Production Of Certificate U/S 65B(4) Evidence Act Not Necessary To Obtain Voice Sample Of Accused For Further Probe: PH High Court

The Punjab and Haryana High Court has observed that at the stage of filing an application by the prosecution to obtain the voice sample of the accused for the purposes of further investigation, the production of a certificate under Section 65B(4) of the Evidence Act is not necessary.

The Bench of Justice Avneesh Jhingan observes thus as it relied upon the ruling of Arjun Pandit Rao Khotkar Vs. Kailash Kushanrao Gorantyal and others (2020) 7 SCC 1, wherein it was held by the Apex Court that Section 65-B (4) of the Act does not mention the stage of furnishing the certificate.

The HC also relied upon Supreme Court's 2019 verdict in the case of State of Karnataka vs. M. R. Hiremath wherein it was held that the failure to produce a certificate under Section 65-B (4) of the Act at the stage of charge sheet will not be fatal to the case of the prosecution.

It may be noted that Section 65B(4) of the Indian Evidence Act requires the production of a certificate for leading secondary evidence of an electronic record. The purpose of this provision is to sanctify secondary evidence in electronic form, generated by a computer.

The case in brief

Essentially, the Court was dealing with the plea of one Sunil Kumar Gulati, who had challenged the directions of the chief judicial magistrate, Patiala directing him to give voice samples.

Gulati (petitioner), who was posted in the Land Branch of Municipal Corporation, Patiala, had demanded Rs.25,000/- from the complainant for getting the shutter of the shop open (which was sealed earlier). The amount was to be paid to one Rakesh Behal. A trap was laid and Behel was apprehended red-handed.

A telephonic conversation with regard to the demand for illegal gratification was recorded and the memory card was handed over to the investigation agency.

Pursuant to this, to compare the voice in the memory card with that of the original voice of the accused, an application was filed by the Vigilance Bureau seeking voice samples of Rakesh Behal and the petitioner which was allowed and the Petitioner was directed to give his voice sample.

Challenging the same, the petitioner moved to the Court. It was the primary argument of the petitioner that the order of the Court results in self-incrimination by the accused and it would amount to an invasion of the petitioner's right to privacy.

It was further argued that the memory card (containing the conversation wherein a bribe was demanded) being a piece of secondary evidence is not admissible as evidence without certification under Section 65-B of the Indian Evidence Act, 1872.

Court's observations 

At the outset, the Court observed that the Supreme Court in Ritesh Sinha Vs. State of Uttar Pradesh (2019) 8 SCC 1 had held that the direction to give a voice sample does not infringe Article 20(3) of the Constitution of India. It was held that the voice sample is only for purpose of comparison and is not a testimony.

"Voice sample in a sense resembles fingerprints and handwriting, each person has a distinctive voice with characteristic features dictated by vocal cavities and articulates. The samples are collected after having permission in accordance with law. The sample taken itself would not be an evidence, rather they are for comparing the evidence already collected," the High Court further added. 

Now regarding the contention regarding Section 65B(4) of the Indian Evidence Act, the Court noted that when the application for obtaining of a voice sample was filed by the prosecution, it was for the purpose of further investigation in the matter and that it was not the stage for the production of a certificate under Section 65-B of the Act, even if required.

Further, stressing that the certificate is needed when recording is to be produced in the trial as evidence, the Court opined thus:

"The relevancy of the recording would be determined only after a comparison of voice sample, the requirement of certification under Section 65-B of the Act would arise later when recording is given in evidence."

In view of this, the plea was dismissed and the order of the court of the chief judicial magistrate, Patiala was upheld.

Case title - Sunil Kumar Gulati v. State of Punjab and another

Case citation: 2022 LiveLaw (PH) 50

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