Ritesh Sinha vs State Of U.P.& Anr

2. On 7/12/2009, one Prashant Kapil, In-charge, Electronics Cell, P.S. Sadar Bazar, District Saharanpur lodged a First Information Report alleging that one Dhoom Singh in connivance with the appellant was collecting money from people on the pretext that he would get them recruited in the police department. After his arrest, one mobile phone was seized from Dhoom Singh. As the police wanted to verify whether the recorded conversation, which is in their possession, is between accused Dhoom Singh and the appellant, they needed voice sample of the appellant. The police, therefore, filed an application before learned Chief Judicial Magistrate, Janpad Saharanpur, praying that the appellant be summoned to the court for recording the sample of his voice. On 8/1/2010, learned Chief Judicial Magistrate, Saharanpur issued summons to the appellant to appear before the investigating officer and give his voice sample. The appellant approached the Allahabad High Court under Section 482 of the Code of Criminal Procedure, 1973 (for short, “the Code”) for quashing of the said order. The High Court by the impugned order dated 9/7/2010 rejected the said application, hence, this appeal by special leave.

37. I am not impressed by the submission that the term “such other tests” mentioned in Explanation (a) is controlled by the words “which the registered medical practitioner thinks necessary”. It is not possible to hold that Explanation (a) vests the discretion to conduct examination of the accused in the registered medical practitioner and not in the investigating officer and therefore the doctrine of ‘ejusdem generis’ cannot be pressed into service. Under Section 53(1) the registered medical practitioner can act only at the request of a police officer. Obviously, he can have no say in the process of investigation. The decision to get the accused examined is to be taken by the investigating officer and not by the medical practitioner. It is the expertise of the medical practitioner which the investigator uses to decide the method of the test. It would be wrong, therefore, to state that the discretion to get the accused examined vests in the medical practitioner. This submission must, therefore, be rejected.

49. In the view that I have taken, I find no infirmity in the impugned order passed by the High Court confirming the order passed by learned Chief Judicial Magistrate, Saharanpur summoning the appellant to the court for recording the sample of his voice. The appeal is dismissed.

50. Before I part with this judgment, I must express my sincere thanks to learned counsel Mr. Siddhartha Dave, Mr. Aman Ahluwalia and Mr. R.K. Dash, who have very ably assisted the court.

Leave granted.

3. Coming now to the specifics, I would briefly record my reasons for not being able to share the view taken by Desai J.

6. I am broadly in agreement with the view taken by her on Article 20 (3) but, since I differ with her on the second question, I think the issue of constitutional validity in compelling the accused to give his/her voice sample does not really arise in this case.

10. I am fully in agreement with what is said above.

(emphasis added)

17. In my opinion the Explanation in question deals with material and tangible things related to the human body and not to something disembodied as voice.

20. I am unable to agree.

[(3) Every rule made under this section shall be laid, as soon as may be after it is made, before State Legislature.]”

31. I find it impossible to extend the provisions of the Identification of Prisoners Act to that extent.

(a) “measurements include finger-impressions and foot-print impressions”.

34. For the reasons discussed above, I am unable to accept the views taken in the Bombay decision and to my mind the decision in Telgi is not the correct enunciation of law.

the Magistrate may make an order to that effect, recording his reasons for such an order.

(2) The person to whom the order relates –

a) shall be produced or shall attend at the time and place specified in the order, and

b) shall allow his measurements or photograph to be taken by a police officer, or furnish the specimen signature or writing or furnish a specimen of his voice, as the case may be in conformity with the orders of the Magistrate before a police officer.

3) No order directing any person to be photographed shall be made except by a metropolitan Magistrate or a Magistrate of the first class.

4) No order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.

43. In light of the above discussion, I respectfully differ from the judgment proposed by my sister Desai J. I would allow the appeal and set aside the order passed by the Magistrate and affirmed by the High Court.

44. Let copies of this judgment be sent to the Union Law Minister and the Attorney General and their attention be drawn to the issue involved in the case.

45. In view of the difference of opinion between us, let this case be listed for hearing before a bench of three Judges after obtaining the necessary direction from the Honourable the Chief Justice of India.

..………………………J. (Aftab Alam) New Delhi;

December 7, 2012