Voice sample itself is not evidence, rather it is for comparing evidence already collected: P&H HC while upholding Order asking employee accused of demanding bribe to give such sample

Read Order: Sunil Kumar Gulati Petitioner v. State of Punjab and another

Monika Rahar

Chandigarh, March 30, 2022: The Punjab and Haryana High Court has upheld  an Order directing an employee of the Land Branch of Municipal Corporation, Patiala  accused of demanding a bribe from the complainant, to give voice sample 

While allowing the petition the Court made reference to the law laid down by the Apex Court in Ritesh Sinha Vs. State of Uttar Pradesh (2019) 8 SCC 1 wherein it was held that the direction to give voice sample does not infringe Article 20(3) of the Constitution of India as such sample is collected only for purpose of comparison and thus is not a testimony. 

The Bench of Justice Avneesh Jhingan also expounded, “The samples are collected after having permission in accordance with the law and the sample taken itself would not be a piece of evidence, rather they are for comparing the evidence already collected.”

In this case, the case of the complainant (second respondent) was that the petitioner, posted in the Land Branch of Municipal Corporation, Patiala,  made an illegal demand of  Rs. 25,000/- for getting the shutter of the shop open. The complainant’s shop was sealed on account of unauthorized construction made by him. 

The amount demanded was to be paid to Rakesh Behal (known to the complainant). On complaint, a trap was laid and Rakesh Behal was apprehended red-handed. A telephonic conversation about the demand for illegal gratification was recorded and the memory card was handed over to the investigation agency. The Vigilance Bureau moved an application for taking voice samples of Rakesh Behal and the petitioner. This application was opposed by the petitioner, however, the application was allowed and the petitioner was directed to give his voice sample. Hence the present petition was filed by the petitioner. 

The case of the petitioner’s counsel was that the directions issued in the impugned order were for purpose of identifying the petitioner consequently resulting in self-incrimination by the accused. It was further argued that the petitioner’s right to privacy was invaded and that the complainant could not have recorded the conversation without the consent of the petitioner. 

On the issue of recording voice samples and the concerns governing self-incrimination, the High Court made reference to the law settled by the Supreme Court in Ritesh Sinha’s Case (Supra) wherein it was held that the voice sample is only for purpose of comparison and is not a testimony. Further, it was held that the Right to Privacy cannot be construed as absolute. 

Also, the Court highlighted that the Supreme Court while dealing with the question of 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 the investigation, considering the earlier decision in State of Bombay vs. Kathi Kalu Oghad, AIR 1961 SC 1808, answered the question in negative. 

Thus, against this backdrop, the High Court held that voice sample in a sense resembles fingerprints and handwriting, each person has a distinctive voice with characteristic features dictated by vocal cavities and articulates. The Court further went on to add that the samples are collected after having permission in accordance with the law and that the sample taken itself would not be evidence, rather they are for comparing the evidence already collected.

Further, regarding the third contention of the petitioner’s counsel that the complainant could not place reliance on the memory card without certification under Section 65-B of the Evidence Act, the Court opined that the application for the voice sample was filed for further investigation of the matter, it was not the stage for the production of a certificate under Section 65-B of the Act, even if required.

Elaborating on this issue further, the Court made reference to the Supreme Court in the case of Arjun Pandit Rao Khotkar Vs. Kailash Kushanrao Gorantyal and others (2020) 7 SCC 1, wherein it was held that Section 65-B (4) of the Act does not mention the stage of furnishing the certificate. Another decision of the Top Court was relied upon wherein it was held that the failure to produce a certificate under Section 65-B (4) of the Act at the stage of charge sheet will not be fatal. 

Thus, in the background of this legal position, the Court opined that the relevancy of the recording would be determined only after a comparison of the voice sample, and the requirement of certification under Section 65-B of the Act would arise later when recording is given in evidence. Also, the argument that the complainant could not have recorded the conversation without the consent of the petitioner was rejected by the Court on the ground that seeking the consent of the petitioner would have defeated the very purpose of the recording. 

Accordingly, the impugned order allowing the recording of voice samples of the petitioner was upheld and the petition was dismissed by the Court.