Calcutta High Court (Appellete Side)
Subhash Chandra Balasaria vs The State Of West Bengal on 3 March, 2025
Author: Suvra Ghosh
Bench: Suvra Ghosh
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APELLATE SIDE
The Hon'ble JUSTICE SUVRA GHOSH
C.R.R. 105 of 2025
Subhash Chandra Balasaria
v/s.
The State of West Bengal
For the Petitioner: Sr. Adv.,Sudipta Moitra,
Adv. Subhamoy Bhattacharya,
Adv. Nibedia pal,
Adv. Ananda Gopal Mukherjee,
Adv. Shankar Bhattacharya,
For the Opposite Party No. 2: Adv. Ankit Agarwal,
Adv. Nialy Sengupta,
Adv. Sujit Banerjee,
Adv. Subhajit Manna,
For the State: Adv. Saryati Dutta,
Adv. Sreemoyi Roy
Judgment delivered on: 03-03-2025
SUVRA GHOSH, J. :-
1.
The petitioner is aggrieved by an order passed by the Learned Chief
Judicial Magistrate, Alipore on 4th November, 2024 in CGR 2040 of 2021
allowing the prayer of the investigating officer and directing him to act in
compliance with section 349 of the Bharatiya Nagarik Suraksha Sanhita
(in short the BNSS).
2. Learned counsel for the petitioner has submitted that in view of section
531(2)(a) of the BNSS, the proceeding shall be governed by the Code of
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Criminal Procedure (hereinafter referred to as the Cr.P.C.) and the
provisions laid down in the BNSS including section 349 cannot be
invoked. There is no provision under the Code of Criminal Procedure
which enables recording of voice sample of any person in course of
investigation of a case. The authority relied upon by the private opposite
party/defacto complainant is with regard to the power of the Hon’ble
Supreme Court under Article 142 of the Constitution of India and is not
applicable to any other Court.
3. Learned counsel has placed reliance on the authorities in Mukul Roy
v/s.State of West Bengal reported in 2019 Supreme Court Cases OnLine
Cal 4341, Sudhir Chaudhary and Others v/s. State (NCT of Delhi)
reported in (2016) 8 Supreme Court Cases 307, Smt. Sukhdev Kaur
(Grewal) v/s. Ravinder Singh Grewal reported in 1996 Supreme Court
Cases OnLine Cal 238, Food Corporation of India v/s. Anurag Properties
Pvt. Ltd. Anr. reported in 2006 Supreme Court Cases OnLine Cal 417,
Delhi Development Authority v/s. Skipper Construction Co. (P) Ltd. and
Another reported in (1996) 4 Supreme Court Cases 622, State of U.P. and
Another v/s. Johri Mal reported in (2004) 4 Supreme Court Cases 714,
Indian Bank v/s. ABS Marine Products (P) Ltd. reported in (2006) 5
Supreme Court Cases 72, and Ritesh Sinha v/s. State of Uttar Pradesh
and Another reported in (2019) 8 Supreme Court Cases 1 in support of
his contention.
4. In opposing the prayer of the petitioner, learned counsel for the private
opposite party/defacto complainant has submitted that the learned trial
Court, in dealing with applications filed under section 173(8) of the
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Cr.P.C. and application for cancellation of bail, has observed in the order
dated 12th May, 2023 that the investigating officer did not attempt to
collect the voice samples of Subhash Balasaria and Siddharth Manot
during investigation to establish their culpability. The order further
records that the voice recording contained in the mobile phone of the
witness Sanjay Jain which has been seized by the investigating officer has
not matched with his voice samples for identification of the voice recorded
in the conversations. The petitioner is one of the witnesses in the
proceeding.
5. Referring to the order passed by the Hon’ble Supreme Court in Pravinsinh
Nrupatsinh Chauhan v/s. State of Gujarat in Special Leave to Appeal
(Crl.) No(s). 4693 of 2023 and the authority in Tarak Nath Gupta and
Another v/s. State of Delhi and Another reported in 2023 Supreme Court
Cases OnLine Del 6475, learned counsel has submitted that under Article
142 of the Constitution, the Hon’ble Supreme Court has directed that the
Magistrate is empowered to collect voice sample for the purpose of
investigation of the crime. No prejudice shall be caused to the petitioner
in the event his voice sample is recorded by the learned Magistrate.
