Mr. R.K. Handoo, Mr. Yoginder Gaurav and Handoo Mr. Vishwakarma, Advocates v. CENTRAL BUREAU OF INVESTIGATION CBI Building, Lodhi Road, New Delhi

Judgment

1. The present Petition has been preferred under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C), for the quashing and setting aside of the Impugned Order dated 26.10.2021 passed by the Ld. Special Judge (PC Act) (CBI) in RC No. 224 2017 A0001/CBI/AC-VI/SIT, whereby the Petitioner is directed to provide his voice samples for verification and comparison with certain intercepted telephonic conversations. Signature Not Verified DigitallySigned By:RITA SHARMA Signing Date:27.12.2025 13:21:04 CRL.M.C. 2867/2021 Page 1 of 13

2. Briefly stated, it is alleged that between the period of 25.10.2013 to

23.12.2013 and 06.01.2014 to 06.03.2014, the Income Tax Department intercepted telephonic conversations of Mobile Nos. 9810035614 and 9711305614, allegedly belonging to the Petitioner. 3. On 15.02.2014, the Income Tax Department conducted searches at the premises of the Petitioner. Subsequently, the Directorate of Enforcement (ED) filed a Complaint with the CBI on 31.08.2016, requesting the

registration of an FIR based on the said intercepted telephone recordings and Blackberry Messenger (BBM) messages, alleging that the Petitioner was acting as a middleman for certain public servants. 4. Consequently, the CBI registered the subject FIR No. 224/2017 A001 on 16.02.2017 under Section 120-B IPC read with Sections 8, 9, and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. 5. The Petitioner joined the investigation and appeared before the CBI on multiple occasions in 2018. In March 2021, the CBI filed an Application before the Ld. Special Judge seeking directions for the Petitioner to give voice samples for comparison by the Central Forensic Science Laboratory (CFSL) with the intercepted calls obtained from the Income Tax Department. 6. The Ld. Special Judge, vide the Impugned Order dated 26.10.2021, allowed the Application relying primarily on the judgment of the Apex Court in Ritesh Sinha v. State of U.P., (2019) 8 SCC 1. 7. The Petitioner has assailed the Impugned Order on the grounds that while Ritesh Sinha (supra) empowers a Magistrate to order voice sampling, such power must be exercised strictly according to “procedure established by law” under Article 21. The Petitioner submits that there is no “questioned Signature Not Verified DigitallySigned By:RITA SHARMA Signing Date:27.12.2025 13:21:04 CRL.M.C. 2867/2021 Page 2 of 13 voice” seized from the Petitioner during the current investigation, to serve as a basis for comparison. 8. The calls intercepted by the Income Tax Department in 2013-14 constitute “stale” material. Moreover, these intercepts were made without complying with the mandatory guidelines issued by the Apex Court in People‟s Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301, and Rule 419-A of the Indian Telegraph Rules. No order of the Review Committee validating the retention of these intercepts, has been produced. 9. Furthermore, the original recording devices or memory chips, have not been seized or produced. The material constitutes secondary evidence without a Certificate under Section 65-B Evidence Act, making it inherently inadmissible. Therefore, compelling a voice sample to compare with inadmissible material, is an abuse of process. 10. Further, directing voice samples to compare with unverified, potentially manipulated and illegally obtained intercepts, amounts to testimonial compulsion and a fishing expedition by the Agency, to create evidence where none exists. 11. The Petitioner contends that the proviso to Section 311-A CrPC requires the person to be arrested “in connection with such investigation.” Since no incriminating voice recording was seized from the Petitioner during the instant CBI investigation, the prerequisite for ordering a sample is absent. 12. The Respondent/CBI has contested the Petition on the grounds that the Application for voice sampling was strictly in accordance with the law laid down by the Apex Court in Ritesh Sinha (supra), which fills the legislative vacuum and empowers the Judicial Magistrate to order voice Signature Not Verified DigitallySigned By:RITA SHARMA Signing Date:27.12.2025 13:21:04 CRL.M.C. 2867/2021 Page 3 of 13 samples for the purpose of investigation. The voice sample is sought for identification purposes, which does not amount to giving testimony against oneself. Thus, there is no violation of Article 20(3) of the Constitution, as settled in State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808. 13. The CBI asserts that the recordings were obtained officially from the Income Tax Department, which conducted the surveillance under authorization. The investigation is still ongoing. The authenticity, admissibility, and evidentiary value of the intercepted calls (source material) are matters of trial and cannot be prejudged at the stage of investigation, to deny the collection of evidence. Submissions Heard and Record Perused.

14. The central legal issue before this Court is whether the Ld. Special Judge could direct the Petitioner to give voice samples for comparison with intercepted telephonic conversations that are alleged to be old, the legality of which is challenged by the Petitioner. I. Procedural Laws and Constitutionality:

15. At the outset, it is pertinent to observe that the procedure is hand- made and not the mistress of justice and cannot be permitted to thwart the facts finding force in litigation, as was observed in the case of Vatal Nagaraj