner is also of no avail since the same does not relate to the field of obtaining voice sample but of obtaining certain electronically stored information in electronic devices.
4. Infact, the issue raised herein is covered by decision of larger Bench in (2019) 8 SCC 1 (Ritesh Sinha vs. State of Uttar Pradesh and another) wherein the Apex Court while ironing out the creases arising from difference of opinion between two Benches of the Apex Court, held thus:
M.Cr.C. No.62129/2021- 3 -
"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-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.
From the aforesaid, it is luminant that a direction for furnishing voice sample by accused can be passed by judicial authority and not by investigating agency.
5. When factual matrix attending herein are tested on the anvil of the aforesaid law laid down, it is obvious that in the present case, direction on both the occasions i.e. earlier on 06.06.2019 and by the impugned order dated 27.09.2021 by the adjudicating authority i.e the trial Court and therefore to that extent the submission of learned counsel for the petitioner are untenable.
6. The other question which arises for consideration is as to whether repeated directions for furnishing of voice sample can be issued by the adjudicating authority and whether accused/petitioner will be compelled to comply with them, also need not detained this Court any further in view of following reasons:
M.Cr.C. No.62129/2021- 4 -
(i) If prosecution proceeds to file a charge-sheet in the given facts and circumstances when the only implicative evidence collected is the FSL report (provided there is no other prima facie implicative evidence suspecting accused to have committed congnizable offence under the relevant provision), without obtaining another voice sample and subjecting it to examination by Forensic Science Laboratory, then trial Court may not be able to take cognizance of the final report submitted by the prosecution.
(ii) Thus, it is imperative in the given facts and circumstances, provided the matching of the voice sample with the recorded voice is the only implicative material, that prosecution makes an attempt to again obtain a voice sample by laying a trap afresh.
(iii) If there are other implicative evidence collected by prosecution during investigation which casts suspicion over petitioner accused to have committed cognizable offence in question, then ofcourse investigating agency can go ahead with filing of final report.
(iv) However, if petitioner accused declines to come forward to give voice sample in terms of the impugned order then prosecution cannot compel her, however, the said fact of petitioners/accused having declined to comply with direction of the trial Court of furnishing voice sample, can very well be used as an adverse inference against accused during trial.
7. In the conspectus of above discussion, this Court as no manner of doubt that the impugned order passed by learned trial Court cannot be found fault with subject to the observations made above.
8. Consequently, petition stands disposed of.
(Sheel Nagu) (Purushaindra Kumar Kaurav)
Judge Judge
YS
Digitally signed by YOGESH KUMAR SHIRVASTAVA
Date: 2022.03.10 12:39:27 +05'30'