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Central Bureau of Investigation v/s Ajay Kumar Gupta


    CRM(M). No. 346 of 2021 & CrlM. No. 1110 of 2021

    Decided On, 27 August 2021

    At, High Court of Jammu and Kashmir

    By, THE HONOURABLE MR. JUSTICE RAJNESH OSWAL

    For the Appellant: Monika Kohli, Advocate. For the Respondent: Satinder Gupta, Advocate.



Judgment Text

1. The present petition has been filed by the petitioner for quashing of the order dated 24.11.2020 passed by the learned Special Judge, Anti Corruption (CBI Cases), Jammu (hereinafter referred to as “the trial Court”), whereby the application filed by the petitioner for obtaining the voice sample of the complainant at the stage of the trial was not allowed.

2. It is stated that the case RC0042019A0001 was registered on the basis of a complaint dated 08.03.2019 made by Sh. Ashwani Kumar, Proprietor of M/s Ashwani Kumar, Parking Contractor, 211, Sec-D Bharat Nagar, Tallab Tillo, Jammu and it was alleged that the respondent-Ajay Gupta, Station Superintendent, Northern Railways, Jammu was demanding Rs. 10,000/- per month from the complainant for allowing him to run operation of his vehicle-parking business smoothly. A trap was laid and the respondent was caught red handed while demanding and accepting bribe of Rs. 10,000/- from the complainant in the presence of independent witnesses. During the course of investigation, the voice sample of Complainant were obtained by the IO vide specimen voice recording memo dated 09.03.2019 and sealed in the presence of independent witnesses. Thereafter, the same was sent in sealed condition with recorded conversation i.e. questioned voice, to CFSL Delhi for opinion. After completion of the investigation, charge-sheet was filed before the trial Court on 09.07.2019. At the time of filing of charge-sheet, the expert opinion on questioned voice of accused and complainant was awaited. The charges were framed by the trial Court on 30.10.2019. The photocopy of the specimen voice recorded memo dated 09.03.2019 is placed on record. It is further stated that vide letter dated 20.01.2020 CFSL, New Delhi has intimated that the Micro SD Card, said to contain the voice sample of the complainant was found blank and therefore, the opinion could not be given and thereafter, on 30.01.2020, the petitioner moved an application before the trial Court for taking the voice sample of complainant on the ground mentioned above, but the learned trial Court vide order dated 24.11.2020 dismissed the said application, which is order impugned. The petitioner has impugned the order on the following grounds:-

(i) That the learned trial Court has failed to interpret the authoritative verdict of the Hon’ble Apex Court in Ritesh Sinha Vs. State of UP; AIR 2019 (SC) 3592 and has erroneously interpreted the verdict and put a limit that such a power can be exercised at the investigation stage only and not during the trial

(ii) That it is a fact that there is no express provision in the Code of Criminal Procedure which gives power to a Magistrate to direct a person to give his voice sample for the purposes of an inquiry, investigation and trial and it was for this reason that the Hon’ble Supreme Court has empowered the Judicial Magistrate to give such directions.

(iii) That in the instant case CBI had already obtained the voice of the complainant during the investigation in the presence of independent witnesses and there is no question of taking the voice sample of the complainant for the first time during the trial.

(iv) That the finding of the trial Court that “the comparison of sample voice with questioned voice of the accused is a supplementary factor to enhance the conclusion of investigation in support of the final report, therefore, the prosecution cannot be allowed to take voice sample of the complainant at the stage of the trial, is not sustainable in the eyes of law.

3. Ms. Monika Kohli, learned counsel for the petitioner argued that it was not for the first time that the voice sample of the complainant was being sought to be taken with the permission of the trial Court but the necessity for obtaining the fresh voice sample arose because of the fact that inadvertently the Micro SD Card said to contain the voice sample of the complainant was found to be blank by the CFSL and pursuant to their letter only, the petitioner laid a motion for seeking permission from the trial Court for taking fresh voice sample of the complainant as the charge-sheet stood filed against the respondent. She further submits that no prejudice shall be caused to the respondent by obtaining the voice sample of the complainant.

4. Per contra, Mr. Satinder Gupta, learned counsel for the respondent vehemently argued that the voice sample of the complainant cannot be taken after the trial has commenced and as such, the learned trial court has rightly rejected the application.

5. Heard and perused the record.

6. The undisputed fact remains that the voice sample of the complainant was initially taken vide specimen voice recorded memo dated 09.03.2019, i.e. during the course of investigation and in the chargesheet, it was specifically stated that for the identification of the questioned voices of the accused and the complainant in the recorded conversations, CFSL opinion has been sought and the same is awaited. It was also stated that after receiving the said report, that will be submitted before the trial Court. The petitioner came to know about the blank Micro SD Card only when vide letter dated 20.01.2020, CFSL New Delhi, intimated the respondent that the Micro SD Card was blank. This is also evident that there is no express provision in the Code of Criminal Procedure that empowers the Magistrate to direct a person to give his voice sample for the purposes of inquiry or investigation. The Hon’ble Apex Court in Ritesh Sinha (supra) has held as under:-

“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, hence the impugned order of Ld. Trial court is liable to be set aside.”

7. Now, it is to be seen whether such direction can be issued after the charge-sheet has been laid and the charges framed. As already noted above, the voice sample of the complainant was already taken and this fact has not been disputed by the respondent So it is not that for the first time the voice sample of the complainant is being obtained after the commencement of trial but his voice sample was already stored in a Micro SD Card, that was subsequently found to be blank by the CFSL, New Delhi. The respondent has not been able to demonstrate that even during investigation the voice sample of the complainant could not have been taken.

8. It is true that there is no express provision in the Code of Criminal Procedure that contemplates a situation like this. Now it is to be seen as to whether any prejudice shall be caused to the respondent in the event voice sample of the complainant is obtained again. This court is of the considered opinion that once the voice sample of the complainant was already taken during the investigation and just because of the fact that the Micro SD card was found to be blank by the CFSL Delhi subsequently, no prejudice shall be caused to the respondent if the voice sample of the respondent is obtained again even if the charge sheet has been filed. Even otherwise, no witness has been examined till date and the respondent is well within his right to raise any issue with

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regard to the relevance/admissibility of any such evidence with regard to the voice sample during the course of the trial. The purpose of investigation or trial is to arrive at truth. Mere trivial technicalities cannot thwart the said goal. More so, it is yet to be determined as to whether the voice in the recorded conversation of the complainant and the respondent matches with their specimen voice memos or not. The expert report may be in favour of the either of the parties. The learned trial court has prejudged the issue. 9. Viewed thus, the order passed by the learned trial Court is not sustainable in the eyes of law and the same is set aside and the petitioner is permitted to take the specimen voice sample of the complainant afresh. 10. The present petition, is, accordingly, disposed of.
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