High Court
Legal Reasoning
1 Cri.WP-1782-2024.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1782 OF 20241.Abhijit Ankush ShelkeAge : 40 years, Occ.Service2.Ankish Nana ShelkeAge : 73 years, Occ.Pension and Agri.3.Sau Bebi @ Nalini Ankush Shelke (Dead)Above all are R/o.Wadegavhan,Tq.Parner,Dist.Ahmednagar.4.Sau Archana Vilas AutiAge : 48 years, Occ.ServiceR/o.Z.P.Primary School, Godanager,Padegaon Phata, Tq.Shrigonda,Dist.Ahmednagar.5.Sau.Anuradha Tushar KhilariAge : 45 years, Occ.HouseholdR/o. Bhushannagar,Behind ChurchKedgaon,Tq.and Dist.Ahmednagar. ...PetitionersVersus1.Sau.Shubhangi Abhijit ShelkeAge : 37 years, Occ.Service2.Shaurya @ Shambhu Abhijit ShelkeAge : 08 years, Occ.EducationSince minor hence through his Mother Sau.Shubhangi Abhijit ShelkeAbove both are R/o.C/o. Dattatraya Nanasaheb Pawar,Adarshnagar,OldWaghunde Road,Supa, Tq.ParnerDist.Ahmednagar. ...Respondents 2 Cri.WP-1782-2024.doc *****Advocate for Petitioners : Mr. Nikhil P.GhanwatAdvocate for Respondent Nos. 1 and 2 : Mr.Mukul S.Kulkarni****** CORAM : SHAILESH P. BRAHME, J. RESERVED ON : 07th MAY 2025PRONOUNCED ON : 09th MAY 2025JUDGMENT :.Rule. Rule is made returnable forthwith. Heard both sides withtheir consent finally at the admission stage. 2.Petitioners are challenging order dated 14.02.2024 passedbelow Exhibit-114 by Judicial Magistrate First Class, Parner inCriminal M.A No. 75 of 2013, refusing to direct the Respondent togive her voice sample for referring it to authorize forensiclaboratory for verification/identification of her recorded voice incompact disc and the memory card. The Respondents haveinstituted proceedings under Sections 12, 18, 19, 20 and 22 of ‘TheProtection Of Women From Domestic Violence Act, 2005’ (in shortAct of 2005) against the Petitioners in Criminal M.A No. 75 of 2013which are at the stage of arguments.3.The controversy between the parties is over domesticviolence. Petitioner No.1 and Respondent No.1 were married on05.05.2009. Respondent No.2 is the son born out of the said 3 Cri.WP-1782-2024.doc wedlock. Due to matrimonial disputes, they are residing separately.Both of them are working as teachers. By way of defencepetitioners have raised a plea that Respondent No.1 is having extramarital relations with one Mr. Sanjay Dalvi and he claims that theconversation between Respondent No.1 and her paramour has beenrecorded in cellphone through memory card and being convertedinto compact disc. The memory card and the compact disc areproduced on record and marked as Article 1 and Article 2.4.A forensic report is secured by the petitioners which is atExhibit 96. A certificate under Section 65(B) of evidence act wasissued on 18.12.2017 which was marked as Exhibit-106. Thetranscript of the conversation was produced by the petitioners onrecord which is marked as Exhibit-109. Petitioners examinedwitness No.3/Mr.Nilesh Ralebhat who issued Exhibit-96.5.Petitioners submitted application Exhibit-107 for direction toverify the contents of compact disc and the transcript. It wasallowed by order dated 07.02.2018. Respondents had challengedthat order in Criminal Writ Petition No.354 of 2018 but it wasdismissed on 24.06.2019.6.Petitioners submitted application Exhibit-114 for directing theRespondent No.1 to provide her specimen voice sample forverification and identification to be done by authorized forensiclaboratory. The said application was contested by theRespondents. By impugned order it was rejected. Hence, the
Legal Reasoning
4 Cri.WP-1782-2024.doc parties are before this Court.7.Learned Counsel Mr. Nikhil Ghanwat appearing for thepetitioners submits that during the course of arguments petitionerslearnt that Respondent No.1 has denied her voice recorded in thecompact disc and that necessitated them to file applicationExhibit-114 which should not have been rejected. It is submittedthat the Respondent No.1 is bound to provide voice sample and tobuttress the submission reliance is placed on the judgment ofGujarat High Court in the matter of Jil w/o.Priyanka Choksi vs.State of Gujarat & Anr. reported in 2024 ALL MR(Cri).128, RiteshSinha vs. State of Uttar Pradesh and Anr. reported in AIR 2019 SC3592 and M/s.Janchaitanya Housing Ltd.,Ameerpet vs.M/s.DivyaFinanciers reported in AIR 