Read Order: Ravi Parkash Sharma Petitioner v. the State of Punjab

Monika Rahar

Chandigarh, March 31, 2022: While allowing Lower Court’s order directing the accused implicated in a corruption case to give voice sample, the Punjab and Haryana High Court has held that the infringement of the Fundamental Right to Privacy cannot be raised to create a bubble to scuttle the investigation nullifying the evidence collected by merely denying that the voice in the recording was not of the petitioner and there was no comparison. 

The Bench of Justice Avneesh Jhingan also added, “With the advancement of technology, the modes of communication are changing. To keep pace with the change, new technology is required to be used for collecting and comparing evidence. One method being tapping of communication devices but after compliance of the procedure laid down. It is in that context that taking of voice samples are necessitated. The samples collected are not evidence in itself, rather are tools for comparison of the voice recording.”

Also, the Court has reiterated that although there is no provision in the Cr.P.C. allowing a  Judicial Magistrate to permit such taking of the voice samples, however, the Supreme Court while exercising its jurisdiction under Article 142 of the Constitution of India, has held 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. 

The facts, in brief, are that an FIR was registered under the Prevention of Corruption Act, 1988 against Dr. Lakhbir Singh Bhaghowalia and Sajan Kumar, who allegedly used to take illegal gratification from Managers and owners of hotels and shops. The present petitioner was also involved in collecting such gratification. The telephone conversation with Dr. Lakhbir Singh Bhaghowalia and Sajan Kumar was taken into possession by the police. 

An application was filed by the prosecution for taking voice sample. The application was allowed by Additional Sessions Judge, Amritsar, hence, the High Court was approached with the present revision petition impugning this order directing the taking of voice samples. 

The counsel for the petitioner argued that the impugned order was in violation of Article 20(3) of the Constitution of India and it infringed the right of privacy. 

Countering this argument at the very outset, the Court opined that the issue raised by counsel for the petitioner was no longer res integra, as the Supreme Court in Ritesh Sinha vs. State of Uttar Pradesh, 2019 (8) SCC 1, held that the directions to take voice sample does not infringe Article 20(3) of the Constitution of India. 

Further, the Court added that voice samples in a sense resemble fingerprints and handwriting, each person has a distinctive voice with characteristic features dictated by vocal cavities and articulates and that the samples are collected after having permission in accordance with the law. Also, it was asserted by Justice Jhingan that the sample taken itself would not be a piece of evidence, rather they are for comparing the evidence already collected. 

On the infringement of the Right to Privacy, the Court opined that the infringement of the Fundamental Right to Privacy cannot be raised to create a bubble to scuttle the investigation nullifying the evidence collected by merely denying that the voice in the recording is not of the petitioner and there being no comparison. 

Further, the Court went on to examine if in the absence of any provision in the Code, a Magistrate can authorize the investigating agency to record the voice sample of the person accused of an offence. Referring to Top Court’s settled law on this issue, the High Court observed that the Apex Court while exercising the jurisdiction vested in the Supreme Court under Article 142 of the Constitution of India, has clarified 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. 

In view of the above, the impugned order was upheld and the petition was dismissed. 

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