6. Learned counsel for the State has referred to the authority in State of
Bombay v/s. Kathi Kalu Oghad reported in AIR 1961 Supreme Court
1808 and has submitted that the Hon’ble Supreme Court contemplated
by a majority view that Article 20 (3) of the Constitution is invoked only in
case of testimony of the accused which is self-incriminatory or of a
character which has the tendency of incriminating the accused himself. In
the judgment in Ritesh Sinha (supra), the Hon’ble Supreme Court has
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held that until explicit provision is engrafted in the Code of Criminal
Procedure by the 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 the crime. Since the petitioner was served with a notice
under Section 160 of the Code of Criminal Procedure and has been
categorized as a witness in the case, the investigating agency has rightly
asked for his voice sample as a vital piece of evidence to arrive at the right
conclusion.
7. At the outset, it shall be useful to reproduce Section 531(1) and 2(a) of the
BNSS.
“531. Repeal and savings-
(1) The Code of Criminal Procedure, 1973 (2 of 1974 is hereby
repealed
(2) Notwithstanding such repeal-
(a) if, immediately before the date on which this Sanhita comes into force,
there is any appeal, application, trial, inquiry or investigation pending, then,
such appeal, application, trial, inquiry or investigation shall be disposed of,
continued, held or made, as the case may be, in accordance with the
provisions of the Code of Criminal Procedure, 1973 (2 of 1974), as in force
immediately before such commencement (hereinafter referred to as the said
Code), as if this Sanhita had not come into force;”
8. Therefore Section 349 of the BNSS cannot be invoked in the proceeding
before the learned Chief Judicial Magistrate, Alipore. The direction given
by the Magistrate in the order impugned dated 4th November, 2024 upon
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the investigating officer to act in compliance with Section 349 of the BNSS
is not tenable in law.
9. 311-A of the Cr.P.C. empowers the Magistrate to order a person to give
specimen signatures or handwriting. There is no explicit provision under
the Cr.P.C. authorising recording of voice sample of a witness. In the
authority in Ritesh Sinha (supra) the accused was directed to give his
voice sample and in the said context, the Hon’ble Supreme Court held as
hereunder:-
“The compulsion to give voice sample does in some way involve
an invasion of the rights of the individual and to bring it within the ambit of
the existing law would require more than reasonable bending and
stretching of the principles of interpretation.
If the legislature, even while making amendments in the Criminal
Procedure Code (Act 25 of 2005), is oblivious and despite express reminders
chooses not to include voice sample either in the newly introduced
Explanation to Section 53 or in Sections 53-A and 311-A CrPC, then it may
even be contended that in the larger scheme of things the legislature is able
to see something which perhaps the court is missing.”
10. It is also trite law that a person cannot be compelled to be a witness
against himself. In the said judgment, the Hon’ble Supreme Court has
observed 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
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jurisdiction vested in the Supreme Court under Article 142 of the
Constitution.
11. An identical issue was dealt with by a coordinate Bench of this Court in
an order passed on 12th December, 2019 in Mukul Roy v/s. State of West
Bengal reported in 2019 SCC OnLine Cal 4341. The learned Court
formulated three questions and referred the matter for decision by an
appropriate larger Bench. The questions formulated are as hereunder:-
a) “Whether Section 311A read with Sections 53 and
53A of Cr.P.C. along with Section 5 of the
Identification of Prisoners Act, 1920, empowers a
Magistrate to compel a witness in course of
investigation into an FIR, to give voice sample in the
aid of such investigation.
b) Can the principle laid down by the Hon’ble Supreme
Court in the Ritesh Sinha v. State of U.P. (supra) be
applied also to witnesses in course of investigation.
c) Whether a witness even in course of an investigation
can be compelled to give evidence, that could
subsequently emerge as a ground for including him
as an accused in the final investigation report.”
12. This Court is informed that the reference is yet to be decided. The learned
coordinate Bench directed recording of voice sample of the petitioner in
the said case upon consent being given by him on condition that the said
voice sample would be kept sealed and unopened and would abide by the
result of the reference.
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13. Under such circumstances, this Court is of the view that since the issue
which has fallen for consideration before this Court has been referred to a
larger Bench and is still pending, judicial propriety demands that the
prayer of the petitioner herein should abide by the decision of the
appropriate Bench.
14. As the order impugned dated 4th November, 2024 directing the
investigating officer to act in terms of Section 349 of the BNSS is bad in
law, the said order is quashed/set aside.
15. The prayer for recording the voice sample of the petitioner shall abide by
the decision of the appropriate larger Bench.
16. The revisional application being CRR 105 of 2025 is accordingly disposed
of.
17. Urgent certified website copies of this judgment, if applied for, be supplied
to the parties expeditiously on compliance with the usual formalities.
(Suvra Ghosh, J)
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