RAKESH BISHT Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) These revision petitions are taken up together as they arise out of the same FIR as well as the same impugned order dated 19.06.2006 passed by the learned Special Judge (CBI), Delhi. By virtue of the impugned order, an application moved on behalf of the CBI to take voice samples of the petitioners was allowed.

(2.) Briefly stated, the case is that during investigations of a scam known as 'The Cooperative Group Housing Society Scam', it was found that the petitioner (Yoginder Kumar), who was an Inspector of CBI and who was an investigating officer in respect of one of the scam cases, was utilising the services of the other petitioner, namely, Rakesh Bisht, who was acting as a tout of the accused (Yoginder Kumar) to contact private persons involved in the scam cases to extort illegal gratification from them. Apparently, the investigating agencies had obtained a tape recorded conversation between the petitioners, i.e., Yoginder Kumar and Rakesh Bisht. When the investigating officer requested the petitioners to give their voice samples for the purposes of comparison with the tape recorded conversation, the petitioners refused to lend their voice samples on 28.04.2006. It is clear that the investigation is still going on and the charge-sheet is yet to be filed. It is during this stage of investigation that an application was filed before the learned Special Judge (CBI) with the prayer that the petitioners be directed to give their voice samples for the purposes of comparison with the tape recorded conversation which had already been recorded by the CBI. The learned Special Judge, after examining the submissions made by the counsel for the petitioners as well as the counsel on behalf of the CBI and after noticing various judgments of the Supreme Court as also of the Bombay High Court, came to the conclusion that the lending of voice samples for the limited purpose of identification so as to compare the same with the tape recorded telephonic conversation would not be in violation of the provisions of Article 20(3) of the Constitution of India. For this proposition, the learned Special Judge relied upon the decision of the Supreme Court in the case of State of Bombay v. Kathi Kalu Oghad: AIR 1961 SC 1808 as well as the decision of the Bombay High Court in the case of Central Bureau of Investigation v. Abdul Karim Ladsab Telgi and Others: 2005 CRI. L.J. 2868. Considering these decisions, the learned Special Judge allowed the application moved on behalf of the CBI and directed the Jail Superintendent to allow the prosecution to take the voice specimens of the accused persons (the petitioners herein).

(3.) Being aggrieved by this order, the present revision petitions have been filed by the accused (petitioners herein). The only point raised by the learned counsel for the petitioner is that the court (i.e., the Special Judge, CBI) did not have any jurisdiction or power to allow the application of the CBI directing the taking of voice samples at the stage of investigation. He submitted that the investigation is entirely within the province of the investigating agencies and the courts have no role to play in the investigation. He referred to the decision of the Supreme Court in the case of State of Haryana v. Jagbir Singh and Another: 2003 Cri. L.J. 5054. The reference to this decision was made in the context of the provisions of Section 73 of the Indian Evidence Act, 1872 which, according to the learned counsel for the petitioner, was possibly the only provision under which the court could have acted. However, with regard to Section 73 also, the Supreme Court clearly and categorically indicated that before an order under Section 73 could be passed, the pendency of the proceedings before the court was the sine qua non. It would definitely not be available at the stage of investigation. He also referred to the decision in the case of State of Uttar Pradesh v. Ram Babu Misra: AIR 1980 SC 791 wherein the same conclusion was arrived at by the Supreme Court and the decision of the Supreme Court in the case of Kathi Kalu (supra) was distinguished. The learned counsel for the petitioner also referred to a decision of Calcutta High Court in the case of Dwijadas Banerjee and etc. v. The State of West Bengal: 2005 Cri. L.J. 3151. The court declined directing the investigating agencies to record voice samples because the matter was at the stage of investigation. The Calcutta High Court decision was based on the Supreme Court decisions in State of Uttar Pradesh v. Ram Babu Misra (supra) as well as State of Haryana v. Jagbir Singh (supra).