Kerala High Court
Sunil Rajan K vs Inspector Of Police on 14 November, 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
THURSDAY, THE 14TH DAY OF NOVEMBER 2024 / 23RD KARTHIKA, 1946
CRL.MC NO. 9284 OF 2024
AGAINST THE ORDER DATED 23.10.2024 IN VC NO.7 OF 2024 OF
THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE (VIGILANCE),
KOZHIKODE
PETITIONER/ACCUSED:
SUNIL RAJAN K,
AGED 53 YEARS
S/O. AYYAPPAN CHETTIYAR, KOOTILINGAL HOUSE,
VALARAD, PANDIKKAD P.O., MALAPPURAM DISTRICT,
PIN - 676521
BY ADV K.M.SATHYANATHA MENON
RESPONDENTS/STATE AND COMPLAINANT:
1 INSPECTOR OF POLICE,
VIGILANCE AND ANTI-CORRUPTION BUREAU, MALAPPURAM,
PIN - 676509
2 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
PIN - 682031
BY ADV.A.RAJESH-SPECIAL PUBLIC PROSECUTOR (VIGILANCE)
ADV.REKHA S.- SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
14.11.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No. 9284 of 2024
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"C.R."
O R D E R
Dated this the 14th day of November, 2024
Legal intricacies which stems from the protection under
Article 20(3) of the Constitution never subsumes and here,
it surfaces by way of a voice sample.
2. The petitioner - the sole accused in Crime bearing
V.C.No.7/2024 of the Vigilance and Anti-Corruption Bureau,
Malappuram - is aggrieved by Annexure-C Order, which
permitted the petitioner's voice sample being taken at the
Forensic Science Laboratory, Thiruvananthapuram on
04.11.2024 at 10.00 a.m.
3. Heard Sri.K.M.Sathyanatha Menon, the learned counsel
for the petitioner and Sri.A.Rajesh, learned Special
Public Prosecutor (Vigilance). Perused the records.
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4. The prosecution case in brief is that, the
petitioner/accused demanded a bribe of Rs.52,000/- for
issuing necessary records from the Village Office, so as
to enable the defacto complainant to apply for 'Pattayam'
in respect of 35 cents of land. The petitioner accordingly
received Rs.30,000/- from the defacto complainant. A trap
was laid, based upon which the crime was registered
against the petitioner.
5. The Order impugned is assailed on various grounds by
the learned counsel for the petitioner. It was first
pointed out that, during the alleged time of conversation
between the defacto complainant and the
petitioner/accused, the petitioner was not an accused,
wherefore, his voice sample cannot be compelled, as per
law. Simultaneous with this point, it was pointed out that
the petitioner was not in the custody of the Investigating
Officer, for which reason also, his voice sample cannot be
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mandated. It was then pointed out that the phenolphthalein
test turned negative as against the petitioner and that
the decoy notes were not seized from the custody of the
petitioner, but from a window which is away from the seat
of the petitioner. It was suggested that the original
conversation as available in the phone could have been
produced, instead of producing a C.D., which allegedly
retrieved such conversation. Learned counsel would submit
that Annexure-A application preferred by the Investigating
Officer would not reveal as to (1) how the alleged
conversation was downloaded from the mobile phone?;
(2) who did it?; and (3) whether it was downloaded from
the phone of the defacto complainant's sister's son? The
C.D. produced was unaccompanied by a certificate under
Section 65B of the Indian Evidence Act, 1872, for which
reason, the CD cannot be accepted. Learned counsel relied
upon the judgments of the Hon'ble Supreme Court in Anvar
v. Basheer [(2014) 10 SCC 473] and Arjun Panditrao
Khotkar v. Kailash Kushanrao Gorantyal and Others [(2020)
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7 SCC 1]. Reliance was placed on a judgment of the
Chhattisgarh High Court in Aasha Lata Soni v. Durgesh
Soni [2023 SCC Online Chh 3959], to point out that
recording a conversation without the petitioner's
knowledge, behind his back, amounts to violation of his
right to privacy, guaranteed under Article 21 of the
Constitution, wherefore, the instant application to take
the voice sample should have been refused. Thus, according
to the learned counsel, without any material, whatsoever,
the petitioner has been directed to supply voice sample,
which renders the impugned Annexure-C Order unsustainable
in law. The petitioner seeks the same to be set aside.
