A single Judge of Bombay High Court at Aurangabad held that in DV cases, they being quasi-civil, Constitutional protections under Article 20(3) are not available to either parties and Right to privacy under Article 21 is not absolute, like any other fundamental rights.
From Paras 10 and 11,
10. After having heard both sides what needs to be adjudicated in the present matter is as to whether the Respondent No.1 can be compelled to give her voice sample for soliciting report of verification from the forensic laboratory. It is necessary to focus on the relevant fact that petitioners have come up with plea that Respondent No.1 is having extra marital relations. Her conversation with her paramour has been recorded in a cell-phone. A memory card and compact disc which are marked as Article 1 and 2 are produced along with certificate under section 65(B) as Exhibit-106 on record. A transcript of the conversation prepared by the petitioners has been marked as Exhibit-109. It further reveals from record that the transcript has been verified by the officers of the Court to be as per the contents of the compact disc.
11. The proceedings between the parties are quasi-civil and quasi-criminal in nature. Petitioners cannot be termed as accused persons. As per Section 28(2) of domestic violence act, Magistrate has power to follow the procedure for disposal of application under Section 12 of PWDV Act. There is no provisions to compel the party to the proceedings under domestic violence act to give voice sample. Article 20(3) of the Constitution of India can not be made applicable.
From Paras 19 and 20,
19. Reliance is placed on the judgment the Supreme Court in Ritesh Sinha vs. State of Uttar Pradesh and Anr. reported in AIR 2019 SC 3592. That was a case of reference before larger bench. Following questions were referred for the adjudication :
5. Two principal questions arose for determination of the appeal which have been set out in the order of Justice Ranjana Prakash Desai dated 7th December, 2012 in the following terms.
(1) Whether Article 20(3) of the Constitution of India, which protects a person Accused of an offence from being compelled to be a witness against himself, extends to protecting such an Accused from being compelled to give his voice sample during the course of investigation into an offence?
(2) Assuming that there is no violation of Article 20(3) of the Constitution of India, whether in the absence of any provision in the Code, can a Magistrate authorize the investigating agency to record the voice sample of the person Accused of an offence?
20. So far as first question is concerned, it was held that voice sample is not evidence and it is answered in negative. For second question following are observations :
24. Would a judicial order compelling a person to give a sample of his voice violate the fundamental right to privacy Under Article 20(3) of the Constitution, is the next question. The issue is interesting and debatable but not having been argued before us it will suffice to note that in view of the opinion rendered by this Court in Modern Dental College and Research Centre and Ors. v. State of Madhya Pradesh and Ors. (2016) 7 SCC 353, Gobind v. State of Madhya Pradesh and Anr. (1975) 2 SCC 148 and the Nine Judge’s Bench of this Court in K.S. Puttaswamy and Anr. v. Union of India and Ors. (2017) 10 SCC 1 the fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest. We refrain from any further discussion and consider it appropriate not to record any further observation on an issue not specifically raised before us.
25. In the light of the above discussions, 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. We order accordingly and consequently dispose the appeals in terms of the above.
From Paras 22-24,
22. In the proceedings under domestic violence act, the parties are not informant and accused in the sense of criminal jurisprudence. They are in domestic relationship. Non applicants would not stand for trial for any offence. Therefore, principles of Article 20(3) of the Constitution of India are not attracted. In the matters of compulsion to offer the voice sample, the Supreme Court Ritesh Sinha (supra) is skeptical. It is not laid down that a person can not be compelled to give sample of voice. On the contrary, Magistrate is recorded to be conceded with the power to order a person to give a sample of his voice. Hence, the findings recorded by the Learned Judge in impugned order are unsustainable.
23. When High Court is considering the matter for direction to a person to give voice sample, it is permissible to have recourse to Section 482 of Cr.P.C.(Section 528 of B.N.S.S). Magistrate in the matters of domestic violence has power to adopt the procedure as per Section 28(2) of the Act. Exercise of such power depends on the facts and circumstances of each case. No straight jacket formulae can be laid down. If there is adequate material on record having potential to prove the relevant facts, a person can be compelled to give voice sample. Such power is conceded with the Magistrate. Due to advent of technology, electronic evidence is being introduced. The electronic evidence is replacing conventional evidence. There is more need to invest such powers to the Magistrate who is a fact finding authority.
24. I find force in the submissions of learned counsel for the petitioners. Respondent is bound to give her voice sample to be referred to the forensic laboratory for verification.
Index to Domestic Violence cases is here.
