In a landmark judgment, the Supreme Court on Friday held that judicial magistrates "must be conceded" the power to direct a person to give voice sample to investigating agencies to effectively further probe in a case.
It used its plenary power under Article 142 of the Constitution to fill the void in the Code of Criminal Procedure, which until now did not force people, accused in criminal offences, to give voice samples to probe agencies against their wish.
The top court said until "explicit provisions" are engrafted in the CrPC by Parliament, judicial magistrates would be empowered to order a person to give voice sample for probe.
A three-judge bench headed by Justice Ranjan Gogoi decided the issue after a two-judge bench had given a split verdict in December 2012 on the subject and referred it to a larger bench.
"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," the bench, comprising Justices Deepak Gupta and Sanjiv Khanna, said.
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"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," the bench said in its 23-page verdict.
The bench dealt with the issues, including that whether in the absence of any provision in the CrPC, can a magistrate authorise the investigating agency to record the voice sample of the person accused of an offence.
It noted that medical examination of an accused for the purposes of effective investigation of a criminal case has received a wider meaning by the amendments made in the CrPC in 2006.
It, however, said none of these amendments specifically authorized or empowered a magistrate to direct an accused or any other person to give his or her voice sample for the purposes of an inquiry or investigation.
Referring to the 87th report of the Law Commission of India of August 29, 1980, the bench observed it had said that a suitable legislation, in the form of an amendment to Section 5 of the Identification of Prisoners Act, would be appropriate to specifically empower a judicial magistrate to compel an accused person to give his or her voice sample.
Section 5 of the Identification of Prisoners Act, 1920 empowers a magistrate to direct any person to allow his measurements or photographs to be taken for the purposes of investigation or proceeding.
"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," the court said.
"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," it said.
The apex court noted that by insertion of section 311-A of the CrPC, a magistrate has been empowered to order any person, including an accused, to give specimen signatures or handwriting for the purposes of investigation.
It said that "what may appear to be legislative inaction to fill in the gaps in the statute could be on account of justified legislative concern and exercise of care and caution."
"However, when a yawning gap in the statute, in the considered view of the court, calls for temporary patchwork of filling up to make the statute effective and workable and to sub-serve societal interests, a process of judicial interpretation would become inevitable," the top court said.
It said exercise of jurisdiction by constitutional courts must be guided by contemporaneous or existing realities on the ground and 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' (used for interpreting statutes) but on the principle of imminent necessity with a call to the Legislature to act promptly in the matter," the bench said.
The apex court also dealt with the question as to whether a judicial order compelling a person to give voice sample of violate the fundamental right to privacy under Article 20(3) of the Constitution.
Referring to earlier judgements of the apex court, including the landmark verdict of a nine-judge Constitution bench which had declared right to privacy a fundamental right, the bench said that "the fundamental right to privacy cannot be construed as absolute 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," it said.
The issue arose before the top court when it was dealing with an appeal against Allahabad High Court verdict which had rejected the plea filed by a person challenging the trial court's order asking him to give his voice sample to the investigating officer in a criminal case.
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