RITESH SINHA versus STATE OF UTTAR PRADESH & ANR.

[2019] 10 S.C.R. 1006

[2019] 10 S.C.R.

RITESH SINHA

STATE OF UTTAR PRADESH & ANR.

(Criminal Appeal No.2003 of 2012)

AUGUST02, 2019

[RANJAN GOGOI, CJI, DEEPAK GUPTA ANDSANJIV KHANNA, JJ.]

Investigation:

Power of Judicial Magistrate – To order person to givesample of his voice – For the purpose of investigation – Held: Suchpower has not been invested with the Magistrate by any statutoryprovision – Pending formal legislative exercise i.e. until explicitprovisions are engrafted in Cr.P.C., Judicial Magistrate shall beconceded the power to order person to give sample of his voicefor the purpose of investigation – Such power is conferred on theMagistrate by process of judicial interpretation and in exerciseof jurisdiction vested in Art.142 of the Constitution – Constitutionof India – Art.142.

Constitution of India:

Art.20(3) – Applicability of – Held: Art.20(3) would comeinto play, only when testimony of an accused is self-incriminatoryor of character which has the tendency of incriminating theaccused himself.

FJurisdiction:

Jurisdiction of constitutional courts – Exercise of – Scope –Held: Exercise of jurisdiction by constitutional courts must be guidedby contemporaneous realities/existing realities on the ground –Judicial power should not be entrapped within inflexible parametersor guided by rigid principles – Though, to legislate is not the judicialfunction, but where there is demand of justice for larger number,to express an opinion on silent aspect of statute, Court must fillsuch void not only by the principle of ejusdom generis but also onthe principle of imminent necessity with call to the Legislature toact promptly in the matter.

Disposing of the appeals, the Court

HELD:1. The prohibition contemplated by the constitutionalprovision contained in Article 20(3) would come in, only in casesof testimony of an accused which are self-incriminatory or of acharacter which has the tendency of incriminating the accusedhimself. [Para 9] [1012-G-H; 1013-A]

State of Bombay v. Kathi Kalu Oghad AIR 1961 SC1808 : [1962] 3 SCR 10 – relied on.

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

2.2 The Law Commission of India, in its 87[th] report dated29[th] August, 1980, in the context of the working of the provisionsof the Identification of Prisoners Act, 1920, took the view that asuitable legislation which could be in the form of an amendmentto Section 5 of the Identification of Prisoners Act, 1920 would beappropriate so as to specifically empower Judicial Magistrateto compel an accused person to give sample of his voice.[Para 13] [1014-F-G]

2.3 Section 5 of the Identification of Prisoners Act, 1920coincidentally empowers the Magistrate to order/direct anyperson to allow his measurements or photographs to be takenfor the purposes of any investigation or proceeding. The aboveamendments in the Cr.P.C., could very well have been sequelto the recommendation of the Law Commission in its Report dated29[th] August, 1980 though the said recommendation was in slightlynarrower terms i.e. in the context of Section 5 of the Identificationof Prisoners Act, 1920. [Para 14] [1016-A-B]

A2.4 Though this Court in *Ram Babu Misra case, had heldthat Judicial Magistrate has no power to direct an accused togive his specimen writing for the purposes of investigation, hadsuggested to Parliament that suitable legislation be made onthe analogy of Section 5 of the Identification of Prisoners Act,1920 so as to invest Magistrate with the power to issueBdirections to any person including an accused person to givespecimen signatures and writings. The consequential amendment,instead, came by way of insertion of Section 311-A in the Cr.P.Cby the Code of Criminal Procedure (Amendment) Act, 2005 (ActNo.25 of 2005) with effect from 23[rd] June, 2006. [Para 14]C[1016-C-D]State of Uttar Pradesh vs. Ram Babu Misra AIR 1980SC 791 : [1980] 2 SCR 1067 – referred to.

3.1 “Procedure is the handmaid, not the mistress, of justiceand cannot be permitted to thwart the fact-finding course inDlitigation”. [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.