6. Per contra, learned Special Public Prosecutor
(Vigilance) would submit that the mobile phones in
question were seized by the Investigating Officer, as
could be seen from the recitals in paragraph no.10 of the
impugned Order. According to the learned Special Public
Prosecutor, the F.I.R. was registered on 20.06.2024, that
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is to say before the coming into force of the Bharatiya
Nagarik Suraksha Sanhita, 2023 ('B.N.S.S.', for short).
Thus, the investigation which commenced as per the old
Code, will continue as such, as per the provisions of
Section 531(2)(a) of the B.N.S.S. Thus reckoned, the voice
sample is taken, not on the strength of any enabling
provision, but by virtue of the decision of a three Judges
Bench decision of the Hon'ble Supreme Court in Ritesh
Sinha v. State of Uttar Pradesh and Another [2019 (8) SCC
1]. The Bench held that until explicit provisions are
en-grafted to the Code, a Judicial Magistrate must be
conceded the power to order a person to give sample of his
voice for the purpose of investigation of a crime. This
direction was issued by the Supreme Court in exercise of
its powers under Article 142 of the Constitution. Thus,
there is no requirement that the petitioner should be an
accused, or for that matter, he should have been arrested
and in custody at the relevant time. Nevertheless, the
petitioner was both an accused and was also arrested, in
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connection with the subject crime, though he was not in
custody at the time when the alleged conversation took
place, or at the time when, the impugned Order was passed.
According to the learned Special Public Prosecutor, there
is no reason, whatsoever, to interfere with the impugned
Order.
7. Having heard the learned counsel appearing for the
respective parties, this Court finds little merit in the
instant Criminal Miscellaneous Case. The first aspect to
be noticed is that the impugned Order has been passed on
the basis of the declaration of law made by Ritesh Sinha
(supra), which is specifically quoted in paragraph no.11
of the impugned Order. This Court finds little force in
the submission that the petitioner was not an accused at
the time when the alleged conversation took place, or for
that matter, the petitioner was not in judicial custody at
the time when the impugned order was passed. Neither of
the above is a legal requirement to pass an order
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mandating an accused person to give his voice sample. As
regards the former, usually, a conversation which takes
place before the crime, will be propounded as a piece of
evidence, wherefore, the argument that he was not an
accused at the time of the alleged conversation is devoid
of any merit or substance. Similarly, no legal requirement
can be read into the declaration of law made in Ritesh
Sinha (supra), or for that matter Section 349 of the
B.N.S.S, that the accused person should have been in
custody at the time when an order for voice sample has to
be made. While Ritesh Sinha (supra) uses the language 'any
person', Section 349 B.N.S.S. would separately deal with
'any person', by suffixing with the expression 'including
an accused person'. Similarly, the language in the first
proviso to Section 349 is that the person should have been
arrested at some time in connection with the
investigation, which requirement is amply satisfied in the
given facts. If this Court has to go by Ritesh Sinha
(supra), there is no such requirement that the person
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should have been in the custody at the time when the order
for voice sample is made. The requirement in Ritesh Sinha
(supra) is that such an order has to be passed 'for the
purpose of investigation of a crime'. Under Section 349,
the criteria is the satisfaction of the Magistrate that it
is expedient to direct any person to provide his voice
sample, again, for the purposes of any investigation or
proceeding under B.N.S.S. Therefore, the thrust is upon
the question whether the voice sample is required for the
purpose of investigation in a crime.
