JUDGMENT

Amit Bansal, J. - The present petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) impugning (i) the order dated 1st May, 2015 passed by the learned Magistrate, whereby the application filed on behalf of the prosecution for taking voice samples of the petitioner has been allowed and (ii) the order dated 5th May, 2017 passed by learned ASJ, whereby the appeal/revision filed by the petitioner against the aforesaid order of the learned Magistrate has been dismissed.

2. Notice in the present matter was issued vide order dated 23rd March, 2018 passed by the predecessor Bench. While issuing notice, the operation of the order dated 1st May, 2015, passed by the learned Magistrate was stayed and the aforesaid stay has continued till date.

3. Brief facts leading to the filing of the present petition are set out below:-

3.1. The present FIR No. 59/2015 under Section 120B of the Indian Penal Code, 1860 (IPC) and Sections 25/54/59 of the Arms Act, 1959 was registered against the petitioner on the basis of a 'technical surveillance', whereby the phone of the petitioner was intercepted. On the basis of the aforesaid FIR, the petitioner was arrested, along with the other co-accused persons. Subsequently, bail was granted to the petitioner.

3.2. During the proceedings before the Trial Court, the prosecution moved an application for taking voice samples of the petitioner which was allowed by the learned Magistrate vide the impugned order dated 1st May, 2015.

3.3. The appeal filed on behalf of the petitioner against the said order was dismissed by the learned ASJ vide order dated 5th May, 2017.

4. The aforesaid orders have been challenged by the petitioner in the present petition.

5. In the Status Report filed on behalf of the State, it is stated that through a 'technical surveillance' it came to light that the petitioner hatched a criminal conspiracy to murder one person named Tikka. In this regard, the petitioner contacted one Shaukat Pasha, who was a gangster lodged in the Central Tihar Jail at that point of time. The petitioner and Shaukat Pasha hired some contract killers including Asad, Aftab and Tofeek towards executing the aforesaid conspiracy.

6. Four accused persons being the petitioner, Shaukat Pasha, Mannan, and Tofeek were arrested. Subsequently they were granted bail. On 26th November, 2016, accused Shaukat Pasha was killed in an encounter with the Uttar Pradesh Police.

7. The voice samples of the accused persons, Shaukat Pasha and Tofeek, were obtained by the respondent. However, the voice samples of the petitioner could not be obtained due to the stay order passed in the present petition.

8. Counsel appearing on behalf of the petitioner has made the following submissions:-

I. In the present case, the 'technical surveillance' carried out by the respondent was not in accordance with relevant provisions of The Indian Telegraph Act, 1885 (Telegraph Act). In this regard, he places reliance on the judgment of the Supreme Court in People's Union for Civil Liberties (PUCL) v. Union of India, (1997) 1 SCC 301, as well as the judgment of a Coordinate Bench of this Court in CRL.M.C. 3118/2012 titled Jitender Pal Singh v. Central Bureau of Investigation.

II. Counsel for the petitioner further submits that the judgment of the Supreme Court in Ritesh Sinha v. State of Uttar Pradesh and Anr., (2019) 8 SCC 1, relied by the respondent should be disregarded by this Court as the direction passed in the said judgment are in the nature of legislating. Further, the judgment of the Supreme Court in PUCL (supra) has not been considered in the aforesaid judgment.

9. Per contra, the learned APP appearing on behalf of the State has made the following submissions: -

I. The prosecution has the power to obtain voice samples of the petitioner for the purposes of investigation. Reliance is placed on the judgment of the Supreme Court in Ritesh Sinha (supra) and the judgment of the Madras High Court in CRL.R.C.(MD) No.20/2018 titled