High Court of KeralaSingle Judge2021-11-30Petition dismissed.

Mahesh Lal N.Y. v. State of Kerala

Case / Petition Number:CRL.M.C.No.3358 of 2021 (Crl.M.C. 3358/2021)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Narayana Pisharadi
Judgment Date: 2021-11-30
Court Decision / Holding: The petition is dismissed. Annexure-2 notice directing the petitioner to give a voice sample and subsequent proceedings are not quashed. The court held that voice sampling is a valid investigative tool and does not violate Article 20(3); the accused does not have a right to withhold consent for such testing in the course of investigation, and the Special Court’s orders were found to be proper given the need for voice analysis.
Final Disposition: Petition dismissed.

Parties to the Case

Appellants / Petitioners

Mahesh Lal N.Y.

Respondents

State of Kerala represented by Special Public Prosecutor, VACB, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Shabu Sreedharan
• Meenu Thampi
• Amal Stanly Shyam Kumar
• M.P Anisa Andrews

Counsels for Respondents

• Rekha. S.
• Sri A. Rajesh

Case Synopsis & Summary

Mahesh Lal N.Y., the second accused in Vigilance Case No. 3/2021 (Thrissur VACB), challenged Annexure-2 directing him to furnish a voice sample for comparison in an ongoing bribery investigation. The prosecution alleges the first accused, a contractor, demanded money from the de facto complainant for securing a completion certificate for a building by influencing Choondal Grama Panchayat officials, including the second accused. On 16.02.2021, about 5 PM, the first accused allegedly received Rs. 25,000 from the de facto complainant. The case involves offences under Section 7A of the Prevention of Corruption Act, 1988 read with Section 120B IPC against the first accused, and Section 7(a) of the PCA read with Section 120B IPC against the second accused. Annexure-2 directed the petitioner to appear at the Chithranjali Studio for voice sampling as part of evidence gathering. The petitioner moved a Section 482 CrPC petition to quash the notice and any further proceedings. The arguments centered on alleged contravention of Article 20(3) of the Constitution (prohibition against self-incrimination) and the lack of opportunity of hearing before the voice sample order. The High Court rejected these challenges, relying on established precedents and the necessity of scientific voice analysis in investigations, and dismissed the petition.

Provisions of Law Cited

Constitution of India, Article 20(3)Code of Criminal Procedure, 1973, Section 482Prevention of Corruption Act, 1988, Section 7AIndian Penal Code, 1860, Section 120BConstitution of India, Article 142

Legal Doctrines & Maxims

No person accused of any offence shall be compelled to be a witness against himself (Constitution Article 20(3)).
Inherent judicial power under Article 142 to order voice samples for investigation; voice-sample orders permissible absent explicit statutory provisions.
Consent is not required for taking voice samples; accused has no right of option in this regard.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Annexure-2 notice directing him to give a voice sample violates Article 20(3) of the Constitution (protection against self-incrimination) and that the Special Court erred by directing such sampling without an opportunity of hearing. It is argued that the order intrudes into a protected privilege, requires statutory backing, and that the accused is entitled to notice and hearing before any coercive collection of a voice sample. He notes prior orders of the Special Court and argues for a due process safeguard; he also cites the lack of production of certain orders to challenge. The petition asserts that voice-sample collection may be a sensitive step requiring due process protection and consent, and contends that the evidence against him may be achieved through other means without violating constitutional rights.

