# (U/s 482 CR.P.C.) (Smt.) Leena Katiyar v. State of U.P. & Ors

- **Citation:** (2015) 1 ILRA 161
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-02-16
- **Case number:** Criminal Misc. Application No. 540 of 2015
- **Bench:** Ramesh Sinha
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-s-482-cr-p-c-smt-leena-katiyar-v-state-of-u-p-ors-43267
- **Pages:** 14

## Headnote

Evidence
Act-Section
65-Bapplication-taking voice sample of accused
persons-offence under Section 364-A, 302,
201 IPC school going boy kidnappeddemand
of
ransom
Rs.
10
lacs
by
telephonic mode rejection-on ground in
absence
of
laboratory
in
District
in
question-earlier order recalled-held-illegal
u/s 165 of evidence Act audio CD
admissible in evidence-in view of law by
Apex Court taking voice sample not hit by
Art. 20(3) of Constitution-order impugned
quashed with necessary directions.
Held: Para-33
These days the manner in which the crime
is being committed by the accused persons
by adopting high materialized techniques
and there is a great deal of technological
advanced in means of communication and
criminals are using new methodology in
162
 INDIAN LAW REPORTS ALLAHABAD SERIES
committing
crimes.
Use
of
landlines,
mobile phone and voice over internet
protocol (VOIP) in the commission of
crimes
like
kidnapping
for
ransom,
extortion,
blackmail
and for terrorist
activities is rampant. The present case also
falls in one of the such categories of crimes
which has been committed by adopting
advance means of communication and to
ascertain the complicity of the accused
persons in the crime and to do justice it is
essential that the voice sample of the
accused persons should be taken by the
trial court and be sent for testing to the
authorized laboratory with the recorded
voice in audio C.D. by the police which is
marked as Ex. Ka. 2. With utmost regard to
Hon'ble Mr. Justice Aftab Alam, this Court
in its humble opinion also agrees with the
view
taken
by
Hon'ble
Mrs.
Justice
Ranjana Desia in the case of Ritesh Sinha
vs. State of U.P. (Supra).
Case Law discussed:
S.L.P. (Crl.)No. 7259 of 2010; 2010 (7) SCC

## Text

_Characters 0–39,937 of 47,147. This is a partial read: ask again with offset=39937 for what follows._

1 All]
 (Smt.) Leena Katiyar Vs. State of U.P. & Ors.
161
there the Apex Court has held that if a
document is void, in that eventuality, the
Deputy Director of Consolidation will
have jurisdiction to look into the same
and ignore the same.
15. Sri Mourya, taking shelter of the
judgment in the case of Noor Mohd (supra),
has submitted that the Deputy Director of
Consolidation had jurisdiction as the leases
were void. In the case of Noor Mohd
(supra), His Lordship was dealing with the
procedural lapse in the process of grant of
lease, wherein it was found that the required
Z.A. Forms 57 and 58 were not signed, in
that eventuality, the Court held that such
lease was void in nature.
16. Here in this case, not even a
single whisper has been made regarding
procedural lapse, i.e., non-signing of Z.A.
Forms 57 or 58, nor anything has been
argued before this Court that there was no
resolution of the gaon sabha, or the Sub
Divisional Officer has not approved the
leases, nonetheless, the allegation in the
application seeking cancellation of the
lease was that the petitioners do not
belong to the village where the land is
situated; in other words, they are of the
different villages. In my considered
opinion, whether a particular person
belongs to the village concerned or not,
was a question of fact and was to be
adjudicated upon on the basis of the
evidence produced by the parties and such
allegation will not render the lease void.
Therefore, in view of the Full Bench
decision of this Court in the case of
Simlesh Kumar (supra), the Deputy
Director
of
Consolidation
had
no
jurisdiction to adjudicate upon the matter
and the impugned order passed by him is
without jurisdiction. The cases cited by
Sri Mourya are of no help to him.
17. In view of the foregoing
discussions, the writ petition succeeds and
is allowed. The order dated 25.3.1977
passed by the Deputy Director of
Consolidation in Reference No. 1307
(State Vs. Lalji and Others) is hereby
quashed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.02.2015
BEFORE
THE HON'BLE RAMESH SINHA, J.
Criminal Misc. Application No. 540 of 2015
(U/s 482 CR.P.C.)
(Smt.) Leena Katiyar
...Applicant
Versus
State of U.P. & Ors.
...Opp. Parties
Counsel for the Applicant:
Akanksha Yadav, Sri Prem Prakash Yadav
Counsel for the jOpp. Parties:
A.G.A., Sri Narendra Kumar Singh, Sri
R.K. Dubey, Sri S.K. Pandey.
Indian
Evidence
Act-Section
65-Bapplication-taking voice sample of accused
persons-offence under Section 364-A, 302,
201 IPC school going boy kidnappeddemand
of
ransom
Rs.
