The trial court correctly determined that Section 311(A) of Cr.P.C. does not apply as the complainant was not arrested.

Arun Patiyal ...Petitioner Versus Prem Singh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?¹ No For the Petitioner : Mr. Munish Datwalia, Advocate.

Rakesh Kainthla, Judge The petitioner has filed the present petition for quashing of the order dated 10.12.2024 passed by learned Additional Chief Judicial Magistrate, Court No.1, Sundernagar, District Mandi, H.P. (learned Trial Court), vide which, the application filed by the petitioner (accused before learned Trial Court) under Section 311(A) of Cr.P.C. for obtaining the voice sample of the respondent (complainant before learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

the same manner as they are arrayed before the learned Trial Court for convenience.)

2. Briefly stated, the facts giving rise to the present petition are that the complainant filed a complaint before the learned Trial Court for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (in short ‘NI Act’). The learned Trial Court summoned the accused. When the matter was listed before the learned Trial Court, the accused filed an application under Section 311(A) of Cr.P.C. for taking the voice sample of the accused and the complainant regarding the telephonic conversation dated 30.04.2021. It was asserted that a conversation had taken place between the parties on 30.04.2021. The complainant admitted certain points in the telephonic conversation held between them. The complainant denied the telephonic conversation in his cross-examination. The voice sample of the complainant should be taken for the just decision of the case; hence, the application was filed for directing the complainant to give his voice sample and to send the voice sample of the conversation to the Forensic Science Laboratory.

3. The application was opposed by the respondent.

4. Learned Trial Court held that the provisions of Section 311(A) of Cr.P.C. do not apply to the present case because it applies to a person who had been arrested in a case. Since the complainant was not arrested in a criminal case, therefore, he will not fall within the purview of Section 311 of Cr. P.C.

5. Being aggrieved by the order passed by the learned Trial Court, the petitioner/accused has filed the present petition asserting that the learned Trial Court erred in dismissing the application. A telephonic conversation took place between the parties on 30.04.2021 in which the complainant made certain material admissions regarding the agreement and a cheque transaction. The accused filed an application under Section 311(A) of Cr.P.C. for seeking a voice sample of the complainant. The learned Trial Court dismissed the application vide order dated 10.12.2024 solely on the ground that the complainant was not arrested. Section 349 of Bhartiya Nyaya Suraksha Sanhita (BNSS) specifically empowers a Magistrate to direct any person, including the accused, to give a specimen voice sample or other biometrics even without arrest. The Hon’ble Supreme Court also held that a Magistrate has the inherent power to direct the taking of a voice sample in the judgment titled Ritesh Sinha versus State of UP, 2019 (8) SCC 1. The conversation is relevant for determining the real controversy pending between the parties. The cheque was not issued in discharge of the legally enforceable debt but was part of a civil transaction which failed due to the breach committed by the complainant; therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside.

6. I have heard Mr. Munish Datwalia, learned counsel for the petitioner, who has submitted that the learned Trial Court erred in dismissing the application on