Contentions of Respondents

The respondents maintain that voice sampling is a legitimate investigative tool. They rely on Ritesh Sinha v. State of Uttar Pradesh (AIR 2019 SC 3592) to contend that a voice sample order does not violate Article 20(3) and may be authorized by judicial interpretation under Article 142. They cite the necessity of voice analysis to prove the alleged bribe demand, the prior directives issued by the Special Court, and the need for advanced scientific methods in investigation. They also observe that the accused’s consent is not a prerequisite for voice sampling, and that notice is not a mandatory prerequisite in this context.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Ritesh Sinha v. State of Uttar Pradesh	AIR 2019 SC 3592 : (2019) 8 SCC 1	Positive	Court held that directing an accused to give a sample of voice for investigation does not infringe Article 20(3) and can be justified as an investigative tool, with implied power under Article 142.
Daisy v. State of Kerala	2020 (3) KHC 115 : 2020 (2) KLT 639	Positive	High Court confirmed that notice need not be issued prior to directing voice sampling when such direction arises in investigation, aligning with the investigative context and absence of a legal bar.
Rajendra Pralhadrao Wasnik v. State of Maharashtra	(2019) 12 SCC 460 : AIR 2019 SC 1	Positive	Court endorsed desirability of employing advanced scientific techniques and voice analysis as essential to investigation.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI TUESDAY, THE 30[TH] DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943** **CRL.MC NO. 3358 OF 2021** **VC 3/2021/TSR OF THE VIGILANCE & ANTI-CORRUPTION BUREAU,** **THRISSUR UNIT.** ## **PETITIONER/2ND ACCUSED:** **MAHESH LAL N.Y AGED 46 YEARS S/O. YATHEENDRAN, NELLIPARAMBIL HOUSE, PERAMANGALAM, THRISSUR 680 545** **BY ADVS. SHABU SREEDHARAN MEENU THAMPI AMAL STANLY SHYAM KUMAR M.P ANISA ANDREWS** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE SPECIAL PUBLIC PROSECUTOR, VACB, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **BY SMT.REKHA.S, SR.PUBLIC PROSECUTOR SRI.A.RAJESH, SR.PUBLIC PROSECUTOR, VACB** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26.11.2021, THE COURT ON 30.11.2021 PASSED THE FOLLOWING:** Crl.M.C.No.3358 of 2021 **2** “CR” ## **R. NARAYANA PISHARADI, J ---------------------------------------------------Crl.M.C.No.3358 of 2021** **-----------------------------------------------------** Dated this the 30[th ] day of November, 2021 ## **O R D E R** The petitioner is the second accused in the case registered as V.C.No.3/2021/TSR by the Vigilance and Anti-Corruption Bureau (VACB), Thrissur. 2. The petitioner was employed as an Overseer in the Choondal Grama Panchayat. 3. The prosecution case, in short, is as follows: The first accused is a contractor. He demanded money from the de facto complainant for payment of the same to the second accused and other officials of the Choondal Grama Panchayat to induce them to grant completion certificate in respect of the new building which was constructed by the brother-in-law of the de facto complainant. On 16.02.2021, at about 17:00 hours, the first accused met the de facto complainant at the parking area of Sankara Shopping Complex at the place Kecheri in Thrissur and he obtained/accepted Crl.M.C.No.3358 of 2021 **3** from the de facto complainant an amount of Rs.25,000/-. Thus, the first accused committed the offence punishable under Section 7A of the Prevention of Corruption Act, 1988 (for short 'the Act') read with Section 120B of the Indian Penal Code and the second accused committed the offence punishable under Section 7(a) of the Act read with Section 120B of the Indian Penal Code. 4. During the investigation of the case, Annexure-2 notice issued from the Court of the Enquiry Commissioner and Special Judge (Vigilance), Thrissur, directing the petitioner to appear at the Chithranjali Studio in Thrikkakara, for recording samples of his voice, was served on him. The direction given to the petitioner was to appear at 09.00 hours on 27.07.2021 in that studio. 5. This petition under Section 482 of the Code of Criminal Procedure, 1973 is filed for quashing Annexure-2 notice issued to the petitioner and all further proceedings based on it. 6. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 7. At the time of hearing, learned counsel for the petitioner has challenged Annexure-2 notice only on two grounds: (1) The order compelling the petitioner to give voice sample violates the protection guaranteed under Article 20(3) of the Constitution of Crl.M.C.No.3358 of 2021 **4** India. (2) The order directing the petitioner to give voice sample was passed by the Special Court without granting him an opportunity of being heard. 