Himachal Pradesh High Court
Usha Dogra vs State Of Himachal Pradesh And Others on 2 May, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
Cr. MMO No :114 of 2023
Decided on: 2nd May, 2024
___________________________________________________________
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Usha Dogra .......Petitioner
Versus
State of Himachal Pradesh and others ......Respondents
Coram
Hon'ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting? Yes.
For the petitioner: Mr. Dibender Ghosh, Advocate.
For the respondents: Mr. Pratyush Sharma, Additional
Advocate General for Respondent
No.1.
Mr. Romesh Verma, Sr. Advocate with
Mr. Sumit Sharma, Advocate.
Ranjan Sharma, Judge (Oral)
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 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 09/05/2024 20:29:54 :::CIS -2-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 ::: Downloaded on - 09/05/2024 20:29:54 :::CIS -3- 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 Counsel for the petitioner and Mr. Pratyush Sharma, r Ghosh, learned 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 ::: Downloaded on - 09/05/2024 20:29:54 :::CIS -4- Senior Counsel has also supported the contention of the learned counsel for the petitioner and has prayed for setting aside the impugned order.
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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 petition be dismissed.
r to his voice sample. Hence, he prayed that the present
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 ::: Downloaded on - 09/05/2024 20:29:54 :::CIS -5- and but must bow down to compelling public interest. We refrain from any further discussion and consider it appropriate not to record any further observation on an issue not specifically raised before us.
27. In the light of the above discussions, we unhesitatingly take the .
view that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India. We order accordingly and consequently dispose the appeals in terms of the above."
6. In the aforesaid mandate the contention that only the accused can be directed to give a voice sample, was found to be without any substance for the reason that the Hon'ble Supreme Court has specifically held that the Magistrate has the power to direct any person to give a voice sample for the purpose of investigation of a crime 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.
7. In Tarak Nath Gupta vs. State 2023 SCC ::: Downloaded on - 09/05/2024 20:29:54 :::CIS -6- OnLine Del 6475 it has been held that the Magistrate can issue direction for giving their voice samples even to witnesses. It was held:-
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"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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17. 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 r 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...."
18. In view of the aforesaid discussion, this Court ::: Downloaded on - 09/05/2024 20:29:54 :::CIS -7- finds no infirmity or illegality in the impugned order."
8. In Cr.MMO No. 129 of 2023, titled as Nimesh versus State of Himachal Pradesh and others decided .
on 8.12.2023 the Coordinate Bench of this Court [in case of Respondent No.4, Nimesh, in F.I.R. No. 47 of 2022, which is the subject matter in instant proceedings] has held as under:
"9. 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 r directing the petitioner to give the voice sample cannot be accepted. Hence, the present petition fails and the same is dismissed."
9. In view of the above discussion and the mandate of law laid down by the Hon'ble Supreme Court, as referred to above, the impugned order dated 6.1.2023 (Annexure P-5) passed by the Learned Additional Chief Judicial Magistrate, Theog, Shimla (H.P.), suffers from no infirmity and the challenge to the impugned order fails and accordingly the instant petition is without any merit and is dismissed.
In aforesaid terms the instant petition is ::: Downloaded on - 09/05/2024 20:29:54 :::CIS -8- disposed of as well as all pending application(s), if any.
10. The observation(s) made hereinbefore, shall remain confined to the disposal of the instant .
petition and shall have no bearing whatsoever, on the merits of the case, which shall proceed in accordance with law.
(Ranjan Sharma) Judge 2nd May, 2024 (tm) ::: Downloaded on - 09/05/2024 20:29:54 :::CIS