In Re : Rakesh Singh @ Rakesh Kumar ... vs State Of Uttar
2021 Latest Caselaw 4917 Cal

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20.09.2021

D/L 16 ab

C.R.R. 1673 of 2021 (Via Video Conference)

Re: An application under Sections 483 read with Section 482 of the Code of Criminal Procedure, 1973.

In re : Rakesh Singh @ Rakesh Kumar Singh, ... Petitioner

Mr. Rajedeep Majumder, Mr. Mayukh Mukherjee, Mr. Sarthak Mondal ... for the petitioner

Mr. Saswata Gopal Mukherjee, LD. PP, Mr. Sabir Ahmed, Mr. Ranadep Sengupta, ... for the State

The investigating agency in connection with New Alipore

Police Station Case no. 65 of 2021 under Sections

21(b)/27A/29/30/58(2) of the Narcotic Drugs and Psychotropic

Substances Act, 1985, made a prayer on April 19, 2021, before the

learned Additional Sessions Judge, 4th Court, Alipore, inter alia, for

collecting voice sample of the petitioner, who is an accused in the

said case.

Before the disposal of the said application, the charge sheet

was filed on May 3, 2021, by the investigating agency. The

application for collection of the voice sample was, however,

disposed of subsequently by the order impugned dated August 7,

2021 by allowing the prayer.

The petitioner has challenged the said order of the learned

Additional Sessions Judge before this Court in this revisional

application.

It has been submitted for the petitioner that the investigating

agency has not acted in a fair manner in making the application

for collection of the voice sample, since there is nothing in the

charge sheet to show that the voice sample of the petitioner is

contained in any of the seized mobile phones. It has, further, been

submitted by the learned advocate for the petitioner that from the

prayer made before the learned Judge in the Court below it is

absolutely clear that the investigating agency was not in

possession of the voice sample of the petitioner. It has, further,

been submitted that the investigating agency could not mention in

their application that which voice sample they intend to match

with the collected voice sample of the petitioner.

In this regard ambiguity in the prayer made by the

investigating agency, before the learned Judge, for the collection of

voice sample has also been pointed out.

To clarity the position, an affidavit by the investigating

agency was directed to be filed before this Court and accordingly,

an affidavit has been filed, inter alia, to the following effect:

" After her arrest, Pamela Goswami's phone which was used by her was duly seized as per seizure list. She divulged, that her mobile phone contains voice clips containing her voice and an unknown male voice claiming himself to be Rakesh Kumar Singh, threatening her to frame her in false case, which she identified to be the voice of Rakesh Kumar Singh. Collection of the voice sample of Rakesh Kumar Singh is only for the purpose of comparing the same with the voice clips and unearthing the truth behind the instant case. The

case against the petitioner is one of a conspirator, who financed the procurement of drugs and subsequently harbouring the accused Amrit Raj Singh who planted the same in Pamela's car. Furnishing the voice sample may only lead to matching of the voice of Rakesh Kumar Singh with the unknown male voice in the voice clips contain in the mobile phone of Pamel Goswami and the same may facilitate the investigation in unearthing the truth."

The State submits that the statement of Pamela Goswami

recorded on February 22, 2021. A copy of the said recorded

statement has been produced before this Court.

Therefore it is now clear that the investigating agency,

through Central Forensic Science Laboratory at Bhopal sought to

match the voice sample of the petitioner with voice clips allegedly

contained in mobile phone of Pamela Goswami seized in the course

of the investigation.

The law with regard to the collection of voice sample has

been authoritatively decided by the Supreme Court in a judgment

reported at (2019) 8 SCC 1 (Ritesh Sinha -vs- State of Uttar

Pradesh). In the said case, the following two issues were referred

to a three Judges Bench of the Supreme Court:

"3.1. Whether Article 20(3) of the Constitution of India, which protects a person accused of an offence from being compelled to be a witness against himself, extends to protecting such an accused from being compelled to give his voice sample during the course of investigation into an offence?

3.2. Assuming that there is no violation of Article 20(3) of the Constitution of India, whether in the absence of any provision in the Code, can a Magistrate authorise the investigating agency to record the voice sample of the person accused of an offence?"

The first issue was answered in negative in paragraph nos. 6

to 9 of the said Judgment. The Supreme Court noticed that there

was no dispute with regard to the aforesaid proposition and

followed the view of the judgment reported at AIR 1961 SC 1808

(State of Bombay -vs- Kathi Kalu Oghad).

The second issue has been answered by the Supreme Court

in paragraph 27, which runs as follows:-

"In the light of the above discussions, we unhesitatingly take the view that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India. We order accordingly and consequently dispose of the appeals in terms of the above."

In view of the aforesaid authoritative decision of the Supreme

Court, no further deliberation is required on the proposition that

no prohibition can be read in Article 20(3) of the Constitution of

India to prevent a Court from directing an accused to give his voice

sample.

It is submitted by Mr. Majumder, learned advocate for the

petitioner, that the statement of Pamela Goswami has been

allegedly recorded on February 22, 2021, by the investigating

agency but the same was not made a part of the charge sheet filed

on May 3, 2021, and the petitioner is in complete dark as to the

recording of such statement.

Mr. Saswata Gopal Mukherjee, learned Public Prosecutor

has submitted before this Court that pursuant to the leave granted

by the learned Judge in the Court below, a further investigation is

being carried out and the investigating agency shall decide whether

to rely upon such statement of Pamela Goswami or not after the

report is received from the Central Forensic Science Laboratory. If

the investigating agency wants to rely upon such statement at the

time of filing the supplementary charge sheet, the same will be

served upon the petitioner.

In that view of the matter, no interference is called for with

the impugned order.

The revisional application being C.R.R. 1673 of 2021 is,

accordingly, dismissed.

Urgent photostat certified copy of this order, if applied for, be

given to the parties upon compliance with all necessary formalities.

(Kausik Chanda, J.)