PC Act | Magistrate Can’t Make Declaration On Drawing Of Adverse Inference Against Accused For Refusing To Provide Voice Sample: Rajasthan High Court

The Rajasthan High Court recently set aside observations of a magistrate regarding drawing of adverse inference against an accused, who refused to provide his voice sample at investigation stage, in a corruption case. 

"As far as the observation made by the learned Magistrate regarding unfavourable reckoning is concerned, wherein he has stated that the accused shall be responsible if any adverse inference would be taken by the trial Court during trial upon his refusal to provide voice sample, it is felt that the learned Magistrate has exceeded his jurisdiction and it was beyond his competence to make a declaration regarding drawing of an adverse inference against the accused," said the court. 

Justice Farjand Ali said the magistrate cannot pass an order regarding the future course of action that may or may not be adopted by the trial court during the trial. It would be the exclusive domain of the trial court to infer or adjudicate the issue regarding denial by the accused from providing voice sample during investigation and the same shall be done at the time of final disposal of the trial, said the court.

“In the process of holding voice sample collection proceeding, the Magistrate doesn’t act as an adjudicatory authority rather he acts as a responsible judicial officer to keep surveillance over the process with a view to safeguard the interest of the parties and to ensure fair play,” Justice Ali said.

Brief Facts

The court was hearing the petition challenging the order passed by the Additional Chief Metropolitan Magistrate (ACMM) in a case registered under Sections 7A and 8 of the Prevention of Corruption (Amendment) Act, 2018, and Section 120-B of the Indian Penal Code.

During the investigation of the case, the probe agency had filed an application asking for the petitioner's voice sample, which was entertained by the court but the accused denied to give the sample. It was observed that the court had jurisdiction to hear and decide such an application, and since the accused had refused to give a voice sample, the trial court would be at liberty to draw an adverse inference from the refusal.

The order was challenged before the High Court.

The counsel for petitioner submitted that the matter pertains to Prevention of Corruption (Amendment) Act, 2018 and for this purpose, the Special Courts have been constituted and the cases are triable only by the Special Judges by virtue of Section 4 of the Act of 2018, therefore, the Judicial Magistrate was not empowered to deal with the application even at the stage of investigation and to make observations in this regard.

The counsel argued that therefore all the applications including an application seeking voice sample could only be filed before the Special Court by the investigating agency for its necessary disposal.

On the other hand, the counsel for prosecution contended that the law is well settled on recording of voice sample in the matter of Ritesh Sinha v. State of U.P. wherein the Supreme Court had propounded that during the course of investigation, the Magistrate is empowered to allow taking of voice sample of the accused in his presence.

Verdict

After hearing both the sides, Justice Ali said that the law regarding the taking of voice samples has been settled by the Supreme Court's decision in Ritesh Sinha. Under Section 4 of the 2018 Act, only the Special Judge appointed under Section 3 has jurisdiction to try cases specified in sub-section (1) of Section 3 and the trial begins after framing charges and denial by the accused, noted the court. 

Furthermore, the court explained that in the present case, when the application for the voice sample was filed, the charge sheet had not yet been filed.

"The aforementioned application in this case was filed during the course of investigation which was much prior to commencement of the trial. The competence of the Magistrate in taking voice sample before him during investigation has been recognized by Hon’ble the Supreme Court in the case of Ritesh Sinha," said the court.

The court further elaborated that the Apex Court, in the case of Ritesh Sinha, has observed that the voice sample may be taken before a Magistrate and after collection of sample by the expert, the Magistrate only verifies the fact of collection of sample and does nothing beyond it.

The court considered the objection to the magistrate's observation on unfavorable reckoning. It opined that the magistrate had exceeded his jurisdiction and it was beyond his competence to make a declaration regarding the drawing of an adverse inference against the accused.

“If the law provides right of defense to an accused and he/she/they take(s) any legitimate objection on the basis of such a right which can be raised before a Court, he/she/they can do so. Law gives a discretion to the accused; which can either be exercised to consent to collection of voice sample or to deny to the same and when such discretion is exercised by the accused by declining to provide voice sample, then, in such circumstances, it cannot be held as a necessary consequence thereof that his/her/their denial may lead him/her/them to a situation where an adverse inference can be drawn against his/her/their interest at a subsequent stage of proceedings”.

Further, the court opined that, it is clear that a metropolitan Magistrate is not empowered to pass any order which is the subject of trial of a special court constituted under the Prevention of Corruption Act. The court said that when the accused refused to give a sample, the Magistrate ought to have noted down the fact of denial and “nothing beyond that”.

"In the considered view of this Court, the accused had a legal right to raise objection regarding competence of the Magistrate to take voice sample before him, along with other objections which were statutorily provided to him, therefore, by doing so, it cannot be held that his denial from providing voice sample may lead him to a situation where an adverse inference regarding voice match may be taken by the learned trial Court during the course of trial," said the court.

However, the Court decided that the order passed by the Magistrate stands affirmed to the extent that the learned magistrate was an able and competent authority to entertain the application filed by the agency.

Case Title- Omkar Sapre v. State Of Rajasthan

Citation: 2023 LiveLaw (Raj) 23

Click Here To Read/Download Judgment