Courts Can Authorize Investigating Agency To Obtain Voice Samples of Accused, But Compliance With Telegraph Act Provisions Must: Delhi HC

It was further observed that in accordance with Section 173(6) of CrPC, if a police officer believes that disclosure of certain statement to the accused is not essential in the interest of justice, or would be inexpedient in public interest, its copy may be withheld from him.

The issue had arisen when an FIR under Section 120B of IPC and Sections 25/54/59 of the Arms Act was registered against the petitioner on the basis of 'technical surveillance', following interception of his phone.

The petitioner was arrested, but he subsequently obtained bail. The prosecution moved an application before a Magistrate, seeking permission to obtain the petitioner's voice samples, which was allowed. The Magistrate's order was challenged by the petitioner, but the same was confirmed by the Sessions Judge. Aggrieved, he approached the High Court.

The prosecution's case was that through technical surveillance, it had been found that the petitioner conspired to murder one Tikka. For the said purpose, he had contacted one Shaukat Pasha, a gangster, lodged in Central Tihar jail and together, the two had hired contract killers for executing the conspiracy.

The voice samples of 2 accused persons had been obtained, but the same could not be done in the petitioner's case as the court had granted a stay in his favor in the present proceedings.

Relying on the Supreme Court's judgement in Ritesh Sinha (Supra), State's counsel pled that prosecution has power to obtain the petitioner's voice samples. Besides, no prejudice would be caused to the petitioner if he gave his voice samples, as the legality of the interception could be contested at trial.

State's counsel also placed before the court a communication from the office of Addl. Commissioner of Police, Crime, Delhi to show that interception was done in compliance of provisions of the Telegraph Act. He submitted that the communication could not be shared with the petitioner, as it would violate the privacy of other persons whose numbers were mentioned therein.

The petitioner's counsel, on the other hand, contended that the technical surveillance was not in accordance with provisions of the Telegraph Act. He also argued that the decision in Ritesh Sinha (Supra) ought to be disregarded by the court, as the judgment in the case was in the nature of legislating.

Notably, the Bench in Ritesh Sinha (Supra), in exercise of jurisdiction under Article 142 of the Constitution, had observed that fundamental right to privacy was subject to public interest and concluded,

“…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.”

After hearing rival submissions, Justice Bansal rejected the petitioner's contention and held that the decision in Ritesh Sinha (Supra) was binding.

“…the Supreme Court has the power to lay down guidelines/directions where there is a legislative vacuum till the time the legislature enacts a law.”

It was considered that the State had produced in a sealed cover the permission obtained by the prosecution from the competent authority in terms of Section 5(2) of the Telegraph Act to intercept the number of the accused.

Insofar as the petitioner had raised a grievance that the same was not shared with him, the court agreed with State's counsel that sharing of the communication would violate privacy of other persons, and opined that privilege had rightly been claimed.

It also acknowledged that no prejudice would be caused to the petitioner if he was directed to give his voice samples at this stage, as charged had not yet been framed.

As the court was prima facie satisfied that provisions of Telegraph Act were complied with, the petition was dismissed.

Advocates Vaibhav Sharma and Urvashi Sharma appeared for petitioner

APP Ritesh Kumar Bahri appeared for State

Case Title: Sanjiv Kumar v. The State Govt of NCT of Delhi

Citation: 2023 LiveLaw (Del) 1251