ORDER

The inherent powers of this Court under Section 482 of the Cr.P.C. are invoked to assail interlocutory order passed by the learned trial judge on 1.11.2022 whereby an application was preferred by the petitioner (wife of Sachin Mewada, PW-5) who was an accused in the trial for offences punishable under Section 302 of the IPC, seeking direction from trial court to obtain voice sample of her husband, Sachin Mewada (P.W. 5 in trial), has been declined.

2. The reasons assigned by the learned trial judge for doing so is that since the said witness (husband of the petitioner) has declined to give his voice sample, he cannot be forced to do so, therefore, the application preferred by the petitioner/accused, suffered dismissal.

3. Learned counsel for the petitioner by referring to Section 132 of the Evidence Act urges that since no witness can be excused from answering a question of a matter which is relevant to the issue involved in the criminal trial, the learned trial judge ought to have allowed the said application for obtaining voice sample of the husband of the petitioner.

3.1 The objection of the prosecution to the said application preferred by the petitioner as is evident from the reading of the impugned order was that in the absence of compliance of the pre requisites of Section 65 (B) of the Evidence Act, the application for obtaining voice sample cannot be allowed.

4. After having heard learned counsel for the rival parties, this Court is of the considered view that the present petition deserves to be dismissed for the grounds infra:-

4.1 Reliance placed on Section 132 of Evidence Act by learned counsel for the petitioner appears to be misplaced. The protection given to a witness against incrimination or penalty or forfeiture of any kind under Section 132 while making a statement is to ensure that the truth comes out and the court is assisted in rendering justice. For ready reference and convenience, Section 132 of the Evidence Act is reproduced below:

"132. Witness not excused from answering on ground that answer will criminate. A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:

(Proviso) ”Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer."

5. A bare perusal of the aforesaid provision reveals that in view of the immunity available to a witness under Section 132, it is incumbent upon the witness to answer any question raised which is relevant to the case. Thus, the immunity is available statutorily in respect of an answer given by a witness to a question in the trial in his capacity as a witness.

5.1 The aforesaid immunity or the provision cannot be stretched to include the obtaining a voice sample from a witness.

6. True it is that a three judges Bench in the case of Ritesh Sinha Vs. State of Uttar Pradesh (2019) 8 SCC 1 held that till express provision is made for obtaining voice sample of an accused, such a sample can be obtained only on judicial direction but not by the police alone. To the extent of so holding, the said decision in Ritish Sinha (supra) has diluted the concept of fundamental right of privacy so far as it relates to an accused, but the Apex Court while doing so was careful enough to restrict its findings and ratio, only to the accused, which is evident from the reading of paragraph 26 of the said judgment which is reproduced below:

"26. Would a judicial order compelling a person to give a sample of his voice violate the fundamental right to privacy und