The fundamental right to privacy cannot be construed as absolute and must bow down to compelling public interest. The admissibility of memory card evidence without certification under Section 65-B of the Act does not require certification at the stage of the application for voice samples.

ORDER

Avneesh Jhingan, J. - Aggrieved of directions of Chief Judicial Magistrate, Patiala for giving voice samples, the petitioner has filed this petition under Section 482 Cr.P.C.

2. The brief facts are that Jaspreet Singh (respondent No.2) -complainant was running a chemist shop. He had made an unauthorized alteration in the shop resultantly, the shop was sealed by authorities. Sunil Kumar Gulati (petitioner) was posted in the Land Branch of Municipal Corporation, Patiala, he demanded Rs.25,000/- for getting the shutter of the shop open. The amount demanded was to be paid to Rakesh Behal one of the chemist known to the petitioner. On complaint, a trap was laid and on 10th October, 2020 Rakesh Behal was apprehended red handed. A telephonic conversation with regard to demand of illegal gratification was recorded and the memory card handed over to the investigation agency.

3. An application was filed by the Vigilance Bureau seeking voice samples of Rakesh Behal and petitioner. Rakesh Behal had no objection for giving his voice samples but petitioner filed a reply opposing the application. The application was allowed vide order dated 30th November, 2021. Petitioner was directed to give his voice sample. Hence the present petition.

4. Learned counsel for the petitioner argued that

(i) the directions issued in the impugned order are for purpose of identifying the petitioner consequently results in self incrimination by the accused;

(ii) the contention is that petitioner's right to privacy is invaded. Reliance is placed upon decision of Supreme Court of India in Justice K.S. Puttaswamy (Retd.) and another Vs. Union of India and others (2017) 10 SCC 1.

(iii) further that the memory card being a secondary evidence is not admissible as evidence without certification under Section 65-B of Indian Evidence Act, 1872 (for short 'the Act').

(iv) reliying upon the decision of the Supreme Court in People's Union for Civil Liberties (PUCL) Vs. Union of India and another (1997) I SCC 301; it is argued that the complainant could not have recorded the conversation without consent of the petitioner.

5. Learned State counsel appearing on advance notice defends the impugned order, relying upon the decision of the Supreme Court in Ritesh Sinha Vs. State of Uttar Pradesh (2019) 8 SCC 1.

6. The first two contentions raised by learned counsel for the petitioner are no longer res-integra. The Supreme Court in Ritesh Sinha (supra) held that the direction to give voice sample does not infringe Article 20(3) of the Constitution of India. It was held that the voice sample is only for purpose of comparison and is not a testimony. Further it was held that Right to Privacy cannot be construed as absolute.

7. The Supreme Court while dealing with the question "Whether Article 20(3) of the Constitution of India, which protects a person accused of an offence from being compelled to be a witness against himself, extends to protecting such an accused from being compelled to give his voice sample during the course of investigation into an offence," considering the earlier decision in "State of Bombay vs. Kathi Kalu Oghad: AIR 1961 SC 1808 answered the question in negative.

8. Whether compelling to give voice samples infringes Right to Privacy was an issue in Ritesh Sinha's case (supra) and the Supreme Court held:-

'24. Would a judicial order compelling a person to give a sample of his voice violate the fundamental right to privacy under Article 20 (3) of the Constitution, is the next question. The issue is interesting and debatable but not having been argued before us it will suffice to note that in view of the opinion rendered by this Court in Modern Dental College and Research Centre and others v. State of Madhya Pradesh and others, 2016(3) S.C.T. 35 : (2016) 7 SCC 353, Gobind v. State of Madhya Pradesh and another, (1975) 2 SCC 148 and the Nine Judge's Bench of this Court in K.S. Puttaswamy and another v. Union of India and others, 2018(1) RCR (Civil) 398 : (2017) 10 SCC 1 th