10
lacs
by
telephonic mode rejection-on ground in
absence
of
laboratory
in
District
in
question-earlier order recalled-held-illegal
u/s 165 of evidence Act audio CD
admissible in evidence-in view of law by
Apex Court taking voice sample not hit by
Art. 20(3) of Constitution-order impugned
quashed with necessary directions.
Held: Para-33
These days the manner in which the crime
is being committed by the accused persons
by adopting high materialized techniques
and there is a great deal of technological
advanced in means of communication and
criminals are using new methodology in
162
 INDIAN LAW REPORTS ALLAHABAD SERIES
committing
crimes.
Use
of
landlines,
mobile phone and voice over internet
protocol (VOIP) in the commission of
crimes
like
kidnapping
for
ransom,
extortion,
blackmail
and for terrorist
activities is rampant. The present case also
falls in one of the such categories of crimes
which has been committed by adopting
advance means of communication and to
ascertain the complicity of the accused
persons in the crime and to do justice it is
essential that the voice sample of the
accused persons should be taken by the
trial court and be sent for testing to the
authorized laboratory with the recorded
voice in audio C.D. by the police which is
marked as Ex. Ka. 2. With utmost regard to
Hon'ble Mr. Justice Aftab Alam, this Court
in its humble opinion also agrees with the
view
taken
by
Hon'ble
Mrs.
Justice
Ranjana Desia in the case of Ritesh Sinha
vs. State of U.P. (Supra).
Case Law discussed:
S.L.P. (Crl.)No. 7259 of 2010; 2010 (7) SCC
263.
(Delivered by Hon'ble Ramesh Sinha, J.)
1. This application under Section 482
Cr.P.C. has been filed for quashing the order
dated 7.1.2015 purporting to have been
passed by the Special Judge Fatehgarh in
S.S.T. No. 140 of 2007 under Sections 364A, 302, 201 I.P.C., police station Kotwali
Fatehgarh (State vs. Amit Katheria & others)
and the learned Special Judge be directed
that the accused persons arrayed as O.P. Nos.
2 to 8 be sent by the police of police station
Kotwali Fatehgarh for taking their voice
sample for voice testing to the headquarter of
either of the 5 laboratories and get the voice
of the accused persons compared with the
voice recorded in the C.D. which is the part
of record of the aforesaid case.
2. Brief facts of the case are that an
F.I.R. was lodged by the applicant, who is
the first informant of the case on
23.4.2007 which was registered as Case
Crime No. 467 of 2007 at police station
Fatehgarh,
district
Farrukhabad
for
offence under Sections 364-A/302, 201
I.P.C. alleging that on 11.4.2007 her son,
namely, Madhusudan was kidnapped by
accused Happy @ Shivam @ Harsh along
with 7 other associates for ransom. The
applicant had initially lodged a missing
report of her son at the police station
Kotwali Fatehgarh which was initially
endorsed in the G.D. of the said police
station on 23.4.2007. On 6.5.2007, the
dead body of her son Madhusudan was
dug out at the pointing out of the accused
persons which was buried in about 4-5
feet deep in the ground and his shirt, belt
& spectacles were kept in a gunny bag
buried under mud. The said recovery was
made from the jungles of village
Chauspur,
police
station
Kamalganj,
District Farrukhabad. It is alleged that the
main architect of the crime is accused
Happy @ Shivam @ Harsh, who was also
a resident of Fatehgarh city. He had taken
admission
in
B.A.
(Part-I)
in
Venkateshwar
College
of
Delhi
University and within a short span of
time, he developed friendly terms with the
applicant's son. It is stated that on
22.4.2007,
the
applicant
received
a
telephonic call which was later on traced to
have been made from Pandu Nagar, New
Delhi asking the applicant to pay a sum of
Rs. 10 lacs for the release of her son. The
applicant expressed her inability to arrange
the said amount within the short period
which was required to pay for the release of
her son. On receiving the said information,
the Superintendent of Police Fatehgarh after
obtaining approval from the Inspector
General of Police, Kanpur Zone, Kanpur
started making electronic surveillance of the
applicant's mobile number and got taped the
calls which were received at her number.
1 All]
 (Smt.) Leena Katiyar Vs. State of U.P. & Ors.
163
3. On 25th and 28th April, 2007
other calls were received at applicant's
Cell No. 98399710406 which was made
from Kanpur city whereby the demand of
the ransom towards the release of her son
was again made. Thereafter another call
was received by the applicant traced to be
made from Kanpur on 30.4.2007 by
telephone
number
915126992864
reiterating the demand of ransom. The
taping of these calls have also been made
by the police and the Superintendent of
police Fatehgarh constituted a team of 5
police officers as "Special Operation
Group" for laying trap for arresting the
accused persons. On 1.5.2007 in about 6
calls were made at the applicant's mobile
No. 9839710406 making the demand of
ransom. A few of such calls were even
heard by Additional Superintendent of
police Fetehgarh, who was keeping
surveillance upon the calls. The mobile
nos. and basic telephone nos whereby the
calls were made at applicant's mobile
were as follows:-
 Telehpone No.
