Madhya Pradesh High Court
Shilendra Shakwar vs The State Of Madhya Pradesh on 3 September, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2024:MPHC-JBP:44532
1 MCRC-52142-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 3 rd OF SEPTEMBER, 2024
MISC. CRIMINAL CASE No. 52142 of 2023
SHILENDRA SHAKWAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Alok Vagrecha, learned counsel for the applicants.
Shri Satyam Agrawal, learned counsel for the respondent.
ORDER
Per: Justice Vivek Agarwal This miscellaneous criminal case is filed being aggrieved of the orders dated 30/10/2023 and 31/10/2023 passed by learned Special Judge, Prevention of Corruption Act, Sagar (M.P.) in Special Case No.08/2021 whereby the learned trial Court directed the applicant to furnish his voice sample at the fag end of the trial.
2. Brief facts of the case are that a complaint was made on 03/11/2019 that applicant being public servant namely Patwari demanded Rs.30,000/- from the complainant in lieu of effecting a partition and demarcation of the ancestral land belonging to the complainant and, accordingly, a trap was laid and the voice recorder was issued to the complainant on 03/11/2019. Complainant, after recording the alleged conversation of demand between Signature Not Verified Signed by: TULSA SINGH Signing time: 06-09-2024 17:47:41 NEUTRAL CITATION NO. 2024:MPHC-JBP:44532 2 MCRC-52142-2023 him and the present applicant, returned the tape-recorder. On 05/11/2019 a trap was organized and the applicant was trapped in his house. It is an admitted fact that on the same day voice sample of the applicant was taken by the Investigating Agency and was sent for voice analysis. Copies of seizure memo etc. are enclosed along with the record.
3. It is further submitted that on 30/09/2020 voice sample voluntarily furnished by the applicant was examined by the FSL, Bhopal and it furnished a report (Annexure-P/3) to the effect that questioned voice recording contained in compact disc marked 'Q-1' was found poorly recorded with heavy ambient noise. The specimen voice recording contained in 'S-1' was found poorly recorded with heavy ambient noise and low volume level. As a result, it was opined that from the questioned voice recording 'Q1(A) and poor specimen voice recording 'S-1'(A) and spectrographic analysis could not be detected. Hence, the opinion could not be given as to whether voice marked 'Q-1(A) is the probable voice of the person whose specimen voice is marked 'S-1(A).
4. Shri Alok Vagrecha, learned counsel for the applicant, submits that this report was furnished on 30/09/2020 and was addressed to the S.P., Special Police Establishment, Lokayukt, Sagar. Thereafter investigation was completed, charge sheet was filed, evidence was recorded, but, neither the S.P., Special Police Establishment, Lokayukt, Sagar nor the I.O. of the case ever bothered to order for taking of fresh voice sample as there were three lacunas in the Ex. 'S-1' namely it was poor quality, there was heavy ambient noise and thirdly, it was recoded on low volume level. It is further submitted Signature Not Verified Signed by: TULSA SINGH Signing time: 06-09-2024 17:47:41 NEUTRAL CITATION NO. 2024:MPHC-JBP:44532 3 MCRC-52142-2023 that this exposes the hollowness of the Investigating Officer and poor conduct of the I.O. and S.P., Especial Police Establishment, Lokayukt, Sagar.
5. It is further submitted that on 25/10/2023 arguments were heard, applicant had already closed his defence. Thereafter on 26/10/2023 counsel for the defence Shri K.P. Dubey had given an application which was marked as I.A. No.03/2023 which, due to paucity of time, was listed on 27/10/2023. On this date defence had produced another application i.e. I.A. No.04/2023 under Section 311 of Cr.P.C. In the application it is contended that applicant had carried out spot inspection on sale of land by Karan Singh, brother of Bhupendra in which a Well was included. This report as furnished by Patwari, permission was sought to additionally examine accused-Shailendra Shakwar (DW-2). Reply was given by the prosecution that defence evidence was recorded on 04/09/2023 under Section 315 of Cr.P.C., but, defence had not produced any document and no reason has been given for not producing those documents, therefore, no indulgence can be shown. However, the learned Trial Court allowed the application on cost of Rs.1,000/- and another application on cost of Rs.2,000/-. Then recording a fact that at the stage of the final arguments, I.As. No.1/2023, 02/2023, 03/2023 and 04/2023 were produced which have been accepted by the Court with a view to do complete justice between the parties, taking cognizance of the FSL report Ex.P/54. Therefore, placing reliance on the judgment of M.P. High Court in the case of R.K. Akhande Vs. Special Police Establishment, Lokayukt, Bhopal and another, ILR 2021 MP 1613 (DB) , Signature Not Verified Signed by: TULSA SINGH Signing time: 06-09-2024 17:47:41 NEUTRAL CITATION NO. 2024:MPHC-JBP:44532 4 MCRC-52142-2023 wherein it is noted that an accused can be forced to give voice sample and that will not violate the provisions of the Indian Constitution contained in Article 20(3) and also referring to the judgment of this High Court in M.Cr.C.54639/2022 (Baliram Barman Vs. The State of M.P. through Special Police Establishment (Lokayukt), Jabalpur (DB) decided on 03/04/2023 the learned trial Court gave a finding that accused can be asked to give his voice sample and, accordingly, directed the accused to give his voice sample. It was further directed that the report be produced without any further delay keeping in mind the ratio of law laid down by Hon'ble the Supreme Court in the case of Sudhir Chaudhary and others Vs. State (NCT of Delhi), (2016) 8 SCC 307.