2005 SC 3353. It is vehemently submittedthat the provisions of Articles 20 and 21 of the Constitution of Indiawould not be an impediment for compelling a party to give her voicesample in the proceedings of domestic violence. It is furthersubmitted that the proceedings under the domestic violence actare quasi civil in nature and Court has ample power to compel aparty to give voice sample. It is contended that compact disc andmemory card are proved by Exhibit-96,106 and 109 and thedeposition of Mr.Nilesh Ralebhat.8.Per contra, Learned Counsel Mr.Mukul Kulkarni forRespondents would resist the petition on the basis of affidavit-in-reply. It is submitted that the application Exhibit-114 was moved 5 Cri.WP-1782-2024.doc belatedly. The intention of the petitioners is to protract theproceedings. It is further submitted that the compact disc andmemory card have not been proved by following due procedure oflaw and therefore it would be futile exercise to verify the contentstherein. It is further submitted that the primary evidence of theelectronic material is not before the Court and there is no need tocompel the Respondent No.1 to give her voice sample. It is furthersubmitted that giving no objection for exhibiting transcript atExhibit-109 would not absolve the petitioners from proving theelectronic evidence. 9.Learned Counsel further submits that plea of extra maritalrelationship was taken by the Petitioners in HMP No. 250/2013 filedby husband for dissolution of marriage and negatived by thecompetent Court. His petition for dissolution of marriage wasdismissed by judgment and order dated 01.07.2022. It is submittedthat material admission are elucidated from the deposition ofMr.Nilesh Ralebhat. The evidence on record shows that originalelectronic evidence is not before the Court and the compact discand memory card are inadmissible. 10.After having heard both sides what needs to be adjudicatedin the present matter is as to whether the Respondent No.1 can becompelled to give her voice sample for soliciting report ofverification from the forensic laboratory. It is necessary to focus onthe relevant fact that petitioners have come up with plea thatRespondent No.1 is having extra marital relations. Her conversation 6 Cri.WP-1782-2024.doc with her paramour has been recorded in a cell-phone. A memorycard and compact disc which are marked as Article 1 and 2 areproduced alongwith certificate under section 65(B) as Exhibit-106on record. A transcript of the conversation prepared by thepetitioners has been marked as Exhibit-109. It further reveals fromrecord that the transcript has been verified by the officers of theCourt to be as per the contents of the compact disc.11.The proceedings between the parties are quasi-civil andquasi-criminal in nature. Petitioners cannot be termed as accusedpersons. As per Section 28(2) of domestic violence act, Magistratehas power to follow the procedure for disposal of application underSection 12 of PWDVA Act. There is no provisions to compel theparty to the proceedings under domestic violence act to give voicesample. Article 20(2) of the Constitution of India can not be madeapplicable.12.Parties adduced oral evidence. Petitioner adduced evidenceof witness no.3/Nilesh Ralebhat. His deposition was recorded ontwo occasions. Both depositions are placed on record. He is digitalforensic examiner who issued Digital Forensic Report which is atExhibit-96. It can be treated to be report of hash value of thecompact disc having following remark: “Given digital evidence is not tampered and clean source filedetected with known file format with good health”13.He has proved the said report. He has given admissions in his 7 Cri.WP-1782-2024.doc cross-examination. In his further deposition, memory card andcompact disc are marked as Articles 1 and 2. His evidence needs tobe appreciated at the conclusion of the proceedings alongwithother material. The electronic material pressed into service by thepetitioners is supported by deposition of expert referred above.Digital forensic report at Exhibit-96, certificate under section 65(B)of Evidence Act at Exhibit-106 and transcript of the conversationat Exhibit-109. Prima facie material placed on record has probativevalue subject to further deliberations and consideration at theconcluding stages before the trial court. I am therefore not inclinedto accept the submissions of advocate Mr.Kulkarni that memorycard and compact disc which are marked as Articles 1 and 2 arenot admissible in evidence. 