Above: Illustration by Anthony Lawrence

The Supreme Court has said that a judicial magistrate can direct an accused to provide the samples without seeking their consent. This will help in the investigation of criminal cases

By Ramesh Menon

The Supreme Court in a significant ruling said that a judicial magistrate can now direct an accused to provide voice samples without even seeking his consent. This can have wide ramifications in the investigation of criminal cases. It will especially help in cases that are not getting solved due to lack of proper evidence.

A three-judge bench led by Chief Justice of India Ranjan Gogoi said that Article 142 of the Constitution could be invoked to confer such power on the magistrate. The Court used its discretionary power to empower magistrates to direct an accused to provide his or her voice sample.

Justice Gogoi said that directing a person to give a voice sample to the police was not a violation of his fundamental right to privacy. “It cannot be construed as absolute and must bow down to compelling public interest,” he said. He compared a voice sample to other impressions such as handwriting specimens and impressions of fingers, palm or foot that are collected by the police during investigations and said that a voice sample by itself was not incriminating evidence.

Dr Kuldip Sharma, former Director-General, Bureau of Police Research and Development, Delhi, told India Legal: “Allowing voice samples to be used is a step forward in investigating crime and will help a great deal. Earlier, it did not matter much, but today with the extensive use of mobile phones, it becomes crucial for the police to use voice samples to provide credible evidence. Most of the criminals get apprehended today as we are able to trace their locations when they use their phones.”

The Court was hearing a case where appellant Ritesh Sinha was challenging an Allahabad High Court order where he was asked to give his voice samples. This was to aid investigation into a case where he was allegedly involved in accepting money from various people after promising them jobs in the police department of UP. He did this with another accomplice, Dhoom Singh.

The Sadar Bazar police station in the Saharanpur district lodged an FIR against Sinha and Singh on December 7, 2009. The police arrested Singh and recovered a mobile phone from him. The police wanted to verify the conversation on this phone between the two and wanted their voice samples. So it filed an application before the chief judicial magistrate pleading that Sinha be asked to be present in court to record his voice sample.

The application was allowed by the magistrate, but was challenged in the Allahabad High Court which upheld the decision of the magistrate. Sinha then approached the Supreme Court against the verdict.

A two-judge bench of the Supreme Court, however, remained divided on the issue. Justice RP Desai said that voice samples could be procured under Section 53 of the Criminal Procedure Code for criminal investigation. But Justice Aftab Alam, the other judge hearing the case, said that compulsion to give a voice sample could be used only if there was a law authorising such action and it was not for the judiciary to give an interpretation.

Justice Desai had held that the magistrate had the power but Justice Alam disagreed, saying that the law did not permit it. Due to the dissenting judgment, it was again referred to a three-judge bench of the Supreme Court.

While clearing the confusion this month, Justice Gogoi said that the order had taken into consideration Article 142 following the interpretation of all pertinent laws. The bench, that included Justices Deepak Gupta and Sanjiv Khanna, asked the government to make requisite changes in the law to ensure that voice samples would be allowed to be taken to investigate crime.

The Court order said that until Parliament passed a law, a judicial magistrate must be given the power to order a person to give a sample of his voice for this purpose.

The bench said: “Such power has to be conferred on a Magistrate by a process of judicial interpretation and in the exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India. However, when a yawning gap in the Statute, in the considered view of the Court, calls for a temporary patchwork of filling up to make the Statute effective and workable and to sub-serve societal interests a process of judicial interpretation would become inevitable.”

The vexed issue of whether to take a voice sample or not has divided many high courts until it got resolved by the recent Supreme Court directive. The 87th Report of the Law Commission in August 1980 said: “Often, it becomes desirable to have an accused person speak for the purposes of giving to the police an opportunity to hear his voice and try to identify it as that of the criminal offender. A comparison may even be desired between the voice of an accused person and the recorded voice of a criminal which has been obtained by, say, telephone tapping. To facilitate proof of the crime the police may like that the accused should be compelled to speak, and even that his voice as recorded may be converted into a voice print… However, if the accused refuses to furnish such voice, there is no legal sanction for compelling him to do so, and the use of force for that purpose would be illegal.”

After this interpretation, there has been the question of whether taking voice samples violated the fundamental right to privacy. Sharma, who cracked numerous crimes and brought many criminals to book in Gujarat, said: “There is absolutely nothing wrong in securing a voice sample of an accused. Suppose a criminal was in possession of some documents that are required to be acquired by the police in the course of their investigations, there is no way the accused can refuse to part with them. Voice samples are also needed to allow an investigation to proceed.”

Meeran Chadha Borwankar, a retired IPS officer, told India Legal: “This judgment was long awaited. Mandatory voice sampling shall definitely help the police. It can be strong proof in cases of extortion, ransom phone calls post kidnapping and other serious offences. Corroboration by circumstances and witnesses shall make the evidence conclusive.

“However, we need to strengthen our forensic labs with the required equipment and skilled manpower so that expert opinions are prompt and professionally sound to withstand cross-examination in a court of law.”

The Supreme Court directive may help speed up criminal investigations and now it is up to Parliament to pass a law as suggested by the Court.