CASE TITLE
OMKAR SAPRE vs STATE OF RAJASTHAN
COURT
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
DATE OF ORDER
20th March, 2023
BENCH
HON’BLE Mr. JUSTICE FARJAND ALI
PARTIES
PETITIONER: OMKAR SAPRE
RESPONDENT: STATE OF RAJASTHAN
SUBJECT
In the present case, court has emphasized on the exclusive right of accused to deny for giving his sample for any sort of tests during an investigation. The sample can only be collected after the consent of the accused and not otherwise.
OVERVIEW
- The petition has been filed by the accused under Sec 482 of Cr.P.C against the competency of the magistrate to deal with an application of collecting voice sample by the investigating agency.
- The Petitioner is accused for offences punishable under Sec 7A & 8 of Prevention of Corruption (Amendment) Act 2018 and Sec 120- B of IPC.
- The investigating agency moved an application to the Chief Metropolitan Magistrate, Jaipur Metropolitan-I for collecting voice sample for the accused. This was further moved to Additional Chief Metropolitan Magistrate to deal with the proceedings.
- The Petitioner denied to give his voice sample on the ground of incompetent jurisdiction of the court.
- The Petitioner has raised objections against the jurisdiction of the Magistrate acting for the matter and has also challenged the order dated 16.07.21 by Additional Chief Metropolitan Magistrate in which the court stated that the accused will be responsible for adverse consequences of his denial to submit concerns sample.
ARGUMENTS ADVANCED BY PETITIONER
The learned counsel of the petitioner raised his objections against the jurisdiction of Additional Chief Metropolitan Magistrate to act upon the given legal matter. It was contended that under Sec 4 of the Prevention of Corruption ( Amendment) Act, 2018 there are special courts who have the competency to deal with the offences described under the act. The counsel submitted that as per Sec 157 of Cr.P.C the copy of FIR was given to the Special Court and proceedings were taking place under it. The application submitted to the Chief Metropolitan Magistrate by the Investigating Agency to collect voice sample of the accused was not appropriate. Under Sec 3 of the given act , special courts are empowered to deal with offences mentioned in the act as well as all the issues which may come up at the stage of investigation. Sec 5 of the Act lays down the procedure to be adopted and powers of the Special Courts. The Special Judge would take cognizance of the offence with or without the accused being committed to him for trial. It was contended to dismiss the application of collection of voice sample and all other applications submitted before the Magistrate.
ARGUMENTS ADVANCED BY RESPONDENT
The counsel of the respondent vehemently opposed the arguments of the petitioner. It was submitted that the law in regard to the jurisdiction of Magistrate during the stage of investigation has been changed by the Supreme Court in case of Ritesh Sinha vs State of U.P (2019). The apex court in this case held that the Magistrate is empowered to collect voice sample of an accused during the course of investigation. But it can only be done with the consent of the accused. If accused denies for submission of voice sample, Magistrate is not empowered to take any further action. Hence, the counsel contended that the Additional Chief Metropolitan Magistrate had complete authority on the legal proceedings.
JUDGEMENT
- The High Court partly allowed the petition to the extent of quashing the order dated 16.07.21 by the Additional Chief Metropolitan Magistrate.
- The court held that the accused has an exclusive right to deny and there shall be no adverse consequences to such denial by any court. The Magistrate exceeded his jurisdiction and it was beyond his competence to make a decision stating that accused will be responsible for adverse inference of denial to submit the voice sample.
- The court held that the petitioner had a right to raise objection against the order of the Magistrate regarding adverse effects of his denial.
- In light of the Prevention of Corruption ( Amendment) Act, 2018 it is clear that Special Courts are empowered to deal with the offences described in the act. In such legal matters, Magistrate is not given the power to take any action. The Magistrate acts as an invigilator to ensure that collection of sample is duly done. The purpose is to ensure doubt-free proceedings. The job of Magistrate herein is to only verify the collection of sample and nothing beyond it.
- The court followed the judgement by SC in Ritesh Sinha vs State of U.P and rejected the contention of the petitioner that investigating agency cannot move to Magistrate. As per the judgement, Magistrate has the competence and jurisdiction to entertain the application of voice sample collection only to the extent of ensuring lawful proceedings and nothing beyond it.
CONCLUSION
It can be concluded from the judgement of the present case that no court has the power to take any action or pass an order again the accused just because he had denied to give consent for submitting his voice sample. Secondly, it is understood that the Magistrate are invigilator or an observer in sample collection during course of investigation. The Magistrate is not given the power to any action in regard to this. He is merely pit there to ensure unambiguous procedure.