14.The probative value of electronic material can be gone intoduring the course of trial. At this stage, it is inappropriate todiscard the material on the ground that original was not placed onrecord or source and the genuineness of the electronic material isdoubtful. This Court can not be oblivious of the fact that transcriptat Exhibit-109 runs into 35 pages disclose prolonged conversationon different occasions. Order passed below Exhibit-107 on07.02.2018 was subjected to the challenge in Criminal Writ PetitionNo.354 of 2018. No interference was caused in the impugned order.The observations in paragraph no.2 of the order of 24.06.2019 ofLearned Single Judge would not be interpreted to be detrimental tothe probative value of the electronic record. Those are prima facieobservations. The electronic record has to be tested during the 8 Cri.WP-1782-2024.doc course of conclusion of the trial. I therefore overrule the objectionsof the respondents that exercise of soliciting voice sample is futileor uncalled for.15.I have gone through the judgment passed by competent courtin H.M.P No.250 of 2013 discarding plea raised by the petitionerregarding extra marital relationship. The electronic record and theoral evidence which is before the trial magistrate was not beforethe competent court deciding Hindu Marriage Petition. Therefore,findings recorded in paragraph Nos.23 and 24 of the judgment arenot binding. The trial magistrate is not precluded from examiningthe plea of extra marital relationship independently on the basis ofthe evidence on record. 16.Respondent was cross-examined in the present matter andshe has already denied the allegation of extra marital relations. Itwas possible for the petitioner to file application soliciting voicesample on earlier occasion. However the stage of recording ofevidence is not over. Application Exhibit-114 can not be rejected onthe ground of delay. 17.Learned counsel Mr.Kulkarni is right in his submission thatone of the reasons cited in the application at Exhibit-114 ismisconceived when the respondent is denying the plea of extramarital relations as well as recording of her conversation with herparamour. There was no need for her to get her voice sampletested. But solely on that ground application Exhibit-114 can not berejected. The submission of the respondents that original cell 9 Cri.WP-1782-2024.doc phone or the computer is not on record hence article 1 and 2cannot be relied, has not merit. It would be the lookout of the trialcourt to appreciate probative value. 18.Petitioner has placed reliance on the judgment ofM/s.Janchaitanya Housing Ltd.,Ameerpet (supra). In that caseSupreme Court was dealing with a civil matter and the defendanthad solicited direction to send pro-note to the handwriting expertfor comparing the signature thereon with the signatures ofvakalatnama, written statements and deposition. In those contextthe observations in paragraph Nos.14 and 15 have been made.Those can not enure to the benefit of the petitioner. 19.Reliance is placed on the judgment the Supreme Court inRitesh Sinha vs. State of Uttar Pradesh and Anr. reported in AIR2019 SC 3592. That was a case of reference before larger bench.Following questions were referred for the adjudication : 5. Two principal questions arose for determination of the appealwhich have been set out in the order of Justice Ranjana PrakashDesai dated 7th December, 2012 in the following terms. (1) Whether Article 20(3) of the Constitution of India, whichprotects a person Accused of an offence from being compelled to be awitness against himself, extends to protecting such an Accused frombeing compelled to give his voice sample during the course ofinvestigation into an offence? (2) Assuming that there is no violation of Article 20(3) of theConstitution of India, whether in the absence of any provision in theCode, can a Magistrate authorize the investigating agency to recordthe voice sample of the person Accused of an offence?