Time
1.
91-9236390816 10:10 hrs.
2.
91-512-6992909
 10:43 hrs.
3.
91-512-3018529 19:27 hrs.
4.
91-512-2306951 21:11 hrs.
5.
91-9935292501 21:34 hrs.
4. One of the calls which was
received by the applicant at about 3:30
p.m. on 1.5.2007, and the money was
demanded to be paid on that day at
Khakar Katti, Bus Station, Kanpur City.
The applicant had told the person making
the call that she is not in such physical
position as to undertake journey upto
Kanpur. Whereupon the caller told that
the money can be sent through some other
person of confidence and the applicant
was further asked to handover her mobile
to that person so that his identity could be
ascertained.
5. In the meanwhile accused Happy
@ Shivam @ Harsh was arrested and was
remanded to custody on 1.5.2007. The
police made efforts that this information
may not leak out. Thus the team of S.O.G.
headed by S.I. Mahendra Singh Yadav
took steps to nab the other members of the
gang of aforesaid accused. The police of
Kanpur City was accordingly contacted
by the S.O.G. and they proceeded for the
place wherefrom the ransom money was
demanded & it was required to be paid to
the person demanding the money.
6.
One person, namely, Rakesh
Katiyar, who had seen the accused persons
accompanying the kidnapee on the date of
incident, was given the applicant's mobile,
who could talk with the persons, who were
making call demanding the ransom. He had
received calls at 7:27 p.m. & 9:11 p.m.
inquiring as to how much distance was left to
be covered from arriving at Kanpur. The
place of avenue of paying the money was
meanwhile changed by the accused persons.
They asked Rakesh Katiyar to come at
Platform No. 7 of Kanpur Central Railway
Station. The bag containing the money was
asked to be kept on the upper berth adjoining
the last gate of general compartment behind
the last sleeper coach of Pushpak Express
leaving for Mumbai. The person with money
Rakesh Katiyar boarded the train at
Anwarganj railway station. Two persons of
S.O.G. in plain clothes accompanied Rakesh
Katiyar and the other had directly gone to
platform No. 7 but the trap had failed as the
accused persons did not turn up to collect the
money.
7. On the next date, i.e., 2.5.2007,
the applicant had met the Superintendent
164
 INDIAN LAW REPORTS ALLAHABAD SERIES
of Police, Farrukhabad, who revealed that
one police constable, namely, Shyam
Babu Kanaujia, who is member
of
Scheduled Caste to which Caste the
accused Happy @ Shivam @ Harsh
belonged
and
was
posted
in
the
Confidential Section of his Office located
at his residence had leaked the message of
trap. At the said instance, the applicant
realize that how deep the links and
influences of accused Happy @ Shivam
@ Harsh or the members of his family
had been with the few police personnel of
Farrukhabad.
8. The police submitted charge-sheet
on 12.5.2007 in the Court of Special
Judge (D.A.A.) Fatehgarh, who took
cognizance on 17.5.2007 and the trial was
numbered as S.S.T. No. 40 of 2007 under
Section 364-A, 302/201 I.P.C.
9. Call-detail- records prepared by
the investigating agency have been made
the part of the record. As such in the order
dated 13.9.2013 has been recorded upon
the order-sheet of this case, i.e., S.S.T.
No. 140 of 2007 requiring the copies to be
furnished to all the accused persons on
19.10.2013.
10. It appears that the applicant
approached the Apex Court for redressal
of her grievances by filing S.L.P. (Crl.)
No. 7599-7600 of 2008 which was
connected with S.L.P. (Crl.) No. 7862 of
2008 & S.L.P. (Crl.) No. 1590 of 2009
(Leena Katiyar vs. State of U.P.) whereby
the Apex Court on 3.5.2010 allowed her
to raise all the issues which may be
available to her before the trial court in
accordance with law. The applicant also
filed S.LP. (Crl.) No. 2670 of 2010 Leena
Katiyar vs. Narendra Kumar Khanna
which was disposed of by the Apex Court
23.3.2012 observing that the trial court
may conclude the trial as early as possible
preferably within a period of nine months.
It further appears from the record that
accused Happy @ Shivam @ Harsh took
plea of juvenile before the Principal
Judge,
Juvenile
Justice
Board,
Farrukhabad. It further transpires from the
record that on 23.8.2013, accused Happy
@ Shivam @ Harsh was declared juvenile
and the applicant being aggrieved by the
said order had filed a crl. revision before
this Court being numbered as Crl.
