Document Fragment View
Fragment Information
Showing contexts for: spectrography in Natvarlal Amarshibhai Devani vs State Of Gujarat & on 18 January, 2017Matching Fragments
2 In the case in hand, the writ applicant is charged with the offence punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act. The allegations are that while serving as a Superintendent of the Prohibition and Excise Directorate, the writ applicant demanded an amount of Rs.4,000/ towards illegal gratification for the purpose of renewing the permit issued in favour of the original complainant. It appears that there was a telephonic talk between the two which was recorded. The Investigating Agency prepared a transcript of the taperecorded conversation between the accused and the complainant, in which, according to the case of the prosecution, there is an illegal demand at the end of the writ applicant. The Investigating Agency thought fit to subject the writ applicant to a Voice Spectrography Test, which was opposed by the writ applicant.
3 At the outset, I may state that Mr. Mangukiya, the learned counsel
HC-NIC Page 2 of 119 Created On Sat Aug 12 13:49:02 IST 2017
R/SCR.A/5226/2015 JUDGMENT
appearing for the writ applicant submitted that he has instructions from his client not to press this writ application and withdraw the same unconditionally. He submitted that although this writ application raises an important question relating to the right of the Investigating Agency to conduct the Voice Spectrography Test of an accused and also the right of the accused to deny lending his voice sample for the purpose of identification of his voice so as to compare the same with the tape recorded telephonic conversation, yet as his client does not want to press this application, the Court may permit the writ applicant to withdraw and leave the question to be decided in any other appropriate matter. Mr. Mangukiya submitted that the petitioner is a dominus litus and if he files the petition, he has a right to withdraw the same. According to him, he could not have made such a request if the mater is argued and the judgment is reserved. However, since without any effective hearing, his client wants to withdraw the writ application, he may be permitted to do so.
4 Mr. Mangukiya, the learned counsel further submitted that this Court may differ the adjudication of the issue in light of the conflicting views expressed by the two learned Judges of the Supreme Court in the case of Ritesh Sinha vs. State of U.P. and another reported in 2013(2) SCC 357. Mr. Mitesh Amin, the learned Public Prosecutor appearing for the State submitted that the writ applicant may not be permitted to withdraw this writ application and the issue as regards the Voice Spectrography Test may be decided by this Court being resintegra as on date, many important investigations are affected relating to corruption, etc in the State. The learned Public Prosecutor submitted that it is within the discretion of this Court whether the writ applicant should be permitted to withdraw the writ application or not. Even if the writ applicant is not interested to pursue his writ application, the Court on its HC-NIC Page 3 of 119 Created On Sat Aug 12 13:49:02 IST 2017 R/SCR.A/5226/2015 JUDGMENT own can decide a neat question of law of public importance.
5 The questions of law falling for my consideration are framed as under:
(1) Whether calling upon the accused to lend his voice sample tantamounts "to be a witness against himself"? To put in other words, whether the Voice Spectrography Test of an accused amounts to testimonial compulsion within the meaning of Article 20(3) of the Constitution of India and whether such test should be put at par with the tests, like Brain Mapping, Lie Detector Test, Narco Analysis Test, etc. (2) Whether, in the absence of any provision in the Criminal Procedure Code, can a Magistrate authorise the Investigating Agency to record the voice sample of the person accused of an offence?