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. The aforesaid has been relied upon by The High Court of Jammu & Kashmir and Ladakh while adjudicating the case of Central Bureau of Investigation v. Ajay Kumar Gupta [ CRM(M) No. 346/2021] which was decided upon by a single judge bench comprising Justice Rajnesh Oswal on 27th August 2021.
It is stated that the case \was registered on the basis of a complaint made by Sh. Ashwani Kumar, 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 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. At the time of filing of charge-sheet, the expert opinion on questioned voice of accused and complainant was awaited. It is further stated that vide letter. 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, 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 dismissed the said application, The present petition has been filed by the petitioner for quashing of the order passed by the learned Special Judge, Anti Corruption (CBI Cases), Jammu, whereby the application filed by the petitioner for obtaining the voice sample of the complainant at the stage of the trial was not allowed.
The court perused the facts and arguments presented. it was of the opinion that “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 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. 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.”