Vilas S/O. Vishnupant Aher vs The State Of Maharashtra Thr. ...
2017 Latest Caselaw 9261 Bom

 0412wp828.16-Judgment                                                                          1/6


              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. 


 ---------------------------------------------------------------------------------------------------
                    Mr.M.P.Khajanchi, counsel for the petitioner.
                     Mr.Shyam Bissa, A.P.P. for the respondent.
 ---------------------------------------------------------------------------------------------------


                                        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

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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

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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

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

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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