Rajesh S/O Krishnarayan Tripathi vs Central Bureau Of Investigaton Thr ...
2025 Latest Caselaw 82 Bom

Bombay High Court

Rajesh S/O Krishnarayan Tripathi vs Central Bureau Of Investigaton Thr ... on 2 May, 2025

2025:BHC-NAG:4879


                                                             1                             CRIWP310.25 (J).odt


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


                                  CRIMINAL WRIT PETITION NO. 310 OF 2025

                PETITIONERS                       : Rajesh S/o Krishnarayan Tripathi
                                                    Aged about 50 years, Occu. Business,
                                                    R/o Friends Colony, Katol Road,
                                                    Nagpur.

                                                                 VERSUS

                RESPONDENTS                       : 1] Central Bureau of Investigation,
                                                       through the Superintendent of Police,
                                                       AC-I, 8th Floor, 'B' wing, CGO Complex,
                                                       Lodhi Road, New Delhi.

                                                    2] The Superintendent of Police,
                                                       Central Bureau of Investigation,
                                                       Prevention of Corruption Branch,
                                                       CGO Complex, Seminary Hills,
                                                       Nagpur.

                    ------------------------------------------------------------------------------------------------------
                          Mr. Sunil V. Manohar, Senior Advocate assisted by Mr. Rafique A.
                          Akbani and Mr. S.S. Gandhi, Advocates for the petitioner.
                          Mr. P. K. Sathianathan, Special Counsel for respondent nos.1 & 2.
                    -----------------------------------------------------------------------------------------------------

                                            CORAM : M. W. CHANDWANI, J.
                                            DATE : MAY 02, 2025


                ORAL JUDGMENT

1. RULE. Rule made returnable forthwith. By consent of

the learned counsel for the parties, the matter is taken up for final

disposal.

2 CRIWP310.25 (J).odt

2. This petition challenges the order dated 17.03.2025

passed by the learned Special Judge, CBI, Nagpur in Reference No. RC

AC12017 A0001, thereby allowing the application filed by the

respondents seeking permission to obtain voice sample of the

petitioner.

3. Brief background of the case is necessary to dispose of

the writ petition.

The respondent-CBI launched prosecution against the

officials of CBI and some private persons including the petitioner for

the offences punishable under Sections 193, 211 and 218 read with

Sections 120-B of the Indian Penal Code and Sections 13(2) read with

Section 13(1)(d) of the Prevention of Corruption Act, 1988

(hereinafter referred to as "the Act of 1988" for short), alleging that

the CBI officials namely, Pradip Lande, Jitendra Naikwad along with

Shantilal Patil, Zuber Ali and the petitioner laid a false trap against

Mr. V.R. Hanwate, who was working as Addl. Director, Central Board

of Workers Education (CBWE), Nagpur on the complaint of Shantilal

Chaitram Patil. The complainant and other persons including the

petitioner were also charge-sheeted by the CBI. The petitioner and

co-accused Zuber Ali Rahat Ali moved before the Division Bench of 3 CRIWP310.25 (J).odt

this Court for quashing of the proceedings by filing Criminal

Application (APL) Nos. 74/2017 and 281/2017, respectively. The

Division Bench of this Court by order dated 29.08.2017 allowed both

the applications and quashed the FIR against the petitioner and co-

accused Zuber Ali. The said order was assailed by the respondent-

CBI before the Hon'ble Supreme Court by preferring Special Leave

Petition (Cri.) Nos. 3952 - 3953/2018. When the matters were listed

on 20.11.2023 before the Hon'ble Supreme Court, the learned Addl.

Solicitor General of India did not press the petitions and the petitions

came to be dismissed with liberty to proceed against the petitioner

and co-accused Zuber Ali, if any material pointing out their

involvement is found.