Decision
10 Cri.WP-1782-2024.doc 20.So far as first question is concerned, it was held that voicesample is not evidence and it is answered in negative. For secondquestion following are observations :24. Would a judicial order compelling a person to give a sample of hisvoice violate the fundamental right to privacy Under Article 20(3) ofthe Constitution, is the next question. The issue is interesting anddebatable but not having been argued before us it will suffice to notethat in view of the opinion rendered by this Court in Modern DentalCollege and Research Centre and Ors. v. State of Madhya Pradeshand Ors. (2016) 7 SCC 353, Gobind v. State of Madhya Pradesh andAnr. (1975) 2 SCC 148 and the Nine Judge's Bench of this Court inK.S. Puttaswamy and Anr. v. Union of India and Ors. (2017) 10 SCC1 the fundamental right to privacy cannot be construed as absoluteand but must bow down to compelling public interest. We refrainfrom any further discussion and consider it appropriate not to recordany further observation on an issue not specifically raised before us.25. In the light of the above discussions, we unhesitatingly take theview that until explicit provisions are engrafted in the Code ofCriminal Procedure by Parliament, a Judicial Magistrate must beconceded the power to order a person to give a sample of his voice forthe purpose of investigation of a crime. Such power has to beconferred on a Magistrate by a process of judicial interpretation andin exercise of jurisdiction vested in this Court Under Article 142 ofthe Constitution of India. We order accordingly and consequentlydispose the appeals in terms of the above.21.Reliance of the petitioner on the judgment of Gujarat HighCourt of Learned Single Judge in the matter of Jil w/o.PriyankaChoksi (supra) can not be said to be misplaced. It has a persuasivevalue because proceedings in that case were also under domesticviolence act. The voice sample of members of the family weresolicited to be referred for the verification by wife which was 11 Cri.WP-1782-2024.doc declined by the trial magistrate. Against that appeal was preferredwhich was also dismissed and thus the matter was before the HighCourt. It was observed that wife who had approached High Courthad identified voice of her husband and other members. A report ofhash value, certificate under section 65(B) of Evidence Act andtranscript of conversation were on record. Following paragraphsare relevant :“18. This matter is also required to be appreciated from differentangle where the proceedings under the DV Act are between theaggrieved who would be the women which includes the wife and therespondent who would include the husband and the family members.The proceedings are for the protection of the rights of the women whoare the victims of violence and which aims at preventing of suchoccurrence of domestic violence in the society. The learnedMagistrates who are dealing with the cases under the DV Act arerequired to keep in mind the avowed object of the Act. Thus, in viewof that object, the Magistrates are given the authority under Section28(2) to lay down its own procedure for the disposal of the applicationunder Section 12 or sub-section (2) of Section 23. Every proceedingsshould be so conducted which would be inclusive in nature. Thelegislature has also intended to assist the Magistrate in discharge ofthe function of the Act to take the services of the protection officers.It becomes the duty of the protection officers to assist the Magistrateand to make a domestic incident report on receipt of the complaint ofdomestic violence. The application under Section 12 of the DV Actcan be moved by the aggrieved person or the protection officer or anysuch person on behalf of the aggrieved may present an application tothe Magistrate seeking one or more relief under the DV Act. The saidprovision which gives authority to the concerned to move theMagistrate is to ensure that there is no further perpetration of thedomestic violence in the society. When the aid of the protection officerhas become mandatory and the proceedings with the service ofcouncilors as well as service provides and with the assistance ofwelfare expert, the Magistrate is equipped with all the assistance todeal with the proceedings under the DV Act. Section 28(2) of the DVAct gives a wide power to the Magistrate to adopt his own procedurefor the disposal of the application under Section 12. The rejection of 12 Cri.WP-1782-2024.doc the application Exh.46 and Criminal Misc. Application no. 12 of 2016is not in conformity of the object which is sought to be achievedthrough provision of the DV Act. The learned Magistrate dealingwith the trial under the DV Act has to keep in mind that thedomestic violence complaint by the women is in a household whereshe is surrounded by the family members of the husband. She wouldnot have any friend in the matrimonial family. The law would only beher friend supporting her in the family. Latest development oftechnology would assist her and help her to bring her case ofdomestic violence suffered by her in the shared household. Suchevidence on record should be accepted by the learned Magistratewithout asking for the extraordinary proof of such evidence. In familymatters, the Courts have all the authority to take into the trial allthe reports, statements, documents, information on matters whichwould assist the Court in effective decision of the dispute whethersuch documents are relevant or admissible under the IndianEvidence Act. The analogy can be drawn through the provision ofSection 14 Family Courts Act, which read as under:- "14. Application of Indian Evidence Act, 1872.