IMPORTANT POINT
The court ruled that compelling voice samples for investigation does not violate the right against self-incrimination under Article 20(3) of the Constitution.

JUDGMENT :

Sameer Jain, J.

1. The present petition is filed under Section 528 of B.N.S.S. 2023, assailing the impugned order dated 04.09.2024 passed in Criminal Misc. Case No. 34/2024, arising out of FIR, qua which directions were issued for recording of voice sample of the accused-petitioners by the learned Chief Metropolitan Magistrate, Jaipur Metropolitan-1 on 20.09.2024.

2. Bereft of elaborate details, the brief facts giving rise to the instant petition are that a complaint was registered with the Anti-Corruption Bureau (for short ‘ACB’) against the accused-petitioners wherein, allegations qua clearing bills of contractors for a consideration of one percent commission, which constitutes as illegal enrichment and gratifications. For the said allegation an FIR was made to be registered on 10.11.2022 for the offences under Section 120-B of IPC read with Section 7-A and 8 of the Prevention of Corruption Act 1988 (amended by 2018 Act). Thereafter, the Investigation Agency after thorough investigation has submitted a charge sheet against the accused-petitioners wherein, voice recording was collected by the investigating agency qua the exchange of communication between the employees and the contractor during a telephonic conversation. Subsequently, an application was filed by the learned Special Public Prosecutor before the Special Judge, CBI No.1, for collecting voice samples of the accused-petitioners.

3. At this juncture, the learned counsel appearing for the petitioners had submitted that the accused- petitioners were working as a Senior Auditor(s). It was further submitted that during the investigation an order was passed for recording of voice sample of the accused- petitioners.

4. Further, it was submitted that accused-petitioners had denied to provide the voice samples, however voice samples qua other person(s) are already sent to the Central Forensic Science Laboratory, New Delhi. Moreover, an investigation is pending under Section 173(8) of Cr.P.C. qua contractors and other people till the report is received from the Central Forensic Science Laboratory (CFSL).

5. Furthermore, it was submitted that an application dated 24.04.2024 was filed by the learned Public Prosecutor before the Special Judge, C.B.I No. 1, Jaipur for collecting voice samples of the accused-petitioners and directions were sought to order the accused- petitioners to remain present before the Chief Metropolitan Magistrate, for the purpose of recording of voice sample moreover, qua the same, reliance was placed by the opposite side upon the judgments passed by Hon’ble Apex Court in Ritesh Kumar vs. State of Uttar Pradesh reported in (2019) 8 SCC 1 and Pravinsinh Nrupatisinh Chauhan vs. State of Gujrat reported in 2023 LiveLaw (SC)463, wherein, it was opined that the Court has the power to order for collections of voice sample for the purpose of investigation of a crime, however learned counsel had refuted the same and submitted that the Court cannot compel the accused to provide voice sample against his/her will.

6. Learned counsel appearing for the petitioners in support of the above said contention had placed reliance upon the judgment passed by the Co-ordinate Bench of this Court titled as Omkar Sapre vs. State of Rajasthan reported in S.B. Criminal Misc. Petition No. 4474/2021, and submitted that no person can be compelled for giving voice samples against himself and further stated that even learned Trial Court is not empowered to make any observation qua drawing any adverse inference against the accused as a consequence of denial for providing voice sample.

7. It was further submitted that the above-mentioned application filed by the leaned Public Prosecutor was duly replied to by the accused-petitioners.

8. In this background, learned counsel for the accused-petitioners had submitted that the said impugned order is illegal and prayed to set aside the same for the following reasons:

8.1 That compelling accused-petitioners to provide evidence against themselve