Back
MADHYA PRADESH HIGH COURT
S.K. Seth and Anjuli Palo, JJ.
Buddha Sen Kumhar —Applicant
versus
State of Madhya Pradesh —Respondent
M.Cr.C. No.17905 of 2017
Decided on 15.11.2017
Counsel for the Parties:
For the Applicant: Pramod Thakre, Counsel
For the Respondent: Pankaj Dubey, Counsel
IMPORTANT POINT
Voice sample is a very essential piece of evidence with regard to offence under Section 7 of Prevention of Corruption Act.
Headnote:Prevention of Corruption Act, 1988—Sections 7, 13(1) D read with section 13(2) and Section 120-B of IPC—Constitution of India—Article 20(3)—Criminal Procedure Code, 1973—Section 482—Direction to give voice sample to Lokayukta Police—It was alleged that demand of bribe was made by applicant—Such conversation was recorded through voice recorder—CD of that voice record was filed along with certificate under Section 65-B of Indian Evidence Act—Voice samples ought to be taken for the purpose to establish identity—Such direction can be given to provide voice samples only for the purposes of identification and does not contain any culpability statement so as to be hit by Article 20(3) of Constitution of India—Voice sample is a very essential piece of evidence with regard to offence under Section 7 of Prevention of Corruption Act—It may be corroborative to prosecution story, on other hand, it will also be helpful for defence—Impugned order affirmed. (Paras 8, 10, 12 and 20)
Result: Application dismissed.
ORDER
Anjuli Palo, J.—This application has been filed by the accused under section 482 of the Cr.P.C., 1973 for quashing of order dated 20.07.2017, passed by the Additional Sessions Judge, Anuppur in Special Case No. 10/2016, whereby the Special Court directed the applicant to give his voice sample to the Lokayukta Police.
2. It was alleged that the applicant was trapped by Lokayukt Police with other co-accused persons for taking bribe and money was recovered from the applicant. After completing investigation, charge sheet has been filed before the learned trial Court for offences punishable under Sections 7, 13(1) D read with section 13(2) of the Prevention of Corruption Act, 1988 and Section 120-B of the IPC.
3. An application for voice recording of the applicant was filed by the prosecution as Annexure-A/1 on the grounds that, the accused/applicant was called for so many times by the Lokayukta Police for his voice test but the applicant and other co-accused persons were not present before the Lokayukta Police. Therefore, under the order of learned trial Court, the prosecution prayed to collect their voice samples.
4. After considering the submissions of learned counsel for both the parties and the principle laid down in the case of “Ritesh Sinha v. State of Uttar Pradesh, : AIR 2013 SC 1132”, the trial Court allowed the application and directed the applicant and other co-accused persons to provide their voice samples to the Lokayukta Police following the principles laid down by the Supreme Court in the case of “Sudhir Chaudhary v. State (NCT of Delhi), (2016) 8 SCC 307”.
5. Aforesaid order was challenged by the applicant on the ground that there is no provision for recording the voice sample when investigation is over and charge sheet has been filed. The impugned is violation of Article 20(3) of the Constitution of India, therefore, requested to set aside.
6. Learned counsel appearing on behalf SPE/Lokayukta has vehemently opposed the prayer.
7. Heard and perused the record.
8. The charge sheet has been filed against the applicant for offences punishable under Sections 7, 13(1)D read with Section 13(2) of the Prevention of Corruption Act and Section 120-B of the IPC. It was alleged that demand of bribe was made by him. Such conversation was recorded through voice recorder. CD of that voice record was filed along with certificate under Section 65-B of the Indian Evidence Act. Copy of the aforesaid document has been provided to the applicant and other co-accused persons. Charges have not been framed by the trial Court. Hence, at this juncture, if voice sample of the applicant is provided to the prosecution, it would not prejudice to the applicant.
9. It is important to note here that, trial has not yet commenced.
10. We feels that voice samples ought to be taken for the purpose to establish the identity. In our opinion, such direction can be given to provide the voice samples only for the purposes of identification and does not contain any culpability statement so as to be hit by Article 20(3) of the Constitution of India. In this regard, reference can be made to “Rakesh Bist v. Central Bureau of Investigation, 2007 Cr.L.J. 1535”.
11. In the case of “State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808”, it was observed that:-
“It is obvious however that these dangers remain the same whether the evidence which the accused is compelled to furnish is in the form of statements, oral or written about his own knowledge or in the shape of documents or things, which though not transmitting knowledge of the accused person directly helps the Court to come to a conclusion against him. If production of such documents, or things is giving evidence, then the person’s producing it is being a witness. On what principle or reason can it be said that this does not amount to “being a witness” within the meaning of Article 20(3).
We can therefore find no justification for thinking that “to be a witness” in Article 20 (3) means to impart person