E3.2 The legislative response in remaining silent or actingat “slow” pace can always be explained by legislative concernsand considerations of care and caution. It is in the aforesaidcontext and in the admitted absence of any clear statutoryprovision that the question arising has to be answered which isprimarily one of the extent to which by process of judicialFinterpretation clear gap in the statute should be filled up pendinga formal legislative exercise. [Para 15] [1017-E-F]

3.3 In the present case, the view that the law on the pointshould emanate from the Legislature and not from the Court, asexpressed in the judgment of this Court from which the referenceGhas emanated is founded on two main reasons, viz., (i) thecompulsion to give voice sample does in some way involve aninvasion of the rights of the individual and to bring it within theambit of the existing law would require more than reasonablebending and stretching of the principles of interpretation and (ii)if the legislature, even while making amendments in the CriminalH

Procedure Code (Act No.25 of 2005), is oblivious and despiteexpress reminders chooses not to include voice sample either inthe newly introduced explanation to Section 53 or in Sections53A and 311A of Cr.P.C., then it may even be contended that inthe larger scheme of things the legislature is able to see somethingwhich perhaps the Court is missing. [Para 18] [1019-A-C]

3.4 The exercise of jurisdiction by Constitutional Courtsmust be guided by contemporaneous realities/existing realitieson the ground. Judicial power should not be allowed to beentrapped within inflexible parameters or guided by rigidprinciples. True, the judicial function is not to legislate but in asituation where the call of justice and that too of large numberwho are not parties to the lis before the Court, demandsexpression of an opinion on silent aspect of the Statute, suchvoid must be filled up not only on the principle of ejusdem generisbut on the principle of imminent necessity with call to theLegislature 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 ofCriminal Procedure by Parliament, Judicial Magistrate mustbe conceded the power to order person to give sample of hisvoice for the purpose of investigation of crime. Such power hasto be conferred on Magistrate by process of judicialinterpretation and in exercise of jurisdiction vested in this Courtunder Article 142 of the Constitution of India. [Para 25][1022-E-F]

Bangalore Water Supply & Sewerage Board v. ARajappa and Others (1978) 2 SCC 213 : [1978] 3 SCR207; Modern Dental College and Research Centre andothers vs. State of Madhya Pradesh and Others (2016)7 SCC 353 ;Gobind v. State of Madhya Pradesh andAnother (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.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal AppealNo. 2003 of 2012

From the Judgment and Order dated 09.07.2010 of the High Courtof Judicature at Allahabad in Criminal Misc. Application No. 3272 of2010

With

Criminal Appeal Nos. 1318 of 2013. 1187, 1188, 1189 and 1190 of

Sanjay Jain, ASG, Guru Krishnakumar, S. Nagamuthu, Sr. Advs.,Siddhartha Dave, Ms. Jemtiben AO, Senthil Jagadeesan, PrakashGautam, Yuvraj Sharma, Ms. Saniya Scott, V. Balaji, B. V. BalaramDas, Arunabh Chowdhury, Ankur Chawla, Amir Khan, Karma Dorjee,FMs. Pallavi Pratap, Ms. Garima Prashad, Ashish Pratap Singh, MohitKumar Bansal, Y. Arunagiri, P. Soma Sundaram, Ms. Prerna Mehta,Saurabh Ajay Gupta, Bharat Singh, Vishwa Pal Singh, Irshad Ahmad,Ardhendumauli Kumar Prasad, Ms. Taruna Ardhendumauli Prasad,Namit Saxena, Piyush Singh, Amritesh Raj, Nitesh Ranjan, VaibhavShrivastava, Nachiketa Joshi, Rajesh K. Singh, Mukul Singh, Aniket Seth,GArvind Kumar Sharma, Ashwani Kumar, Ms. Iti Sharma, Ms. KumudLata Das, Jay Kumar, Ravinder Nain, Advs. for the appearing parties.

Aman Ahluwalia, Adv. (AC).

The Judgment of the Court was delivered by

RANJAN GOGOI, CJI.

1. Leave granted in Special Leave Petition (Criminal) Nos. 9671of 2017, 1048 of 2018, 2225 of 2018 and 3272 of 2018.

2. Criminal Appeal No.2003 of 2012.

Facts:

On 7[th] December, 2009 the In-charge of the Electronics Cell ofSadar Bazar Police Station located in the district of Saharanpur of theState of Uttar Pradesh lodged First Information Report (“FIR” forshort) alleging that one Dhoom Singh in association with the appellant –Ritesh Sinha, was engaged in collection of monies from different peopleon the promise of jobs in the Police. Dhoom Singh was arrested and onemobile phone was seized from him. The Investigating Authority wantedto verify whether the recorded conversation in the mobile phone wasbetween Dhoom Singh and the appellant – Ritesh Sinha. They, therefore,needed the voice sample of the appellant and accordingly filed anapplication before the learned jurisdictional Chief Judicial Magistrate(“CJM” for short) praying for summoning the appellant to the Court forrecording his voice sample.

