High Court
Case Details
Court No. - 87 Case :- MATTERS UNDER ARTICLE 227 No. - 1025 of 2022 Petitioner :- Ashfaq @ Mohammed Ashwaaq Respondent :- State of U.P. and Another Counsel for Petitioner :- Saiyad Iqbal Ahmed Counsel for Respondent :- G.A. Hon'ble Dinesh Pathak,J.
Legal Reasoning
Heard learned counsel for the parties. Petitioner has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India challenging the order dated 25.01.2021 passed by the Additional Session Judge, Court No. 1, Moradabad in Criminal Revision No. 86 of 2020, whereby the court has relegated the parties before the trial court to decide the application dated 10.10.2020 moved on behalf of the prosecution/investigating officer to take a voice sample of present petitioner (accused) and one co-accused namely Shikha. It is submitted that there is no provision of taking voice sample in the Criminal Procedure Code and forcing accused person to given voice sample is infringement of his fundamental right guaranteed under Article 20(3) of the Constitution of India. It is further submitted that the learned revisional court has failed to appreciate the affidavit filed by the first informant (respondent no. 2) that no ransom was demanded from him and his son has already reached at home. In light of the aforesaid affidavit, the voice sample has got no relevance in the present matter. It is further submitted that the accused have already enlarged on bail by this Court. Per contra, learned A.G.A. has opposed the petition and contended that there is no bar in taking voice sample of the accused persons, who are allegedly involved in the commission of crime as mentioned in the first information report. There is no illegality, perversity and ambiguity in the impugned order to be interfered in exercise of supervisory jurisdiction, accordingly the petition is liable to be dismissed. I have carefully considered the rival submissions advanced by the learned counsel for the parties and perused the record. The question for consideration in the present petition lies in narrow campos as to whether Court has right to issue a direction for taking voice sample of the accused or not. As per first information report version, son of the first informant (respondent no. 2) has been kidnapped by some unknown person on 07.08.2020 and he has given some phone numbers on which he has received the demand of ransom amounting Rs. 30 lacs. During investigation, investigating officer has prepared audio C.D. of the conversation took place between the first informant and the accused Ashfaq, likewise he has also prepared audio C.D. of conversation between the victim (minor boy) with Shiksha (accused). After due investigation, the investigating officer has submitted the charge sheet arraigning the present petitioner (Ashfaq) under Section 364-A I.P.C. Likewise, Smt. Shiksha (co-accused) has been arraigned as an accused under Section 120-B, 114, 109 read with 164-A and 201 I.P.C. Third accused Imran Khan is also arraigned as an accused under Section 202 I.P.C. While submitting the charge sheet further investigation against the accused has been shown to be continued under Section 173(8) of Cr.P.C. During further investigation, investigating officer has moved an application dated 10.10.2020 seeking permission from the court to take voice sample of accused, namely, Ashfaq and Shikha (who were at the relevant time languishing in jail). Learned Magistrate has rejected the aforesaid application, vide order dated 21.10.2020 (Annexure No. 6) with an observation of infringement of legal right of the accused as guaranteed under Article 20(3) of the Constitution of India. Having being aggrieved with the order passed by the learned Magistrate, State has preferred a revision, which was allowed and remanded back by the revisional court, vide order dated 25.01.2021, with an observation to decide the application dated 10.10.2020 de novo, after giving an opportunity of hearing to the parties, in light of the directions as made in the order passed by the revisional court. While passing the order dated 25.01.2020 learned revisional court has relied upon the dictum of Hon’ble Supreme Court in the case of Ritesh Sinha vs. State of Uttar Pradesh & Anr, reported in 2020 (110) ACC 290. The relevant paragraph no. 25 of the aforesaid judgment is being quoted herein below:-
Decision
“25. In the light of the above discussions, 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. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India. We order accordingly and consequently dispose the appeals in terms of the above.” Learned counsel for the petitioner has emphasized the provisions as enunciated under Article 20(3) of the Constitution of India, which runs as follows:- “20. Protection in respect of conviction for offences.- (1)…. (2)…. (3) No person accused of any offence shall be compelled to be a witness a against himself.” Considering the dictum of Hon’ble Supreme Court in the case of Ritesh Sinha (supra), this Court disagree with the submission as advanced by the counsel for the petitioner, who is tying to demonstrate the infringement of fundamental right of the petitioner as guaranteed under Article 20(3) of the Constitution of India. Learned revisional court has came to the conclusion in light of the observation made by the Hon’ble Supreme Court in the case of Ritesh Sinha (supra) and rightly relegated the parties before the trial court to decide the application dated 10.10.2020 moved by investigating officer. I do not find any merit in the submissions advanced by the counsel for the petitioner. No justifiable ground is made out to interfere in the impugned order passed by the revisional court. Disposal of the application dated 10.10.2020 is still open by relegating the parties before the trial court, who is expected to decide the same in accordance with law, after giving opportunity of hearing to the parties concerned. The petitioner has still an opportunity to raise all possible objections before the trial court as submitted before this Court. There is no perversity, illegality and ambiguity in the impugned order passed by the revisional court. Accordingly, the present petition, being misconceived and devoid of merit, is dismissed with no order as to cost. Order Date :- 3.3.2022 Pkb/ Digitally signed by PRAMOD KUMAR BAJPAI Date: 2022.03.09 14:56:00 IST Reason: Location: High Court of Judicature at Allahabad