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2021 DIGILAW 1680 (RAJ)

Raj Kumar Singh Chouhan v. State of Rajasthan

2021-09-10

PUSHPENDRA SINGH BHATI

body2021
ORDER 1. In wake of second surge in the COVID-19 cases, abundant caution is being maintained, while hearing the matters in Court, for the safety of all concerned. 2. Learned counsel for the petitioner submits that the voice sample cannot be taken against the wishes of the petitioner, as it would amount to self-incrimination. Learned counsel for the petitioner further submits that the petitioner has protection under Article 20 of the Constitution of India. 3. Learned counsel for the petitioner relies upon the judgment passed in the matter of Vikramjeet Singh Vs. State of Rajasthan; SB Criminal Misc. Petition No.780/2018 decided on 23.05.2018. 4. The Government Advocate cum Additional Advocate General alongwith learned Public Prosecutor present in the Court and submit that the question of power to take voice sample was referred to a larger Bench of the Hon'ble Apex Court and Hon'ble Apex Court has already determined the issue in Criminal appeal No.2003/2012; Ritesh Sin ha Vs. State of Uttar Pradesh & Anr., decided on 02.08.2019. The relevant portion of the judgment dated 02.08.2019 reads as follows :- "22. Illustratively, we may take the decision of this Court in Bangalore Water Supply & Sewerage Board vs. A Rajappa and others8. A lone voice of dissent against expansion of the frontiers of judicial interpretation to fill in gaps in the Statute enunciated by Lord Denning, L.J, in (1978) 2 SCC 213 Seaford Court Estates Ltd. vs. Asher9 though did not find immediate favour of the learned Judge's contemporaries was acknowledged to have carried within itself the vision and the perception of the future. Coincidentally, the view enunciated by Lord Justice Denning in Seaford Court Estates Ltd. vs. Asher (supra) of ironing of the creases in the legislation has been approved by the Indian Supreme Court in the following words of the then Chief Justice M.H. Beg: "147. My learned Brother has relied on what was considered in England a somewhat unorthodox method of construction in Seaford Court Estates Ltd. v. Asher [(1949) 2 ALL ER 155, 164] where Lord Denning, L.J., said: "When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament -and then he must supplement the written words so as to give 'force and life' to the intention of legislature. He must set to work on the constructive task of finding the intention of Parliament -and then he must supplement the written words so as to give 'force and life' to the intention of legislature. A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases." When this case went up to the House of Lords it appears that the Law Lords disapproved of the (1949) 2 All. E.R. 155 (at 164) bold effort of Lord Denning to make ambiguous legislation more comprehensible. Lord Simonds found it to be "a naked usurpation of the legislative function under the thin disguise of interpretation". Lord Morton (with whom Lord Goddard entirely agreed) observed: "These heroics are out of place" and Lord Tucker said "Your Lordships would be acting in a legislative rather than a judicial capacity if the view put forward by Denning, L.J., were to prevail." 148. Perhaps, with the passage of time, what may be described as the extension of a method resembling the "arm-chair rule" in the construction of wills. Judges can more frankly step into the shoes of the legislature where an enactment leaves its own intentions in much too nebulous or uncertain a State. In M. Pentiah v. Muddala Veeramallappa [ AIR 1961 SC 1107 , 1115] Sarkar, J., approved of the reasoning, set out above, adopted by Lord Denning. And, I must say that, in a case where the definition of "industry" is left in the state in which we find it, the situation perhaps calls for some judicial heroics to cope with the difficulties raised." [Emphasis is ours] 23. A similar view of Lord Justice Denning in Magor & St. Mel Ions Rural District Council vs. Newport Corporation 10 would be equally apt to notice. "we sit here to find out the intention of Parliament and of ministers and carry it (1951) 2 AII.E.R. 1226 out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis." 24. "we sit here to find out the intention of Parliament and of ministers and carry it (1951) 2 AII.E.R. 1226 out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis." 24. Would a judicial order compelling a person to give a sample of his voice violate the fundamental right to privacy under Article 2or3) of the Constitution, is the next question. The issue is interesting and debatable but not having been argued before us it will suffice to note that in view of the opinion rendered by this Court in Modern Dental College and Research Centre and others vs. State of Madhya Pradesh and Others, Gobind vs. State of Madhya Pradesh and another 12 and the Nine Judge's Bench of this Court in K.S. Puttaswamy and another vs. Union of India and Others 13 the fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest. We refrain from any further discussion and consider it appropriate not to record any further observation on an issue not specifically raised before us. (2016) 7 SCC 353 (1975) 2 SCC 148 (2017) 10 SCC 1 " 5. This Court, while examining the precedent law laid down by full Bench of Hon'ble Apex Court, finds that there is no cause of interference in the present misc. petition and the same is accordingly dismissed. 6. All pending applications stand dismissed accordingly.