The power of a judicial magistrate to order a person to give a sample of his voice for the purpose of investigation of a crime until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament.

JUDGMENT

Yogesh Khanna, J. - This petition is filed against the impugned order dated 07.11.2020 passed by learned Trial Court in case FIR No.615/2021 under Section 364a/120B/368/34 IPC registered at police station Uttam Nagar, Delhi.

2. The learned Trial Court per impugned order allowed the application moved by the Investigating Officer seeking permission to take the voice samples of the accused person, including the petitioner herein.

3. The petitioner herein is aggrieved of the delay in filing such application as the trial is at its fag end. It is alleged the FIR in question was registered on 08.05.2015. On 07.08.2015 the charge sheet was filed. The charges was framed and matter was listed for prosecution evidence for 26.08.2016. However, on 09.04.2018, the Investigating Officer moved an application for seeking voice sample of the accused persons, which application was allowed vide the impugned order dated 07.11.2020.

4. admittedly, the voice samples were taken on 07.12.2020 and the FSL report has now been received and was filed along with the supplementary charge sheet on 27.01.2021.

5. The grievance of the learned counsel for the petitioner is there is no procedure under the Cr P C to get the voice sample of the accused and as such the application ought to have been dismissed by the learned Trial Court.

6. In support of his submission, the learned counsel for the petitioner referred to amrutbhai Shambhubhai Patel vs Sumanbhai Kantibhai Patel and Others Criminal appeal No.1171/2016 decided on 02.02.2017 wherein the Court noted:-

47. On an overall survey of the pronouncements of this Court on the scope and purport of Section 173(8) of the Code and the consistent trend of explication thereof, we are thus disposed to hold that though the investigating agency concerned has been invested with the power to undertake further investigation desirably after informing the Court thereof, before which it had submitted its report and obtaining its approval, no such power is available therefor to the learned Magistrate after cognizance has been taken on the basis of the earlier report, process has been issued and accused has entered appearance in response thereto. at that stage, neither the learned Magistrate suo motu nor on an application filed by the complainant/informant direct further investigation. Such a course would be open only on the request of the investigating agency and that too, in circumstances warranting further investigation on the detection of material evidence only to secure fair investigation and trial, the life purpose of the adjudication in hand.

7. Further in Ritesh Sinha vs State of Utter Pradesh & anr Criminal appeal No.2003/2012 decided on 02.08.2019, the learned counsel for petitioner has referred to para No.32, which interalia notes:-

19. xxx xxx

'(32) ......It has to be noticed that article 20(3) of our Constitution does not say that an accused person 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.

8. However, I would also like to refer to the following paras of above decision, which interalia note:-

24. Would a judicial order compelling a person to give a sample of his voice violate the fundamental right to privacy under article 20(3) of the Constitution, is the next question. The issue is interesting and debatable but not having been argued before us it will suffice to note that in view of the opinion rendered by this Court in Modern Dental College and Research Centre and others vs.State of Madhya Pradesh and others11, Gobind vs. State of Madhya Pradesh and another12 and the Nine Judge's Bench of this Court in K.S. Puttaswamy and another vs. Union of India and others 13 the fundamental right to privacy