Introduction:

The Kerala High Court recently addressed a pivotal issue regarding the legality of directing an accused to provide a voice sample during a criminal investigation under Section 349 of the Code of Criminal Procedure, as modified by the BNSS (Bureau of Narcotics and Special Services Act). The matter arose from allegations of bribery against the petitioner, leading to a legal challenge questioning the procedural and evidentiary foundations of the investigating officer’s demand for a voice sample. The Court reiterated the Supreme Court’s ruling in Ritesh Sinha v. State of U.P. (2019), confirming that the determining factor is whether a voice sample is essential for investigation.

Petitioner’s Arguments:

The petitioner raised multiple contentions challenging the order to provide a voice sample. He argued that at the time the order was passed, he was not in custody, and thus the order was void. Additionally, he questioned the legality of using electronic evidence during the investigation without a certificate under Section 65B of the Indian Evidence Act. The petitioner also pointed out that the investigating officer failed to clarify how and where the alleged conversation was retrieved from the mobile phone. Furthermore, he contended that the phenolphthalein test, designed to confirm bribery, was negative, and the decoy notes were not seized from him but from a window distant from his seat, undermining the bribery allegations.

Respondent’s Arguments:

The investigating officer and the prosecution, represented by Special Public Prosecutor A. Rajesh and Senior Public Prosecutor Rekha S., defended the necessity of collecting the voice sample for the investigation. They relied on the precedent set by the Supreme Court in Ritesh Sinha, which affirmed the Magistrate’s power to order voice samples even in the absence of explicit statutory provisions. They submitted that the petitioner had been arrested at some stage of the investigation, fulfilling the requirements under Section 349 of the BNSS. The prosecution argued that the voice clip was a critical piece of evidence to substantiate allegations of bribery, especially since the phenolphthalein test had failed. They also emphasized that questions surrounding the retrieval process or the authenticity of the C.D. containing the alleged conversation could only be addressed during the trial, not at the investigation stage.

Court’s Judgment:

The Kerala High Court presided over by Justice C. Jayachandran, delivered a comprehensive judgment clarifying the scope of Section 349 of the BNSS and its interplay with judicial precedents on voice sample collection. The Court upheld the order requiring the petitioner to provide a voice sample, dismissing his objections. It emphasized that under Section 349, the primary criterion is the Magistrate’s satisfaction that collecting a voice sample is necessary for the investigation. The Court observed that the petitioner had indeed been arrested in connection with the case, satisfying the statutory requirement, even though he was not in custody at the time the order was passed.

The Court further clarified that the absence of a Section 65B certificate for electronic evidence was irrelevant at the investigation stage. Such a certificate is mandated only when electronic records are produced in court as evidence, not during their collection. Addressing the petitioner’s concerns about the retrieval and authenticity of the recorded conversation, the Court noted that these issues were premature and could only be addressed during the trial.

Additionally, the Court rejected the argument that a failed phenolphthalein test negates the need for further evidence. Instead, it held that such a failure heightened the importance of securing corroborative evidence, such as the alleged voice clip, to substantiate the bribery allegations. The Court reasoned that the voice sample would allow forensic experts to match the accused’s voice with the recorded conversation, providing a crucial link in the chain of evidence.

The Court concluded by affirming that the voice clip, where the petitioner allegedly demanded a bribe, constituted an important piece of evidence. It dismissed the petitioner’s challenges as an attempt to obstruct the investigation and held that procedural technicalities cannot be allowed to impede the collection of vital evidence. The petition was thus dismissed, and the investigating officer was permitted to proceed with obtaining the voice sample.