4. On 07.03.2025, the CBI filed an application under

Section 349 of the Bhartiya Nagarik Suraksha Sanhita, 2023 seeking

permission to obtain voice sample of the petitioner contending that as

per the conversation amongst the accused persons including the

petitioner, there are sufficient grounds to get the voice sample of the

petitioner confirmed through Forensic voice experts for fair

investigation. The application before the Special Court was pressed

in view of the liberty given by the Hon'ble Supreme Court in the order 4 CRIWP310.25 (J).odt

dated 20.11.2023 ; the statement made by co-accused recently and

also on the basis of the decision in Ritesh Sinha .vs. State of Uttar

Pradesh1. The contention before the Special Court was to identify the

unknown voice in the conversation, the voice sample of the petitioner

is necessary. The Learned Judge of the Special Court by the

impugned order allowed the application and granted permission to

the CBI to obtain the voice sample of the petitioner by following due

procedure of law. Feeling aggrieved by the said order, the petitioner

is before this Court.

5. Mr. Sunil V. Manohar, learned Senior Advocate

appearing on behalf of the petitioner submitted that despite the

finding by the Division Bench of this Court that the petitioner has

nothing to do with regard to the conversation at the time of

verification of the alleged demand by Mr. Hanwate, the order has

been passed by the learned Special Judge, CBI on flimsy grounds.

There is no material against the petitioner showing his involvement in

the crime. Learned Special Judge also relied on the statement made

by the co-accused after more than 13 years wherein he has stated to

the CBI that the present petitioner was present at the MOIL guest

1. AIR 2019 SC 3592 5 CRIWP310.25 (J).odt

house at Nagpur. According to him, the verification of demand has

been done at the CBWE building and not at the MOIL guest house.

The learned Special Judge has relied upon irrelevant material and has

given reasons which are vague in nature, on which the impugned

order came to be passed. According to him, in spite of the Division

Bench of this Court giving clean chit to the petitioner, a contrary

finding has been recorded by the learned Special Judge.

6. Next, Mr. Manohar, would submit that taking voice

sample of a person amounts to invasion of the right to privacy of an

individual and only in rare cases, that too when there is concrete

material against a person, permission to obtain voice sample is

required to be granted. Section 349 of the BNSS provides that the

voice sample of an accused who has been arrested can be permitted to

be taken, but permission to take voice sample of a person who has not

been arrested, can be granted only after giving special reasons.

According to the learned Senior counsel, there is no special reason

assigned by the learned Special Judge. The order of the Hon'ble

Supreme Court has been misinterpreted by the learned Judge. The

CBI, under the guise of the liberty given by the Hon'ble Supreme

Court to proceed against the petitioner wants to anyhow arrest the 6 CRIWP310.25 (J).odt

petitioner and implicate him in the crime. Lastly, Mr. Manohar

submitted that the impugned order which affects the right to privacy

of the petitioner, cannot be sustained and is required to be set aside.

7. Mr. Sathianathan, learned special counsel appearing for

the CBI vehemently submitted that the Hon'ble Supreme Court in its

order dated 20.11.2023 has granted liberty to proceed against the

petitioner if any material is found against him. According to him, the

voice of some unknown person came to be heard in the conversation

recorded at the time of verification of demand in the complaint filed

against CBWE Director Shri Hanwate. The said voice is required to

be identified and therefore, permission to take the voice sample of the

petitioner was sought from the Special Court. Moreover, the

statement of co-accused Naikwad, which was recorded in January-

2025 reveals the presence of the petitioner at the MOIL guest house.

Therefore, to verify whether there is material against the petitioner,

the voice sample of the petitioner is required. According to him,

permission has been granted to the CBI to proceed against the

petitioner and the co-accused in case any additional material is found

which points towards their involvement. In order to ascertain

involvement of the petitioner, his voice sample is necessary. He 7 CRIWP310.25 (J).odt

supported the order passed by the learned Special Judge and sought

rejection of the petition.

8. A complaint was made by the Inspector of Police, CBI

AC-1, New Delhi against the officials of CBI ACB, Nagpur namely

Pradeep R. Lande, J.R. Naikwad along with some private persons

including the petitioner and co-accused Zuber Ali alleging that the

CBI officials in connivance with Shantilal Chaitram Patil, and Sanjay

Sinha laid a false trap against Mr. Hanwate. Therefore, the aforesaid

offence came to be registered against them. The petitioner and Zuber

Ali approached this Court for quashing of the FIR under Section 482

of the Cr.P.C. The material against the present petitioner had been

relied by the CBI was the CFL report revealing that the voice

recording at the time of verification was not done in a mobile phone

but it was recorded in some other device/computer and thereafter it

was copied into the mobile phone by editing the file name, this Court

opined that it is not the case of the CBI that there was some data in

item no.1 'ScanDisk 4 GB Micro SD card' and item no.2 'Maxx' mobile

phone to which the applicant could be connected. The Division Bench

of this Court found no material against the petitioner and Zuber Ali

and accordingly, quashed the proceedings qua the petitioner and 8 CRIWP310.25 (J).odt

