2017 Supreme(Guj) 224

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, J.
Natvarlal Amarshibhai Devani – Applicant
Versus
State Of Gujarat & Others – Respondents
Special Criminal Application (Direction) No. 5226 of 2015
Decided On : 18-01-2017

IMPORTANT POINT: The Voice Spectrography Test will not fall within the ambit of psychiatric treatment. The Voice Spectrography Test is in no manner violative of Article 20(3) of the Constitution of India

Headnote:(A) The Prevention of Corruption Act---- Sections 7, 13(1)(d) read with 13(2)--- The Indian Evidence Act, 1872--- Article 20(3) of the Constitution---Voice Sample--- Voice Spectrographic Test---Collection of voice sample of an accused is a step in investigation---The voice recorded in the audio is admissible under Section 65B of the Evidence Act---If the said evidence is to be proved by the prosecution then taking of voice sample of the accused by the trial court becomes essential to arrive at just decision of a case otherwise the said audio C.D. in which there is recording of conversation between the accused and applicant regarding demand of ransom of money for release of abductee/kidnapee would be a futile effort by the police to ascertain the complicity of the accused, hence the trial court was right in ordering to take voice sample of the accused persons---It appears from Section 165 of the Evidence Act that the trial Judge is empowered to order for taking of voice sample of accused for being compared to the recorded voice in audio to ascertain the complicity of the accused persons in the present crime and once the trial court has ordered for the same it was not correct in dropping the idea for getting voice sample of the accused be taken and send for testing simply because of lack of facility in the district as well as in the State for getting the voice sample tested, hence the impugned order passed by the trial court is not sustainable in the eyes of law--- The voice sample is not, in itself, a substantive piece of evidence---The use of such a sample is limited to the purpose for which it was collected---It cannot be considered in isolation and what is stated therein cannot be admitted as evidence before any Court on its own footing---The only use of such a sample is for comparison and no other---Taking of handwriting samples for the purposes of establishing identity or comparison with the documents in issue would not amount to a violation of the fundamental right of an accused enshrined in Article 20(3) of the Constitution---It must not be lost sight that the said decision was rendered in the context of Section 73 of the Indian Evidence Act, 1872---The necessity of requiring an accused to give handwriting samples arose during the course of trial and not in the course of investigation--- If the case is still under investigation there is no present proceedings before the Court in which or as a consequence of which it might be necessary to compare the writings---The language of Section 73 does not permit a Court to give a direction to the accused to give specimen writings for anticipated necessity for comparison in a proceeding which may later be instituted in the Court---Accused, at the stage of investigation, cannot be compelled to give his voice sample just as he cannot be compelled to undergo a test identification parade---It is for him to give or not to give his voice sample in the course of investigation and the Court cannot, during investigation, direct the accused to give his voice sample--- The Identification of Prisoners Act are not applicable in the present case---Section 3 of the said Act deals with taking of measurement of convicted persons and accordingly not applicable---Section 4 deals with taking of measurement of non convicted persons and Section 5 deals with power of Magistrate to order a person to be measured or photographed---These two sections cannot come in relation to order directing rendition of voice as rendition of voice is to some extent different from measurement and photograph---During stage of investigation direction to accused for giving specimen writing cannot be given---Similarly, during the stage of investigation in this mater the Court cannot direct the accused for rendition of his voice to the I. O. for comparison---Power of comparison lies with Court only and such power cannot be exercised by I. O. and a Magistrate or Sessions Judge by their order cannot vest or delegate such power to I. O. during stage of investigation---The Voice Spectrography Test will not fall within the ambit of psychiatric treatment---The Voice Spectrography Test is in no manner violative of Article 20(3) of the Constitution of India

       (B) Withdrawing Petition---Once any petition is filed before the Court, its withdrawal is not absolute in the hands of the litigant and it could be only done with the permission of the Court---In appropriate cases, the Court may exercise its discretion to reject the prayer of withdrawal of the petition---If the issue raised in the writ petition needs to be tackled or answered having regard to the public importance, then it is always upon for the Court to do so and decline the request of the petitioner to withdraw the petition.

       Result: Petition Disposed