The direction to give voice sample for comparison purposes does not violate the constitutional protection against self-incrimination, and the requirement of certification under Section 65-B of the Act arises later when the recording is given in evidence.

JUDGMENT

Avneesh Jhingan, J.(Oral) - This criminal revision is filed against the order dated 19.4.2022 passed by Additional Sessions Judge, Barnala whereby the petitioner was directed to give his voice sample. The revision petition is accompanied by an application for condonation of delay of 71 days in filing the revision petition.

2. The brief facts are that the petitioner is an accused in FIR No. 20 dated 5.12.2019, under Section 7 of the Prevention of Corruption Act, 1988 (Amendment 2018) and Section 120-B IPC, registered at Police Station Vigilance Bureau, Patiala Range, Patiala.

3. Learned counsel for the petitioner assails the impugned order. It is submitted that order is violative of Article 20 of the Constitution of India, no certificate under Section 65-B of the Indian Evidence Act has been produced and the order was passed at the back of the petitioner.

4. Learned State counsel appearing on advance notice defends the impugned order.

5. The first contention raised by learned counsel for the petitioner is no longer res-integra. The Supreme Court in Ritesh Sinha ((2019) 8 SCC 1) 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.

6. 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.

7. Voice sample in a sense resembles finger prints and hand writing, each person has a distinctive voice with characteristic features dictated by vocal cavities and articulates. The samples are collected after having permission in accordance with law. The sample taken itself would not be an evidence, rather they are for comparing the evidence already collected.

8. The contention of the learned counsel for the petitioner that no certificate under Section 65-B of the Act was produced, needs no adjudication at this stage. The application for voice sample was filed for further investigation of the matter, it was not the stage for production of certificate under Section 65-B of the Act, even if required.

9. Supreme Court in case of Arjun Pandit Rao Khotkar Vs. Kailash Kushanrao Gorantyal and others (2020) 7 SCC 1 held that Section 65-B (4) of the Act does not mention the stage of furnishing the certificate. The decision in State of Karnataka Vs. M.R.. Hiremath 2019 (7) SCC 515 was noted wherein it was held that failure to produce certificate under Section 65-B (4) of the Act at the stage of charge sheet will not be fatal. The certificate is needed when recording is to be produced in trial as evidence. Relevant paras are quoted below:-

'50. We may hasten to add that Section 65B does not speak of the stage at which such certificate must be furnished to the Court. In Anvar P.V. (supra), this Court did observe that such certificate must accompany the electronic record when the same is produced in evidence. We may only add that this is so in cases where such certificate could be procured by the person seeking to rely upon an electronic record. However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, the trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. This is, of course, subject to discretion being exercised in civil ca