Zuber Ali. The order was confirmed by the Supreme Court by

dismissing Special Leave Petition (Cri.) Nos. 3952 - 3953/2018 filed

by the CBI.

9. Taking the voice sample of an accused of a crime was a

debatable issue before a Two Judges bench of the Hon'ble Supreme

Court in the decision in case of Ritesh Sinha (supra). Despite of

unanimity amongst Their Lordships on the fact that taking specimen

of voice in itself is no testimony at all but it only acts as material for

comparison in order to lend an assurance to the Court that its

inference based on other pieces of evidence is reliable ; the difference

of opinion occurred with regard to the absence of legislative authority

in the form of a statute authorizing a Magistrate to permit the

prosecution to take voice sample of an accused arrested in a crime.

The matter was referred to the Larger Bench and the said controversy

was put to rest by a Three Judges bench of the Hon'ble Supreme

Court in Ritesh Sinha (supra). The Hon'ble Supreme Court by

exercising the jurisdiction vested in it under Article 142 of the

Constitution of India, conferred power on the Magistrate to order a

person to give a sample of his voice for the purpose of the

investigation of a crime, till the law is enacted in this regard.

9 CRIWP310.25 (J).odt

10. By virtue of the BNSS, particularly Section 349, the

power of a Magistrate to direct a person to give the specimen of his

voice got legislative authority. Section 349 of the BNSS empowers

the Magistrate to direct/order a person to give the specimen signature

or handwriting or voice sample. For the purpose of convenience,

Section 349 is reproduced hereunder :

"349 - Power of Magistrate to order person to give specimen signatures of handwriting etc. If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Sanhita, it is expedient to direct any person, including an accused person, to give specimen signatures, finger impressions, handwriting, or a voice sample, he may make an order to that effect.

In that case, the person to whom the order relates shall be produced or shall attend at the time of place specified in such order and shall give his specimen signatures, finger impressions, handwriting, or voice sample. Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding. Provided further that the Magistrate may, for reasons recorded in writing, order any person to give such specimen or sample without them being arrested."

11. Thus, if the Magistrate is satisfied that for the purpose of

any investigation or proceeding, voice sample of a person is necessary,

he may direct any person including an accused of a crime arrested in

connection with such investigation or proceeding, to give his voice 10 CRIWP310.25 (J).odt

sample. Proviso to Section 349 also empowers the Magistrate for the

reasons to be recorded in writing, to order any person to give such

specimen or sample without him being arrested. Thus, the Proviso

contemplates that the order shall not be made against a person who

has not been arrested and if such an order is to be passed, then the

reasons for passing such order have to be recorded. The object of

putting this rider in the Section is that the order directing a person to

give his voice sample should not be passed routinely against a person

who has not been arrested, just because it has been sought by the

investigating agency. Therefore, a distinction is to be made between

the cases in which a person is arrested and the cases in which a

person other than the one who is arrested is shown as a suspect. The

permission to direct a person who has not been arrested can be

granted by a Magistrate only by way of an exception for reasons to be

recorded in writing, categorically spelling out a departure from the

general rule after satisfying himself that the circumstances were

exceptionally occasioned for one reason or another. In the present

case, the CBI is making roving inquiry about the involvement of the

petitioner, against whom this Court quashed the FIR in the same

crime on an earlier occasion. In that scenario the Special Judge just

has to satisfy himself that there is some material with regard to the 11 CRIWP310.25 (J).odt

involvement of the petitioner in the crime. Thus, to exercise the

power conferred under the Proviso to Section 349 of the BNSS which

is an exception, in these peculiar facts of the case the learned

Magistrate himself has to come to the conclusion that some material is

there against the petitioner.

