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7. Both sides relied upon a few judgments, which we shall consider in due course.

8. A learned Single Judge of this Court had occasion to consider a similar matter in Pratap v. Central Bureau of Investigation (2017 (3) KLT 458). That was also a case where the CBI sought for a direction to the accused to give his voice samples which was allowed by the Special Judge, CBI, against which the accused had come up before this Court. This Court having relied upon Ritesh Sinha (supra) and State of Bombay v. Kathi Kalu Oghad (AIR 1961 SC 1808) held that in cases where there is no specific provision in any law to authorise a particular course of action, the Trial Court can use its inherent or ancillary powers. It is therefore held that even in the absence of any specific provision, Court can issue such orders which are in  & exercise of ancillary powers especially when there is no specific prohibition in law. Reference was made to Section 311A of Cr.P.C. It is held that though the said provision authorises orders directing the accused to provide specimen signatures or specimen handwriting for comparison as part of investigation, the inherent or ancillary powers can be utilized to issue such directions. In fact, as far as the applicability of Section 311A, which was a newly introduced provision in the Cr.P.C. was concerned, both the Judges who decided Ritesh Sinha (supra) concurred with the view that Section 311A cannot be used for obtaining a direction from a Magistrate for taking a voice sample. It is therefore clear that Section 311A of Cr.PC cannot have any application nor does it confer upon the Magistrate special powers to direct voice samples of the accused to be taken. It is also well settled that a Magistrate does not have any inherent powers. The inherent power is vested only in High Court under Section 482 of the Cr.P.C. No such power had been conferred on a Magistrate.

9. In Ritesh Sinha (supra), the Apex Court considered the issue whether any such power was available for the Magistrate to direct voice samples of the accused to be taken.  & They considered Section 5 of the 1920 Act, Section 53 of Cr.P.C, Section 311A of Cr.P.C and Section 73 of the Evidence Act, 1872. As already stated, both the learned Judges concurred with the view that S.311A Cr.P.C. and S.73 of the Evidence Act do not confer any power on the Magistrate to authorise the investigating agency to record the voice sample. However, Justice Ranjana P. Desai speaking for herself observed that the Magistrate's power to authorise the investigating agency to record voice sample of a person accused of an offence can be traced to Section 5 of the 1920 Act and S.53 of the Cr.P.C. It was observed that the Magistrate has an ancillary or implied power under S.53 of the Cr.P.C. to pass an order permitting taking of voice sample to aid investigation. However, Justice Aftab Alam in a dissenting judgment held that Section 53 of Cr.P.C. or Section 5 of the 1920 Act does not confer any such power on the Magistrate.

did not contemplate obtaining voice samples of the accused.

13. Reference is also made to the judgment of the Bombay High Court in CBI, New Delhi v. Abdul Karim Ladsab (Crl.W.P.No.157/2004). This judgment is delivered by learned Single Judge of the Bombay High Court. It was held that when  & tape recorded conversation is admissible in evidence provided if it fulfils certain conditions as held in R.M.Malkani v. State of Maharashtra [(1973) 1 SCC 471], a prerequisite is identification of the voice. Without identification of voice, the tape recorded conversation is not admissible. Therefore, it is preposterous to suggest that it is not open to the investigating agency to require the concerned accused to lend his voice sample for the purpose of identification of the voice in the tape recorded conversation. It was held that the provisions of the 1920 Act was specially intended to authorise taking of measurements and photographs of convicts and others. It was therefore found that when the law as held in Kathi Kalu Oghad (supra) clearly indicates that no obstacles can be put in the process of investigation into a crime and of bringing criminals to justice, absence of specific provision cannot be a reason to defeat the ends of justice.

19. Now coming to S.53, as already indicated, there is divergent opinion between the two learned Judges who had given separate judgments in Ritesh Sinha (supra). In S.53, an explanation is added as per Amendment Act 25/2005 which had come into effect on 23/6/2006. Earlier, there was no provision for enabling the investigating agency to take the samples of blood, blood stains etc., which had been incorporated only when it was found that there was no specific provision for the same. However, in the explanation to the word "examination" there is no specific mention of voice sample. Further, it is clearly indicated that the examination can be done only when a registered medical practitioner thinks that it is necessary in a particular case. Even  & the two learned Judges who decided Ritesh Sinha (supra) were of the clear opinion that the provision does not indicate any specific power to obtain voice samples through a Magistrate. The only question is whether there is any ancillary or implied power for a Magistrate to issue such directions even in the absence of a specific provision.