USHA DOGRA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Petitioner, Usha Dogra, has come up before this Court, assailing the order dtd. 6/1/2023, (Annexure P-5) passed by the Learned Additional Chief Judicial Magistrate (ACJM), Theog, District Shimla, [H.P.] vide which the Learned Magistrate allowed the application filed by SHO, Police Station Theog for permission to obtain the voice sample of the petitioner and proforma respondents. It has been asserted that informant Sumitra Chauhan lodged an FIR No. 47 of 2022 at Police Station, Theog on 14/5/2022 for the commission of offences punishable under Ss. 323, 342 and 382 read with Sec. 34 of IPC. Once Smt. Sumitra Chauhan, made a complaint to the Police Station, Theog telephonically regarding the quarrel in Village Sandoh/Bishidi and requested that the police be sent to the spot. The police reached the spot. No case was registered on the information of petitioner and FIR No. 49 of 2022 dtd. 14/5/2022 was registered for the commission of offences punishable under Ss. 147, 149, 452, 323 and 506 IPC. A SIM Card was recovered in FIR No. 47 of 2022 which was sent to a laboratory for analysis. The police found during the investigation that the petitioner had talked to the accused. Police filed an application for obtaining the voice samples of the petitioner and proforma respondents. This application was allowed on 6/1/2023 (Annexure P-1) and the police were permitted to obtain voice samples. The order passed by learned ACJM, Theog is bad. The police failed to show any necessity or sufficient reason for obtaining the voice samples. The petitioner is not the accused, and no voice sample can be taken from him. Taking a voice sample is not essential for the investigation of the case. Therefore, it was prayed that the present petition be allowed and the order passed by learned Additional Chief Judicial Magistrate, Theog be set aside.

(2.) I have heard Mr. Dibender Ghosh, learned Counsel for the petitioner and Mr. Pratyush Sharma, Additional Advocate General for respondent-State and Mr. Romesh Verma, Senior Advocate assisted by Mr. Sumit Sharma, Advocate, for respondents No. 2 and 3 and have gone through the records carefully.

(3.) Mr. Dibender Ghosh, learned counsel for the petitioner submitted that the learned ACJM, Theog erred in permitting the police to obtain the voice sample. The petitioner is not an accused and his voice sample cannot be taken. Hence, he prayed that the present petition be allowed and the order passed by the learned ACJM, Theog be set aside. Mr. Romesh Verma, Learned Senior Counsel has also supported the contention of the learned counsel for the petitioner and has prayed for setting aside the impugned order.