RITESH SINHA versus STATE OF UTTAR PRADESH & ANR.

Citation: [2019] 10 S.C.R. 1006 · Decided: 02-08-2019 · Supreme Court of India · Bench: RANJAN GOGOI · Disposal: Disposed off

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 10  S.C.R.
      RITESH SINHA
    v.
   STATE OF UTTAR PRADESH & ANR.
(Criminal Appeal No.2003 of 2012)
AUGUST 02, 2019
[RANJAN GOGOI, CJI, DEEPAK GUPTA AND
SANJIV KHANNA, JJ.]
Investigation:
Power of  Judicial Magistrate – To order a person to give
sample of his voice – For the purpose of investigation – Held: Such
power has not been invested with the Magistrate by any statutory
provision – Pending formal legislative exercise i.e. until explicit
provisions are engrafted in Cr.P.C., a Judicial Magistrate shall be
conceded the power to order a person to give a sample of his voice
for the purpose of investigation – Such power is conferred on the
Magistrate by a process of judicial interpretation and in exercise
of jurisdiction vested in Art.142 of the Constitution – Constitution
of India – Art.142.
Constitution of India:
Art.20(3) – Applicability of – Held: Art.20(3) would come
into play, only when testimony of an accused is self-incriminatory
or of a character which has the tendency of incriminating the
accused himself.
Jurisdiction:
Jurisdiction of constitutional courts – Exercise of – Scope –
Held: Exercise of jurisdiction by constitutional courts must be guided
by contemporaneous realities/existing realities on the ground –
Judicial power should not be entrapped within inflexible parameters
or guided by rigid principles – Though, to legislate is not the judicial
function, but where there is demand of justice for a larger number,
to express an opinion on a silent aspect of statute, Court must fill
such void not only by the principle of ejusdom generis but also on
the principle of imminent necessity with a call to the Legislature to
act promptly in the matter.
[2019] 10 S.C.R. 1006
            1006
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Disposing of the appeals, the Court
HELD:1. The prohibition contemplated by the constitutional
provision contained in Article 20(3) would come in, only in cases
of testimony of an accused which are self-incriminatory or of a
character which has the tendency of incriminating the accused
himself. [Para 9] [1012-G-H; 1013-A]
State of Bombay v. Kathi Kalu Oghad AIR 1961 SC
1808 : [1962] 3 SCR 10 – relied on.
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]
    RITESH SINHA  v. STATE OF UTTAR PRADESH & ANR.
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SUPREME COURT REPORTS
[2019] 10  S.C.R.
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 conseq

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