Delhi High Court
Shahrukh vs The State Nct Of Delhi on 22 March, 2022
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Decided on: 22nd March, 2022
+ CRL.M.C. 651/2021
SHAHRUKH ..... Petitioner
Through: Mr.Shamim A. Khan, Advocate.
versus
THE STATE NCT OF DELHI ..... Respondent
Through: Mr.Mukesh Kumar, APP for the
State with Insp. Govind Singh, SI
Deepak, PS Uttam Nagar, Delhi.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
1. This petition is filed against the impugned order dated 07.11.2020
passed by learned Trial Court in case FIR No.615/2021 under Section
364A/120B/368/34 IPC registered at police station Uttam Nagar, Delhi.
2. The learned Trial Court per impugned order allowed the
application moved by the Investigating Officer seeking permission to
take the voice samples of the accused person, including the petitioner
herein.
3. The petitioner herein is aggrieved of the delay in filing such
application as the trial is at its fag end. It is alleged the FIR in question
was registered on 08.05.2015. On 07.08.2015 the charge sheet was filed.
The charges was framed and matter was listed for prosecution evidence
for 26.08.2016. However, on 09.04.2018, the Investigating Officer
moved an application for seeking voice sample of the accused persons,
Signature Not Verified
Digitally Signed By:VIJAYA
LAKSHMI DOBHAL
Signing Date:24.03.2022 11:55
which application was allowed vide the impugned order dated
07.11.2020.
4. Admittedly, the voice samples were taken on 07.12.2020 and the
FSL report has now been received and was filed along with the
supplementary charge sheet on 27.01.2021.
5. The grievance of the learned counsel for the petitioner is there is
no procedure under the Cr P C to get the voice sample of the accused and
as such the application ought to have been dismissed by the learned Trial
Court.
6. In support of his submission, the learned counsel for the petitioner
referred to Amrutbhai Shambhubhai Patel vs Sumanbhai Kantibhai Patel
and Others Criminal Appeal No.1171/2016 decided on 02.02.2017
wherein the Court noted:-
47. On an overall survey of the pronouncements of this
Court on the scope and purport of Section 173(8) of the
Code and the consistent trend of explication thereof, we are
thus disposed to hold that though the investigating agency
concerned has been invested with the power to undertake
further investigation desirably after informing the Court
thereof, before which it had submitted its report and
obtaining its approval, no such power is available therefor
to the learned Magistrate after cognizance has been taken
on the basis of the earlier report, process has been issued
and accused has entered appearance in response thereto. At
that stage, neither the learned Magistrate suo motu nor on
an application filed by the complainant/informant direct
further investigation. Such a course would be open only on
the request of the investigating agency and that too, in
circumstances warranting further investigation on the
detection of material evidence only to secure fair
investigation and trial, the life purpose of the adjudication
in hand.
Signature Not Verified
Digitally Signed By:VIJAYA
LAKSHMI DOBHAL
Signing Date:24.03.2022 11:55
7. Further in Ritesh Sinha vs State of Utter Pradesh & Anr Criminal
Appeal No.2003/2012 decided on 02.08.2019, the learned counsel for
petitioner has referred to para No.32, which interalia notes:-
19. xxx xxx
"(32) .........It has to be noticed that Article 20(3) of our
Constitution does not say that an accused person shall not
be compelled to be a witness. It says that such a person shall
not be compelled to be a witness against himself. The
question that arises therefore is: Is an accused person
furnishing evidence against himself, when he gives his
specimen handwriting, or impressions of his fingers, palm
or foot? The answer to this must, in our opinion, be in the
negative.
8. However, I would also like to refer to the following paras of above
decision, which interalia note:-
24. Would a judicial order compelling a person to give a
sample of his voice violate the fundamental right to privacy
under Article 20(3) of the Constitution, is the next question.
The issue is interesting and debatable but not having been
argued before us it will suffice to note that in view of the
opinion rendered by this Court in Modern Dental College
and Research Centre and others vs.State of Madhya
Pradesh and others11, Gobind vs. State of Madhya
Pradesh and another12 and the Nine Judge's Bench of this
Court in K.S. Puttaswamy and another vs. Union of India
and others 13 the fundamental right to privacy cannot be
construed as absolute and but must bow down to
compelling public interest. We refrain from any further
discussion and consider it appropriate not to record any
further observation on an issue not specifically raised
before us. (2016) 7 SCC 353 (1975) 2 SCC 148 (2017) 10
SCC 1
25. 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
Signature Not Verified
Digitally Signed By:VIJAYA
LAKSHMI DOBHAL
Signing Date:24.03.2022 11:55
142 of the Constitution of India. We order accordingly and
consequently dispose the appeals in terms of the above.
9. Both the above decision rather support the respondent since in
Amrutbhai Shambhubhai Patel (supra) the Court noted such a course
would be open only on the request of the investigating agency and that
too, in circumstances warranting further investigation on the detection of
material evidence only to secure fair investigation and trial, the life
purpose of the adjudication in hand. Further, in Ritesh Sinha (supra) it is
rather stated fundamental right to privacy cannot be considered to be as
absolute and but must bow down to compelling public interest. Thus,
there appear to be no doubt upon the power of the learned Trial Court to
allow an application seeking permission to get the voice sample of
accused.
10. I have been told per FSL report the voice sample has matched with
the voice of the accused. Admittedly, the case is for ransom /kidnapping
which entails maximum punishment, hence to seek the ends of justice,
one cannot say the impugned order was wrong. Even otherwise, if one
peruse the charge sheet viz page No.60 of the paperbook, one may find a
noting that the Samsung mobile phone was being sent to FSL for retrieval
of the data so that later the voice sample of the accused persons can be
sent to have a comparison of the available recording. In application
moved by the Investigating Officer it is rather claimed such data has been
retrieved by the FSL, Rohini from the mobile phone and is provided in
the DVD, hence the voice sample of accused be allowed to be taken for
sending it to the FSL for comparison purpose.
Signature Not Verified
Digitally Signed By:VIJAYA
LAKSHMI DOBHAL
Signing Date:24.03.2022 11:55
11. In Rakesh Bisht vs. Central Bureau of Investigation, CRL REV P.
No. 461/2006 decided on 03.01.2007 by this Court, it was held as under:-
17. xxx
It is another matter if, after investigation, charges are
framed and in the course of proceedings before the court,
the court feels that voice samples ought to be taken for the
purposes of establishing identity, then such a direction may
be given provided the voice sample taken is only for the
purposes of identification and does not contain any
inculpatory statement so as to be hit by Article 20(3) of the
Constitution of India. In this context, I am unable to agree
with the decision of a learned single Judge of the Bombay
High Court in the case of Abdul Karim Telgi (supra)
because there the court directed the taking of voice samples
even at the stage of investigation.
12. In view of above, I find no fault in the impugned order passed by
learned Trial Court. The petition being bereft of any merit, is hereby
dismissed. Pending application, if any, also stands disposed of. No order
as to costs.
YOGESH KHANNA, J.
MARCH 22, 2022
DU
Signature Not Verified
Digitally Signed By:VIJAYA
LAKSHMI DOBHAL
Signing Date:24.03.2022 11:55
