Important points:
There was no corresponding provision in relation to recording of voice sample under Cr.P.C., The Hon'ble Supreme Court invoked the power under Article 142 of the Constitution of India and declared the Law. Directions were issued to the judicial Magistrates. Though Supreme Court exercised its jurisdiction by invoking Article 142 of the Constitution of India, in the light of the declaration of Law and directions given to the Lower courts to follow such direction, it was evidently a direction given by the Supreme Court and hence a binding precedent applicable to all the courts under Article 141 of the Constitution of India.

JUDGMENT :

1. Petitioner herein is the sole accused in VC No.5/2019 registered by the VACB, Kottayam Unit for offence punishable under section 7 of the Prevention of Corruption Act.

2. The Defacto Complainant had filed a complaint to the Municipality alleging that his neighbour had raised the level of a pathway. Pursuant to it, the petitioner, who was the assistant engineer of the Municipality, conducted a site inspection. Alleging that after completion of the local inspection the assistant engineer allegedly demanded a bribe of Rs.2,000/-, Ext.P1 complaint was laid before the VACB. Complaint was recorded on 17/6/2019 and a trap was arranged. When the officers of the VACB reached the office of the petitioner, she was not available there. When she came to the office, tainted money was allegedly recovered from the drawer of the table in the cabin of the petitioner. Pursuant to the registration of the crime arraying the petitioner as accused, she was placed under suspension.

3. While so, the second respondent filed Crl.M.P.No.33/2020 in VC No.5/19/KTM before the Enqury Commissioner and Special Judge Kottayam seeking a direction to the petitioner to appear before Chitranjali Studio, Thrikkakara, for collecting her voice sample. It was stated in the application by the VACB that the voice of the petitioner demanding bribe was recorded by the complainant with his gadget and the voice clip was copied by a computer expert. The learned Special Judge allowed the above application without issuing notice to the petitioner, directing her to appear at Chitranjali Studio, Thrikkakara, on 22/1/2020 for recording her voice sample. This order is under challenge in this original petition.

4. Heard the learned senior counsel for the petitioner and the learned counsel for the VACB.

5. The contention of the learned senior counsel for the petitioner was that, the petitioner has been falsely implicated in the crime. Even though trap was arranged, it was not successful. Neither in the pre trap mahazar nor in the post trap mahazar, there was any reference to the electronic gadget or the voice clip, which now seems to have been produced for the first time on 14/1/2020 before the Special Court. It was also contended that the court below was not justified in not granting an opportunity to the accused to raise her objection. The impugned order was passed behind her back. It was further contended that the Studio mentioned above was not a notified institution, as contemplated under the statute, and consequently the court could not have ordered that the sample shall be taken in that studio. The main argument advanced by the petitioner was that the impugned order was passed by the learned Special Judge relying on the decision in Ritesh Sinha v. State of Uttar Pradesh and another [(2019) 8 SCC 1],which according to the learned senior counsel, did not lay down the correct law. It was contended that the Supreme Court, in Selvi v. State of Karnataka[(2010) 7 SCC 263] had considered the larger question as to whether involuntary administration of narco analysis, polygraph and BEAP tests violates the rights against self-incrimination enumerated under Article 20(3) of the Constitution of India and whether the result so derived by the impugned techniques amounts to testimonial compulsion. The Apex Court also considered the question whether such techniques would fall within the ambit of “such other tests” as contemplated under section 53-A of Cr.P.C. It was held that such tests conducted against the will of a person were legally not permissible and were violative of the Constitutional and statutory protection.

6. In Selvi's case(cited supra), the three Judges Bench of the Supreme Court considered the question whether conducting of narcoanalysis, polygraph and BEAP tests against the will of a person was legally permissible and was violative of the Constitution. It was held that, though conducting of certain medical tests on the accused were permissible under Explanation(a) to S