LPA No. 676 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No. 676 of 2011 Date of decision 12 .7 .2011 Darshan Singh . Appellant Versus . The District and Sessions Judge and another .. Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. N.D. Achint, Advocate for the appellant Ms. Radhika Suri, Advocate for respondents. 1. To be referred to the Reporter or not ? 2. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The instant appeal under Clause X of the Letters Patent is directed against judgement dated 16.2.2011 rendered by the learned Single Judge modifying the order dated 24.5.2010 passed by the District and Sessions Judge, Gurgaon to the extent that supplementary Inquiry shall pertain to charge No. (viii) only which shall be conducted on day to day basis by the Addl. District and Sessions Judge, Gurgaon. The Inquiry report is required to be submitted to the District and Sessions Judge, Gurgaon on or before 31.8.2011. In case the appellant fails to cooperate then the Inquiry Officer was at liberty to proceed against the appellant in accordance with law. 2. Brief facts of the case may first be noticed. The appellant was issued a charge sheet by the District and Sessions Judge, Gurgaon- respondent no. 1 on 19.12.2006 (P.1). According to the statement of allegations, the appellant who was posted as a copyist in the Copying Agency alongwith LPA No. 676 of 2011 2 one Naveen had approached the complainant on 16.3.2006 and told him that the appellant could get the Civil Suit titled as Hira Lal v. Santosh pending in the Court of Shri Baljit Singh, Civil Judge (Sr.Division), Rewari decided in his favour as the appellant has cordial relationship with the Presiding Officer because he remained as Reader with him during the period when he was posted as Judicial Magistrate Ist Class, Ferozepur Jhirka. On 17.3.2006, he also introduced another official Harvinder Singh to the complainant and the appellant alongwith Naveen and Harvinder Singh went to the residence of the Presiding Officer Shri Baljit Singh. Thereafter, the appellant alleged to have demanded a sum of rupees two lakhs from the complainant to get his case decided in his favour. Naturally Parveen Rao was tempted and sent his brother Vikas Rao to the residence of the Presiding Officer. Vikas Rao handed over a sum of rupees one lakh to the appellant. He was also given a sum of Rs. 10,000/- by Parveen Rao as his personal expenses. The balance amount could not be paid by the complainant and eventually the case was decided against him on 18.4.2006. On the excuse that the whole amount was not paid therefore the case has been decided against the complainant and that there was some pressure of an IAS officer upon the Presiding Officer to decide the case in favour of the other side. Even the appellant refused to return the amount taken from Parveen Rao. The allegation further is that the entire conversation between the appellant, Naveen and complainant was recorded by the complainant in a Compact Disc (CD) which alongwith the complaint was sent to the High Court. The complaint alongwith the CD was also forwarded to Superintendent of Police, CBI, Anti Corruption Branch, Sector 30A, Chandigarh with a direction to get LPA No. 676 of 2011 3 the voice of the court official matched. Shri Jai Singh, Inspector CBI recorded the specimen of voice of Naveen Kumar in the presence of the District and Sessions Judge, Gurgaon. However, the appellant initially showed his willingness to give specimen of his voice but later on refused to give his specimen of voice. Accordingly a charge sheet under Rule 7 read with Rule 4 of the Haryana Civil Services (Punishment and Appeal), Rules, 1987 read with Rule 12(2) of the Haryana Subordinate Courts Establishment (Recruitment and General Conditions of Service) Rules, 1997 with issued. The appellant filed reply to the charge sheet and a regular departmental Inquiry was held. Vide report dated 26.4.2010, the Inquiry Officer absolved the appellant of all the charges. The District and Sessions Judge, Gurgaon accepted the findings of the Inquiry Officer in respect of charges mentioned in paras (i) to (vii) and concluded that the Inquiry Officer has rightly recorded the finding that evidence from the file is not sufficient to prove those allegations because neither the complainant Parveen Rao nor his brother Vikas Rao who were the only material witnesses, have been examined during the Inquiry to substantiate the allegations. 3. However, in respect of the charge No. mentioned in para(viii) against the appellant that he has resiled from the statement given before the District and Sessions Judge for giving his sample voice to compare the same with the tape recorded conversation between him Naveen and Praveen Rao, the District and Sessions Judge came to the conclusion that the allegations levelled in this para stand fully proved that refusal to give his sample voice would lead to the legitimate adverse inference that he was guilty and the relevant CD contained his voice. The District and LPA No. 676 of 2011 4 Sessions Judge further held that the Inquiry Officer has not at all discussed/ dealt with the aforesaid aspect of the matter in his report. The conclusion reached by the District and Sessions Judge is discernible from paras 5 and 6 of the show cause notice issued to the appellant which reads thus: “ 5. In the light of the foregoing discussion, I agree with the Inquiry Report submitted by Shri S.K.Gupta, Addl. District and Sessions Judge, Gurgaon only in so far as it relates to the charges mentioned at Sr. Nos. (i) to (vii). However, as the learned Inquiry Officer has remained silent qua the charge mentioned at Sr. No. (viii) which as discussed above from the own admission of the delinquent stands proved. Thus, I disagree with the findings of the Inquiry Officer to this extent. 6. Let a copy of this order be sent to the delinquent with a direction to submit his reply within ten days, failing which it shall be presumed that he has nothing to say in this context and appropriate shall follow”. 4. The aforesaid show cause notice regarding dissenting note was duly replied by the appellant on 14.5.2010 (P.5). After consideration thereof, the District and Sessions Judge came to the conclusion that a fresh de- novo inquiry into the charges levelled against the appellant in the letter dated 19.12.2006 be conducted by the Addl. District and Sessions Judge, Gurgaon, Shri Y.S.Rathore. The report was required to be submitted by 31.8.2010 (P.6). 