Ritesh Sinha vs State of Uttar Pradesh & Anr.

2.1 Medical examination of an accused for the purposes of effective investigation of a criminal charge has received a wider meaning by the amendment of the Explanation to Section 53 Cr.P.C. made by Act No.25 of 2005 with effect from 23rd June, 2006. Similarly, Section 53A has been inserted by the same Amending Act (No.25 of 2005) to provide for examination of a person accused of rape. Likewise, by insertion of Section 311-A by the same Amending Act (No.25 of 2005) a Magistrate has been empowered to order any person, including an accused person, to give specimen signatures or handwriting for the purposes of any investigation or proceeding under the Cr.P.C.[Para 11] [1014-B-C]

2.2 The Law Commission of India, in its 87th report dated 29th August, 1980, in the context of the working of the provisions of the Identification of Prisoners Act, 1920, took the view that a suitable legislation which could be in the form of an amendment to Section 5 of the Identification of Prisoners Act, 1920 would be appropriate so as to specifically empower a Judicial Magistrate to compel an accused person to give a sample of his voice. [Para 13] [1014-F-G]

2.3 Section 5 of the Identification of Prisoners Act, 1920 coincidentally empowers the Magistrate to order/direct any person to allow his measurements or photographs to be taken for the purposes of any investigation or proceeding. The above amendments in the Cr.P.C., could very well have been a sequel to the recommendation of the Law Commission in its Report dated 29th August, 1980 though the said recommendation was in slightly narrower terms i.e. in the context of Section 5 of the Identification of Prisoners Act, 1920. [Para 14] [1016-A-B]

2.4 Though this Court in *Ram Babu Misra case, had held that a Judicial Magistrate has no power to direct an accused to give his specimen writing for the purposes of investigation, had suggested to Parliament that a suitable legislation be made on the analogy of Section 5 of the Identification of Prisoners Act, 1920 so as to invest a Magistrate with the power to issue directions to any person including an accused person to give specimen signatures and writings. The consequential amendment, instead, came by way of insertion of Section 311-A in the Cr.P.C by the Code of Criminal Procedure (Amendment) Act, 2005 (Act No.25 of 2005) with effect from 23 rd June, 2006. [Para 14] [1016-C-D]

State of Uttar Pradesh vs. Ram Babu Misra AIR 1980 SC 791 : [1980] 2 SCR 1067 – referred to.

3.1 “Procedure is the handmaid, not the mistress, of justice and cannot be permitted to thwart the fact-finding course in litigation”. [Para 16] [1017-F]

Vatal Nagraj v. R. Dayanand Sagar AIR 1975 SC 349: [1975] 2 SCR 384; Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774 : [1975] 3 SCR 942 – relied on.

3.2 The legislative response in remaining silent or acting at a “slow” pace can always be explained by legislative concerns and considerations of care and caution. It is in the aforesaid context and in the admitted absence of any clear statutory provision that the question arising has to be answered which is primarily one of the extent to which by a process of judicial interpretation a clear gap in the statute should be filled up pending a formal legislative exercise. [Para 15] [1017-E-F]

3.3 In the present case, the view that the law on the point should emanate from the Legislature and not from the Court, as expressed in the judgment of this Court from which the reference has emanated is founded on two main reasons, viz., (i) the compulsion to give voice sample does in some way involve an invasion of the rights of the individual and to bring it within the ambit of the existing law would require more than reasonable bending and stretching of the principles of interpretation and (ii) if the legislature, even while making amendments in the Criminal Procedure Code (Act No.25 of 2005), is oblivious and despite express reminders chooses not to include voice sample either in the newly introduced explanation to Section 53 or in Sections 53A and 311A of Cr.P.C., then it may even be contended that in the larger scheme of things the legislature is able to see something which perhaps the Court is missing. [Para 18] [1019-A-C]

3.4 The exercise of jurisdiction by Constitutional Courts must be guided by contemporaneous realities/existing realities on the ground. Judicial power should not be allowed to be entrapped within inflexible parameters or guided by rigid principles. True, the judicial function is not to legislate but in a situation where the call of justice and that too of a large number who are not parties to the lis before the Court, demands expression of an opinion on a silent aspect of the Statute, such void must be filled up not only on the principle of ejusdem generis but on the principle of imminent necessity with a call to the Legislature to act promptly in the matter. [Para 21] [1020-D-E]

Seaford Court Estates Ltd. v. Asher (1949) 2 All. E.R. 155; Magor & St. Mellons Rural District Council v. Newport Corporation (1951) 2 All.E.R 1226

– referred to.

4. 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. [Para 25] [1022-E-F]

Bangalore Water Supply & Sewerage Board v. A Rajappa and Others (1978) 2 SCC 213 : [1978] 3 SCR 207; Modern Dental College and Research Centre and others vs. State of Madhya Pradesh and Others (2016)

7 SCC 353 ; Gobind v. State of Madhya Pradesh and Another (1975) 2 SCC 148 : [1975] 3 SCR 946; K.S. Puttaswamy and Another v. Union of India and Others (2017) 10 SCC 1 : [2017] 10 SCR 569 – referred to.