IMPORTANT POINT
The court ruled that voice samples can be obtained legally if interception of telephonic conversations complies with established procedures under the Indian Telegraph Act, emphasizing the necessity of public emergency or safety.

JUDGMENT :

MITALI THAKURIA, J.

1. Heard Mr. M. Haloi, Special Public Prosecutor, CBI for the petitioner. Also heard Mr. S. K. Srivastava, learned counsel assisted by Mr. N. Z. Lotha, learned counsel for the respondent No. 1; Mr. B. K. Mahajan, learned Senior Counsel assisted by Mr. D. Bora, learned counsel for the respondent No. 2; Mr. K. Agarwal, learned Senior Counsel assisted by Mr. B. K. Singh, learned counsel for the respondent Nos. 3 & 4; Ms. M. Kumari, learned counsel for the respondent Nos. 5 & 6; and Mr. A. K. Das, learned counsel for the respondent No. 7.

2. This is an application under Section 482 read with Section 397/401 of Code of Criminal Procedure, 1973, against the order dated 28.02.2020 passed by the learned Special Judge, CBI, Guwahati, Assam in CBI Case No. RC- 05(A)/2018/CBI/ACB /Guwahati, whereby, the learned Special Judge rejected the prayer of the prosecution to take voice samples of the accused persons, i.e. respondent Nos. 1, 2, 3 & 6.

3. It is stated that the CBI, Anti-Corruption Branch (ACB), Guwahati registered an FIR No. 05(A)/2018 on 11.04.2018 under Section 7, 11, 12 & 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 and read with Section 120B of the Indian Penal Code against Shri Swetabh Suman, CIT (Appeal); Shri Pratap Das, Income Tax Officer (Audit), Guwahati; Shri Ramesh Goenka, Advocate; Shri Amit Goenka; Shri Suresh Kumar Agarwala, Director of M/s Win Power Infra Pvt. Ltd.; and some unknown others on the allegation of taking illegal gratification and criminal misconduct. Accordingly, on 17.04.2018, a prayer was made before the Court of learned Special Judge, CBI for permission to obtain voice samples of the accused persons, namely, Shri Swetabh Suman, Shri Ramesh Goenka, Shri Pranjal Sarmah and Pratap Das and vide order dated on 19.04.2018, the prayer of the CBI was rejected for recording voice samples of the accused persons for spectrograph tests.

4. On being aggrieved by the Order passed by the learned Special Judge, CBI, one criminal revision petition No. 195/2018 was filed before this Court against the said impugned order. During the pendency of the said revision petition before this Court, the Hon’ble Supreme Court passed an order in Ritesh Sinha vs. State of Uttar Pradesh & Anr. (Criminal Appeal No. 2003 of 2012), wherein the Apex Court mentioned that the Magistrate has the power to pass the order directing the accused to give voice samples.

5. Accordingly, in view of the light of the legal development before the full bench of Hon’ble Apex Court, CBI filed a fresh application before the learned Special Judge on 15.10.2019 with a prayer for recording the voice samples of the accused persons along with 2(two) other remaining accused persons, namely, Balraj Dayma and Pranjal Sarmah whose culpability surfaced during the investigation. Thereafter, the criminal revision petition pending before this Court was withdrawn on 07.11.2019 and the application was made before the learned Special Judge for permission to obtain the voice samples of the accused persons.

6. However, the learned Special Judge, after hearing both sides, dismissed the petition vide impugned judgment and order dated 28.02.2020 citing the reason that prosecution/CBI failed the test to ascertain that the interceptions of Tele-conversion so made were carried out in an illegal way and further observed that “ the case diary do not indicate as to whether complete due and proper procedure has been followed with regard to the telephone tapping in this case in terms of the provisions of section 5(2) of the Indian Telegraph Act, 1885, Rule 419 of the Telegraph rules and the principles laid down by the Supreme Court.”

7. The submission on behalf of the petitioner is that the learned Special Judge, while dismissing the petition of CBI, clearly overlooked the provisions of Section 5(2) of the Indian Telegraph Act R/w Section 419-A of Indian Telegraph Rules Amendment in 2007, which authorize Law Enforcement Agencies to see