5. Aggrieved by the directions issued by the District and Sessions Judge vide order dated 24.5.2010 the appellant filed a writ petition which LPA No. 676 of 2011 5 is relatable to the instant Letters Patent Appeal. The learned Single Judge held once the District and Sessions Judge has confined the notice to allegations recorded in para (viii) of the charge sheet (P.4) then there was no scope for ordering fresh Inquiry into charges levelled in paras (i) to (vii). The learned Single Judge found that there was apparent inconsistency in the charges levelled in paras (i) to (vii) when the two or show cause notices dated 27.4.2010 and 24.5.2010 are compared. The appellant accordingly was given the relief by the learned Single Judge leaving it open to the respondents to conduct Inquiry afresh in respect of charge which emanate from para (viii). According to the aforesaid charge, the appellant has resiled from the consent for giving his voice sample. The aforesaid statement to give voice sample was made in the presence of the District and Sessions Judge. However, lateron, he withdrew his willingness to give his specimen voice. 6. Mr. N.D.Achint, learned counsel for the appellant has made two fold submissions before us. His first submission is that an accused or witness cannot be compelled to give his voice sample as the same would be patently against the well settled principles of law a person cannot be compelled to be a witness against himself. In support of his submission, learned counsel has placed reliance on para 129 of the judgement rendered by Hon'ble the Supreme Court in the case of Smt. Selvi and ors v. State of Karnataka JT 2010(5) SC 11 and argued that it would result into the accused becoming a witness himself which is violative of Article 20(3) of the Constitution. His second argument is that refusal to give voice sample cannot be construed as a mis-conduct. 7. Ms.Radhika Suri, learned counsel for the respondents has LPA No. 676 of 2011 6 however, vehemently argued that giving of a voice sample would not in any way infringe the fundamental right of the appellant to be a witness against himself which is prohibited by Article 20(3) of the Constitution. She has pointed out that the judgement of the Constiutiton Bench rendered in Smt. Selvi's case (supra) has adversely commented against NARCO test primarily on the ground that those were un-reliable and cannot be considered to be scientifically authentic. She has also pointed out that a public servant cannot blow hot and cold. After making the statement for giving voice sample in the presence of the District and Sessions Judge if the appellant has resiled then such a conduct cannot be regarded as decent. 8. Having heard the learned counsel for the parties and perusing the paper book with their able assistance, we are of the considered view that the instant appeal lacks merit and is, thus, liable to be dismissed. The allegations against the appellant are serious in nature and he appears to be the principal accused in spearheading the move for extraction of money from Parveen Rao or his brother. In disciplinary matters concerning payment of illegal gratification, it is not possible to procure any direct oral evidence for the obvious reason that the witnesses in such an illegal act feel scared by the reprisal because the witnesses ordinarily have to stay in the same area and in the same the society. As a necessary consequence they are persuaded to refrain from deposing against such a person. Accordingly, we are of the view that the learned Single Judge did not commit any error by granting permission to hold a de-novo inquiry in respect of charge which is mentioned in para No. (viii) of the charge sheet levelled against the appellant. LPA No. 676 of 2011 7 9. The argument of the learned counsel that fundamental right of the appellant under Article 20(3) of the Constitution would be violative by giving voice sample would not survive in view of 11 Judges Bench judgement rendered by Hon'ble the Supreme Court in the case of State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808 wherein it was held that giving a thumb impression etc. would not amount to be a witness against one self and such a course would be is within the meaning of Article 20(3) of the Constitution. Over-ruling the Full Bench judgement of Kerala High Court rendered in the case of State of Kerala v. K.K.Sankaran Nair AIR 1960 Kerala 392. Hon'ble the Supreme Court in para 32 of the judgement has propounded the following views which is a complete answer to the argument raised by the learned counsel for the petitioner and the same reads as under: “ 32. The question then is" Is an accused person furnishing evidence when he is giving his specimen handwriting or impressions of his fingers, or palm or foot? It appears to us that he is : For these are relevant facts, within the meaning of S. 9 and S. 11 of the Evidence Act. Just as an accused person is furnishing evidence and by doing so, is being a witness, when he makes a statement that he did something, or saw something, so also he is giving evidence and so is being a "witness", when he produces a letter the contents of which are relevant under S. 10, or is producing the plan of a house where a burglary has been committed, or is giving his specimen handwriting or impressions of his finger, palm or foot. It has to be noticed however that Art. 20 (3) does not say that an accused person LPA No. 676 of 2011 8 shall not be compelled to be a witness. It says that such a person shall not be compelled to be a witness against himself. The question that arises therefore is: Is an accused person furnishing evidence against himself, when he gives his specimen handwriting, or impressions of his fingers, palm or foot? The answer to this must in our opinion be in the negative.” 10. The other argument that resiling from making statement would not be a conduct attracting any penalty under the 1987 Rules has also failed to impress us. Once the appellant has given his voice sample then if expert has found that it is the same voice which is recorded in the CD then the conduct of the appellant would be blame worthy and he has to be dealt with under Rule 7 of the 1987 Rules. Therefore, we do not find any merit in the contention raised on behalf of the appellant and reject the same. 11. For the reasons afore-mentioned this appeal fails and the same is dismissed. (M.M.Kumar) Judge (Gurdev Singh) 12.7 .2011 Judge okg