Magistrate Can Direct Any Person To Provide His Voice Sample For Purposes Of Investigation: Kerala HC
The Kerala High Court upheld an order permitting the voice sample of a corruption case accused to be taken at the Forensic Science Laboratory and observed that the Magistrate can direct any person to provide his voice sample for purposes of investigation under Section 349 of BNSS.
The Court observed that it is fully within the realm and prerogative of the Investigating Officer to search, explore and furnish all and whatever legal evidence possible in support of the prosecution case.
The Single-Judge Bench of Justice C. Jayachandran asserted, If, as claimed by the Investigating Officer, there exists a voice clip containing the voice of the petitioner, wherein, he had allegedly demanded bribe, the same would constitute important evidence in the armoury of the prosecution.”
Advocate K.M.sathyanatha Menon represented the Petitioner while Special Public Prosecutor (Vigilance) A.Rajesh represented the Respondents.
It was alleged in this case that the petitioner/accused demanded a bribe of Rs.52,000/- for issuing necessary records from the Village Office, so as to enable the defacto complainant to apply for 'Pattayam' in respect of 35 cents of land. The petitioner accordingly received Rs.30,000 from the defacto complainant. A trap was laid, based upon which the crime was registered against the petitioner.
The petitioner - sole accused challenged the Order permitting the petitioner's voice sample being taken at the Forensic Science Laboratory, Thiruvananthapuram. It was the Petitioner’s case that without any material, whatsoever, the petitioner was directed to supply a voice sample, which renders the impugned Order unsustainable in law.
In light of the fact that the FIR was registered before the coming into force of the Bharatiya Nagarik Suraksha Sanhita, 2023, the Respondent submitted that the investigation which commenced as per the old Code, will continue as such, as per the provisions of Section 531(2)(a) of the B.N.S.S. Reliance was also placed upon the judgment of the Top Court in Ritesh Sinha v. State of Uttar Pradesh and Another [2019 (8) SCC 1] wherein it has been that until explicit provisions are en-grafted to the Code, 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.
The Bench found little force in the submission that the petitioner was not an accused at the time when the alleged conversation took place, or for that matter, the petitioner was not in judicial custody at the time when the impugned order was passed. “ Neither of the above is a legal requirement to pass an order mandating an accused person to give his voice sample. As regards the former, usually, a conversation which takes place before the crime, will be propounded as a piece of evidence, wherefore, the argument that he was not an accused at the time of the alleged conversation is devoid of any merit or substance”, it added.
The Bench noted that no legal requirement can be read into the declaration of law made in Ritesh Sinha (supra), or for that matter Section 349 of the B.N.S.S, that the accused person should have been in custody at the time when an order for voice sample has to be made.
“Under Section 349, the criteria is the satisfaction of the Magistrate that it is expedient to direct any person to provide his voice sample, again, for the purposes of any investigation or proceeding under B.N.S.S. Therefore, the thrust is upon the question whether the voice sample is required for the purpose of investigation in a crime”, it said.
The Bench explained that the crime in question was registered pursuant to a trap. “If, as contended by the learned counsel for the petitioner, the phenolphthalein test has turned negative, that is all the more a reason for the Investigating Agency to produce whatever evidence possible in support of the prosecution case”, it added.
As per the Bench, contentions regarding who downloaded the controversial conversation and whether it was from the phone used by the sister's son of the defacto complainant etc., were not matters, wherein the petitioner/accused had got a say at the stage of investigation. At the present stage, the question whether the phenolphthalein test turned negative and whether the currency notes were recovered from the body of the petitioner, or from a nearby window etc., were also not germane for consideration now.
Thus, the Criminal Miscellaneous case was dismissed.
Cause Title: Sunil Rajan K v. Inspector Of Police [ Neutral Citation: 2024:KER:85215]
Appearance:
Petitioner: Advocate K.M.sathyanatha Menon
Respondents: Special Public Prosecutor (Vigilance) A.Rajesh, Senior Public Prosecutor Rekha S.