Revision No. 2490 of 2013 Leena Katiyar
vs. State of U.P. which is still pending.
11. The applicant being so much
disturbed on accused Happy @ Shivam @
Harsh being declared juvenile by the
Court under the Juvenile Justice (Care and
Protection of Children) Rules, 2007 which
came
into
effect
on
26.10.2007,
challenged the validity Act of 2000 in
C.M.W.P. No. 60458 of 2013 Smt. Leena
Katiyar vs. Union of India & others in
which this Court has issued notices to the
Central Government as well as State
Government vide order dated 31.10.2013
for filing counter affidavit but till date no
counter affidavit has been filed and the
matter is still sub judice before this Court.
It appears from the record that the trial of
accused Happy @ Shivam @ Harsh and
accused Arif has been separated from the
remaining accused persons, who are
facing trial. The trial court could not
decide the case within the aforesaid time
frame work, hence it sought for extension
of further time for deciding the case and
the Apex Court on 1.8.2014 extended
further three months.
12. It appears that the trial is in
progress and the evidence of 24 witnesses
have been recorded by the trial court.
1 All]
 (Smt.) Leena Katiyar Vs. State of U.P. & Ors.
165
13. The trial court on 8.10.2014
passed an order that the voice samples of
six accused persons, who are facing trial
before it should be taken for examination
with the audio CD Ex. Ka. 2 to fix their
identity in the crime and further directed
the prosecution to take necessary steps for
the same.
14. A letter from the Deputy
Director
of
Government
Science
Laboratory, Lucknow dated 18.10.2014
was received in the Court of Special
Judge that the facility of voice testing is
not available in the laboratory in the State
of U.P. and had given the details of five
laboratories of the Central Government
from where the voice testing could be
made. The Special Judge directed the
D.G.C. (Crl.) to get the voice sample of
accused and tested by taking necessary
steps on which the A.D.G.C. (Crl.) on
11.11.2014 wrote a letter to the District
Magistrate Farrukhabad for getting the
voice sample recorded and further letters
were also sent to the C.O. City Fatehgarh
as well as Inspector-in Charge of police
station Fatehgarh requesting them for
getting the voice sample of the accused
and tested with the voice recorded in
audio C.D. Ex. Ka. 2. The Police officials
on 3rd and 6th January, 2015 after making
detailed enquiry sent letters to the
A.D.G.C (Crl.) and further enclosing the
letter of Dy. Director of Govt. Forensic
Science Laboratory dated 18.10.2014
(annexure-7-A to the application) stating
that no facility of testing voice sample is
available in district Farrukhabad on which
an application was moved by the
prosecution on 7.1.2015 before the trial
court which passed an order that there
appears no reason to grant any further
time for getting the voice sample and
tested but to proceed with the trial. Being
aggrieved by the said order, the applicant
has
filed
the
instant
482
Cr.P.C.
application for quashing of the impugned
order dated 7.1.2015 passed by the
Special Judge/trial court.
15. Heard Sri Prem Prakash Yadav
holding brief of Smt. Akansha Yadav,
learned counsel for the applicant, Sri
Narendra Kumar Singh, learned counsel
for the opposite party no. 3 and Sri U.P.
Singh, learned brief holder for the State.
16. Learned counsel for the
applicant submits that looking to the
nature of the case and the crime
committed by the accused persons, the
trial court vide order dated 8.10.2014 has
directed the prosecution to get the voice
sample of the accused persons tested.
When the prosecuting agencies have
reported the matter that they have no
facility in the district for getting the voice
sample tested and there is no laboratory in
the State of U.P. for the said purpose, the
trial court without making its own effort
for getting the same tested has passed the
impugned order and observed that as the
voice sample cannot be tested and there is
no such facility in the State of U.P. for the
same, no further time is required to be
given to the prosecution and it proceeded
with the trial. He further argued that when
the prosecution agency has failed to get
the voice sample tested it was the duty of
the trial court under Section 311 Cr.P.C.
and Section 165 of the Evidence Act to
take steps itself for getting the voice
sample of the accused be taken and be
tested with the recorded audio C.D. Ex.
Ka. 2. It was argued that the impugned
order passed by the trial court on 7.1.2015
amounts to review its earlier order dated
8.10.2014 by which it has directed for
taking of the voice sample of accused
166
 INDIAN LAW REPORTS ALLAHABAD SERIES
Amit Sahu, Narendra Kumar, Sumit
Kumar, Amit Kumar, Sajeb and Mujahid
Hussain and get it tested with the audio
C.D. Ex. Ka.2 from Vidhi Vigyan
Prayogshala
Lucknow
which
also
amounts to recalling of the said order
which has become final and is barred by
Section 362 Cr.P.C., hence the same is
illegal and without jurisdiction and is
liable to be quashed by this Court. He
further urged that the order of the Apex
Court dated 23.3.2012 expediting the trial
in no way had taken away the right of the
applicant by which the Apex Court vide
order
dated
3.5.2010
allowed
the
applicant to raise all the issues which may
be available to her before the trial court in
accordance with law. Hence he prayed
that the accused be summoned for taking
of voice sample and be sent for testing by
the trial court to fix their identity in the
crime to any one of the five laboratories
in the country as mentioned in the letter of
the Dy. Director of Vidhi Vigyan
Prayogshala Lucknow.
