Case BriefsHigh Courts

Calcutta High Court: Rajasekhar Mantha, J., has referred to three important questions, which in the Court’s opinion are required to be settled by an appropriate larger bench.

In the instant case, the Investigating Officer (“IO”) had prayed for a voice sample of the petitioner to enable FSL experts to compare the same with certain evidence that was already in custody of the IO. The Magistrate has allowed the IO’s prayer and directed the petitioner to provide a voice sample before the FSL expert. Aggrieved thereby, the petitioner filed the instant revision.

Notably, the petitioner was not named as accused in the FIR and the investigation was still on.

The petitioner argued that as the law presently stands, a witness cannot be compelled to give a voice sample. Per contra, the State relied on the decision of the Supreme Court in Ritesh Sinha v. State of U.P., (2019) 8 SCC 1, to contend that if an accused can be compelled to give voice sample, as held in the said case, then a witness who is not an accused, at an investigation, can be definitely asked to give voice sample.

Considering the submissions of the parties, the High Court was of the view that the following questions require to be settled by an appropriate larger Bench:

“(a) Whether Section 311-A read with Section 53 and 53-A CrPC along with Section 5 of the Identification of Prisoners Act, 1920, empowers a Magistrate to compel a witness in course of investigation into an FIR, to give voice sample in the aid of such investigation?”

(b)Can the principle laid down by the Supreme Court in the Ritesh Sinha v. State of U.P. be applied also to witnesses in course of investigation?

(c)Whether a witness even in course of an investigation can be compelled to give evidence, that could subsequently emerge as a ground for including him as an accused in the final investigation report?”

The High Court directed the matter to be placed before the Chief Justice for reference to an appropriate Bench.

In the meantime, however, the petitioner was ordered to give voice samples to the IO in the presence of the FSL expert. It was directed that the said sample shall be kept sealed and unopened, and the parties shall abide by the result of the reference proposed. [Mukul Roy v. State of W.B., 2019 SCC OnLine Cal 4341, decided on 12-12-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: This petition was filed before the Bench of Rajbir Sehrawat, J., challenging the order passed by JMFC, Amritsar where the application filed by the petitioner for ordering the sample of voice of complainant for comparing it with the recording produced by the petitioner was rejected.

Facts of the case were that petitioner took a loan from respondent and while returning the loan amount to respondent the cheque was dishonoured and as a result proceedings under Section 138 of the Negotiable Instruments Act were initiated. Petitioner had presented CD and pen drive showing the recordings of their conversation. Respondent contended that the information contained in the recordings were completely unauthentic.

High Court was of the view that petitioner had failed to disclose the place and instrument through which the recordings were made. Thus, trial court had rightly dismissed the application filed by the petitioner since the information as contained in the pen drive and CD itself has been found to be unauthentic by the trial court. Therefore, there was no question of the trial court directing the respondent to give his voice samples for comparison. [Jatinder Pal Singh v. Krishan Kishore Bajaj, CRM-M-37435 of 2018 (O&M), decided on 29-10-2018]

Case BriefsSupreme Court

Supreme Court: In the controversy arising due to the voice samples taken in the matter where the appellants had allegedly demanded a sum of money to refrain from telecasting programmes on a television channel pertaining to the alleged involvement of a corporate entity in a wrongful activity pertaining to the allocation of coal blocks, it was argued by the Appellants that they were being made to read out inculpatory material drawn from an audio recording of the alleged sting operation.

The 3-judge bench of T.S. Thakur, CJI, A.M. Khanwilkar and Dr. D.Y. Chandrachud, JJ held that there was no substance in the submission that the text which is to be read by the Appellants in the course of drawing their voice samples should contain no part of the inculpatory words which are a part of the disputed conversation as a commonality of words is necessary to facilitate a spectrographic examination. Stating that it is not open for the Appellant to dictate the course of investigation, the Court said that the Appellants had not been forced or coerced into furnishing such a sample since it was they who had furnished their consent; secondly, a voice sample is not evidence since its purpose is only to compare it with the questioned text.

Earlier, Delhi High Court had ordered that the purpose of a voice sample is to facilitate the process of comparing it with a recorded conversation. The voice sample is not a testimony in itself since it only constitutes what was described as ‘identification data’ and hence, it is not a substantive piece of evidence. By the order dated 01.07.2016, the Court had directed the Appellants shall be required to read out for the purpose of giving their voice samples using words, but not the sentences, appearing in the disputed conversation in such number as the Director/Scientific Officer may consider necessary for the purpose of comparison in order to ensure that the text which the Appellants would be called upon to read out for the purpose of drawing their voice samples will not have sentences from the inculpatory text. Similarly, permitting the text to contain words drawn from the disputed conversation would meet the legitimate concern of the investigating authorities for making a fair comparison. [Sudhir Chaudhary v.  v. State of NCT of Delhi, 2016 SCC OnLine SC 747, decided on 29.07.2016]