The Kerala High Court has clarified that a Magistrate’s authority to direct an individual to provide a voice sample under Section 349 of the BNSS Act depends on the Magistrate’s satisfaction that such a sample is necessary for the purpose of an investigation.

“Under Section 349, the criteria is the satisfaction of the Magistrate that it is expedient to direct any person to provide his voice sample, again, for the purposes of the investigation or proceeding under BNSS. Therefore, the thrust is upon the question whether the voice sample is required for the purpose of investigation of the crime,” the Court emphasized. [Refer page no. 09 of the original order]

The accused contended that he was not in custody at the time the order to provide the voice sample was issued, arguing that the order was invalid for this reason. However, the investigating officer informed the Court that while the FIR was registered before the BNSS Act came into effect, the voice sample was sought based on the precedent established by the Supreme Court in Ritesh Sinha v. State of U.P. and Another (2019). In that case, the Supreme Court held that a Judicial Magistrate has the authority to order a person to provide a voice sample for investigative purposes, even in the absence of a specific legal provision.

A single bench of Justice C. Jayachandran held that, as per the principles outlined in Ritesh Sinha and Section 349 of the BNSS Act, the key consideration is whether the voice sample is necessary for the investigation. The Court noted that the first proviso to Section 349 merely requires that the individual must have been arrested at some point in connection with the investigation. While the petitioner was not in custody at the time the order was issued, the investigating officer confirmed that he had previously been arrested, thereby satisfying the requirement of the proviso.

The case involves allegations that the petitioner, while serving in a village office, demanded a bribe of ₹52,000 to issue certain records. It is alleged that the petitioner received ₹30,000, following which a trap was set, and a crime was registered. The prosecution recovered a phone conversation between the accused and the complainant, which was stored on a CD. Permission to obtain the petitioner’s voice sample for comparison was granted by the Enquiry Commissioner and Special Judge (Vigilance), and this order was challenged by the accused before the High Court.

The petitioner also argued that the phenolphthalein test, conducted to confirm the bribe, had yielded a negative result, and the decoy notes were not recovered from his possession but from a location distant from his seat. Furthermore, he alleged that the application submitted by the investigating officer failed to specify how or where the phone conversation was retrieved. Additionally, the petitioner claimed that the CD containing the conversation lacked the Section 65B certificate required under the Indian Evidence Act to validate electronic evidence.

In response, the Court observed that the negative phenolphthalein test result further necessitated the submission of additional evidence to substantiate the case. It highlighted that the voice clip, in which the accused allegedly demanded a bribe, could serve as crucial evidence. The Court further clarified that the accused cannot challenge the methods used to retrieve the conversation during the investigation phase, as such objections can be raised during the trial.

The Court also stated that a Section 65B certificate is mandatory only when electronic evidence is presented as evidence during trial proceedings, not at the investigation stage. Based on these findings, the High Court dismissed the petition, upholding the order to obtain the petitioner’s voice sample.

Case Title: Sunil Rajan K. v Inspector of Police and Another

Case No: Crl.M.C. 9284 of 2024

Date: November-14-2024

Bench: Justice C. Jayachandran

[Read/Download order]