8. In the instant facts, this Court notice that the
crime in question was registered pursuant to a trap. If,
as contended by the learned counsel for the petitioner,
the phenolphthalein test has turned negative, that is all
the more a reason for the Investigating Agency to produce
whatever evidence possible in support of the prosecution
case. If, as claimed by the Investigating Officer, there
exists a voice clip containing the voice of the
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petitioner, wherein, he had allegedly demanded bribe, the
same would constitute an important evidence in the armoury
of the prosecution. Such an attempt cannot be shut down,
since it has to be conceded that it is fully within the
realm and prerogative of the Investigating Officer to
search, explore and furnish all and whatever legal
evidence possible in support of the prosecution case.
9. Coming to the contention with respect to Section 65B,
the case is only at the investigation stage and the
question of Section 65B applies, when an electronic record
is tendered in the Court for the purpose of evidence. That
apart, in Arjun Panditrao (supra), it was held by the
Supreme Court that a certificate under Section 65B can be
produced subsequently, if the same was omitted to be
produced along with the electronic record, earlier.
10. This Court is not inclined to refuse reliefs on the
basis of the dictum laid down in Aasha Lata Soni (supra)
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of the High Court of Chhattisgarh, for the reason that,
the question in that case arose in connection with an
application filed under Section 125 of the Cr.P.C. There,
the conversation in question will be between the spouses,
which stand on a different footing altogether. A passing
reference is made to the question, whether an accused can
claim the benefit of the right to privacy in Ritesh Sinha
(supra). It was held that the fundamental right of privacy
cannot be construed as absolute and the same will have to
bow down to compelling public interest, which proposition
was laid down after taking into account the nine Judges
Bench decision of the Hon'ble Supreme Court in
K.S.Puttaswamy and Another v. Union of India and Others
[(2017) 10 SCC 1], as well. If that be so, Aasha Lata
Soni (supra) cannot be followed.
11. As to who downloaded the controversial conversation
and whether it was from the phone used by the sister's son
of the defacto complainant etc., are not matters, wherein
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the petitioner/accused has got a say at this stage of
investigation. It is the lookout of the Investigating
Officer to adduce satisfactory evidence in this regard,
during the course of trial, at which point of time the
accused/petitioner - needless to say - will get adequate
opportunity to confront the Investigating Officer or such
other witnesses as regards the modality and the way and
manner in which the conversation was retrieved. At the
present stage, such contentions cannot be propounded as a
reason for not giving the voice sample. The question
whether the phenolphthalein test turned negative and
whether the currency notes were recovered from the body of
the petitioner, or from a nearby window etc., are also not
germane for consideration now.
12. In short, the contentions urged by the petitioner
cannot be recognized in law as a ground to interfere with
the order, which directed the petitioner to provide the
voice sample. In the circumstances, the challenge espoused
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in this Criminal Miscellaneous Case fails, and the same
will stand dismissed.
Sd/-
C. JAYACHANDRAN
JUDGE
TR
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PETITIONER ANNEXURES
Annexure A A TRUE COPY OF THE PETITION FILED
BY THE 1ST RESPONDENT ON THE FILE
OF THE COURT OF ENQUIRY
COMMISSIONER AND SPECIAL JUDGE
(VIGILANCE), KOZHIKODE AS CMP NO.
Annexure B A TRUE COPY OF THE OBJECTION FILED
BY THE PETITIONER/ ACCUSED IN CRL.
M. P NO. 432/2024 IN PCC 3/2024 ON
THE FILE OF THE COURT OF ENQUIRY
COMMISSIONER AND SPECIAL JUDGE
(VIGILANCE), KOZHIKODE
Annexure C A TRUE COPY OF THE ORDER IN CRL. M.
P NO. 432/2024 IN PCC 3/2024 ON THE
FILE OF THE COURT OF ENQUIRY
COMMISSIONER AND SPECIAL JUDGE
(VIGILANCE), KOZHIKODE