3. The learned CJM, Saharanpur by order dated 8[th] January, 2010issued summons to the appellant to appear before the Investigating Officerand to give his voice sample. This order of the learned CJM waschallenged before the High Court of Allahabad under Section 482 of theCode of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”).The High Court having negatived the challenge made by the appellantby its order dated 9[th] July, 2010, the present appeal has been filed.

4. The appeal was heard and disposed of by split verdict of atwo Judge Bench of this Court requiring the present reference.

5. Two principal questions arose for determination of the appealwhich have been set out in the order of Justice Ranjana Prakash Desaidated 7[th] December, 2012 in the following terms.

“(1) Whether Article 20(3) of the Constitution of India, whichprotects person accused of an offence from being compelled tobe witness against himself, extends to protecting such an accused

Afrom being compelled to give his voice sample during the courseof investigation into an offence?

(2) Assuming that there is no violation of Article 20(3) of theConstitution of India, whether in the absence of any provision inthe Code, can Magistrate authorize the investigating agency torecord the voice sample of the person accused of an offence?”

6.While the first question was answered in the negative by boththe learned Judges (Justice Ranjana Prakash Desai and Justice AftabAlam) following the ratio of the law laid down in State of Bombayvs.Kathi Kalu Oghad1,difference of opinion has occurred insofar asCsecond question is concerned.

7. Justice Desai took the view that voice sample can be includedin the phrase “such other tests” appearing in Explanation (a) to Section53 Cr.P.C. by applying the doctrine of ejusdem generis and, therefore,the Magistrate would have an implied power under Section 53 Cr.P.C.Dto pass an order permitting taking of voice sample in the aid of criminalinvestigation.

8. On the other hand, Justice Aftab Alam took the view thatcompulsion on an accused to give his/her voice sample must be authorizedon the basis of law passed by the Legislature instead of process ofEjudicial interpretation. In this regard, the learned judge (Aftab Alam, J.)also took note of the amendments in Sections 53, 53A and 311-A of theCr.P.C. by Act No.25 of 2005 introduced with effect from 23[rd] June,2006 which amendments did not bring, within the fold of the aforesaidprovisions of the Cr.P.C., any power in the trial Court to compel anaccused to give sample of his/her voice for the purpose of investigationFof criminal charge.

9. Despite unanimity amongst the learned Judges hearing theappeal on the first question on which the learned counsel for the appellanthas also not laid much stress it would be appropriate to make thediscussions complete to answer the question on the strength of the testGlaid down by this Court in State of Bombay vs.Kathi Kalu Oghad(supra). Speaking on behalf of the majority the then learned Chief JusticeB.P. Sinha was of the view that the prohibition contemplated by theconstitutional provision contained in Article 20(3) would come in only incases of testimony of an accused which are self-incriminatory or of

H1A.I.R. 1961 SC 1808

character which has the tendency of incriminating the accused himself.The issue in the case was with regard to specimen writings taken fromthe accused for comparison with other writings in order to determine theculpability of the accused and whether such course of action wasprohibited under Article 20(3) of the Constitution. The followingobservations of the then Chief Justice B.P. Sinha would be apt forrecollection as the same conclusively determines the first question arising.The same, therefore, is extracted below:

“(11)……….It is well-established that cl. (3) of Art. 20 is directedagainst self-incrimination by an accused person. Self-Incriminationmust mean conveying information based upon the personalknowledge of the person giving the information and cannot includemerely the mechanical process of producing documents in courtwhich may throw light on any of the points in controversy, butwhich do not contain any statement of the accused based on hispersonal knowledge……….

(12) In order that testimony by an accused person may besaid to have been self-incriminatory, the compulsion ofwhich comes within the prohibition of the constitutionalprovision, it must be of such character that by itself itshould have the tendency of incriminating the accused, ifnot also of actually doing so. In other words, it should be astatement which makes the case against the accused person atleast probable, considered by itself. specimen handwriting orsignature or finger impressions by themselves are no testimony atall, being wholly innocuous, because they are unchangeable;except, in rare cases where the ridges of the fingers or the styleof writing have been tampered with. They are only materialsfor comparison in order to lend assurance to the Court thatits inference based on other pieces of evidence is reliable.They are neither oral nor documentary evidence but belong to thethird category of material evidence which is outside the limit of‘testimony’.