- A FamilyCourt may receive as evidence any report, statement, documents,information or matter that may, in its opinion, assist it to dealeffectually with a dispute, whether or not the same would beotherwise relevant or admissible under the Indian Evidence Act,1872 (1 of 1872)."19. In the family matters, all such documents would becomeadmissible irrespective that those documents become relevant or notor could not be proved in accordance to the Indian Evidence Act. Herein this case, the petitioner had tried to assist the Court by making aprayer by moving application Exh.46 to get further evidence for theCD which she had produced on record. The report of the FSLauthority would have been for the assistance of the Court. The CDitself becomes an admissible evidence in view of the decision in thecase of R.M. Malkani (supra) and Ziyauddin Burhannuddin Bukhari(supra), more so being a matrimonial matter, the parties need notprove the documents or the statement or any other report inaccordance to the Indian Evidence Act, without even falling for therelevancy or the admissibility of all those documents, which becomepart of the trial, it gets admitted as evidence. Here in the presentcase, when the wife has already produced the CD and transcript of 13 Cri.WP-1782-2024.doc the CD on record, identifying the voice of the husband and otherfamily members, she need not prove more than that on record.However, to assist the Court and to prove the reliability of the CD,she has placed on record the hash value and even the certificateunder Section 65B..The identification of the voice would not be question, since itis the wife who is identifying the voice of husband and in-laws withwhom she had stayed together during the matrimonial life. Thoughrecording would be without the knowledge of husband and familymembers but the conversation between the persons recorded andplaced on record by way of CD is relevant to the matter in issue ofdomestic violence. The wife by producing the hash value and Section65B certificate as per the Indian Evidence Act has prima facie provedthat there is no erasing or tampering in the recorded conversation.Now the issue which relates is whether the Magistrate has the powerto direct the person to give voice samples. It becomes relevant to notethat the proceedings before the Judicial Magistrate are under DV Actand the proceedings are dealt with as per the criminal procedureCode. As per the provision of law, the respondent cannot beconsidered as an 'Accused' till there is breach of protection order.Here the prayer was not for a direction to any police to collect voicesample of any accused, but an order to both the parties, for the givingtheir voice sample.”22.In the proceedings under domestic violence act, the partiesare not informant and accused in the sense of criminaljurisprudence. They are in domestic relationship. Non applicantswould not stand for trial for any offence. Therefore, principles ofArticle 20(3) of the Constitution of India are not attracted. In thematters of compulsion to offer the voice sample, the SupremeCourt Ritesh Sinha (supra) is skeptical. It is not laid down that aperson can not be compelled to give sample of voice. On thecontrary, Magistrate is recorded to be conceded with the power toorder a person to give a sample of his voice. Hence, the findings 14 Cri.WP-1782-2024.doc recorded by the Learned Judge in impugned order areunsustainable.23.When High Court is considering the matter for direction to aperson to give voice sample, it is permissible to have recourse toSection 482 of Cr.P.C.(Section 528 of B.N.S.S). Magistrate in thematters of domestic violence has power to adopt the procedure asper Section 28(2) of the Act. Exercise of such power depends onthe facts and circumstances of each case. No straight jacketformulae can be laid down. If there is adequate material on recordhaving potential to prove the relevant facts, a person can becompelled to give voice sample. Such power is conceded with theMagistrate. Due to advent of technology, electronic evidence isbeing introduced. The electronic evidence is replacing conventionalevidence. There is more need to invest such powers to theMagistrate who is a fact finding authority. 24.I find force in the submissions of learned counsel for thepetitioners. Respondent is bound to give her voice sample to bereferred to the forensic laboratory for verification. Hence, I passfollowing order :ORDER 1.Writ Petition is allowed. 2.Impugned order dated 14.02.2024 passed byLearned Judicial Magistrate First Class, Parner is 15 Cri.WP-1782-2024.doc quashed and set-aside and application Exhibit-114stands allowed.3.Respondent shall tender her voice sample withina period of three weeks which shall immediately referredto the forensic laboratory for verification. 4.Petitioner shall bear the expenses of aboveexercise.5.Rule is made absolute as above. [ SHAILESH P. BRAHME, J.]vsj