JUDGMENT

Vivek Singh Thakur, J. - Present petition has been preferred against impugned order dated 5.11.2018, passed by learned Special Judge (Forest), Shimla in Cr. Misc. Petition No. 901168/2018, titled State of H.P. vs. Vinod Mittal, in case FIR No. 7 of 2011, registered under Section 8 of Prevention of Corruption Act, 1988 (hereinafter referred to as "PC Act") in PS. State Vigilance and Anti Corruption Bureau, Shimla, wherein petitioner/accused has been directed to undergo polygraph test and to give his voice sample to the Investigating Agency during investigation of case.

2. Impugned order has been passed by the Special Judge in an application preferred by Investigating Agency seeking permission to take voice sample and to conduct polygraph test of petitioner.

3 In response, petitioner had taken the plea that proposal of Investigating Agency to take specimen voice sample and conduct polygraph test is against the protection granted to petitioner under Article 20(3) of Constitution of India. In support, reliance was also put on pronouncements of the Supreme Court in cases Ritesh Sinha vs. State of UP, reported in (2013)2 SCC 357; and Selvi vs. State of Karnataka, (2010)7 SCC 263.

4 Lastly, in the prayer of the reply filed by petitioner it was submitted on behalf of petitioner that in case the Court comes to the conclusion that specimen voice samples and polygraph test are legally permissible, the respondent (petitioner herein) is ready and willing to undergo the same to show his bonafide.

5 After considering the law cited and reply filed on behalf of petitioner, learned Special Judge concluded that the Court has power to direct the accused to undergo the polygraph test and give samples of voice where he does not object with further observation that in present case, petitioner has given consent in his reply for these tests, learned Special Judge has allowed prayer of Investigating Agency.

6 In this petition also, almost on similar grounds, which were raised before learned Special Judge, the impugned order has been assailed with further ground that learned Special Judge has wrongly construed the contents of reply to arrive at a conclusion that there was consent of petitioner to undergo the test proposed by Investigating Agency, whereas, the averments made in reply, could, by no means, be inferred as the unconditional consent for undertaking such tests. It is submitted on behalf of petitioner that readiness and willingness to undergo the test on behalf of petitioner, as averred in reply, was subject to legal permissibility of these tests and no provision in Code of Criminal Procedure (in short 'Cr.P.C.') provides for undertaking these tests. Therefore, these tests are not legally permissible and hence conditional consent of petitioner cannot be treated as a consent to undergo these tests. It is submitted that as per impugned order, apart from violation of protection granted under Article 20(3) of the Constitution is also intrusion in right to privacy granted to the petitioner under the Constitution, which is a part of fundamental right.

7 Shri Desh Raj Thakur, learned Additional Advocate General on behalf of State, submits that undoubtedly, protection granted under Article 20(3) of Constitution is a fundamental right provided under the Constitution, but, as laid down by the Apex Court in its pronouncement in cases Gobind vs. State of Madhya Pradesh and another, reported in (1975)2 SCC 148; Modern Dental College and Research Centre and others, vs. State of Madhya Pradesh and others reported in (2016)7 SCC 353; and Santhini vs. Vijaya Venketesh, reported in (2018)1 SCC 1, no fundamental right is absolute and individual right can be diluted for compelling public interest.

8 Referring Rajendra Pralhadrao Wasnik vs. State of Maharashtra, reported in (2019)12 SCC 460, it has been further contended that for scientific investigation, advantage of technological advancement in forensic science is permissible under law and petitioner hims