[emphasis supplied]”

10. We may now proceed to answer the second question, namely,whether in the absence of any specific provision in the Cr.P.C. would aCourt be competent to authorize the Investigating Agency to record the

Avoice sample of person accused of an offence. We are told that noauthoritative pronouncement of this Court has been rendered by thisCourt.

11. Medical examination of an accused for the purposes ofeffective investigation of criminal charge has received wider meaningBby the amendment to the Explanation to Section 53 Cr.P.C. made by ActNo.25 of 2005 with effect from 23[rd] June, 2006. Similarly, Section 53Ahas been inserted by the same Amending Act (No.25 of 2005) to providefor examination of person accused of rape. Likewise, by insertion ofSection 311-A by the same Amending Act (No.25 of 2005) Magistratehas been empowered to order any person, including an accused person,Cto give specimen signatures or handwriting for the purposes of anyinvestigation or proceeding under the Cr.P.C.

12. None of the said amendments specifically authorize orempower Magistrate to direct an accused person or any other personto give his/her voice sample for the purposes of an inquiry or investigationDunder the Code. “Omission” of the Legislature to specifically so providehas led the learned judge (Justice Aftab Alam) on the two judge Benchto doubt as to whether legislative wisdom was in favour of specificexclusion or omission so as to make judicial exercise through processof interpretation impermissible.

13.The Law Commission of India, in its 87[th] report dated 29[th]August, 1980, also had an occasion to deal with the question presentlyconfronting the Court. The Law Commission examined the matter(almost four decades earlier) in the context of the working of theprovisions of the Identification of Prisoners Act, 1920. The view takenFwas that suitable legislation which could be in the form of an amendmentto Section 5 of the Identification of Prisoners Act, 1920 would beappropriate so as to specifically empower Judicial Magistrate to compelan accused person to give sample of his voice. The following extractfrom the 87[th] Report of the Law Commission dated 29[th] August, 1980would be relevant.G“A voice print is visual recording of voice. It mainly depends onthe position of “formants”. These are concentrates of sound energyat given frequency. It is stated that their position in the “frequencydomain” is unique to each speaker. Voice prints resemble fingerprints, in that each person has distinctive voice with characteristicHfeatures dictated by vocal cavities and articulates.

Voice-print Identification seems to have number of practicaluses. In England, in November 1967, at the WinchesterMagistrate’s Court, man was accused of making malicioustelephone calls. Voice-print Identification (spectrograph) was usedand the accused was found guilty.”[2]

*********

“Often, it becomes desirable to have an accused person speakfor the purposes of giving to the police an opportunity to hear hisvoice and try to identify it as that of the criminal offender. Acomparison may even be desired between the voice of an accusedperson and the recorded voice of criminal which has beenobtained by, say, telephone tapping. To facilitate proof of the crimethe police may like that the accused should be compelled to speak,-and even that his voice as recorded may be converted into “voiceprint”

……………………………………………………………

However, if the accused refuses to furnish such voice, thereis no legal sanction for compelling him to do so, and the use offorce for that purpose would be illegal.”[3]

*********

“The scope of Section 5 needs to be expanded in another aspect.The general power of investigation given to the police under theCriminal Procedure Code may not imply the power to require theaccused to furnish specimen of his voice. Cases in which thevoice of the accused was obtained for comparison with the voiceof the criminal offender are known but the question whether theaccused can be compelled to do so does not seem to have beendebated so far in India

There is no specific statutory provision in India whichexpressly gives power to police officer or court to require anaccused person to furnish specimen of his voice.”[4]