12. Permission to take voice sample of the petitioner is

sought on the premise that there is an unidentified voice in the

conversation with Mr. Hanwate at the time of verification of demand

and the statement of the co-accused revealed that the petitioner was

present at MOIL guest house where trap proceedings were conducted.

Perusal of the FIR reveals that at the time of verification in the earlier

case, nobody accompanied the complainant during verification as well

as at the time of the trap proceeding and the panchas were asked to

wait outside the building of CBWE during the verification proceeding,

When nobody accompanied the complainant at the time of

verification, then how the voice of the petitioner could have been

heard in the conversation at the time of verification? Further, as per

CBI, the verification of demand with Shri Hanwate was done at CBWE

office whereas the statement of the co-accused reveals the presence of

the petitioner at the MOIL guest house. In such a case, how the 12 CRIWP310.25 (J).odt

presence of the petitioner at the MOIL guest house would connect him

with the unidentified voice in conversation which took place at CBWE

office at the time of verification ? Even nothing has been produced

before the learned Magistrate to show that the unidentified voice is an

incriminating material against the petitioner so as to warrant him to

direct the petitioner to give his voice sample. There is nothing on

record to show what words were uttered by the unidentified person

so as to identify whether any incriminating words were uttered

showing his involvement in the trap led against Mr. Hanwate.

13. Notably, the conversation at the time of verification of

demand was already with the CBI when this Court quashed the

proceeding against the accused holding involvement of the petitioner

which is palpable from the discussion made by the Division Bench of

this Court and the CBI had relied on the FSL report in respect of the

conversation recorded at the time of verification of the demand and

trap. A specific observation was made by the Division Bench of this

Court wherein, it has been observed that the CBI has not come up

with a case that there is some data in the two items i.e. ScanDisk

Micro SD card' and 'Maxx' mobile phone with which the petitioner

could be connected. Thus while quashing the proceeding against the 13 CRIWP310.25 (J).odt

petitioner, the Division Bench of this Court has observed that the

Micro SD card and the Maxx mobile phone containing the

conversation at the time of verification of the demand do not connect

the petitioner with the case. However, relying on the same material,

the learned Magistrate makes out an exception under the proviso to

Section 349 of the BNSS and grants permission to the CBI to obtain

voice sample of the petitioner. Therefore, I agree with the

submissions of Mr. Manohar that the learned Special Judge by relying

on the same material which has already been considered by the

Division Bench of this Court while quashing the FIR against the

petitioner, which was confirmed by the Hon'ble Supreme Court by

dismissing the Special Leave Petitions, permitted the CBI to take voice

sample of the petitioner.

14. Another reason given by the Special Court is that the

Supreme Court by its order dated 23.11.2023 had granted liberty to

the CBI to proceed against the petitioner if any new material is found.

I find force in the argument of Mr. Manohar that the liberty that was

granted to proceed against the petitioner should not be treated as

liberty to find out new material and cannot be used to obtain voice

sample of the petitioner in order to implicate him or making fishing 14 CRIWP310.25 (J).odt

inquiry. The CBI may act independently but it has to make out a case

on the touch stone of the decision in the case of Ritesh Sinha (supra)

i.e. the voice sample is required to lend assurance of the material

against the accused. Here, to see whether there is material against

the petitioner, the voice sample is being sought for fishing and roving

inquiry against the petitioner when this Court has already opined that

there is no material against him. The Special Court did not interpret

the order of the decision of the Hon'ble Supreme Court dated

23.11.2023 in proper perspective and erroneously relied on it for

permitting the CBI to obtain voice sample.

15. In view of the discussion above, the impugned order

passed by the learned Special Judge is erroneous and requires

interference. The writ petition deserves to be allowed.

16. Accordingly, the criminal writ petition is allowed.

17. The order passed by the learned Special Judge, CBI,

Nagpur, dated 17.03.2025 in Reference No. RC AC1 2017 A0001, is

quashed and set aside.

15 CRIWP310.25 (J).odt

18. Rule is made absolute. The petition stands disposed of.

(M.W.Chandwani, J.) Diwale

Signed by: DIWALE Designation: PS To Honourable Judge Date: 07/05/2025 19:25:12