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Judgment
It was based on Pratap v. Central Bureau of Investigation[2017 (3) KLT 458], the learned Magistrate has passed an order to the accused to
provide voice sample. It is a fact that the said decision was rendered not good law by the Division Bench of this Court in Roopesh @ Praveen v.
Union of India[2018(1) KLT 23].
In Ritesh Sinha v. State of UP and another[2013 (2) SCC 357], the decision of the Constitution Bench in State of Bombay v. Kathi Kalu
Oghad and others[AIR 1961 SC 1808], and in a catena of decisions after that it has been consistently held that taking of these samples for aiding
the investigation or trial are not violative of Article 20(3) of the Constitution and it cannot be considered as self-incriminating.
The said question also was considered in Ritesh Sinha(supra). Over and above it, the question as to whether the Magistrate has power to direct
the accused to furnish voice sample under Section 311A Cr.P.C. or under Section 73 of the Indian Evidence Act was also considered. The two
judges'' Bench of the Apex Court took divergent views in the matter relating to the power of the Magistrate under Section 311A Cr.P.C. and 73
of the Indian Evidence Act.
Presently, the Division Bench of this Court has also held in Ritesh Sinha (supra) that since the issue is pending consideration before the Apex
Court, it shall be open for the investigating agency to approach the court below, if there is any change of circumstances.
Based on the decision of the Division Bench, this Court is bound to quash Annexure B order in Crl.M.C.No.187/2018 and Annexure A2 order
in Crl.M.C.No.296/2018, with opportunity to the investigating officer to pursue appropriate remedies through other appropriate proceedings. In
the result, these Crl.M.Cs. are allowed and Annexure B order in Crl.M.C.No.187/2018 and Annexure A2 order in Crl.M.C.No.296/2018 of the
Judicial First Class Magistrate''s Court, Chalakudy, in CMP No.18479/2018, are hereby quashed. It is made clear that the investigating officer is
at liberty to purse appropriate remedies through other appropriate proceedings.