2 Paragraph 5.27, 87th Report of the Law Commission of India

3 Paragraph 3.16, 87th Report of the Law Commission of India

4 Paragraph 5.26, 87th Report of the Law Commission of India

A14. Section 5 of the Identification of Prisoners Act, 1920coincidentally empowers the Magistrate to order/direct any person toallow his measurements or photographs to be taken for the purposes ofany investigation or proceeding. It may be significant to note that theamendments in the Cr.P.C., noticed above, could very well have been asequel to the recommendation of the Law Commission in its ReportBdated 29[th] August, 1980 though the said recommendation was in slightlynarrower terms i.e. in the context of Section 5 of the Identification ofPrisoners Act, 1920. In this regard, it may also be usefully noticed thatthough this Court in State of Uttar Pradesh vs. Ram Babu Misra[5]after holding that Judicial Magistrate has no power to direct an accusedCto give his specimen writing for the purposes of investigation hadsuggested to Parliament that suitable legislation be made on the analogyof Section 5 of the Identification of Prisoners Act, 1920 so as to invest aMagistrate with the power to issue directions to any person including anaccused person to give specimen signatures and writings. Theconsequential amendment, instead, came by way of insertion of SectionD311-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, 2006.15. The legislative response in remaining silent or acting at “slow”pace can always be explained by legislative concerns and considerationsof care and caution. It is in the aforesaid context and in the admittedEabsence of any clear statutory provision that the question arising has tobe answered which is primarily one of the extent to which by processof judicial interpretation clear gap in the statute should be filled uppending formal legislative exercise. It is the aforesaid question thatwe shall now turn to.F

16. “Procedure is the handmaid, not the mistress, of justiceand cannot be permitted to thwart the fact-finding course inlitigation”[6]. We would like to proceed in the matter keeping the aboveview of this Court in the backdrop.

17. detailed reference to the facts of case decided by thisGCourt in “Sushil Kumar Senvs. State of Bihar”7is deemed appropriate.

5A.I.R. 1980 S.C. 791

6A.I.R. 1975 SC 349 [Vatal Nagaraj vs. R. Dayanand Sagar)

7(1975) 1 SCC 774

The appellant in the above case was the owner of plot of landmeasuring about 3.30 acres located in the district of Purnea in Bihar.The said parcel of land was acquired under the provisions of the LandAcquisition Act, 1894. The Land Acquisition Officer by order/Awarddated 12[th] October, 1957 awarded compensation to the appellant(s)therein at the rate of Rs.14 per katha. The learned Additional DistrictJudge, Purnea while hearing the reference under Section 18 of the LandAcquisition Act, 1894 enhanced the compensation to Rs.200 per katha.This was by order dated 18[th] August, 1961. The State of Bihar sought areview of the aforesaid order dated 18[th] August, 1961 which was allowedon 26[th] September, 1961 scaling down the compensation to Rs.75 perkatha. Not satisfied, the State of Bihar preferred an appeal before theHigh Court against the order dated 26[th] September, 1961 passed in thereview application granting compensation at the rate of Rs.75 per katha.No appeal was, however, filed by the State of Bihar against the originalorder dated 18[th] August, 1961 awarding compensation at the rate ofRs.200 per katha. Cross appeal(s) before the High Court against theorder dated 26[th] September, 1961 passed in the review application wasfiled by the appellant – landowner. The High Court by its order dated16[th] February, 1968 held the review application of the State of Bihar, inwhich the order dated 26[th] September, 1961 was passed, to be notmaintainable. However, the High Court adjudicated the case on meritsand awarded compensation to the landowner(s) at the rate of Rs.75 perkatha. Aggrieved, the landowner – Sushil Kumar Sen approached thisCourt.

Justice K.K. Mathew who delivered the lead judgment in the casetook the view that the original decree/award of the Reference Courtdated 18[th] August, 1961 stood superseded by the decree/award dated26[th] September, 1961 passed in the review application. However, oncethe said decree/award dated 26[th] September, 1961 was set aside in thecross appeal filed by the landowner(s) the earlier decree/award dated18[th] August, 1961 stood revived. As there was no appeal against thesaid decree/award dated 18[th] August, 1961 the landowner(s) would beentitled to compensation in terms of the said original decree/award dated18[th] August, 1961.

Justice Krishna Iyer delivered concurring opinion agreeing withthe aforesaid conclusions but expressing thought process which would

Abe of significant relevance to the issue in hand. The position can be bestexplained by extracting the following observations from the opinionrendered by Justice Krishna Iyer in Sushil Kumar Sen vs. State ofBihar (supra)

“I concur regretfully with the result reached by the infallible logicof the law set out by my learned Brother Mathew, J. The mortalityof justice at the hands of law troubles Judge’s conscienceand points an angry interrogation at the law reformer.

