The Allahabad High Court has directed SP leader Azam Khan to record his voice sample in connection with his provocative and objectionable speech during the 2007 Assembly elections.
A Single Bench of Justice Rajeev Misra passed this order while hearing an application under Section 482 filed by Mohd Azam Khan.
The application under Section 482 Cr.P.C has been filed by accused-applicant Mohd Azam Khan challenging the order dated 29.10.2022, passed by the Additional Sessions Judge/Special Judge (M.P/MLA), Rampur in Special Sessions Trial, under Sections 504 and 171(G) IPC, Section 125 Representation of Peoples Act, 1951 and Section 3(1)(X) SC/ST Act, police station Tanda, district Rampur, whereby a direction has been issued to the accused-applicant to give his voice sample so that the Director F.S.L, Moradabad could examine the voice of the audio cassette to ascertain as to whether the inflammatory/derogatory speech recorded in the audio cassette is that of the accused-applicant and the order dated 22.11.2022, whereby the application filed by the accused-applicant for recall of order dated 29.10.2022 has been rejected.
The Court noted that in respect of an incident, which is alleged to have occurred on 07.08.2007, a delayed F.I.R dated 08.08.2007 was lodged by first informant-opposite party-2, namely, Dheeraj Kumar Sheel and was registered as Case under Sections 504 and 171(G) IPC, Section 125 Representation of Peoples Act, 1951 and Section 3(1)(X) SC/ST Act, police station Tanda, district Rampur. In the aforesaid F.I.R, applicant has been nominated as solitary named accused.
The gravamen of the allegations made in the F.I.R is to the effect that on 07.08.2007, accused-applicant, who was member of Legislative Assembly and a leader of Samajwadi Party, made a speech, which was derogatory, inasmuch as, the words used were offensive in nature as they caused hurt to the sentiments of a particular community and further the said act of the accused-applicant violated the model code of conduct, issued by the Election Commission.
After the aforementioned F.I.R was lodged, the Investigating Officer proceeded with statutory investigation of the concerned Case Crime number in terms of Chapter XII Cr.P.C. He examined the first informant and other witnesses by recording their statements under Section 161 CrPC.
During the course of investigation, the statement of Gulab Rai-Naib Tehsildar was also recorded by the Investigating Officer on 21.07.2007. This witness in his statement before the Investigating Officer has stated that the entire event which occurred on 07.08.2007 including the inflammatory/ derogatory speech of the accused was recorded and the CD cassette of the same was handed over to the Station Officer of the concerned police station, namely, M.P Singh.
The Court further noted that a second statement of aforesaid witness, namely, Gulab Rai was recorded on 11.01.2008, in which he has stated that the services of one Sanjay, who runs a studio by the name of Pooja Cassette Centre, were taken to record the entire event. This witness further stated that the entire event was video-graphed by the proprietor of the aforementioned firm, namely, Sanjay and the video cassette of the same was submitted by him on 09.08.2007 to the police officials.
Subsequently, the statement of Sanjay, proprietor of Pooja Cassette Centre, was recorded. This witness in his statement has categorically stated that the event which occurred on 07.08.2007 was recorded by him on the instructions of Gulab Rai, Naib Tehsildar. After recording was completed, the video cassette was handed over by him to Gulab Rai, Naib Tehsildar.
After the aforesaid video cassette was received by the Investigating Officer, it appears that an application was filed before court below seeking permission of the court to have voice sample of the accused-applicant so that the veracity of the recovered cassette as to whether the voice recorded therein is that of accused or not could be examined by the Forensic Science Laboratory. It appears that no orders were passed on the application.
From the above conspectus, it is thus clear that during the course of investigation, no forensic report was submitted with regard to the disputed cassette.
Ultimately, the Investigating Officer submitted charge sheet dated 02.03.2009.
After the aforementioned charge-sheet dated 02.03.2009 was submitted, the court concerned took cognizance of the same and simultaneously summoned the applicant. Resultantly, Special Sessions Trial came to be registered in the court of Additional Sessions Judge/Special Judge (M.P/M.L.A), Rampur. The concerned Sessions Judge framed charges against the accused-applicant.
The accused-applicant denied the charges so framed and pleaded innocence. Consequently, the trial procedure commenced.
Thus, feeling aggrieved by the above orders dated 29.10.2022 and 22.11.2022 passed by court below, accused applicant has approached the Court by means of the application under Section 482 CrPC.
The Court observed that,
Having heard the counsel for applicant, the Additional Advocate General assisted by the A.G.A for State, and upon perusal of record, the Court finds that the issue as to what is the nature of the disputed cassette is a question of fact and will not have material bearing on the merits of the order dated 29.10.2022.
Merely on the ground that court below without deciding the nature of the disputed cassette i.e whether it is an audio cassette or a video cassette had directed the accused-applicant to give his voice sample, the order dated 29.10.2022 cannot be said to be illegal causing prejudice to the applicant and therefore liable to be set aside. The Court, therefore, finds that the aforesaid submission raised by the counsel for applicant has been made only to be rejected. Accordingly, the court declines to delve into the said submission.
However, the judgement of the Supreme Court in the case of Ritesh Sinha (supra) relied upon by the counsel for applicant is not attracted in the case. As per the said judgement, a Magistrate has been conferred with the jurisdiction to direct an accused to give his voice sample for the purpose of investigation. However, the Court finds that in the case, an application was duly filed by the prosecution before court below during the course of investigation to direct the accused to give his voice sample.
However, the said application remained pending as no order was passed thereon. The judgement relied upon by the counsel for the applicant does not deal with such an eventuality. No fault can be attributed to the prosecution either, nor the prosecution can be made to suffer on that account. Even otherwise, it is well settled that an act of court prejudices none. Simply because no order was passed by court concerned on the application filed by the prosecution during the course of investigation cannot be construed to mean that the court has no jurisdiction to direct the accused-applicant to give his voice sample subsequently. In view of above, the order dated 29.10.2022 is thus not liable to be interfered with.
Considering the above, the Court disposed of the application of finally with a direction that court below shall obtain a certificate from Sanjay (proprietor of Pooja Cassette Centre) who had recorded the entire event which occurred on 07.08.2007 and thereafter handed over the cassette to Gulab Rai-Naib Tehsildar in terms of Section 65-B of the Indian Evidence Act. After such certificate has been submitted before court by Sanjay, the applicant shall give his voice sample as already directed vide order dated 29.10.2022.