Budhha Sen Kumhar vs The State Of Madhya Pradesh on 15 November, 2017

[Cites 25, Cited by 5]

Madhya Pradesh High Court

Budhha Sen Kumhar vs The State Of Madhya Pradesh on 15 November, 2017

This application has been filed by the accused under Section 482 of the Cr.P.C. for quashing of order dated 20.07.2017, passed by the Additional Sessions Judge, Anuppur in Special Case No.10/2016, whereby the Special Court directed the applicant to give his voice sample to the Lokayukta Police.

2. It was alleged that the applicant was trapped by Lokayukt 2 M.Cr.C. No.17905/2017 Police with other co-accused persons for taking bribe and money was recovered from the applicant. After completing investigation, charge sheet has been filed before the learned trial Court for offences punishable under Sections 7, 13(1) D read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120-B of the IPC.

3. An application for voice recording of the applicant was filed by the prosecution as Annexure-A/1 on the grounds that, the accused/applicant was called for so many times by the Lokayukta Police for his voice test but the applicant and other co-accused persons were not present before the Lokayukta Police. Therefore, under the order of learned trial Court, the prosecution prayed to collect their voice samples.

4. After considering the submissions of learned counsel for both the parties and the principle laid down in the case of "Ritesh Sinha Vs. State of Uttar Pradesh, AIR 2013 SC 1132", the trial Court allowed the application and directed the applicant and other co-accused persons to provide their voice samples to the Lokayukta Police following the principles laid down by the Supreme Court in the case of "Sudhir Chaudhary Vs. State (NCT of Delhi), (2016) 8 SCC 307".

5. Aforesaid order was challenged by the applicant on the ground that there is no provision for recording the voice sample when investigation is over and charge sheet has been filed. The impugned is violation of Article 20(3) of the Constitution of India, therefore, requested to set aside.

6. Learned counsel appearing on behalf SPE/Lokayukta has vehemently opposed the prayer.

7. Heard and perused the record.

3 M.Cr.C. No.17905/2017

8. The charge sheet has been filed against the applicant for offences punishable under Sections 7, 13(1)D read with Section 13(2) of the Prevention of Corruption Act and Section 120-B of the IPC. It was alleged that demand of bribe was made by him. Such conversation was recorded through voice recorder. CD of that voice record was filed along with certificate under Section 65-B of the Indian Evidence Act. Copy of the aforesaid document has been provided to the applicant and other co-accused persons. Charges have not been framed by the trial Court. Hence, at this juncture, if voice sample of the applicant is provided to the prosecution, it would not prejudice to the applicant.

9. It is important to note here that, trial has not yet commenced.

10. We feels that voice samples ought to be taken for the purpose to establish the identity. In our opinion, such direction can be given to provide the voice samples only for the purposes of identification and does not contain any culpability statement so as to be hit by Article 20(3) of the Constitution of India. In this regard, reference can be made to "Rakesh Bist Vs. Central Bureau of Investigation, 2007 Cr.L.J. 1535".

11. In the case of "State of Bombay Vs. Kathi Kalu Oghad, AIR 1961 SC 1808", it was observed that:-

"It is obvious however that these dangers remain the same whether the evidence which the accused is compelled to furnish is in the form of statements, oral or written about his own knowledge or in the shape of documents or things, which though not transmitting knowledge of the accused person directly helps the Court to come to a conclusion against him. If production of such documents, or things is giving evidence, then the person's producing it is being a witness. On what 4 M.Cr.C. No.17905/2017 principle or reason can it be said that this does not amount to "being a witness" within the meaning of Article 20(3).

We can therefore find no justification for thinking that "to be a witness" in Art. 20 (3) means to impart personal knowledge and find no reason for departing from what this Court said in Sharma's Case 1954 S C R 1077 : (AIR 1954 SC 300) that "to be a witness" is nothing more than "to furnish evidence", and such evidence be furnished through lips or by production of a thing or of a document or in other modes.