6.The processual law so dominates in certain systemsas to overpower substantive rights and substantial justice.The humanist rule that procedure should be the handmaid,not the mistress, of legal justice compels consideration ofvesting residuary power in Judges to act ex debitojusticiae where the tragic sequel otherwise would be whollyinequitable. In the present case, almost every step reasonablelitigant could take was taken by the State to challenge theextraordinary increase in the rate of compensation awarded bythe civil court. And, by hindsight, one finds that the very success,in the review application, and at the appellate stage has proved adisaster to the party. Maybe, Government might have successfullyattacked the increase awarded in appeal, producing the additionalevidence there. But maybes have no place in the mercilessconsequence of vital procedural flaws. Parliament, I hope,will consider the wisdom of making the Judge the ultimate guardianof justice by comprehensive, though guardedly worded, provisionwhere the hindrance to rightful relief relates to infirmities, evenserious, sounding in procedural law. Justice is the goal ofjurisprudence — processual, as much as substantive. Whilethis appeal has to be allowed, for reasons set out impeccablyby my learned brother, I must sound pessimistic note thatit is too puritanical for legal system to sacrifice the endproduct of equity and good conscience at the altar ofprocessual punctiliousness and it is not too radical to averta breakdown of obvious justice by bending sharply, if needbe, the prescriptions of procedure. The wages of proceduralsin should never be the death of rights.”

[Emphasis is ours]

18. In the present case, the view that the law on the point shouldemanate from the Legislature and not from the Court, as expressed inthe judgment of this Court from which the reference has emanated isfounded on two main reasons, viz., (i) the compulsion to give voice sampledoes in some way involve an invasion of the rights of the individual andto bring it within the ambit of the existing law would require more thanreasonable bending and stretching of the principles of interpretation and(ii) if the legislature, even while making amendments in the CriminalProcedure Code (Act No.25 of 2005), is oblivious and despite expressreminders chooses not to include voice sample either in the newlyintroduced explanation to Section 53 or in Sections 53A and 311A ofCR.P.C., then it may even be contended that in the larger scheme ofthings the legislature is able to see something which perhaps the Court ismissing.

19. Insofar as the first reservation is concerned, the same wouldstand dispelled by one of the earlier pronouncements of this Court on thesubject in State of Bombay vs.Kathi Kalu Oghad (supra), relevantextracts of which judgment has already been set out. The followingviews in the concurring opinion of Justice K.C. Das Gupta in State ofBombay vs.Kathi Kalu Oghad (supra) would further strengthen theview of this Court to the contrary.

“(32)………It has to be noticed that Article 20(3) of ourConstitution does not say that an accused person shall notbe compelled to be witness. It says that such personshall not be compelled to be witness against himself. Thequestion that arises therefore is: Is an accused personfurnishing evidence against himself, when he gives hisspecimen handwriting, or impressions of his fingers, palmor foot? The answer to this must, in our opinion, be in thenegative.

(33)…….the evidence of specimen handwriting or the impressionsof the accused person’s fingers, palm or foot, will incriminate him,only if on comparison of these with certain other handwritings orcertain other impressions, identity between the two sets isestablished. By themselves, these impressions or the handwritingsdo not incriminate the accused person, or even tend to do so. Thatis why it must be held that by giving these impressions or specimen

ABC

Ahandwriting, the accused person does not furnish evidence againsthimself. So, when an accused person is compelled to give aspecimen handwriting or impressions of his finger, palm or foot, itmay be said that he has been compelled to be witness; it cannothowever be said that he has been compelled to be witness againsthimself.”B

[Emphasis is ours]

20. So far as the second basis for the view taken is concerned,we have already expressed an opinion that what may appear to belegislative inaction to fill in the gaps in the Statute could be on account ofCjustified legislative concern and exercise of care and caution. However,when yawning gap in the Statute, in the considered view of the Court,calls for temporary patchwork of filling up to make the Statute effectiveand workable and to sub-serve societal interests process of judicialinterpretation would become inevitable.

D21. The exercise of jurisdiction by Constitutional Courts must beguided by contemporaneous realities/existing realities on the ground.Judicial power should not be allowed to be entrapped within inflexibleparameters or guided by rigid principles. True, the judicial function is notto legislate but in situation where the call of justice and that too of alarge number who are not parties to the lis before the Court, demandsEexpression of an opinion on silent aspect of the Statute, such void mustbe filled up not only on the principle of ejusdem generis but on theprinciple of imminent necessity with call to the Legislature to actpromptly in the matter.

