JUDGMENT

(Smt.) Ranjana Prakash Desai, J.-Leave granted.

2. On 7/12/2009, one Prashant Kapil, In-charge, Electronics Cell, P.S. Sadar Bazar, District Saharanpur lodged a First Information Report alleging that one Dhoom Singh in connivance with the appellant was collecting money from people on the pretext that he would get them recruited in the police department. After his arrest, one mobile phone was seized from Dhoom Singh. As the police wanted to verify whether the recorded conversation, which is in their possession, is between accused Dhoom Singh and the appellant, they needed voice sample of the appellant. The police, therefore, filed an application before learned Chief Judicial Magistrate, Janpad Saharanpur, praying that the appellant be summoned to the court for recording the sample of his voice. On 8/1/2010, learned Chief Judicial Magistrate, Saharanpur issued summons to the appellant to appear before the investigating officer and give his voice sample. The appellant approached the Allahabad High Court under Section 482 of the Code of Criminal Procedure, 1973 (for short, “the Code”) for quashing of the said order. The High Court by the impugned order dated 9/7/2010 rejected the said application, hence, this appeal by special leave.

3. In my view, two important questions of law raised in this appeal, which we need to address, are as under:

“(i) Whether Article 20(3) of the Constitution of India, which protects a person accused of an offence from being compelled to be a witness against himself, extends to protecting such an accused from being compelled to give his voice sample during the course of investigation into an offence?

(ii) Assuming that there is no violation of Article 20(3) of the Constitution of India, whether in the absence of any provision in the Code, can a Magistrate authorize the investigating agency to record the voice sample of the person accused of an offence?”

4. We have heard, at considerable length, Mr. Siddhartha Dave, learned counsel for the appellant, Mr. Aman Ahluwalia, learned amicus curiae and Mr. R.K. Dash, learned counsel for the respondent – State of Uttar Pradesh. We have also perused the written submissions filed by them.

5. Mr. Dave, learned counsel for the appellant, at the outset, made it clear that he was not pressing the challenge that the order passed by the Magistrate violates the appellant’s fundamental right of protection from self-incrimination as guaranteed under Article 20(3) of the Constitution. Counsel submitted, however, that there is no provision in the Code or in any other law which authorizes the police to make an application for an order directing the accused to permit recording of his voice for voice sample test. Counsel submitted that a Magistrate has no inherent powers and, therefore, learned Magistrate could not have given such a direction (Adalat Prasad v. Rooplal Jindal [(2004) 7 SCC 338]). Counsel submitted that because there is no other provision providing for a power, it ought not to be read in any other provision (State of U.P. v. Ram Babu Misra [(1980) 2 SCC 242], S.N. Sharma v. Bipen Kumar Tiwari [(1970) 1 SCC 653]). Counsel pointed out that in Ram Babu Misra, this Court restricted the scope of Section 73 of the Indian Evidence Act and took-out from the purview of Section 5 of the Identification of Prisoners Act, 1920 (for short, “the Prisoners Act), handwritings and signatures. As suggested by this Court, therefore, the Code was amended and Section 311A was inserted. Counsel submitted that Section 5 of the Prisoners Act is inapplicable to the present case because it is enacted only for the purpose of keeping a record of the prisoners and other convicts and not for collection of evidence (Balraj Bhalla v. Sri Ramesh Chandra Nigam [AIR 1960 All 157]). Counsel submitted that this is supported by Section 7 of the Prisoners Act, which provides for destruction of photographs and records of measurement on acquittal. The term “measurement” defined in Section 2(a