The Delhi High Court held that until the Parliament enacts specific provisions, a Judicial Magistrate has the power to order voice samples. The Court dismissed an appeal in which the petitioner had argued that the 'technical surveillance' conducted by the respondent was not following the relevant provisions of The Indian Telegraph Act, 1885 (hereinafter referred to as ‘the Telegraph Act’).
Brief Facts:
An FIR was registered against the petitioner under Section 120B of the IPC and relevant sections of the Arms Act. The petitioner's phone was intercepted through technical surveillance, leading to his arrest and subsequent bail. The prosecution sought voice samples of the petitioner which was allowed by the Magistrate and dismissed by the ASJ.
The petitioner filed a petition under Section 482 of the Code of Criminal Procedure, challenging two orders: one passed by the Magistrate allowing the prosecution's application for taking voice samples of the petitioner, and the other passed by the ASJ dismissing the petitioner's appeal against the Magistrate's order.
Contentions of the Parties:
The petitioner contended that the technical surveillance violated the Indian Telegraph Act, relying on judgments like People’s Union for Civil Liberties (PUCL) v. Union of India[1]. The petitioner argued against the applicability of Ritesh Sinha v. State of Uttar Pradesh[2] stating that it should be disregarded by the Court as the direction passed in the said judgment is like legislating.
The respondent argued for its power to obtain voice samples, citing the Ritesh Sinha case. The respondent submitted that the phone of the petitioner was intercepted in compliance with the provisions of the Telegraph Act. The respondent contended that the communication cannot be shared with the petitioner as it mentions the telephone numbers of other persons and hence would violate the privacy of the said persons.
Observations by the Court:
The High Court referred to the judgment in the Ritesh Sinha case and noted the issues discussed by the Supreme Court was whether a court can authorize the investigating agency to record the voice samples of a person accused of an offence. The Supreme Court took note of the Explanation to Section 53 of the CrPC as amended with effect from 23rd June 2006 and Section 53A and Section 311A of the CrPC brought into effect from the same date, which permits the examination of the persons arrested in certain cases/circumstances. The Supreme Court also observed that the fundamental right to privacy is subject to public interest, and therefore, not absolute. Accordingly, in the exercise of its jurisdiction under Article 142 of the Constitution of India, the Supreme Court held that till exclusive provisions are made in the CrPC by the Parliament, the Magistrate would have the power to order a person to give his voice samples for the purposes of investigation of a crime.
The Court observed that “It is a settled proposition of law that the Supreme Court has the power to lay down guidelines/directions where there is a legislative vacuum till the time the legislature enacts a law.”
The court rejected the petitioner's claim of non-binding legislation and emphasized the Supreme Court's authority in interpreting the law. The court also considered the Madras High Court's observations supporting the State's power to obtain voice samples during the investigation in Julia alias Uliya v. State & Anr. (CRL.R.C.(MD) No.20/2018).
The decision of the Court:
The Court held that the respondent “has correctly placed reliance on Section 173(6) of the CrPC which states that if the police officer is of the opinion that disclosure of certain statements to the accused are not essential in the interest of justice and inexpedient in the public interest, copies of such statements may not be provided to the accused.”
Case Title: Sanjiv Kumar vs. The State Govt. of NCT of Delhi
Coram: Hon'ble Mr. Justice Amit Bansal
Case No.: CRL.M.C. 1534/2018
Advocates for the Petitioner: Mr. Vaibhav Sharma and Ms. Urvashi Sharma, Advocates.
Advocates for the Respondent: Mr. Ritesh Kumar Bahri, APP for State and SI Vikrant, PS ARSC, Crime Branch.
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