8. Article 20(3) of the Constitution provides that, “no person accused of any offence shall be compelled to be a witness against himself”. 9. The answer to the question, whether a direction given to an accused to give sample of his voice for comparison would violate Article 20(3) of the Constitution, is no longer _res integra._ In **Ritesh Sinha v. State of Uttar Pradesh** [ **AIR 2019 SC 3592 : (2019) 8 SCC 1** ], the Supreme Court has held that direction to an accused to give voice sample does not infringe Article 20(3) of the Constitution of India. The Apex Court has also held as follows: “ _We unhesitatingly take the view that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India_ ”. Crl.M.C.No.3358 of 2021 **5** 10. The other contention of the petitioner is that the Special Court should have granted him an opportunity of being heard before passing any such order. The question of granting opportunity of being heard to an accused before passing an order for taking voice sample would arise only if his consent is required for taking such sample. Since the direction given by a court to an accused to give voice sample for the purpose of comparison does not violate Article 20(3) of the Constitution, his consent is not required for that purpose. The accused has no right of option in the matter. 11. The same view has been taken by this Court in **Daisy v. State of Kerala [2020 (3) KHC 115 : 2020 (2) KLT 639]** , in which it has been observed as follows: _“The next contention of the learned Senior Counsel for the petitioner was that notice was not issued to the petitioner before directing her to furnish the voice sample. Since the direction of the court below was on a request made by the investigating agency in the course of investigation and in the absence of any legal bar, the Court below was not expected to issue notice to the petitioner.”_ 12. The prayer for quashing Annexure-2 notice cannot be allowed for another reason also. Annexure-2 notice was issued by Crl.M.C.No.3358 of 2021 **6** the office of the Special Court. The basis of Annexure-2 notice is the order dated 22.07.2021 of the Special Court which is referred to in it. The petitioner has not cared to produce the copy of the aforesaid order of the Special Court and to challenge it. In the statement filed by the investigating officer, it is mentioned that the Special Court had earlier issued direction to the petitioner to appear at Chitranjali Studio on 22.04.2021 at 08:45 hours and thereafter the petitioner had approached the Special Court with the petition Crl.M.P.75/2021 with a prayer for granting him time to appear at the studio and that the order dated 22.07.2021 was passed by the Special Court in that petition. Learned counsel for the petitioner has not refuted the correctness of the above factual aspects. It means that the petitioner was very well aware of the orders dated 22.04.2021 and 22.07.2021 passed by the Special Court. 13. It is mentioned in the statement filed by the investigating officer that the mobile phone seized during the investigation of the case contains details of the conversion between the petitioner and the de facto complainant with regard to the demand for bribe and voice analysis of both accused and the de facto complainant is essential to prove the demand made. Therefore, taking voice Crl.M.C.No.3358 of 2021 **7** samples of the petitioner is very essential for an effective investigation of the case. 14. The investigating agency has to adopt advanced scientific technology and methods of investigation to solve crimes [See **Rajendra Pralhadrao Wasnik v. State of Maharashtra : (2019) 12 SCC 460 : AIR 2019 SC 1** ]. 15. In the aforesaid circumstances, the challenge made to Annexure-2 notice fails. The petition is dismissed. **Sd/-R. NARAYANA PISHARADI JUDGE** lsn Crl.M.C.No.3358 of 2021 **8** ## **APPENDIX OF CRL.MC 3358/2021** |**PETITIONER'S**|**ANNEXURE**| |---|---| |**Annexure 1**|**THE TRUE COPY OF THE ORDER OF THE ENQUIRY**| ||**COMMISSIONER AND SPECIAL JUDGE'S COURT,**| ||**THRISSUR IN CRL MP NO. 28/2021 IN VC**| ||**3/2021/TSR DATED 2-3-2021**| |**Annexure 2**|**THE TRUE COPY OF THE NOTICE ISSUED BY THE**| ||**MANAGER OF THE OFFICE OF THE ENQUIRY**| ||**COMMISSIONER AND SPECIAL JUDGE**| ||**(VIGILANCE) THRISSUR DATED 23-07-2021.**| ## **RESPONDENTS' EXHIBITS: NIL** **TRUE COPY** **P.A TO JUDGE** **LSN**