OMKAR SAPRE Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By way of filing the instant miscellaneous petition under Sec. 482 Cr.P.C., challenge has been made to the order dtd. 16/7/2021 passed by the Additional Chief Metropolitan Magistrate No.2, Jaipur Metropolitan-I, Jaipur in FIR No.229/2021 registered at the Police Station CPS, ACB, Jaipur for the offences punishable under Ss. 7A and 8 of the Prevention of Corruption (Amendment) Act, 2018 and Sec. 120-B of the IPC whereby the application filed by the investigating agency asking for voice sample of the petitioner has been entertained by observing that the Court had jurisdiction to hear and decide such an application and it has been further observed that since the accused has denied from giving voice sample, therefore, the trial Court would be at liberty to draw an adverse inference from the said denial.

(2.) Bereft of elaborate details, the brief facts giving rise to the instant miscellaneous petition are that during investigation of the aforementioned case, the investigating agency moved an application to the Chief Metropolitan Magistrate, Jaipur Metropolitan-I for collection of voice sample of the accused. The learned Chief Metropolitan Magistrate, Jaipur had forwarded the application to the learned Additional Chief Metropolitan Magistrate-II, Jaipur Metropolitan-I to undertake the legal proceedings. Thereupon, the learned Court below summoned the accused from judicial custody and asked him to provide his voice sample for which legal objections were raised on behalf of the accused regarding competence of the Court. After hearing the counsel for the parties, the learned Court below deemed it appropriate to accede to the prayer made by the Investigating Agency and on the basis of the objections raised by the accused, the learned trial Court deemed it as denial from giving voice sample. While observing that the accused petitioner denied from giving the voice sample, the learned trial Court observed that in absence of the consent given by the accused, taking of voice sample was not possible. At the same time, it is observed that since the accused has denied from providing voice sample, therefore, the accused shall be held responsible, if the trial Court would take adverse inference against him during trial.

(3.) Shri V.R. Bajwa, learned senior advocate, assisted by Mr. Amar Kumar, submitted that since the matter pertains to Prevention of Corruption (Amendment) Act, 2018 (hereinafter referred to as 'the Act of 2018'/'Special Act') and for this purpose, the Special Courts have been constituted and the cases are triable only by the Special Judges by virtue of Sec. 4 of the Act of 2018, therefore, the Judicial Magistrate was not empowered to deal with the application and to make observations in this regard. He submitted that the information of lodging of the FIR along with a copy thereof under Sec. 157 Cr.P.C. was sent to the Special Court. After the arrest of accused, they were produced before the Special Court and police custody/judicial custody remands were obtained. In such circumstances, it was not appropriate for the investigating agency to move the application for taking voice sample before the Chief Metropolitan Magistrate rather it ought to have been submitted before the Special Court having jurisdiction to entertain such matters or conduct trial of such cases. It is submitted that a Special Court made under the provision of Sec. 3 of the Act of 2018 is squarely and adequately empowered to not only conduct the trial of any offences punishable under the Act of 2018 but also to deal with all the issues which crop up at the stage of investigation. Sec. 5 of the Act of 2018 categorically lays down the procedure to be adopted and powers of such Special Courts. The provision mandates that though the Special Judge is a Sessions Judge or an Additional Sessions Judge but he/she/they would enjoy the powers of a Magistrate as the trial which would be eventually be conducted would be a warrant trial by a Special Court. The Judge of the Special Court would take cognizance of the offence with or without the accused being committed to him for trial. As per Sec. 5(3) of the Act of 2018, the provisions of Code of Criminal Procedure would apply to all the proceedings before the Special Judge in the situations which have been specifically covered under sub-Sec. (1) and (2) of Sec. 5 of the Special Act as well as in the situations which are not inconsistent with the Special Act. He, thus, submitted that in such circumstances, 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.