Madhya Pradesh High Court
Rajesh Mishra vs State Of Madhya Pradesh on 7 October, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 7 th OF OCTOBER, 2025
WRIT PETITION No. 38671 of 2025
RAJESH MISHRA
Versus
STATE OF MADHYA PRADESH
Appearance:
Shri Anil Khare, Senior Advocate assisted by Shri Priyank Agrawal, Advocate for
the petitioner.
Shri Sanjay Sarvate, Advocate for the respondent/Special Police Establishment,
Lokayukt, M.P. Sagar.
ORDER
Per: Justice Vivek Agarwal
This writ petition is filed challenging the order dated 12.09.2025
(Annx.P/7), passed by the learned Special Judge (Prevention of Corruption
Act), Tikamgarh (M.P.), whereby learned trial Judge has directed the
authorities to take second voice sample of the petitioner Rajesh Mishra and
obtain scientific opinion on such voice sample and, thereafter, furnish it
before the trial Court.
2. It is submitted that such kind of practice is unheard of.
3. Shri Khare, learned Senior Advocate submits that earlier first voice
sample was taken which was readily given by the petitioner, but without
referring to various contours of voice testing, a report was furnished saying
that the sample is not in natural voice and, therefore auditory and
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spectrographic examination could not be conducted. A request was made to
obtain natural voice sample and send it to the concerned Scientific Officer
and Assistant Chemical Examiner, State Forensic Science Laboratory, Sagar.
Copy of this report is Ex.P/3.
4. Shri Khare, learned Senior counsel submits that in case of Ritesh
Sinha Vs. State of Uttar Pradesh [(2019) 8 SCC 1], though it is held that
until Parliament makes appropriate law, Judicial Magistrate has power to
order a person to give his voice sample for purpose of investigation of crime,
but there has to be a limit because prosecution cannot go on obtaining
successive voice samples till the voice matches with the recorded sample.
5. Shri Khare, learned Senior counsel also submits that there is no
provision for taking consecutive samples so to suit the convenience of the
prosecution. He further submits that no adverse note was recorded while
sample was drawn to show that the modulation of sample was not natural as
is mentioned in the report Ex.P/3.
6. Reliance is also placed on the judgment of Hon'ble Apex Court in
Chittaranjan Das Vs. State of Orissa [(2011) 7 SCC 167], wherein in para 14,
it is held as under :-
"We are of the opinion that in a case in which sanction
sought for is refused by the competent authority, while the public
servant is in service, he cannot be prosecuted later after retirement,
notwithstanding the fact that no sanction for prosecution under the
Prevention of Corruption Act is necessary after the retirement of
the public servant. Any other view will render the protection
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illusory. Situation may be different when sanction is refused by
the competent authority after the retirement of the public servant
as in that case sanction is not at all necessary and any exercise in
this regard would be action in futility."
7. It is submitted that in case of Chittaranjan Das (supra), brief facts of
the case were that while the appellant was in service, competent authority
had refused sanction for prosecution under Prevention of Corruption Act. As
soon as the appellant attained the age of superannuation, sanction was
granted. In the aforesaid background, Hon'ble Apex Court has held that once
sanction sought for is refused by the competent authority, while the public
servant is in service, he cannot be prosecuted later after retirement,
notwithstanding the fact that no sanction for prosecution under the
Prevention of Corruption Act is necessary, after the retirement of the public
servant.
8. Thus placing reliance on these judgments, it is pointed out that
failure of his voice sample is akin to denial of sanction in the first place and,
therefore, obtaining second sample to satisfy the whims and fancies of the
prosecution is made out and, therefore, the impugned order be set aside.
9. Shri Sanjay Sarvate, learned counsel for the Special Police
Establishment, in his turn, places reliance on the judgment of Hon'ble
Division Bench of this Court dated 03.04.2023, passed in
M.Cr.C.No.54639/2022; Baliram Barman Vs. The State of Madhya Pradesh,
through Special Police Establishment (Lokayukta), wherein it is held that
voice sample can be obtained and it does not amount to further investigation.
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10. It is submitted that reliance is placed on the judgment of Delhi
High Court in Ram Udagar Mahto Vs. State (2011 SCC OnLine Del 4368 :
2022 Cri.L.J. 1127).
11. After hearing learned counsel for the parties and going through the
record, Hon'ble Apex Court in case of Rajendra Prasad Gupta Vs. Prakash
Chandra Mishra and others (AIR 2011 SC 1137) , has referred to Full Bench
decision of Allahabad High Court in Narsingh Das Vs. Mangal Dubey
[(1882) ILR 5 ALL. 163 (FB) , where Mr. Justice Mehmood, the celebrated
Judge of the Alld. High Court observed :-
"Courts are not to act upon the principle that every
procedure is to be taken as prohibited unless it is expressly
provided for by the Code, but on the converse principle that every
procedure is to be understood as permissible till it is shown to be
prohibited by the law. As a matter of general principle prohibition
cannot be presumed."
12. When this aspect of legal interpretation as given by Justice
Mehmood in Narsingh Das (supra), is taken into consideration, then Hon'ble
Apex Court in Ritesh Sinha Vs. State of U.P. [(2019) 8 SCC 1] , in the
context of voice sample collected for the purpose of investigation, three
Judge of the Hon'ble Apex Court held in para 26 as under :-
"26. Would a judicial order compelling a person to give a sample of
this voice violate the fundamental right to privacy under Article 20(3) of the
Constitution, is the next question. The issue is interesting and debatable but
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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 & Research Centre
V. State of M.P. [(2016) 7 SCC 353], Gobind V. State of M.P. [(1975) 2
SCC 148] and the nine-Judge Bench of this Court in K. S. Puttaswamy
(Privacy-9J) V. Union of India [(2017) 10 SCC 1] , the fundamental right to
privacy cannot be construed as absolute 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."
13. This judgment has been further referred to by Hon'ble Apex Court
in Pravinsinh Nrupatsinh Chauhan Vs. State of Gujrat [2023 Live Law (SC)
463], wherein it is held that " until explicit provisions are engrafted in the
Code of Criminal Procedure by Parliament, a judicial Magistrate must be
conceded the power to order a person to give a sample of his voice for the
purpose of investigation of a crime. Such power has to be conferred on a
Magistrate by a process of judicial interpretation and in exercise of
jurisdiction vested in this Court under Article 142 of the Constitution of
India. We order accordingly and consequently dispose the appeals in terms
of the above."
14. Once an expert has held that the sample was not natural, then with
a view to meet the ends of justice where there is no prohibition on drawl of
second sample so to be in conformity with the natural tone and tenor of the
accused, then in the light of the judgment of Apex Court in Rajendra Prasad
Gupta (supra) and also that of Full Bench of Allahabad in High Court in
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Pravinsinh Nrupatsinh Chauhan (supra), we are of the opinion that as a
matter of general principle since prohibition cannot be presumed and there
being no prohibition under law on taking further samples or second sample,
petition deserves to fail and is hereby dismissed.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
A.Praj.
