Shaffique, J.

1. Since common questions arise for consideration in the above matters, they are heard and decided together.

2. In Crl.Appeal No. 888/16, appellant being the first accused in SC No.3/16 pending before the NIA court, Ernakulam has approached this Court challenging Annexure II order dated 5/8/2016 by which the Court had allowed Crl.M.P. No. 100/16 permitting the investigating agency to take the voice sample of the appellant for the purpose of comparing his voice with the voice in a video clipping collected during investigation. Certain other directions had also been issued.

3. In Crl.M.C.No.7102/17, the petitioner is arrayed as an accused in RC 5(A)/2017-CBI/ACB/Cochin on the files of the Special Sessions Judge (SPE)/CBI)-III Court, Ernakulam. The investigation into the above crime is still pending. Annexure A1 application was filed by the investigating agency requesting for a direction to record the sample voices of the accused and the complainant in the court hall with the help of technical experts of Centre for Development of Advanced Computing (CDAC), Thiruvananthapuram in order to send the same for expert opinion. It is alleged that the conversation between the accused and complainant made on three days were recorded in the mobile phone of the complainant which was later seized by CBI. Though an objection was filed by the respondent, by Annexure A3 order dated 9/10/2017, the Special Sessions Judge allowed the said application.

4. Learned counsel appearing on behalf of the petitioner/appellant in the above cases raised a common argument that there is no provision in the Code of Criminal Procedure, Evidence Act or the Identification of Prisoners Act, 1920 (hereinafter referred to as the 1920 Act) enabling the Court below to direct the accused to give voice sample to the investigating agency for verification. It is submitted that the issue pertaining to the aforesaid legal issue came up for consideration before the Apex Court in Ritesh Sinha v. State of UP and another [(2013) 2 SCC 357]. In view of the conflicting view between the two Judges, the matter had been referred to a Larger Bench which is still pending consideration. It is therefore contended that when the law is not settled so far, Court below was not justified in issuing the directions.

5. On the other hand, learned counsel appearing for the respondent in Crl.Appeal No. 888/2016 submitted that in so far as the law is not settled, the accused should be directed to provide the voice sample. The sample voice need be sent for evaluation to an expert only after the law is settled by the Apex Court. It is submitted that it may not be appropriate for this Court to render a finding regarding the validity of the directions issued especially when the Apex Court is seized of the matter.

6. Learned standing counsel appearing for CBI, who is the respondent in Crl.M.C. No.7102/17, also made submissions stating that no prejudice will be caused to the accused if the voice sample is provided, as matters stand now. The evidentiary value can be decided by the Court at a later stage of the proceedings after a final decision is taken by the Apex Court. He also argued that in so far as there is no restriction imposed in any of the statutes and the investigating agency is entitled to take all measures for collection of evidence and in the process if it requires voice identification, the said procedure can also be investigated.

7. Both sides relied upon a few judgments, which we shall consider in due course.

8. A learned Single Judge of this Court had occasion to consider a similar matter in Pratap v. Central Bureau of Investigation (2017 (3) KLT 458). That was also a case where the CBI sought for a direction to the accused to give his voice samples which was allowed by the Special Judge, CBI, against which the accused had come up before this Court. This Court having relied upon Ritesh Sinha (supra) and State of Bombay v. Kathi Kalu Oghad (AIR 1961 SC 1808) held that in cas