Calcutta High Court (Appellete Side)
Central Bureau Of Investigation vs Kunal Mukherjee & Ors on 23 June, 2025
291 23.6.2025
Central Bureau of Investigation
Vs.
Kunal Mukherjee & Ors.
Mr. Anirban Mitra …for the petitioner/CBI
Affidavit of service filed by the petitioner is taken on record.
Opposite parties are not represented.
Challenging the order dated 11th December, 2018 passed by
the learned Special Judge, CBI court no. 2, Alipore in Special case
no. 3 of 2015, the present application has been preferred. By the
impugned order, learned court below came to a finding that the
voice sample of the accused persons recorded during investigation
without taking leave of the court is not admissible as evidence as
it hits by Article 20(3) of the Constitution of India and also
because said voice samples were recorded at the office of CBI
instead of recording the same before a Magistrate and thereby
barred by Section 24 to 26 of the Indian Evidence Act. In this
context, court below relied upon the case of Selvi & others Vs.
State of Karnataka and Ritesh Sinha Vs. State of U.P. &
others.
The brief background of the present case as stated in the FIR
that one Kunal Mukherjee was posted and functioning as Sr.
Divisional Electrical Engineer (TRD), Eastern Railway, Sealdah
Division during the period from May 2014 to August 2014. Being
a public servant, he demanded and accepted illegal gratification
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from different persons and agencies for showing them favour in
the matter of forwarding bills and others.
In pursuant to the said complaint, one case was registered
against said Kunal Mukherjee and others under Section 7,12,
Section 13(2) read with Section 13(1) (d) of Prevention of
Corruption Act, 1988 and Section 120B of the IPC and on
completion of investigation charge-sheet has also been filed
against accused persons.
Being aggrieved by the said order, Mr. Mitra, learned counsel
for the petitioner submits that court below has erred in arriving at
a decision of rejecting admissibility of voice sample of the opposite
party during investigation, on incorrect application of law laid
down in the cases of Ritesh Sinha (supra) & Selvi & Others
(supra). Court below ignored the fact that the accused gave their
voice sample voluntarily. The impugned order is also otherwise
bad in law and is liable to be set aside.
In the case of Ritesh Sinha Vs. State of Uttar Pradesh &
Anr. (2019) 8 SCC 1, it was held by the Apex court as follows:
“26. 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 & Research
Centre v. State of M.P. [Modern Dental College & Research
Centre v. State of M.P., (2016) 7 SCC 353 : 7 SCEC 1]
, Gobind v. State of M.P. [Gobind v. State of M.P., (1975) 2 SCC
148 : 1975 SCC (Cri) 468] and the nine-Judge Bench of this
Court in K.S. Puttaswamy (Privacy-9J.) v. Union of India [K.S.
Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1] the
fundamental right to privacy cannot be construed as absolute
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”
“27. 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
3power 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 of the appeals in
terms of the above.”
Thereafter in the case of Pravinsinh Nrupatsinh Chauhan
Vs. State of Gujarat reported in 2023 Livelaw (SC) 463,
Supreme court held that Magistrate has the power to order the
collection of a voice sample for the purpose of investigation The
Court did not find any infirmity with the impugned judgment of
the High Court as well as the special court ordering the accused
to give his voice sample to facilitate the investigation of the crime.
Therefore, CBI ought to have made a prayer before the court
below and for taking voice sample, they ought to have taken leave
from the court below in this respect to facilitate investigation of
the crime. Since admittedly no such leave was taken for recording
voice sample before the court, I find that the order impugned
passed by the trial court and his finding to that extent does not
suffer from impropriety or perversity and therefore does not call
for interference by this court.
I am informed that the case is pending for hearing of the
discharge petition.
In such view of the matter, CRR 2042 of 2019 stands
disposed of giving liberty to the petitioner to make prayer before
the court below seeking further investigation of the matter and in
the event of making such prayer by the petitioner, the court below
will dispose of such application in accordance with law without
being influenced by any observations made herein.
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Urgent Photostat certified copy of this order, if applied for, be
given to the parties upon compliance of all requisite formalities.
(Dr. Ajoy Kumar Mukherjee, J.)