IMPORTANT POINT
The main legal point established in the judgment is that the power of a Judicial Magistrate to order a person to give a sample of his voice for the investigation of a crime is not confined merely to the accused, but can be extended to witnesses if essential for proper investigation.

Petitioner, Usha Dogra, has come up before this Court, assailing the order dated 6.1.2023, (Annexure P-5) passed by the Learned Additional Chief Judicial Magistrate (ACJM), Theog, District Shimla, [H.P.] vide which the Learned Magistrate allowed the application filed by SHO, Police Station Theog for permission to obtain the voice sample of the petitioner and proforma respondents. It has been asserted that informant Sumitra Chauhan lodged an FIR No. 47 of 2022 at Police Station, Theog on 14.5.2022 for the commission of offences punishable under Sections 323, 342 and 382 read with Section 34 of IPC. Once Smt. Sumitra Chauhan, made a complaint to the Police Station, Theog telephonically regarding the quarrel in Village Sandoh/Bishidi and requested that the police be sent to the spot. The police reached the spot.

No case was registered on the information of petitioner and FIR No. 49 of 2022 dated 14.5.2022 was registered for the commission of offences punishable under Sections 147, 149, 452, 323 and 506 IPC. A SIM Card was recovered in FIR No. 47 of 2022 which was sent to a laboratory for analysis. The police found during the investigation that the petitioner had talked to the accused. Police filed an application for obtaining the voice samples of the petitioner and proforma respondents. This application was allowed on 6.1.2023 (Annexure P-1) and the police were permitted to obtain voice samples. The order passed by learned ACJM, Theog is bad. The police failed to show any necessity or sufficient reason for obtaining the voice samples. The petitioner is not the accused, and no voice sample can be taken from him. Taking a voice sample is not essential for the investigation of the case. Therefore, it was prayed that the present petition be allowed and the order passed by learned Additional Chief Judicial Magistrate, Theog be set aside.

2. I have heard Mr. Dibender Ghosh, learned Counsel for the petitioner and Mr. Pratyush Sharma, Additional Advocate General for respondent-State and Mr. Romesh Verma, Senior Advocate assisted by Mr. Sumit Sharma, Advocate, for respondents No. 2 and 3 and have gone through the records carefully.

3. Mr. Dibender Ghosh, learned counsel for the petitioner submitted that the learned ACJM, Theog erred in permitting the police to obtain the voice sample. The petitioner is not an accused and his voice sample cannot be taken. Hence, he prayed that the present petition be allowed and the order passed by the learned ACJM, Theog be set aside. Mr. Romesh Verma, Learned Senior Counsel has also supported the contention of the learned counsel for the petitioner and has prayed for setting aside the impugned order.

4. Mr. Pratyush Sharma, learned Additional Advocate General for the State submitted that there is no restriction on the powers of the Magistrate to direct any person to give his voice sample and the learned Magistrate had rightly directed the petitioner to give his voice sample. Hence, he prayed that the present petition be dismissed.

5. In Ritesh Sinha Vs. State of U.P. and another (2019) 8 SCC 1 the Hon’ble Supreme Court has mandated that a Judicial Magistrate has the power to order a person to give a sample of his voice for the investigation of the crime, which reads as under:

“26. Would a judicial order compelling a person to give a sample of his voice violate the fundamental right to privacy under Article 20(3) of the Constitution, is the next question. The issue is interesting and debatable but not having been argued before us it will suffice to note that in view of the opinion rendered by this Court in Modern Dental College and Research Centre and others vs. State of Madhya Pradesh

(2016) 7 SCC 353

, Gobind vs. State of Madhya Pradesh

(1975) 2 SCC 148

and the Nine Judge’s Bench of this Court in K.S. Puttaswamy and another vs. Union of India and others

(2017) 10 SCC 1

the fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest. We refrain from any further