Punjab and Haryana High Court: Avneesh Jhingan, J., entertained a petition under Section 482 CrPC where the petitioner was aggrieved by the directions of the Chief Judicial Magistrate for giving voice samples.
The complainant was running a chemist shop, due to an unauthorized alteration in the shop; it was sealed by the authorities. One Sunil Kumar Gulati was posted in the Land Branch of Municipal Corporation and he allegedly demanded money from the complainant to open the shutter. The amount demanded was to be paid to Rakesh Behal one of the chemists known to the petitioner. Eventually, Rakesh was apprehended red-handed asking for illegal gratification. For the alleged crime a memory card was handed to the investigation agency.
An application was filed by the Vigilance Bureau, seeking voice samples of Rakesh Behal and Sunil Kumar to which the latter objected and filed a reply opposing the application.
Contention of the petitioner:
- Petitioner contended that the directions issued in the impugned order are for purpose of identifying the petitioner consequently resulting in self-incrimination by the accused. The conversation was recorded without the consent of the petitioner.
- Right to privacy of the petitioner was invaded and reliance was placed on Justice K.S. Puttaswamy v. Union of Inida, (2017) 10 SCC 1.
- Memory card is secondary evidence and cannot be admissible without certification under Section 65 B of Evidence Act, 1872.
Contention of the State:
- State disregarded the contention of the petitioner and relied on Ritesh Sinha v. State of Uttar Pradesh, (2019) 8 SCC 1, where the Supreme Court had held that, the direction to give voice sample does not infringe Article 20(3) of the Constitution of India. It was held that the voice sample is only for purpose of comparison and is not a testimony and the right to privacy cannot be construed as absolute.
- Voice sample in a sense resembles fingerprints and handwriting, each person has a distinctive voice with characteristic featuresdictated by vocal cavities and articulates. The samples are collected afterhaving permission in accordance with the law. The sample would not be evidence; rather they are for comparing the evidence already collected.
- It was further contended that Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 held that 65-B (4) of the Act does not mention the stage of furnishing the certificate. Hence, non production of the certificate at an earlier stage is a curable defect.
The Court opined that contention of the petitioner was without factual foundation and the pleadings were interrogatory.
The argument that the complainant could not have recorded the conversation without the consent of the petitioner is rejected; seeking the consent of the petitioner would have defeated the very purpose of the recording.
The contentions of the petitioner were rejected and while answering whether certification is needed when recording is produced in trial as evidence, the Court relied upon the judgment of the Supreme Court in State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515, where the court had stated that, “The Court emphasised that non-production of a certificate under Section 65B on an earlier occasion is a curable defect.” In another decision in Central Bureau of Investigation v. R.S. Pai, (2002) 5 SCC 82, it was held, “from the aforesaid sub-sections, it is apparent that normally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently.”
Hence, the Court was of the opinion that requisite certificate must accompany the electronic record pertaining to which a statement is sought to be given in evidence when the same is produced in evidence, but it does not mean that it must be produced along with the charge-sheet but can be produced subsequently in any circumstance.[Sunil Kumar Gulati v. State of Punjab, 2022 SCC OnLine P&H 786, decided on 29-03-2022]
Mr. D.S. Sobti and Mr. Prabhneer Swani, Advocates for the petitioner.
Mr. Amit Mehta, Sr. DAG, Punjab.