The single judge bench of Justice Avneesh Jhingan of the Punjab and Haryana High Court in the case of Swaran Singh Vs State of Punjab held that the infringement of the fundamental Right to Privacy cannot be raised to create a bubble to scuttle the investigation, nullifying the evidence collected by merely denying that the voice in the recording is not of the petitioner and there being no comparables.
BRIEF FACTS
The factual matrix of the case is that the complaint was filed against the petitioner that the petitioner demanded Rs 10,000/- for transfer of electricity connection of motor. After that, the complainant laid the trap and the petitioner was caught red-handed. The petitioner was arrested, detained by the Vigilance Department for two days, and then placed in judicial custody for a month. The accusations were prepared upon the introduction of the challan. The prosecution filed an application seeking authority to get a voice sample of the petitioner for comparison with an audio recording.
The learned counsel appearing on behalf of the petitioner contended that the direction for taking voice samples can be given only to Magistrate and not by Special Judge, under the 1988 Act. further, there is a delay in filling the application as no voice sample was taken when the accused was in custody. It is also said that C.D. was created utilizing a laptop and a voice recorder's memory card. 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
The learned state counsel appearing on behalf of the state defends the impugned order.
COURT’S OBSERVATION
The hon’ble court relied upon the judgments titled State of Bombay vs. Kathi Kalu Oghad held that voice samples in a sense resemble fingerprints and handwriting, 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 the law. The sample taken itself would not be evidence, it is comparable for the evidence already collected. The infringement of the Fundamental Right to Privacy cannot be raised to create a bubble to scuttle the investigation, nullifying the evidence collected by merely denying that the voice in recording is not of the petitioner and there being no comparables. With the advancement of technology, the modes of communication are changing. To keep pace with the change, new technology is required to be used for collecting and comparing evidence. One method being recording devices. But a voice sample can be taken after compliance of the procedure laid down. It is in this context that taking of voice samples is necessitated. The samples collected do not have evidence in them. It was also stated that the Special Judge under the 1988, Act has dual powers, of a Session Judge and of a Magistrate.
Further, the contention that there is delay in filing application as no voice sample was taken of the petitioner when he was in custody, is noted to be rejected. Permission from the Court is required for taking voice sample. Non-filing of an application during investigation will not debar the prosecution to make such a prayer at a later stage.
The voice sample would be comparable to an audio recording to show that it is reliable evidence. There is no specific stage provided for furnishing a certificate under Section 65-B of the Act, even if required. The certificate can be produced at a later stage when the audio recording is relied upon by the prosecution as evidence. The court relied upon the Supreme Court judgments titled Arjun Pandit Rao Khotkar Vs. Kailash Kushanrao Gorantyal and others and State of Karnataka Vs. M.R.. Hiremath.
At last, it was held that the relevancy of the recording would be determined only after comparison of voice sample, the requirement of certification under Section 65-B of the Act would arise thereafter.
CASE NAME- Justice Avneesh Jhingan
CITATION- CRM-M-39718 of 2022 (O&M)
CORUM- Swaran Singh Vs State of Punjab
DATED-02.09.22
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