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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO. 828 OF 2016
PETITIONER :- Vilas s/o Vishnupant Aher, aged about 54
years, occupation - Service, resident of Plot
No.69, Dulabai Kachore Layout, Narendra
Nagar, Somalwada, Nagpur, Tq. & Distt.
Nagpur.
...VERSUS...
RESPONDENT :- The State of Maharashtra, through the
Deputy Superintendent of Police, Anti-
Corruption Bureau, Chandrapur, Tq. & Distt.
Chandrapur.
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Mr.M.P.Khajanchi, counsel for the petitioner.
Mr.Shyam Bissa, A.P.P. for the respondent.
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CORAM : REVATI MOHITE DERE, J.
DATED : 04.12.2017 O R A L J U D G M E N T Rule. Rule made returnable forthwith with the consent of the parties and is taken up for final disposal at the stage of admission.
2. By this petition, the petitioner has impugned the order dated 06/09/2016 passed below Exhibit-21 by the learned Additional ::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 00:43:43 ::: 0412wp828.16-Judgment 2/6 Sessions Judge & Special Judge, Chandrapur in Special (ACB) Case No.11 of 2014, by which the application preferred by the respondent- State for taking the voice samples of the petitioner-accused and sending it to the Forensic Science Laboratory (F.S.L.) was allowed.
3. Learned counsel for the petitioner submitted, that the learned Special Judge clearly erred in law, by directing the petitioner to give his voice samples to the Investigating Agency, for the purpose of comparison. He submitted, that the impugned order was passed, after the trial had commenced and as such, the petitioner-accused cannot be compelled to give his voice samples at this stage. He submitted, that the application preferred by the respondent-State seeking the voice samples of the petitioner-accused was clearly not maintainable, considering the fact, that the petitioner's voice samples were already taken by the prosecution, during investigation. He further submitted, that the direction given by the learned Special Judge was in violation of the petitioner's fundamental right under Article 20(3) guaranteed to him under the Constitution of India. He further submitted, that the F.S.L. had only informed the Investigating Agency to give the same copy of izn'kZ Ø-S-1, as the laboratory was unable to open the said exhibit sent by the Investigating Agency to the F.S.L. and had not asked for a fresh sample to be taken.
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4. Learned A.P.P. for the respondent-State supported the impugned order. He submitted, that there was no violation of the petitioner's fundamental right as, the petitioner had earlier given his voice samples when the investigation was conducted and as such, there was impediment to again take his voice samples. According to the learned A.P.P., no interference is warranted in the impugned order dated 06/09/2016.
5. Perused the papers. The petitioner-accused is facing prosecution for the offences punishable under sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. According to the prosecution, during trap, which was laid on 27/11/2014, the entire conversation, which took place between the complainant and the petitioner-accused with regard to demand and acceptance of illegal gratification, was recorded in the presence of the panchas and that the said conversation was recorded in an S.D.Card, through a voice recorder. Admittedly, the voice samples of the petitioner and the complainant taken during the course of investigation and the S.D.Card were sent to the F.S.L. on 02/05/2014, for Speech Spectrographic Analysis. Admittedly, the report of the F.S.L. was not received when the trial commenced. In December, 2015, the prosecution examined its first witness, namely Pradip Gedam i.e. the complainant. After the ::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 00:43:43 ::: 0412wp828.16-Judgment 4/6 examination-in-chief was over, the petitioner-accused preferred an application (Exhibit-22) for deferring the cross-examination of the said witness, Pradip Gedam till the report of the Speech Spectrographic Analysis was filed by the prosecution. The said application (Exhibit-22) which was filed on 26/07/2016 for deferring the cross-examination of witness, Pradip Gedam was rejected by the learned Special Judge vide order dated 26/07/2016. On 29/07/2016 the Deputy Superintendent of Police filed an application before the learned Special Judge and sought the voice samples of the petitioner-accused. The prosecution alongwith the said application had relied on a letter dated 02/04/2016 sent by the F.S.L. to the Deputy Superintendent of Police, asking them to provide the same copy of izn'kZ Ø-S-1, as the copies sent by the Investigating Agency could not open. The said application was opposed by the petitioner-accused by filing his reply. The learned Special Judge, after hearing the parties, was pleased to allow the said application filed by the respondent-State and directed the petitioner-accused to give same or similar voice samples to the Investigating Agency, as earlier delivered to the said Agency for the purpose of comparison.
6. The voice samples of the petitioner-accused were taken in 2014, during investigation. It appears, that the voice samples and S.D. Card were received by the F.S.L. on 02/05/2014. Admittedly, the report ::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 00:43:43 ::: 0412wp828.16-Judgment 5/6 of the F.S.L. was not received when the trial commenced. It appears, that when the petitioner-accused filed an application for deferring the cross-examination of P.W.-1 on the ground, that the Speech Sepctrographic Report was not received, the prosecution sought the Speech Spectrographic report from the Forensic Science Laboratory. A perusal of the letter sent by the F.S.L. to the Superintendent of Police shows, that on 02/05/2014 the Laboratory had received 4 exhibits i.e. izn'kZ Ø-Q-1, izn'kZ Ø-Q-2, izn'kZ Ø-S-1 and izn'kZ Ø-S-2 and, that while analyzing the said exhibits, izn'kZ Ø-S-1 could not open. Hence, the F.S.L. had requested the Deputy Superintendent of Police to provide the same copy of izn'kZ Ø-S-1 for analysis, pursuant to which, the Deputy Superintendent of Police filed an application before the learned Special Judge on 29/07/2016. Admittedly, during investigation, voice samples of the petitioner-accused were taken on 27/11/2014. Admittedly, the trial had already commenced, inasmuch as, the examination-in-chief of the first witness was over. Under these circumstances, it was highly improper for the learned Special Judge to direct the petitioner-accused to give his voice samples, which could possibly be incriminating in nature. Considering the fact, that the trial had already commenced, it would not be proper to allow the prosecution to fill up the lacunae and to compel the petitioner-accused to give his voice samples. In the facts and circumstances of the case, the learned Special Judge had clearly ::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 00:43:43 ::: 0412wp828.16-Judgment 6/6 erred by compelling the petitioner-accused to give his voice samples, same or similar to the voice samples which was delivered earlier to the Investigating Agency, for the purpose of comparison.
7. Accordingly, the petition is allowed and the impugned order dated 06/09/2016 passed by the Additional Sessions Judge & Special Judge, Chandrapur below Exhibit-21 in Spl. (ACB) Case No.11 of 2014 is quashed and set aside.
Rule is made absolute in the aforesaid terms. There shall be no order as to costs.
8. All the parties to act upon the authenticate copy of this judgment.
JUDGE KHUNTE ::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 00:43:43 :::