CRR-677-2021

- 1-

115 IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

CRR-677-2021

DECIDED ON: 9^th JULY, 2021

KAMAL PAL AND ANOTHER

.....PETITIONERS

VERSUS

STATE OF PUNJAB

.....RESPONDENT

CORAM:

HON'BLE MR. JUSTICE AVNEESH JHINGAN.

Present:

Mr. Manbir Singh Batth, Advocate for the petitioners.

Ms. Monika Jalota, DAG, Punjab.

***

AVNEESH JHINGAN, J

[1]

The matter is taken up for hearing through video conference

due to COVID-19 situation.

[2]

Aggrieved of the order dated 27^th April, 2021 of the learned

Additional Sessions Judge, SBS Nagar allowing the application of the

Vigilance Bureau for taking voice samples of the petitioners, the present

revision petition is filed.

[3]

The facts in brief are that Vigilance Bureau, Punjab received

an information of money being extorted from local public at Tehsil Banga

for getting the sale deeds registered. The information was that the

petitioners (both typist at Tehsil Banga Complex) were collecting money

for getting the sale deeds registered from the Tehsildar and other revenue

officials of the revenue department. After taking approval, the mobile used

by the petitioners were tapped. From the transcripts of various dates

SHAM SUNDER

2021.07.16 10:10

I attest to the accuracy and

integrity of this document

High Court, Chandigarh

CRR-677-2021

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finding sufficient evidence the FIR was registered.

[4]

During the proceedings, an application was filed by the

Vigilance Bureau for permission to take voice samples of the petitioners.

The application was allowed, hence, the present petition.

[5]

Learned counsel for the petitioners argues that the impugned

order is in violation of Article 20(3) of the Constitution of India and

infringes the right of privacy. The contention is that in Section 53 of the

Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.),

there is no power to order taking of voice samples.

[6]

As per Article 20(3) of the Constitution of India, “No person

can be compelled to be a witness against himself”.

[7]

The issues raised by counsel for the petitioners are no longer

res-integra.

[8]

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.

[9]

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

SHAM SUNDER

2021.07.16 10:10

I attest to the accuracy and

integrity of this document

High Court, Chandigarh

CRR-677-2021

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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

then Chief Justice B.P. Sinha would be apt for recollection as the

same conclusively determine