1 Criminal W.P.No.484 of 2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO.484 OF 2011 The State of Maharashtra, Through Nandurbar Taluka Police Station, Nandurbar PETITIONER VERSUS Raju Shivdas Mali, Age-25 years, R/o.Mothamaliwada, Nandurbar RESPONDENT Mr.S.D.Kaldate, learned A.P.P. for petitioner/State. Mr.A.G.Magare, learned counsel for respondent. (CORAM : A.V.POTDAR, J.) DATE : 29/08/2011 PER COURT : 1. By this writ petition under Article 227 of The Constitution of India r/w. 482 of the Cr.P.C., the petitioner/State has challenged the order passed by the 2nd J.M.F.C. Nandurbar in CR No.49/2010 dated 21/04/2011, rejecting the application to allow to take voice sample of the respondent. 2. I have heard learned A.P.P. for petitioner so also learned counsel appearing for the respondent/original accused no.7. It 2 Criminal W.P.No.484 of 2011 appears that on 14/11/2010, an offence came to be registered vide CR No.249/2010 in Nandurbar Taluka Police Station. One Raju Shivdas Mali, respondent herein came to be arrested on 20/03/2011 and was in police custody till 28/03/2011. It is submitted that during the investigation, the fact revealed that the respondent had disclosed the information about commission of an offence while he was under influence of liquor, which facts were recorded on the mobile phone by one Manu Akhadya and the chip in the said cell was sent for the opinion of Forensic Science Laboratory. As the voice recorded in the said chip was not matched with the voice sample, an application was moved before the learned J.M.F.C. to take the voice sample of the respondent, which application came to be rejected by the learned 2 nd J.M.F.C. Nandurbar. The impugned order is under challenge in this writ petition. 3. Papers of investigation are placed before this Court. During the investigation, supplementary statement of Khandu Mali was recorded on 20/02/2011 when the offence was registered on 14/11/2010. In the statement of Khandu Mali, it is stated that he is doing the business of cassette in Nandurbar City. He is acquainted with one Raju, who always remains under influence of liquor. He has informed Manu Akhadya to administer alcohol to respondent and then to try to collect the information from said Raju about murder of Kailash and to record that conversation in his cell-phone. Accordingly, said Manu Akhadya recorded the conversation with said 3 Criminal W.P.No.484 of 2011 Raju when he was under influence of liquor and handed over the chip of the said conversation to Khandu which chip of the mobile phone is the subject matter of the investigation before the Forensic Science Laboratory. The question before this Court is whether the conversation recorded in the said chip of cellphone, will amount to an extra judicial confession of the respondent and whether it is legally admissible in evidence. If the person who is under influence of liquor and put certain questions and his answers were recorded in the cellphone, certainly it will not amount to an extra judicial confession given by the said person. This piece of evidence collected during the investigation is not legally admissible and if it is so, if the respondent had refused to give his voice sample for test, which application was rejected by the learned Lower Court, this Court does not think it fit to interfere in the said rejection. In view of this, writ petition, being sans merits, stands rejected. (A.V.POTDAR, J.) khs/AUG.2011/cri.w.p.484-11