6. Reliance is placed by the learned counsel for the applicant on the judgment of Bombay High Court in the case of Nayna Rajan Guhagarkar Vs. State of Maharashtra, through Yerwada Police Station, 2021 SCC OnLine Bom 1054 to submit that Bombay High Court has held that - "6. No doubt, under Section 311 Cr.P.C. any Court may, at any stage of any inquiry, trial or other proceeding summon any person as a witness or examine any person in attendance, though not summoned as a witness or recall and re- examine any person already examined, if it is essential to the just decision of the case, however, at the same time, the said power under Section 311 cannot be used to fill in the lacuna in the prosecution evidence. Having regard to the peculiar facts of this case that the impugned order issuing witness summons for recalling the complainant and panch was passed after arguments were advanced and written submissions were filed, on the aspect Signature Not Verified Signed by: TULSA SINGH Signing time: 06-09-2024 17:47:41 NEUTRAL CITATION NO. 2024:MPHC-JBP:44532 5 MCRC-52142-2023 of memory card not being proved, it was not permissible for the learned Judge to pass the impugned order."
7. Reliance is also placed on the judgment of High Court of Andhra Pradesh at Hyderabad in the case of Vijaya Saradhi Vajja Vs. Devi Sriroopa Madapati and another, 2006 SCC OnLine AP 1203 to point that Andhya Pradesh High Court has held that once investigation is concluded and charge sheet is filed, then at belated stage, no further investigation can be ordered.
8. Similarly, reliance is placed on the judgment of High Court of Gujarat at Ahmedabad in R/Criminal Revision Application No.164/2021 decided on 07/07/2022 to point out that at the fag end of the trial and when almost all the witnesses have been examined and only I.O. was left, there could not have been ordered to take voice sample to fill up the lacuna in the investigation.
9. Shri Alok Vagrecha, learned counsel for the applicant, fairly admits that there is a judgment of Division Bench of this Court in the case o f Baliram Barman (supra) which is against the present applicant to point out that directing collection of voice sample even at the fag end of the trial does not amount to further investigation in view of the judgment of the Single Bench of Delhi High Court in the case of Ram Udagar Mahto Vs. State, 2021 SCC OnLine Delhi 4368 : 2022 Cr.L.J. 1127.
10. Reliance is also placed on the judgment of Hon'ble Supreme Court in the case of Vanubhai Haribhai Malaviya and others Vs. State of Gujarat and another, (2019) 17 SCC 1 and relying on para-42 where it is held that to say that a fair and just investigation would lead to the conclusion that the police Signature Not Verified Signed by: TULSA SINGH Signing time: 06-09-2024 17:47:41 NEUTRAL CITATION NO. 2024:MPHC-JBP:44532 6 MCRC-52142-2023 retain the power, subject, of course, to the Magistrate's nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h) and Section 173(8), Cr.P.C., as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suo motu by the Magistrate himself, depending on the facts of each case.
11. Learned counsel for Special Police Establishment, Lokayukt, Shri Satyam Agrawal, in his turn, supports the impugned order and submits that there is no illegality in the same.
12. After hearing learned counsel for the parties and going through the record, certain facts need to be culled out of cloud for the purpose of clarity.
