RITESH SINHA Vs. STATE OF UP

JUDGEMENT

(1.) Heard Sri GS.Chaturvedi, learned Sr. Advocate, assisted by Sri Samit Gopal, learned counsel for the applicant, Sri D.R.Chaudhary, learned Government Advocate for the State of U.P.

(2.) This application has been moved by the applicant Ritesh Sinha with a prayer to quash the order dated 8/1/2010 passed by learned Chief Judicial Magistrate, Saharanpur in Case Crime No. 864 of 2009 under Sections 420, 417, 468/341.P.C., Police Station Sadar Bazar, District Saharanpur, by which the notice has been issued to the applicant to appear and give sample of his voice to the Investigating Officer of the above mentioned case.

(3.) It is contended by learned counsel for the applicant that the applicant is an accused in Case Crime No. 864 of 2009 under Sections 420,417,468/34 I.P.C., Police Station Sadar Bazar, District Saharanpur, the FIR has been lodged against the applicant on 7.12.2009 at 3.30 p.m. by O.P.No. 2 in respect of the alleged incident occurred on 7.12.2009 at about 1.15 p.m. The applicant filed a criminal Misc. Writ Petition No. 26040 of 2009, in which vide order dated 18.12.2009, the arrest of the applicant has been stayed till the submission of the police report under Section 173(2) Cr.P.C. or till the next date of listing, which ever is earlier. No counter-affidavit has been filed by any of the respondents in the above mentioned writ petition but during pendency of the investigation, the I.O. moved the application before the learned C.J.M. Saharanpur with the prayer that appropriate order may be passed directing to appear before the Court and to give a sample of his voice, on that application, the order dated 8.1.2010 has been passed by C.J.M.Saharanpur whereby the notice has been issued to the applicant to appear in the Court to give sample of his voice for comparison with the recorded conversation between the applicant Ritesh Sinha and Dhoom Singh. The order dated 8.1.2010 is illegal, because no accused can be compelled to give the evidence against himself/herself and there is no provision permitting the I.O.for summoning the accused for taking his voice sample. The learned Magistrate concerned has passed the impugned order dated 8.1.2010 illegally and without going through the provisions of the Code of Criminal Procedure, the impugned order is infringing the fundamental right under Sections 19(1)(f) and 19(1)(g)(5) of the Constitution of India. The article 20(3) embodies the principle of protection against compulsion of self-incrimination which is one of the fundamental canons of the British system of criminal jurisprudence which has been adopted by American system and incorporated as an article of its Constitution. So far as the Indian Law is concerned, it may be taken that the protection against self incrimination continues more or less as in the English common law. Analysing the terms in which this fundamental right has been declared in our Constitution, it may be said to consist of the following components : (1) It is a right pertaining to a person "accused of an offence" (2) It is a protection against " compulsion to be a witness" and (3) It is a protection against such compulsion resulting in his giving evidence " against himself.