The Supreme Court of India, in a judgment delivered by a bench comprising CJI B. R. Gavai and Justice K. Vinod Chandran, has affirmed that a Judicial Magistrate possesses the authority to order a person to provide a voice sample for the purpose of a criminal investigation, even under the old Criminal Procedure Code (Cr.P.C.) which lacked an explicit provision for it. The Court set aside a High Court order that had quashed a Magistrate’s direction for a voice sample, holding that the issue was squarely covered by the binding precedent in the case of Ritesh Sinha v. State of Uttar Pradesh.
Case Background
The matter originated from investigations following the death of a 25-year-old married woman on February 16, 2021. The death led to allegations of harassment and torture at her matrimonial home. In a counter-allegation, a cousin of the deceased’s husband filed a police complaint accusing the deceased’s parents of misappropriating cash and jewellery.
During the investigation, the Investigating Officer (I.O.) was informed that the second respondent in the present appeal, allegedly acting as an agent for the deceased’s father, had threatened a witness. This witness claimed to be privy to an extortion demand made by the deceased’s father through the second respondent. Consequently, the I.O. sought to subject the second respondent to a voice sample test to compare it with recorded evidence. A petition was filed before the jurisdictional Magistrate’s Court, which was allowed, directing the collection of the voice sample.
The second respondent challenged this order before the High Court. The High Court set aside the Magistrate’s order, reasoning that a similar question of law had been referred to a Larger Bench of the Supreme Court.
Arguments Before the Supreme Court
Before the Supreme Court, counsel for the second respondent, Mr. Ranjan Mukherjee, argued that the Magistrate’s order was passed when the Cr.P.C. was in force, which did not contain any provision empowering a Magistrate to direct a person to provide a voice sample. He contrasted this with the new Bhartiya Nagarik Suraksha Sanhita (BNSS), 2023, which under Section 349, explicitly grants this power. The core issue raised was whether compelling a witness to provide a voice sample could lead to self-incrimination, violating their right under Article 20(3) of the Constitution, especially if the comparison resulted in the witness being arraigned as an accused.
Mr. Dama Sheshadri Naidu, learned Senior Counsel for the appellant, pointed out that the reference to the Larger Bench, which the High Court had relied upon, had since been closed for default.
Court’s Analysis and Reliance on Precedent
The Supreme Court bench expressed its disapproval of the High Court’s decision, stating, “A purely academic question covered by a binding precedent of this Court, is agitated unnecessarily by the respondent herein and entertained egregiously by the High Court. The High Court has also refused to follow the binding precedent of this Court on the ground that there is a reference made to a Larger Bench.”
The Court found that the issue was directly settled by the three-judge bench decision in Ritesh Sinha v. State of Uttar Pradesh & Anr. (2019). In that case, the Supreme Court had held that despite the absence of an explicit provision in the Cr.P.C., a Judicial Magistrate must be conceded the power to order a person to give a voice sample for investigation. The bench noted that the Ritesh Sinha judgment had consciously used the words “a person” and not just “accused,” because the rule against self-incrimination applies to any person, whether an accused or a witness.
The judgment further relied on the principles laid down in the earlier case of State of Bombay v. Kathi Kalu Oghad (1961), which dealt with the plea of self-incrimination in the context of providing specimen handwriting, signatures, or finger impressions. The Court quoted from Kathi Kalu Oghad, observing:
“(12) In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so… A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous… They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of ‘testimony’.”
Applying this reasoning, the bench held that providing a voice sample is analogous to giving handwriting or fingerprint samples. The mere act of providing the sample does not incriminate the person. It is only when the sample is compared with other material discovered during the investigation that it could potentially incriminate the person, and this process does not amount to “testimonial compulsion” prohibited by Article 20(3).
The Court concluded that it was unnecessary to determine whether the Cr.P.C. or the BNSS would apply. If the Cr.P.C. applies, the Ritesh Sinha judgment empowers the Magistrate. If the BNSS applies, Section 349 provides explicit statutory backing.
Final Decision
Finding no reason to uphold the High Court’s order, the Supreme Court allowed the appeal. The bench reversed the impugned order of the High Court and restored the original order of the Magistrate. The second respondent has been directed to act in accordance with the Magistrate’s order and provide the voice sample for the ongoing investigation.
