Kerala High Court
Renjith vs State Of Kerala on 12 January, 2018
Author: B. Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
FRIDAY, THE 12TH DAY OF JANUARY 2018 / 22ND POUSHA, 1939
Crl.MC.No. 187 of 2018
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CMP 18479/2018 of JUDICIAL FIRST CLASS MAGISTRATE COURT - I,
CHALAKUDY
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PETITIONER/6TH ACCUSED :
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RENJITH, AGED 38 YEARS, S/O. ANTONY,
PYNADATH HOUSE, VAPPALASSERY DESOM,
NEDUMBASSERY VILLAGE, ERNAKULAM.
BY ADV.SRI.RAJIT
RESPONDENT/STATE :
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STATE OF KERALA,
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SENIOR PUBLIC PROSECUTOR SRI.SUMAN CHAKRAVARTH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 12-01-2018 ALONG WITH CRL.M.C.296/2018,THE COURT ON
THE SAME DAY PASSED THE FOLLOWING:
bp
Crl.MC.No. 187 of 2018 ()
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APPENDIX
PETITIONER(S)' ANNEXURES :
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ANNEXURE A TRUE COPY OF THE APPLICATION FILED BY THE
PROSECUTION IN CMP NO. 18479/2018 IN CRIME NO.
1229/2017 OF THE CHALAKUDY POLICE STATION.
ANNEXURE B TRUE COPY OF THE ORDER DT. 01.01.2018 IN CMP NO.
18479/2018 OF THE LEARNED JUDICIAL FIRST CLASS
MAGISTRATE, COURT CHALAKUDY.
RESPONDENT'S ANNEXURES : NIL.
//TRUE COPY//
P.S.TO JUDGE
bp
B. KEMAL PASHA, J.
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CRL.M.C. Nos. 187 & 296 of 2018
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Dated this the 12th day of January, 2018
O R D E R
It was based on Pratap v. Central Bureau of Investigation[2017 (3) KLT 458], the learned Magistrate has passed an order to the accused to provide voice sample. It is a fact that the said decision was rendered not good law by the Division Bench of this Court in Roopesh @ Praveen v. Union of India[2018(1) KLT 23].
2. In Ritesh Sinha v. State of UP and another[2013 (2) SCC 357], the decision of the Constitution Bench in State of Bombay v. Kathi Kalu Oghad and others[AIR 1961 SC 1808], and in a catena of decisions after that it has been consistently held that taking of these samples for aiding the investigation or trial are not violative CRL.M.C.Nos. 187 & 296 of 2018 -: 2 :- of Article 20(3) of the Constitution and it cannot be considered as self-incriminating.
3. The said question also was considered in Ritesh Sinha(supra). Over and above it, the question as to whether the Magistrate has power to direct the accused to furnish voice sample under Section 311A Cr.P.C. or under Section 73 of the Indian Evidence Act was also considered. The two judges' Bench of the Apex Court took divergent views in the matter relating to the power of the Magistrate under Section 311A Cr.P.C. and 73 of the Indian Evidence Act.
4. Presently, the Division Bench of this Court has also held in Ritesh Sinha (supra) that since the issue is pending consideration before the Apex Court, it shall be open for the investigating agency to approach the court below, if there is any change of circumstances.
5. Based on the decision of the Division Bench, this Court is bound to quash Annexure B order in CRL.M.C.Nos. 187 & 296 of 2018 -: 3 :- Crl.M.C.No.187/2018 and Annexure A2 order in Crl.M.C.No.296/2018, with opportunity to the investigating officer to pursue appropriate remedies through other appropriate proceedings.
In the result, these Crl.M.Cs. are allowed and Annexure B order in Crl.M.C.No.187/2018 and Annexure A2 order in Crl.M.C.No.296/2018 of the Judicial First Class Magistrate's Court, Chalakudy, in CMP No.18479/2018, are hereby quashed. It is made clear that the investigating officer is at liberty to purse appropriate remedies through other appropriate proceedings.
Sd/- B. KEMAL PASHA, JUDGE.
ul/-
[True copy] P.S. to Judge.