13. First fact, which is not disputed, is that a voice sample was taken and that was subject-matter of the report Annexure-A/3, enclosed herewith and Ex.P/54 exhibited before the trial Court. Thus, it is evident that it is not a case either by the applicant or anybody else that his voice sample was not taken. Voice sample was taken, a report was produced. That report found Signature Not Verified Signed by: TULSA SINGH Signing time: 06-09-2024 17:47:41 NEUTRAL CITATION NO. 2024:MPHC-JBP:44532 7 MCRC-52142-2023 three defects in the subsequent voice sample; namely; it was poorly recorded, there was heavy ambient noise and low volume level.
14. When this report was submitted to the I.O. and to the S.P., Special Police Establishment, Lokayukt, then they, both, were duty bound to have ordered for taking a fresh voice sample as by that time charge sheet was not yet filed and charges were not framed. However, we prima facie observe that both these officials failed in their duties for the reasons best known to them for which we will be passing a separate order directing enquiry into their conduct.
15. As far as merits of the case are concerned, plea of filling up of a lacuna is taken and reliance is placed on the judgment of Bombay High Court in the case of Nayna Rajan Guhagarkar (supra) . In that case issuance of witness summons for recalling the complainant and Panch was passed after arguments were advanced and written submissions were filed. On that ground the Bombay High Court held that it amounts to filling up the lacuna in the case. But, in the present case, after advancement of the arguments, defence counsel i.e. the counsel for the present applicant himself had moved certain IAs to prove certain revenue documents by examining additional defence witness. They had sought permission to examine Shailendra Shakwar i.e. present applicant as Defence Witness No.2.
16. Plea of filling up of lacuna cuts both ways. After advancement of arguments, if defence is permitted to examine witnesses so to do complete justice in the matter, then the Court can also order for taking a voice sample to do complete justice between the parties. If the applicant would not have Signature Not Verified Signed by: TULSA SINGH Signing time: 06-09-2024 17:47:41 NEUTRAL CITATION NO. 2024:MPHC-JBP:44532 8 MCRC-52142-2023 moved an application for leading further evidence as a defence witness, probably this stage would not have come, therefore, defence counsel himself is to be blamed for bringing this stage during trial. Thus, judgment of Bombay High Court is distinguishable on its own facts.
17. Gujarat High Court has held that powers of further investigation are available upto the pre-trial stage and not beyond that. But, where a sample is already taken and that sample is loaded with ambient noise and was taken on a low volume, then the issue will arise, whether ordering re-sampling would amount to further investigation or will only be a step further in doing complete justice between the parties. We are of the opinion that it will only be a step in doing complete justice between the parties.
18. Even Andhra Pradesh High Court's judgment in the case of Vijaya Saracdhi Vajja (supra) deals with referring to Section 2(g) of Cr.P.C. holding that enquiry means every enquiry, other than a trial, conducted under this Code by a Magistrate or Court. and investigation is defined under Section 2(h) to include all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person other than a Magistrate who is authorised by a Magistrate in this behalf. Thus, learned counsel's emphasis has been that direction to collect the voice sample would amount to further investigation cannot be accepted in view of the decision of the Division Bench of this High Court in the case of Baliram Barman (supra) where facts were more complicated inasmuch as petitioner, therein, had refused to give his voice sample and then taking recourse to the judgment of Delhi High Court in the case of Ram Udagar Mahto (supra) , it is Signature Not Verified Signed by: TULSA SINGH Signing time: 06-09-2024 17:47:41 NEUTRAL CITATION NO. 2024:MPHC-JBP:44532 9 MCRC-52142-2023 held that such direction can be given even at a later stage.
19. In fact, in the case of Sudhir Chaudhary and other (supra) , three Judges Bench of Hon'ble Supreme Court has held that a commonality of words, is necessary to facilitate a spectrographic examination. The only purpose behind the impugned orders passed by the concerned Special Judge is to arrive at a conclusion in regard to commonality of words vis-a-vis the voice sample 'Q-1' which was available at the time of recording of the demand which resulted in laying of the trap, therefore, when these facts are taken into consideration, then the judgment of Hon'ble Supreme Court in the case of Vinubhai Haribhai Malaviya and others (supra) in letter and spirit highlights a fact that "as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out", leaves no iota of doubt that direction to take fresh voice sample with a view to carry out voice spectrography cannot be said to be either further investigation or filling up the lacuna but is a step to do complete justice between the parties, therefore, cannot be faulted with.
20. Accordingly, this M.Cr.C. fails and the same is hereby dismissed.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
ts
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 06-09-2024
17:47:41