17. Per contra, counsel for accusedopposite party no.3 has vehemently
opposed the prayer for quashing of the
impugned order and has refuted the
arguments advanced by learned counsel
for the applicant. He has pointed out that
after passing of the order dated 8.10.2014,
the trial court on 31.10.2014 again passed
an order directing the prosecution to take
the voice sample within 15 days and sent
it to the concerned laboratory for its
testing and submit a report of the
concerned laboratory within four months
from the date of said order which is also
not disputed by the learned counsel for
the applicant. The said order has not been
filed by learned counsel for the applicant
along with the present application but a
photocopy of the same has been filed by
learned counsel for the opposite party
no.2 which it taken on record. He further
argued that as sufficient opportunity has
been given to the prosecution for taking
the voice sample of accused and be tested
by the trial court and when the
prosecution failed to get the voice
recorded in the audio C.D. Ex. Ka. 2
tested, the trial court was right in not
granting any further indulgence to the
prosecuting agency for the said test as the
trial is being delayed and there is also an
order of the Apex Court which was
passed on the application of the applicant
for concluding the trial of the present case
within nine months. Moreover, the
evidence of 24 witnesses have been
recorded by the trial court and the
applicant is lingering on the trial. He
further argued that there is no provision in
the Cr.P.C. for getting the voice sample of
the accused be taken and tested, hence the
application moved by the applicant for the
said purpose is against law, hence the
present application lacks merit and it
should be dismissed. In support of
contention he has placed reliance on the
judgment of the Apex Court in the Case
of Ritesh Sinha vs. State of U.P. in
Criminal Appeal No. 2003 of 2012 arising
out of S.L.P. (Crl.) No. 7259 of 2010.
18. Learned A.G.A. tried to justify
the impugned order passed by the trial
court but could not dispute the fact that
the trial court has twice pass orders for
testing of voice sample of the accused
persons with the audio C.D. Ex. Ka. 2.
19. After having considered the
submissions advanced by learned counsel
for the parties and perusing the record, it
is evident that the trial court taking into
account the nature of offence committed
by the accused in its wisdom had initially
1 All]
 (Smt.) Leena Katiyar Vs. State of U.P. & Ors.
167
ordered on 8.10.2014 and 31.10.2014
directing the prosecuting agency to get the
voice sample of the accused be taken and
be tested with the audio C.D. Ex. Ka. 2
from the authorized laboratory but when
the prosecution as well as the State
agencies reported that there was no such
facility available in the State of U.P. for
getting the voice recorded in the said
audio C.D. Ex. Ka. 2 tested then the trial
court passed the impugned order on
7.1.2015 dropping the idea for taking the
voice sample of the accused and tested
and started to proceed with the trial.
20. In this context two important
questions of law were formulated by the
Apex Court in the Case of Ritesh Sinha
vs. State of U.P. (Supra):-
(I) Whether Article 20 (3) of the
Constitution of India, which protects a
person accused of an offence from being
compelled to be a witness against himself,
extends to protecting such an accused
from being compelled to give his voice
sample during the course of investigation
into an offence?
(II) Assuming that there is no
violation of Article 20 (3) of the
Constitution of India, whether in the
absence of any provision in the Code, can
a Magistrate authorize the investigating
agency to record the voice sample of the
person accused of an offence?
21. On the above two questions of
law which are to be adjudicated by the
Court there appears to be different views
of the High Courts of the country and
further the said issues also came up before
the Apex Court in the Case of Ritesh
Sinha vs. State of U.P (supra). which has
been preferred against one of the
judgment of this Court. The said S.L.P.
was filed and the matter was came up
before the Bench of Hon'ble Mrs. Justice
Ranjana Prakash Desai and Hon'ble Mr.
Justice Aftab Alam and their lordships
after examining the various judgments of
the High Courts and of the Apex Court
had same view with respect to first
question framed by them with respect to
Article 20 (3) Cr.P.C. is that taking of
voice sample of an accused by the police
during investigation is not hit by Article
20 (3) Cr.P.C. of the Constitution which
was followed by the Apex Court in a
recent decision in the case of Selvi and
others vs. State of Karnataka 2010 (7)
SCC 263 but so far as the second question
is concerned their Lordships differed with
each other and they had given their
reasons for their views.
