IMPORTANT POINT
Compelling a voice sample for investigation is lawful, even if the accused is not in custody, as privacy rights yield to public interest.

ORDER :

C. Jayachandran, J.

Legal intricacies which stems from the protection under Article 20(3) of the Constitution never subsumes and here, it surfaces by way of a voice sample.

2. The petitioner - the sole accused in Crime bearing V.C.No.7/2024 of the Vigilance and Anti-Corruption Bureau, Malappuram - is aggrieved by Annexure-C Order, which permitted the petitioner's voice sample being taken at the Forensic Science Laboratory, Thiruvananthapuram on 4. 11.2024 at 10.00 a.m.

3. Heard Sri.K.M.Sathyanatha Menon, the learned counsel for the petitioner and Sri.A.Rajesh, learned Special Public Prosecutor (Vigilance). Perused the records.

4. The prosecution case in brief is that, the petitioner/accused demanded a bribe of Rs.52,000/- for issuing necessary records from the Village Office, so as to enable the defacto complainant to apply for 'Pattayam' in respect of 35 cents of land. The petitioner accordingly received Rs.30,000/- from the defacto complainant. A trap was laid, based upon which the crime was registered against the petitioner.

5. The Order impugned is assailed on various grounds by the learned counsel for the petitioner. It was first pointed out that, during the alleged time of conversation between the defacto complainant and the petitioner/accused, the petitioner was not an accused, wherefore, his voice sample cannot be compelled, as per law. Simultaneous with this point, it was pointed out that the petitioner was not in the custody of the Investigating Officer, for which reason also, his voice sample cannot be mandated. It was then pointed out that the phenolphthalein test turned negative as against the petitioner and that the decoy notes were not seized from the custody of the petitioner, but from a window which is away from the seat of the petitioner. It was suggested that the original conversation as available in the phone could have been produced, instead of producing a C.D., which allegedly retrieved such conversation. Learned counsel would submit that Annexure-A application preferred by the Investigating Officer would not reveal as to (1) how the alleged conversation was downloaded from the mobile phone?; (2) who did it?; and (3) whether it was downloaded from the phone of the defacto complainant's sister's son? The C.D. produced was unaccompanied by a certificate under Section 65B of the Indian Evidence Act, 1872, for which reason, the CD cannot be accepted. Learned counsel relied upon the judgments of the Hon'ble Supreme Court in Anvar v. Basheer [(2014) 10 SCC 473] and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Others [(2020) 7 SCC 1]. Reliance was placed on a judgment of the Chhattisgarh High Court in Aasha Lata Soni v. Durgesh Soni [2023 SCC Online Chh 3959], to point out that recording a conversation without the petitioner's knowledge, behind his back, amounts to violation of his right to privacy, guaranteed under Article 21 of the Constitution, wherefore, the instant application to take the voice sample should have been refused. Thus, according to the learned counsel, without any material, whatsoever, the petitioner has been directed to supply voice sample, which renders the impugned Annexure-C Order unsustainable in law. The petitioner seeks the same to be set aside.

6. Per contra, learned Special Public Prosecutor (Vigilance) would submit that the mobile phones in question were seized by the Investigating Officer, as could be seen from the recitals in paragraph no.10 of the impugned Order. According to the learned Special Public Prosecutor, the F.I.R. was registered on 20.06.2024, that is to say before the coming into force of the Bharatiya Nagarik Suraksha Sanhita, 2023 ('B.N.S.S.', for short). Thus, the investigation which commenced as per the old Code, will continue as such, as per the provisions of Section 531(2)(a) of the B.N.S.S. Thus reckoned, the voice sample is taken, not on the strength of any enabling provision, but by virtue of the decision of a three Judges Bench decision of the