1. The petitioner herein is the first accused in a crime now being investigated by the CBI. As part of investigation, the CBI wanted to conduct identification of the voice of the accused by comparing it with the voice in a device. Accordingly, the CBI made an application before the learned Special Judge, Ernakulam as C.M.P No.321/2017 for a direction to the accused to give his voice samples. The said application was seriously opposed by the first accused on the ground, that allowing such a request will amount to testimonial compulsion, and that there is no provision in the Code of Criminal Procedure to authorise such a course.

2. After hearing both sides the learned trial judge allowed the application by order dated 24.5.2017, and directed the petitioner to provide his voice sample for comparison. The said order is under challenge in this petition brought under Section 482 Cr.P.C.

3. The impugned order is assailed by the petitioner on two grounds. One is that such an order, directing the accused to give voice specimen will amount to testimonial compulsion under Article 20(3) of the Constitution of India, and the other is that there is no provision anywhere authorising such a direction by the court.

4. First let me see whether there is any element of testimonial compulsion in this matter. The learned counsel for the petitioner relies on the decision of the Hon'ble Supreme Court in Ritesh Sinha v. State of Uttar Pradesh and another (AIR 2013 SC 1132), a Single Bench decision of the Delhi High Court in Rakesh Bisht etc. v. Central Bureau of Investigation (2007 Crl.L.J 1530) and another latest Single Bench decision of the Gujarat High Court in Natvarlal Amarshibhai Devani v. State of Gujarat [2017(3) KLT SN 1 (C.No.1) to contend that the impugned direction will amount to testimonial compulsion, and that the impugned order will not stand the test of any provision under the Code of Criminal Procedure, or the Evidence Act.

5. In State of Bombay v. Kathi Kalu Oghadi (AIR 1961 SC 1808) a larger Bench of the Hon'ble Supreme Court explained what is meant by testimonial compulsion. The spirit and purport of the said decision is that any direction to the accused to do anything or to make any statement indicating his complicity in an offence in any manner, will amount to testimonial compulsion. The Hon'ble Supreme Court held that a direction to the accused to provide his specimen thumb impression, or impression of foot or palm or fingers, or specimen writing will not in any manner amount to testimonial compulsion under Article 20 (3) of the Constitution of India. What the trial court did in this case is to direct the accused to provide his voice sample for comparison with the voice, contained in an electronic device. The direction is not to give any statement touching the offence, or concerning his role or complicity in the alleged offence. A mere direction to provide specimen voice for comparison will never amount to testimonial compulsion as meant under Section 20(3) of the Constitution of India in view of the position settled by the larger Bench of the Hon'ble Supreme Court in Kathi Kalu's case. To amount to such compulsion there must be a positive direction to the accused, to make some statements or to do something against his will or without his consent, touching the allegations in the case against him, or the alleged complicity or involvement or culpability of the accused in the crime. There is no such a situation here.

6. In the Gujarat decision cited by the learned counsel, the Gujarat High Court held that a direction to provide voice sample will not amount to testimonial compulsion under Article 20(3) of the Constitution of India. That part of the decision is against the petitioner. But the petitioner relies on the other limb of the decision, that when there is no provision anywhere authorising such a course, the accused cannot be directed to provide voice sample for comparison.

7. In Rakesh Bisht's case the Delhi High Court co