Neutral Citation No. ( 2025:HHC:17986 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 444 of 2025 Reserved on : 26.05.2025 Date of Decision: 6th June, 2025. Arun Patiyal ...Petitioner Versus Prem Singh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. Munish Datwalia, Advocate. Rakesh Kainthla, Judge The petitioner has filed the present petition for quashing of the order dated 10.12.2024 passed by learned Additional Chief Judicial Magistrate, Court No.1, Sundernagar, District Mandi, H.P. (learned Trial Court), vide which, the application filed by the petitioner (accused before learned Trial Court) under Section 311(A) of Cr.P.C. for obtaining the voice sample of the respondent (complainant before learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Neutral Citation No. ( 2025:HHC:17986 ) the same manner as they are arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present petition are that the complainant filed a complaint before the learned Trial Court for the commission of an offence punishable under Section 138 of the Negotiable Instruments Act (in short ‘NI Act’). The learned Trial Court summoned the accused. When the matter was listed before the learned Trial Court, the accused filed an application under Section 311(A) of Cr.P.C. for taking the voice sample of the accused and the complainant regarding the telephonic conversation dated 30.04.2021. It was asserted that a conversation had taken place between the parties on 30.04.2021. The complainant admitted certain points in the telephonic conversation held between them. The complainant denied the telephonic conversation in his cross-examination. The voice sample of the complainant should be taken for the just decision of the case; hence, the application was filed for directing the complainant to give his voice sample and to send the voice sample of the conversation to the Forensic Science Laboratory. 3. The application was opposed by the respondent. 3 Neutral Citation No. ( 2025:HHC:17986 ) 4. Learned Trial Court held that the provisions of Section 311(A) of Cr.P.C. do not apply to the present case because it applies to a person who had been arrested in a case. Since the complainant was not arrested in a criminal case, therefore, he will not fall within the purview of Section 311 of Cr. P.C. 5. Being aggrieved by the order passed by the learned Trial Court, the petitioner/accused has filed the present petition asserting that the learned Trial Court erred in dismissing the application. A telephonic conversation took place between the parties on 30.04.2021 in which the complainant made certain material admissions regarding the agreement and a cheque transaction. The accused filed an application under Section 311(A) of Cr.P.C. for seeking a voice sample of the complainant. The learned Trial Court dismissed the application vide order dated 10.12.2024 solely on the ground that the complainant was not arrested. Section 349 of Bhartiya Nyaya Suraksha Sanhita (BNSS) specifically empowers a Magistrate to direct any person, including the accused, to give a specimen voice sample or other biometrics even without arrest. The Hon’ble Supreme Court also held that a Magistrate has the inherent power to direct the taking of a voice sample in the judgment titled Ritesh Sinha 4 Neutral Citation No. ( 2025:HHC:17986 ) versus State of UP, 2019 (8) SCC 1. The conversation is relevant for determining the real controversy pending between the parties. The cheque was not issued in discharge of the legally enforceable debt but was part of a civil transaction which failed due to the breach committed by the complainant; therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 6. I have heard Mr. Munish Datwalia, learned counsel for the petitioner, who has submitted that the learned Trial Court erred in dismissing the application on the ground that the voice sample of the complainant could not be taken because he was not arrested by the police. The learned Magistrate had inherent jurisdiction to direct any person, including the complainant, to give the voice sample, therefore, he prayed that the present petition be allowed and the petitioner and the complainant be directed to give the voice sample. 7. I have given considerable thought to his submissions made at the bar and have gone through the records carefully. 8. The application filed by the accused is highly vague. It does not mention the relevance of the telephonic conversation 5 Neutral Citation No. ( 2025:HHC:17986 ) between the accused and the complainant. It only mentions that the complainant admitted certain points in the telephonic conversation held between the parties. What points were admitted and how such admission is relevant is not clear from the application. The Court can only admit the relevant evidence, and unless the relevance of the evidence is shown, the evidence cannot be admitted by the Court, therefore, the order dismissing the application passed by the learned Trial Court cannot be faulted. 9. It was asserted in the petition that an agreement to sell was executed between the parties. A post-dated cheque was issued towards the balance consideration. The road was required to be constructed, but the complainant failed to construct the road. A telephonic conversation took place between the parties in which the material admissions about the agreement and cheque transaction were made, however, these pleas were not taken before the learned Trial Court, and it is impermissible to raise them in the present proceedings. 10. Therefore, it cannot be said that the order passed by the learned Trial Court suffered from any material infirmity 6 Neutral Citation No. ( 2025:HHC:17986 ) which would justify the intervention of this Court in the exercise of its inherent jurisdiction, which is to be exercised sparingly. 11. In view of the above, the present petition fails and the same is dismissed. 12. The observations made herein before shall remain confined to the disposal of the petition and will have no bearing whatsoever on the merits of the case. (Rakesh Kainthla) Judge 6th June, 2025 (Saurav Pathania)