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21. Since we are concerned with the stage of investigation, it is necessary to see how the Code defines ‘investigation’. Section 2 (h) of the Code is material. It reads thus:

“Investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.”

22. It is the duty of a Police Officer or any person (other than a Magistrate) authorized by a Magistrate to collect evidence and proceedings under the Code for the collection of evidence are included in ‘Investigation’. Collection of voice sample of an accused is a step in investigation. It was argued by learned counsel for the State that various steps which the police take during investigation are not specifically provided in the Code, yet they fall within the wider definition of the term ‘investigation’ and investigation has been held to include measures that had not been enumerated in statutory provisions and the decisions to that effect of the Rajasthan High Court in Mahipal Maderna and Allahabad High Court in Jamshed have been noticed by this Court in Selvi and, therefore, no legal provision need be located under which voice sample can be taken. I find it difficult to accept this submission. In the course of investigation, the police do use force. In a country governed by rule of law police actions which are likely to affect the bodily integrity of a person or likely to affect his personal dignity must have legal sanction. That prevents possible abuse of the power by the police. It is trite that every investigation has to be conducted within the parameters of the Code. The power to investigate into a cognizable offence must be exercised strictly on the condition on which it is granted. (State of West Bengal v. Swapan Guha). The accused has to be dealt with strictly in accordance with law. Even though, taking of physical evidence which does not amount to communicating information based on personal knowledge to the investigating officer by the accused which may incriminate him, is held to be not violative of protection guaranteed by Article 20(3), the investigating officer cannot take physical evidence from an accused unless he is authorized by a Magistrate to do so. He cannot assume powers which he does not possess. He can only act on the strength of a direction given to him by a Magistrate and the Magistrate must have power to issue such a direction. In Bindeshwari Prasad Singh v. Kali Singh[22], this Court has clarified that subordinate criminal courts have no inherent powers. Similar view has been taken by this court in Adalat Prasad. Our attention was drawn to Sakiri Vasu in support of the submission that the Magistrate has implied or incidental powers. In that case, this Court was dealing with the Magistrate’s powers under Section 156(3) of the Code. It is observed that Section 156(3) includes all such powers as are necessary for ensuring a proper investigation. It is further observed that when a power is given to an authority to do something, it includes such incidental or implied powers which would ensure proper doing of that thing. It is further added that where an Act confers jurisdiction, it impliedly also grants power of doing all such acts or employ such means as are essentially necessary for execution. If we read Bindeshwar Prasad, Adalat Prasad and Sakiri Vasu together, it becomes clear that the subordinate criminal courts do not have inherent powers. They can exercise such incidental powers as are necessary to ensure proper investigation. Against this background, it is necessary to find out whether power of a Magistrate to issue direction to a police officer to take voice sample of the accused during investigation can be read into in any provisions of the Code or any other law. It is necessary to find out whether a Magistrate has implied or ancillary power under any provisions of the Code to pass such order for the purpose of proper investigation of the case.