The main legal point established in the judgment is that the direction to give a voice sample did not violate the right against self-incrimination and the right to privacy, and the admissibility of electronic records under Section 65-B of The Evidence Act, 1872.

JUDGMENT

Avneesh Jhingan, J - Aggrieved of order dated 14.6.2022 passed by Judge, Special Court SAS Nagar, directing the petitioner to give voice sample, the present petition is filed.

1. The facts in brief are that the petitioner is facing trial in FIR No.7 dated 8.4.2019, under Section 7 of the Prevention of Corruption Act, 1988, (for short 1988 Act') registered at Police Station Vigilance Bureau, District SAS Nagar, Mohali. The petitioner was posted as SDO, Sub-Division Badali Ala Singh, P.S.P.C.L, District Fatehgarh Sahib. A complaint was filed by Inderjit Singh alleging that bribe of Rs.10,000/- was demanded by the petitioner for transfer of electricity connection of motor. The deal was struck for Rs.8000/-. On complaint, a trap was laid. The petitioner was apprehended red handed. As per the case set up, a voice recorder with memory card was handed over to the complainant for recording the conversation. The petitioner was arrested on 8.4.2019, he remained in remand of Vigilance Department for two days and thereafter in judicial custody for a month. On presentation of challan, the charges were framed. An application was filed by prosecution seeking permission to get voice sample of the petitioner for comparison with audio recording. The application was allowed. Hence, the present petition.

2. Learned Senior counsel argues that the directions given in the impugned order compels the petitioner to be witness against himself. The argument is that direction for taking voice sample can be given only to Magistrate and not by Special Judge, under 1988 Act. The contention is that there is delay in filing application as no voice sample was taken when the petitioner was in custody. It is further argued that C.D. was prepared using a laptop and memory card of the voice recorder. There is nothing on record to show that the original source has been taken into custody and there is no certification under Section 65-B of The Evidence Act, 1872 (for short 'the Act').

3. Learned State counsel defends the impugned order.

4. The contention that direction given by the impugned order is a compulsion for the petitioner to be a witness against himself lacks merit.

5. As per Article 20(3) of the Constitution of India, 'No person can be compelled to be a witness against himself'.

6. The issue raised by learned Senior counsel for the petitioner is no longer res-integra. The Supreme Court in 'Ritesh Sinha vs. State of Uttar Pradesh; 2019 (8) SCC 1, held that the directions to take voice sample does not infringe Article 20(3) of the Constitution of India.

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, held:-

'9. Despite unanimity amongst the learned Judges hearing the appeal on the first question on which the learned counsel for the appellant has also not laid much stress it would be appropriate to make the discussions complete to answer the question on the strength of the test laid down by this Court in State of Bombay v. Kathi Kalu Oghad (supra). Speaking on behalf of the majority the then learned Chief Justice B.P. Sinha was of the view that the prohibition contemplated by the constitutional provision contained in Article 20(3) would come in only in cases of testimony of an accused which are self-incriminatory or of a character which has the tendency of incriminating the accused himself. The issue in the case was with regard to specimen writings taken from the accused for comparison with other writings in order to determine the culpability of the accused and whether such a course of action was prohibited under Article 20(3) of the Constitution. The following observations of the