Nimesh vs State Of H.P. And Others

Rakesh Kainthla, J

The present petition has been filed against the order dated 6.1.2023, 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 the 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. Petitioner’s mother Smt. Usha Thakur, respondent No. 4 made a complaint to the Police Station, Theog telephonically regarding the quarrel in Village Sandoh/Bishidi and requested that police be sent to the spot. The police reached the spot. No case was registered on the information of respondent No. 4 and FIR No. 49 of 2022 dated 14.5.2022was 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 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.

I have heard Mr. Dibender Ghosh, learned Counsel for the petitioner and Ms. Avni Kochhar, learned Deputy Advocate General for the respondent-State.

Mr. Dibnder 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.

Ms. Avni Kochhar learned Deputy 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, she prayed that the present petition be dismissed.

I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.

Hon’ble Supreme Court has held in Ritesh Sinha Vs. State of U.P. AIR 2019 SC 5932 that a Judicial Magistrate has the power to order a person to give a sample of his voice for the investigation of the crime. Therefore, in view of the binding precedent of the Hon’ble Supreme Court, the order passed by the learned ACJM, Theog cannot be faulted for want of jurisdiction.

It was submitted that only the accused can be directed to give a voice sample. It is difficult to agree with this submission. The Hon’ble Supreme Court has specifically held that the Magistrate has the power to direct any person to give a voice sample and the judgment is not confined merely to the accused. This power has been conferred for a proper investigation and there is no reason why only the accused and not any other person should be directed to give a voice sample. The only question is whether giving the voice sample is essential for the proper investigation of the case or not.

Delhi High Court held in Tarak Nath Gupta vs. State 2023 SCC OnLine Del 6475 that the direction can be issued even to the witnesses for giving their voice samples. It was held:-

“15. At this stage, it is pertinent to note that both Section 5 of the Identification of Prisoners Act and Section 311A of the CrPC do not restrict the power of a Magistrate to give directions to an accused person only.

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In the present case, as pointed out hereinbefore, the voice sample was sought not from the accused during the course of investigation, but from the witnesses, who during the course of examination, had denied their voices. As duly noted by the Hon'ble Supreme Court in Ritesh Sinha (supra), the power of the Magistrate to direct recording of voice samples has been conferred by the process of judicial interpretation based on the principles of ejusdem generis and also on the principle that the fundamental right to privacy must bow down to compelling public interest. As already noted above, a learned Single Judge of this Court in Vinod Kumar @ Vinod Kumar Handa (supra), after examining the judicial precedents has held that the right of the accused to fair trial is a fundamental right and is incumbent upon the Courts to protect the same. Reliance is also placed on the following observation from the decision in Vatal Nagraj v. R. Dayanand Sagar, (1975) 4 SCC 127, which has been noted in Ritesh Sinha (supra):

“12….Litigation is no hide-and-seek game but a search for truth and parties must place their cards on the table. And the procedure is the handmaid, not the mistress, of justice and cannot be permitted to thwart the fact-finding course….”

In view of the aforesaid discussion, this Court finds no infirmity or illegality in the impugned order.”

In the present case, the voice sample is essential to identify the person and the same is essential for the proper identification. Therefore, the submission that the learned Magistrate erred in directing the petitioner to give the voice sample cannot be accepted. Hence, the present petition fails and the same is dismissed.

The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.