Bombay High Court: In a case wherein, the petitioners challenged order dated 14-2-2024 (‘the impugned order’) passed by the Judicial Magistrate First Class, Parner in a case refusing to direct the respondent to give her voice sample for referring it to authorize forensic laboratory for verification/identification of her recorded voice in compact disc and the memory card, a Single Judge Bench of Shailesh P. Brahme, J., opined that if there was adequate material on record having potential to prove the relevant facts, then a person could be compelled to give a voice sample, and such power was conceded to the Magistrate. Thus, the Court held that Respondent 1-wife was bound to give her voice sample to be referred to the forensic laboratory for verification and opined that the principles of Article 20(3) of the Constitution would not be attracted.
Background
Petitioner 1-husband and Respondent 1 got married in 2009, but due to matrimonial disputes, they were residing separately. The petitioners stated that Respondent 1 was having extra marital relations with someone and that the conversation between Respondent 1 and her paramour were recorded in cellphone through memory card and being converted into compact disc. The petitioners had submitted an application to direct Respondent 1 to provide her specimen voice sample for verification and identification to be done by authorized forensic laboratory. The respondents challenged the application but as it was rejected, the parties were before this Court.
Counsel for Petitioner 1 stated that the provisions of Articles 20 and 21 of the Constitution would not be an impediment for compelling a party to give her voice sample in the proceedings of domestic violence and that the proceedings under the Protection of Women from Domestic Violence Act, 2005 (‘PWDVA’), were quasi civil in nature and a court had ample power to compel a party to give voice sample.
Analysis, Law, and Decision
The Court stated that as per Section 28(2) of PWDVA, the Magistrate had power to follow the procedure for disposal of application under Section 12 of PWDVA and there were no provisions to compel the party to the proceedings under PWDVA to give voice sample and Article 20(3) of the Constitution could not be made applicable.
The Court did not accept the respondents’ contention that memory card and compact disc were not admissible in evidence. The Court stated that the probative value of electronic material could be gone into during the course of trial and at this stage, it was inappropriate to discard the material on the ground that original was not placed on record or source and the genuineness of the electronic material was doubtful.
The Court opined that in the matter of compulsion to offer the voice sample, the Supreme Court in Ritesh Sinha v. State of U.P., (2019) 8 SCC 1, was skeptical. The Court observed that it was not laid down that a person could not be compelled to give voice sample and in Jil v. State of Gujarat, R/Criminal Revision Application (for Domestic Violence) No. 1243 of 2023, the Magistrate was recorded to be conceded with the power to order a person to give a sample of his voice. The Court opined that the findings recorded in the impugned order were unsustainable.
The Court opined that when the High Court was considering the matter for direction to a person to give voice sample, it was permissible to have recourse to Section 4821 of the Criminal Procedure Code, 1973. The Court opined that the Magistrate in the matters of domestic violence had the power to adopt the procedure as per Section 28(2) of PWDVA and exercise of such power depended on the facts and circumstances of each case. The Court opined that if there was adequate material on record having potential to prove the relevant facts, then a person could be compelled to give a voice sample, and such power was conceded to the Magistrate.
Thus, the Court allowed the writ petition, quashed and set aside the impugned order dated 14-2-2024, and held that Respondent 1 was bound to give her voice sample to be referred to the forensic laboratory for verification.
[X v. Y, Criminal Writ Petition No. 1782 of 2024, decided on 9-5-2025]
Advocates who appeared in this case :
For the Petitioners: Nikhil P. Ghanwat, Advocate
For the Respondents: Mukul S. Kulkarni, Advocate
1. Corresponding Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023