22. The view taken by Hon'ble Mrs.
Justice Ranjana Prakash Desai is quoted
hereinbelow:-
"In the facts of this case, I am not
inclined to give a narrow construction to
the provisions of the Prisoners Act and
Section 53 of the Code. Judicial note can
be taken of the fact that there is a great
deal of technological advance in means of
communication. Criminals are using new
methodology in committing crimes. Use of
landlines, mobile phones and voice over
internet
protocol
(VoIP)
in
the
commission of crimes like kidnapping for
ransom, extortion, blackmail and for
terrorist activities is rampant. Therefore,
in order to strengthen the hands of
investigating agencies, I am inclined to
give purposive interpretation to the
provisions of the Prisoners Act and
Section 53 of the Code instead of giving a
narrow interpretation to them. I, however,
feel that Parliament needs to bring in
more clarity and precision by amending
168
 INDIAN LAW REPORTS ALLAHABAD SERIES
the Prisoners Act. The Code also needs to
be suitably amended. Crime has changed
its face. There are new challenges faced
by
the
investigating
agency.
It
is
necessary to note that many local
amendments have been made in the
Prisoners
Act
by
several
States.
Technological and scientific advance in
the investigative process could be more
effectively used if required amendments
are introduced by Parliament. This is
necessary to strike a balance between the
needs to preserve the right against self
incrimination guaranteed under Article
20 (3) of the Constitution and the need to
strengthen the hands of the investigating
agency to bring criminals to book.
In the view that I have taken, I find
no infirmity in the impugned order passed
by the High Court confirming the order
passed
by
learned
Chief
Judicial
Magistrate, Saharanpur summoning the
appellant to the court for recording the
sample of his voice. The appeal is
dismissed."
23. The view taken by Hon'ble Mr.
Justice Aftab Alam is as follows:-
"5. As regards the first question,
relying primarily on the eleven (11)
Judges' Bench decision of this Court in
State of Bombay vs. Kathi Kalu Oghad &
others which was followed in the more
recent decision in Selvi and others vs.
State of Karnataka she held that taking
voice sample of an accused by the police
during investigation is not hit by Article
20 (3) of the Constitution.
6. I am broadly in agreement with
the view taken by her on Article 20 (3)
but, since I differ with her on the second
question, I think the issue of constitutional
validity in compelling the accused to give
his/her voiced sample does not really
arise in this case.
16. I am completely unable to see
how Explanation (a) to Section 53 can be
said to include voice sample and to my
mind the ratio of the decision in Selvi
does not enlarge but restricts the ambit of
the
expressions
'such
other
tests'
occurring in the Explanation.
42. Should the Court still insist that
voice sample is included in the definition
of "measurement" under the identification
of Prisoners Act and in the Explanation to
Section 53 of the Code of Criminal
Procedure? I would answer in the
negative.
43. In light of the above discussion, I
respectfully differ from the judgment
proposed by my sister Desai, J. I would
allow the appeal and set aside the order
passed by the Magistrate and affirmed by
the High Court.
44.Let copies of this judgment be
sent to the Union Law Minister and the
Attorney General and their attention be
drawn to the issue involved in the case.
45, In view of the difference of
opinion between us, let this case be listed
for hearing before a Bench of three
Judges after obtaining the necessary
direction from Honourable the Chief
Justice of India.
24. It is noteworthy that in the case
of Ritesh Sinha vs. State of U.P. (Supra),
the question before the Apex Court was
whether the Magistrate can summon and
direct the accused during the course of
investigation for giving his or her voice
sample on an application made by police
officers before him and in the said matter
there was difference of opinion between
two Hon'ble Judges of the Apex Court as
is
apparent
from
the
preceding
paragraphs, the matter has been referred
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 (Smt.) Leena Katiyar Vs. State of U.P. & Ors.
169
for hearing before a Bench of three
Judges after obtaining the necessary
direction from Hon'ble The Chief Justice
of India and the matter is still sub judice
before the Apex Court.
25. In the instant case the position
appears to be altogether different as the
accused opposite parties are facing trial
before the trial court and an application
was
moved
on
behalf
of
the
applicant/complainant for taking their
voice sample and be sent for being
compared with the recorded voice in the
audio C.D. which has been obtained
during the course of investigation and has
been marked as Ex. Ka. 2 either by any of
the five laboratories of the country
mentioned by the Dy. Director of Vidhi
Vigyan Prayogshala Lucknow. On the
said application, the accused persons filed
their objection and were heard by the trial
court which ordered for taking of voice
sample by the prosecuting agency and be
sent to the Vidhi Vigyan Prayogshala
Lucknow for being compared with the
voice recorded in the audio C.D. vide
order dated 8.10.2014 and by another
order dated 31.10.2014 respectively but
the prosecuting agency has showed its
inability to get the voice test done because
of the lack of facility either in the district
or in the State of U.P., hence the trial
court passed by the impugned dated
7.1.2015 dropping the idea of taking of
voice sample of the accused persons and
be tested with the audio C.D. Ex. Ka. 2
and further there is an order of the Apex
Court to conclude the trial within nine
months which was passed on the
application filed by the applicant.
