Hiralal S/O Merchand Rathod vs State Of Mah. Thr. Pi/I.O., Anti ...
2022 Latest Caselaw 5380 Bom

                                  1



        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH, NAGPUR.


           CRIMINAL WRIT PETITION NO. 317 OF 2022

        Shri Hiralal s/o Merchand Rathod,
        Age 60 years, Occupation - Retired, R/o
        Juna Ajispur Road, New Water Tank,
        Sagvan, Buldana, Tahsil and District
        Buldana.
                                                   ... PETITIONER


                              VERSUS

        State of Maharashtra,
        through Police Inspector/ I.O.,
        Anti Corruption Bureau,
        Buldana.

                                               ... RESPONDENT

_____________________________________________________________
       Shri P.S. Sadavarte, Advocate for the petitioner.
       Shri S.M. Ukey, A.P.P. for respondent-State.
______________________________________________________________

                       CORAM          :   VINAY JOSHI, J.
                       DATED.         :   14.06.2022.

JUDGMENT :

RULE. Rule is made returnable forthwith.

2. Heard finally by consent of both the parties.

3. The challenge in this petition is to the order dated

02.05.2022 passed on Exhibit 82 by the Special Judge (ACB), Malkapur

in Special Case No. 1 of 2013 for the offence punishable under Sections

7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988.

4. The petitioner (accused) is facing prosecution for aforesaid

charges. Precisely, it was the prosecution case that the petitioner a

public servant, working as an Assistant Sub Inspector has raised

demand of Rs.5000/- as a bribe, which was reduced to the extent of

Rs.4500/-. Trap was laid in which the accused was found accepting the

bribe amount. After obtaining necessary sanction, charge-sheet has

been filed. Charge is framed and the trial proceeded. The prosecution

has examined all 7 witnesses and the statement of accused in terms of

Section 313 of the Code of Criminal Procedure came to be partially

recorded. At this juncture, the prosecution has moved an application

(Exhibit 82) on 02.05.2022 seeking directions that accused shall be

directed to provide his voice sample. The said application came to be

allowed by the order dated 02.05.2022, which is under challenge.

5. Learned Counsel appearing for the accused primely

canvassed that already petitioner's voice sample was obtained by the

Investigating Agency on 11.01.2013 by drawing Panchanama. For this

purpose, he took me through the copy of Panchnama to impress that

voice sample was already collected. He would submit that already the

prosecution evidence is over and at this stage, the prosecution shall not

be allowed to fill-up the lacuna or create evidence, which would be

prejudicial to his interest. It is argued that the petitioner has cross-

examined all 7 witnesses and thus he has opened his defence. In case of

allowing prosecution to furnish additional evidence, the defence would

be prejudiced.

6. On the other hand, learned A.P.P. while supporting the

impugned order would submit that there would be no prejudice to the

petitioner in furnishing his fresh voice sample. He would submit that

though earlier voice sample was collected, however, due to technical

error, the sample could not be verified. He would submit that collection

of voice sample does not amount to testimonial compulsion and

therefore, the Trial Court was well justified in allowing the application.

7. Most of the facts are not in dispute. Particularly, on

11.01.2013, petitioner's voice sample was collected by drawing

Panchanama. It is not disputed that prosecution evidence is over and

the statement of accused under Section 313 is under way. The

application to provide voice sample basically lacks on the point of

inordinate delay. The matter can be looked from one another angle that

it is not a case of mere delay, but the situation has changed as already

entire prosecution evidence is over and all the prosecution witnesses

were cross-examined. Pertinent to note, that the Investigating Agency

has received a letter from Forensic Science Laboratory, Mumbai on

01.08.2015 pointing the necessity of fresh specimen voice sample of the

accused. In the situation, the prosecution ought to have moved to the

Court earlier seeking necessary directions. However, for long 7 years,

prosecution remained silent and allowed to proceed with the trial. Now,

already the defence is open and entire prosecution evidence is over. At

this stage, if the prosecution is allowed to submit an additional material

then certainly it would cause great prejudice to the accused.

8. Having regard to the above peculiar facts, the impugned

order does not sustain in the eyes of law. In view of that petition stands

allowed. Impugned order dated 02.05.2022 passed by the Special

Judge (ACB), Malkapur in Special Case No.1 of 2013 is hereby quashed

and set aside. The application (Exhibit 82) seeking fresh voice sample

of accused is hereby rejected.

9. The petition stands disposed of in the aforestated terms.

(VINAY JOSHI, J.) TRUPTI SANTOSHJI AGRAWAL

Trupti 15.06.2022 15:38