22. Illustratively, we may take the decision of this Court inFBangalore Water Supply & Sewerage Board vs. ARajappa andothers[8] . lone voice of dissent against expansion of the frontiers ofjudicial interpretation to fill in gaps in the Statute enunciated by LordDenning, L.J, in Seaford Court Estates Ltd. vs.Asher[9 ]though did notfind immediate favour of the learned Judge’s contemporaries wasGacknowledged to have carried within itself the vision and the perceptionof the future. Coincidentally, the view enunciated by Lord JusticeDenning in Seaford Court Estates Ltd. vs.Asher (supra) of ironing ofthe creases in the legislation has been approved by the Indian SupremeCourt in the following words of the then Chief Justice M.H. Beg:

8(1978) 2 SCC 213H 9 (1949) 2 All. E.R. 155 (at 164)

“147. My learned Brother has relied on what was considered inEngland somewhat unorthodox method of construction inSeaford Court Estates Ltd. v. Asher [(1949) 2 ALL ER 155,164] where Lord Denning, L.J., said:

“When defect appears Judge cannot simply fold hishands and blame the draftsman. He must set to work onthe constructive task of finding the intention of Parliament— and then he must supplement the written words so as togive ‘force and life’ to the intention of legislature. Judgeshould ask himself the question how, if the makers of theAct had themselves come across this ruck in the textureof it, they would have straightened it out? He must then doas they would have done. Judge must not alter thematerial of which the Act is woven, but he can and shouldiron out the creases.”When this case went up to the House of Lords it appears that theLaw Lords disapproved of the bold effort of Lord Denning tomake ambiguous legislation more comprehensible. Lord Simondsfound it to be “a naked usurpation of the legislative function underthe thin disguise of interpretation”. Lord Morton (with whom LordGoddard entirely agreed) observed: “These heroics are out ofplace” and Lord Tucker said “Your Lordships would be acting ina legislative rather than judicial capacity if the view put forwardby Denning, L.J., were to prevail.”

148.Perhaps, with the passage of time, what may bedescribed as the extension of method resembling the“arm-chair rule” in the construction of wills. Judges canmore frankly step into the shoes of the legislature wherean enactment leaves its own intentions in much toonebulous or uncertain state. In M. Pentiah v. MuddalaVeeramallappa [AIR 1961 SC 1107, 1115] Sarkar, J., approvedof the reasoning, set out above, adopted by Lord Denning. And, Imust say that, in case where the definition of “industry” is left inthe state in which we find it, the situation perhaps calls forsome judicial heroics to cope with the difficulties raised.”

[Emphasis is ours]

A23. similar view of Lord Justice Denning in Magor & St.Mellons Rural District Council vs. Newport Corporation[10 ]would beequally apt to notice.

“we sit here to find out the intention of Parliament and of ministersand carry it out, and we do this better by filling in the gaps andBmaking sense of the enactment than by opening it up to destructiveanalysis.”

24. Would judicial order compelling person to give sample ofhis voice violate the fundamental right to privacy under Article 20(3) ofthe Constitution, is the next question. The issue is interesting and debatableCbut not having been argued before us it will suffice to note that in viewof the opinion rendered by this Court in Modern Dental College andResearch Centre and others vs.State of Madhya Pradesh andothers[1]1,Gobind vs. State of Madhya Pradesh and another12and theNine Judge’s Bench of this Court in K.S. Puttaswamy and anothervs.Union of India and others[13] the fundamental right to privacy cannot beDconstrued as absolute and but must bow down to compelling publicinterest. We refrain from any further discussion and consider itappropriate not to record any further observation on an issue notspecifically raised before us.

25.In the light of the above discussions, we unhesitatingly takeEthe view that until explicit provisions are engrafted in the Code of CriminalProcedure by Parliament, Judicial Magistrate must be conceded thepower to order person to give sample of his voice for the purpose ofinvestigation of crime. Such power has to be conferred on Magistrateby process of judicial interpretation and in exercise of jurisdiction vestedin this Court under Article 142 of the Constitution of India. We orderFaccordingly and consequently dispose the appeals in terms of the above.

Kalpana K. Tripathy

Appeals disposed of.

10(1951) 2 All.E.R. 122611(2016) 7 SCC 35312(1975) 2 SCC 14813(2017) 10 SCC 1