26. So far as first question framed
above it is now a well settled law as has
been held in the case of Ritesh Sinha vs.
State of U.P. (Supra) that taking of voice
sample of an accused by the police during
investigation is not hit by Article 20 (3) of
the Constitution.
27. So far as the contention of the
accused opposite party no.3 that there is
no provision in the Code for directing the
accused to give his voice sample for being
tested with the voice recorded in the audio
C.D. Ex. Ka. 2 by the trial court is against
law, hence the trial court cannot order for
taking of the voice sample of the accused
and the said view was also taken by one
of the Hon'ble Judge of the Apex Court in
the case of Ritesh Sinha (Supra) with
respect to the second question of law
formulated in the case of Ritesh Sinha
(Supra) by the Apex Court has to be
considered by this Court.
28. Learned counsel for the
applicant has vehemently refuted the said
argument of learned counsel for accusedopposite party no. 3 and argued that once
the trial court has formed an opinion for
getting the voice sample of the accused
and be compared with the recorded audio
C.D. Ex. Ka. 2 and it passed orders twice
to that effect, i.e., on 8.10.2014 and
31.10.2014
respectively
taking
into
account the nature of offence and the
evidence collected during the course of
investigation against the accused persons
and in order to determine their complicity
in the crime, the trial court had committed
error in passing the impugned order
rejecting the recording of voice sample of
the accused for being sent to examination
simply because the prosecuting agency
has reported that there is no such facility
in the district or in the State of U.P. for
the same. He submitted that the impugned
order passed by the trial court is barred by
Section 362 Cr.P.C. He further submitted
170
 INDIAN LAW REPORTS ALLAHABAD SERIES
that in view of Section 165 of the
Evidence Act, the trial court has powers
to pass orders for getting the voice sample
of the accused recorded and be sent for
testing with the recorded audio C.D. Ex.
Ka. 2.
29. The question as to whether the
trial court can order for taking the voice
sample of accused, who are facing trial
for being compared to the voice recorded
in the audio C.D. Ex. Ka. 2 during
investigation. Section 165 of the Evidence
Act becomes relevant to be considered in
this context which reads as follows:-
Section 165. Judge's power to put
questions
or
order
production.--The
Judge may, in order to discover or to
obtain proper proof of relevant facts, ask
any question he pleases, in any form, at
any time, of any witness, or of the parties,
about any fact relevant or irrelevant; and
may
order the
production
of
any
document or thing; and neither the parties
nor their agents shall be entitled to make
any objection to any such question or
order, nor, without the leave of the Court,
to cross-examine any witness upon any
answer given in reply to any such
question: Provided that the Judgment
must be based upon facts declared by this
Act to be relevant, and duly proved:
Provided also that this section shall not
authorize any Judge to compel any
witness to answer any question, or to
produce any document which such
witness would be entitled to refuse to
answer or produce under sections 121 to
131, both inclusive, if the questions were
asked or the documents were called for by
the adverse party; nor shall the Judge ask
any question which it would be improper
for any other person to ask under section
148 or 149; nor shall he dispense with
primary evidence of any document, except
in the cases hereinbefore excepted."
30. Taking into account the powers
of trial Judge as has been laid down in
Section 165 of the Evidence Act, it is
clear that the trial Judge is well within its
jurisdiction in order to discover or to
obtain proper proof of relevant facts call
upon the accused persons to give their
voice sample in the Court in order to
determine their involvement in the crime
and also to arrive a just decision of the
case. It will be relevant to mention here
that the accused is not being asked by the
trial court about any fact which within his
knowledge and if he compel to answer the
same prejudice would be caused to him.
