Gujarat High Court
Balubhai Nagjibhai Hirpara vs The State Of Gujarat on 13 February, 2024
NEUTRAL CITATION
R/SCR.A/1665/2021 ORDER DATED: 13/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1665 of 2021
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BALUBHAI NAGJIBHAI HIRPARA
Versus
THE STATE OF GUJARAT
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Appearance:
MR BM MANGUKIYA(437) for the Applicant(s) No. 1
MS BELA A PRAJAPATI(1946) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR HARDIK SONI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE CHEEKATI
MANAVENDRANATH ROY
Date : 13/02/2024
ORAL ORDER
1. Assailing the order of the City Civil & Sessions Court,
Ahmedabad, which is also a special court for trail of cases under the
Prevention of Corruption Act, whereby the petitioner, who is the accused
in the said crime, was directed to undergo voice test and to give his voice
sample for the said purpose, the instant petition has been filed under
Section 226 of the Constitution of India.
2. The facts of the prosecution case lie in a narrow compass and may
be stated as follow:-
2.1 The petitioner is an employee working as a Senior Clerk in R & B
department. A case in C.R.No.I-9 of 2017 was registered against the
petitioner in ACB Police Station, Ahmedabad City for the offence
punishable under Sections 7, 13(1)(d)(1)(2)(3) and 13(2) of the
Prevention of Corruption Act, 1988 (for short "the Act").
NEUTRAL CITATION
R/SCR.A/1665/2021 ORDER DATED: 13/02/2024
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2.2 During the course of investigation, on an application filed by the
Investigating Officer, learned Special Judge, who is also exercising the
powers of a Magistrate in trying the said cases under the Act has ordered
and directed the petitioner to undergo voice test and to give his voice
sample by the impugned order.
2.3 The said order is now challenged by way of filing this petition on
the ground that it violates the fundamental right of the petitioner, who is
the citizen of this country and it is legally unsustainable and also it
amounts to testimonial compulsion under Article 20(3) of the
Constitution of India.
3. Learned advocate for the petitioner would submit that directing the
accused to undergo voice test and to give his voice sample for the said
purpose amounts to testimonial compulsion, which offends Article 20(3)
of the Constitution of India and as such, the impugned order is ex facie
illegal and thereby, prayed to set aside the same.
4. Per contra, learned Additional Public Prosecutor Mr.Hardik Soni
for the respondent-State would submit that it does not amount to
testimonial compulsion under Article 20(3) of the Constitution of India
and the Judicial Magistrate is perfectly competent under law to order the
accused to undergo voice test and to give his voice sample for the said
purpose. In support of his contention, he has placed reliance on the
judgment of the Apex Court in the case of Ritesh Sinha vs. State of Uttar
Pradesh, 2019 (8) SCC 1.
5. It is held in the said judgment that until the parliament makes
appropriate law that the Judicial Magistrate has power to order a person
NEUTRAL CITATION
R/SCR.A/1665/2021 ORDER DATED: 13/02/2024
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to give his voice sample for the purpose of investigation of a crime.
While dealing with the contention whether a judicial order compelling a
person to give a sample of his voice violates fundamental right to privacy
and whether it amounts to testimonial compulsion under Article 20(3) of
the Constitution of India, it is held that the fundamental right to privacy
cannot be construed as absolute but must bow down to compelling public
interest. The Apex Court also did not agree with the contention that it
amounts to testimonial compulsion. Ultimately, while considering the
provisions of Sections 53, 53A and 311-A of the Code of Criminal
Procedure, 1973, the Apex Court held that the Judicial Magistrate has the
power to order a person to give his voice sample for the purpose of his
voice test.
6. Therefore, from the law enunciated in the above judgment of the
Apex Court, it is clear that the impugned order that was passed by the
learned Judge is well within its competence and he has power to order the
petitioner, who is the accused in the said crime, to undergo voice test and
to give his voice sample for the said purpose.
7. Resultantly, the petition is dismissed affirming the impugned order.
Sd/-
(CHEEKATI MANAVENDRANATH ROY, J)
ABHISHEK