A legally obtained evidence is admissible. Therefore, the voice recorder conversation is admissible in evidence. There is no unlawful or irregular method in obtaining the recording of the conversation. Further, no violation of either Article 20(3) or Article 20 of the Constitution of India.

12. Voice sample is a very essential piece of evidence with regard to the offence under Section 7 of the Prevention of Corruption Act. It may be corroborative to the prosecution story, on the other hand, it will also be helpful for the defence.

13. In case of "Vikram Singh Vs. State of Punjab, 2017 Cri.L.J. (SC) 4305", it was held that:-

"Tape recorder conversation not a secondary evidence which requires certificate under Section 65-B of the Evidence Act, since it was original cassette by which ransom call was tape recorded. Conversation recorded containing ransom calls relevant under Section 7 of the Evidence Act and primary evidence relied on by complainant. Is admissible in evidence."

In paragraph 24 of the case of "Anvar P.V. Vs. P.K. Basheer and others, AIR 2015 SC 180", it is categorically held that if an electronic 5 M.Cr.C. No.17905/2017 record is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence without compliance with the conditions under Section 65-B of the Evidence Act.

14. It is true that there is no specific provision to give the voice samples under the Evidence Act, 1872. Further that, under Section 73 of the Evidence Act to identify handwriting or finger impression provided an opportunity to comparison of signature, writing or seal with other admitted or proved writing, signature or seal, which also help the Court to reach the conclusion about the issues. Similarly, the voice test will also helpful to the Court.

15. In case of "R. M. Malkani vs State Of Maharashtra", AIR, 1973 SC 157". The Supreme Court prescribed that during obtaining such type of evidence, the Court will take care of the following two directions, in admitting such evidence:

"(i) It will find out that it is genuine and free from tampering or mutilation;

(ii) It may also secure scrupulous conduct and behaviour on behalf of the Police."

The reason being that the Police Officer is more likely to be behave properly.

16. In the case of "Sudhir Chaudhary Vs. State (NCT of Delhi), (2016) 8 SCC 307", it was held that:-

"The said process should be fair and reasonable, having regard to mandate of Article 21 of the Constitution. But it is not open to accused to dictate course of investigation. Reading out of some words 6 M.Cr.C. No.17905/2017 which are a part of disputed inculpatory recorded conversation in obtaining voice sample, so as to better enable matching of voice sample with recording concerned. Permissibility of difference between reading out some words from inculpatory statement vis-a-vis reading out sentences therefrom. Appropriate directions given by Supreme Court for carrying out aforesaid procedure, in all fairness to accused."

17. Learned counsel for the applicant contended that police has no right to carry out such step after filing the charge sheet. We are not in agreement of the above contentions.

"Section 173(8) of Cr.P.C. prescribed that-

Nothing in this Section shall be deemed to preclude further investigation in respect of an offence after a final report under sub-section (2) of Cr.P.C. has been forwarded to the Magistrate."

18. In case of "State of Andra Pradesh Vs. A.S. Peter (2008) 2 SCC 383", the Supreme Court has held that :

"The distinction exists between further investigation and re-investigation. Indisputably the law does not mandate taking of prior permission from the Magistrate for further investigation."

19. After following the above principle in case of "Central Bureau of Investigation vs. State of Jharkhand" and another [2012 Cr.L.J. 3290], the Jharkhand High Court has held that :

"Section 173(8) - Further investigation - Police has statutory right to carry out further investigation, which right can be exercised when fresh information comes to light - For that, there is no requirement of having prior permission of Court concerned - It is 7 M.Cr.C. No.17905/2017 only in case of a mala fide exercise of power by a police officer that the Court may interfere.

20. On the basis of aforesaid discussion and in the light of aforesaid principles, we find that there is no illegality or infirmity found in the impugned order passed by the trial Court. Hence, the application under Section 482 of the Cr.P.C. is dismissed.

21. Copy of this order be sent to the trial Court for information.

                           (S.K. Seth)                                       (Smt. Anjuli Palo)
                             Judge                                                Judge

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     Digitally signed by
     PANKAJ NAGLE
     Date: 2017.11.16
     10:36:23 +05'30'

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