[S.349 BNSS] Magistrate Can Direct Any Person To Provide Voice Sample For Purpose Of Investigation: Kerala High Court

“Under Section 349, the criteria is the satisfaction of the Magistrate that it is expedient to direct any person to provide his voice sample, again, for the purposes of the investigation or proceeding under BNSS. Therefore, the thrust is upon the question whether the voice sample is required for the purpose of investigation of the crime.”

The accused had claimed that he was not in custody at the time the order was made and it is liable to be set aside for the reason. The investigating officer submitted before the Court that when the FIR was registered, BNSS was not in force. The officer said that the voice sample was taken based on the decision of the Supreme Court in Ritesh Sinha v State of U.P. and Another (2019) where it was held that until a law is made in this regard, a Judicial Magistrate has the power to order a person to give his voice sample for the purpose of investigation.

Justice C. Jayachandran held that as per Ritesh Sharma and BNSS, the determining factor is whether the voice sample is required for the purpose of investigation.

The Court noted that the first proviso of Section 349 only mandates that the person should have been arrested at some time in connection with the investigation. The investigating officer submitted that the petitioner was arrested but was not in custody when the order for taking voice sample was passed. The Court held that the requirement in the first proviso of Section 349 is fulfilled. The Court observed that there is no requirement under BNSS or the Supreme Court decision that the person should be in custody when such an order is made.

Per the prosecution case, the accused demanded a bribe of Rs. 52,000 to issue some records from the village office. The petitioner received Rs. 30,000 in this regard. A trap was laid and a crime was registered. The phone conversation between the complainant and the accused is retrieved and s produced in a C.D. The Enquiry Commissioner and Special Judge (Vigilance) have permitted the petitioner's voice sample to be taken at the Forensic Science Laboratory. Against this order, the accused approached the High Court.

The petitioner also submitted that the phenolphthalein test came out negative and the decoy notes were not seized from his custody, but from a window which is away from his seat. He also submitted that the details on how and where the conversation was downloaded from the mobile phone is not clarified by the investigating officer in his application. He also argued that the C.D. containing the alleged conversation was not accompanied by a certificate mandated under Section 65B of the Indian Evidence Act.

The Court said that the fact that the phenolphthalein test turned negative is all the more reason for the police to produce whatever evidence possible in support of their case. The Court observed the alleged voice clip where the petitioner demanded a bribe would be an important piece of evidence. The Court further observed that the accused cannot question the way in which the conversation is retrieved at the stage of investigation. The Court held that the accused will get an opportunity during trial to question the modality and way in which the conversation was retrieved.

The Court also held that a 65B certificate is required only when electronic evidence is produced before the court as evidence and not during the investigation stage.

Accordingly, the petition was dismissed.

Counsel for the Petitioner: Adv. K. M. Sathyanatha Menon

Counsel for the Respondents: Adv. A. Rajesh (Spcl. PP (Vigilance)), Rekha S. (Sr. PP)

Case No: Crl.M.C. 9284 of 2024

Case Title: Sunil Rajan K. v Inspector of Police and Another

Citation: 2024 LiveLaw (Ker) 761

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