In other words, the accused is not being
asked by the trial court to be a witness
against himself. In my opinion the voice
sample
is
physical
non-testimonial
evidence, hence taking of voice sample
cannot be held to be conceptually
different from physical non testimonial
evidence like DNA, semen, sputum, hair,
blood, finger nails etc. Taking of voice
sample does not involve any testimonial
responses. In this regard Section 65-B of
the Evidence Act is relevant which is
quoted hereinbelow:-
"Section
65B
Admissibility
of
electronic records:-
(1)Notwithstanding
anything
contained in this Act, any information
contained in an electronic record which is
printed on a paper, stored, recorded or
copied in optical or magnetic media
produced by a computer (hereinafter
referred to as the computer output) shall
be deemed to be also a document, if the
conditions mentioned in this section are
satisfied in relation to the information and
computer in question and shall be
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171
admissible in any proceedings, without
further proof or production of the
original, as evidence or any contents of
the original or of any fact stated therein
of which direct evidence would be
admissible.(2) The conditions referred to
in sub-section (1) in respect of a computer
output shall be the following, namely: -
(a) the computer output containing
the information was produced by the
computer during the period over which
the computer was used regularly to store
or process information for the purposes of
any activities regularly carried on over
that period by the person having lawful
control over the use of the computer;
(b)
during
the
said
period,
information of the kind contained in
electronic record or of the kind from
which the information so contained is
derived was regularly fed into the
computer in the ordinary course of the
said activities;
(c) 'throughout the material part of
the said period, the computer was
operating properly or, if not, then in
respect of any period in which it was not
operating properly or was out of
operation during that part of the period,
was not such as to affect the electronic
record or the accuracy of its contents;
and
(d) the information contained in the
electronic record reproduces or is derived
from such information fed into the
computer in the ordinary course of the
said activities.
(3) Where over any period, the
function
of
storing
or
processing
information for the purposes of any
activities regularly carried on over that
period as mentioned in clause (a) of subsection (2) was regularly performed by
computers, whether--
(a) by a combination of computers
operating over that period; or
(b) by different computers operating
in succession over that period; or
(c) by different combinations of
computers operating in succession over
that period; or
(d) in any other manner involving the
successive operation over that period, in
whatever order, of one or more computers
and one or more combinations of
computers, all the computers used for that
purpose during that period shall be
treated for the purposes of this section as
constituting a single computer; and
references in the section to a computer
shall be construed accordingly.
(4) In any proceedings where it is
desired to give a statement in evidence by
virtue of this section, a certificate doing
any of the following things, that is to say,-
-
(a) identifying the electronic record
containing the statement and describing
the manner in which it was produced;
(b) giving such particulars of any
device involved in the production of that
electronic record as may be appropriate
for the purpose of showing that the
electronic record was produced by a
computer;
(c)dealing with any of the matters to
which the conditions mentioned in subsection (2) relate, and purporting to be
signed
by
a
person
occupying
a
responsible official position in relation to
the operation of the relevant device or the
management of the relevant activities
(whichever is appropriate) shall be
evidence of any matter stated in the
certificate; and for the purposes of this
sub-section it shall be sufficient for a
mailer to be stated to the best of the
knowledge and belief of the person stating
it.
172
 INDIAN LAW REPORTS ALLAHABAD SERIES
(5) For the purposes of this section,-
(a) information shall be taken to be
supplied to a computer if it is supplied
thereto in any appropriate form and
whether it is so supplied directly or (with
or without human intervention) by means
of any appropriate equipment;
(b) whether in the course of activities
carried on by any official information is
supplied with a view to its being stored or
processed for the purposes of those
activities
by
a
computer
operated
otherwise than in the course of those
activities,
that
information,
if
duly
supplied to that computer, shall be taken
to be supplied to it in the course of those
activities;
(c) a computer output shall be taken
to have been produced by a computer
whether it was produced by it directly or
(with or without human intervention) by
means of any appropriate equipment.
Explanation.-For the purposes of this
section any reference to information
being derived from other information
shall be a reference to its being derived
therefrom by calculation, comparison or
any other process.]"
31. Thus, from the above, it is clear
that the voice recorded in the audio C.D.
Ex. Ka. 2 is admissible under Section 65B of the Evidence Act, hence if the said
evidence is to be proved by the
prosecution then taking of voice sample
of the accused by the trial court becomes
essential to arrive at just decision of a
case otherwise the said audio C.D. in
which there is recording of conversation
between the accused and applicant
regarding demand of ransom of money for
release of abductee/kidnapee would be a
futile effort by the police to ascertain the
complicity of the accused, hence the trial
court was right in ordering to take voice
sample of the accused persons. Hence, it
appears from Section 165 of the Evidence
Act that the trial Judge is empowered to
order for taking of voice sample of
accused for being compared to the
recorded voice in audio C.D. Ex. Ka. 2 to
ascertain the complicity of the accused
persons in the present crime and once the
trial court has ordered for the same it was
not correct in dropping the idea for
getting voice sample of the accused be
taken and send for testing simply because
of lack of facility in the district as well as
in the State for getting the voice sample
tested, hence the impugned order passed
by the trial court is not sustainable in the
eyes of law. Thus, the impugned order
dated 7.1.2015 passed by the trial court is
illegal and the orders dated 8.10.2014 and
31.10.2014 directing for taking of voice
sample of accused persons was correct.
32. The Court cannot loose sight of
the fact which appears from the facts and
circumstances of the case that a school
going boy was kidnapped and murdered
for ransom of Rs.