Collection of voice samples for investigation after taking approval as per law not violative of Right to Privacy: Punjab and Haryana High Court

The Punjab and Haryana High Court has held that a judicial order allowing collection of voice samples for the purpose of police investigation is not violative of right to privacy or immunity against self-incrimination under Article 20 (3) of the Constitution (Kamal Pal vs. State of Punjab).Single-judge Justice Avneesh Jhingan said that right to privacy is not absolute and cannot be raised to scuttle probe but must give way to public interest. “The infringement of Fundamental Right to Privacy cannot be raised to create a bubble to scuttle the investigation nullifying the evidence collected by merely denying that the voice of the tapped phone calls is not of the petitioners and there being no comparables,” the Court said. The Court also noted that with the advancement of technology and changing modes of communication, new technology needs to be used to collect and compare evidence in order to keep pace with change..The phones of petitioners, both typists at the Tehsil Banga complex, were tapped by the Vigilance Bureau after they received information that the petitioners were extorting money from the local public for getting sale deeds registered. Based on the transcripts, an FIR was registered against them..The Vigilance Bureau then sought permission from the Additional Sessions Judge, SBS Nagar to take the petitioners' voice samples so that the same can be compared with the voice in the tapped telephonic transcripts. The Sessions Judge allowed the same. Aggrieved by this order, the petitioners moved the High Court..The counsel for the petitioners argued that the order allowing voice samples to be collected is violative of their right to privacy and right against self-incrimination.Further, it was contended that under Section 53 of the Code of Criminal Procedure, the court does not have the power to order collection of voice samples..The High Court found the arguments by the Petitioners unconvincing and relied on the Supreme Court judgement in Ritesh Sinha vs. State of Uttar Pradesh that held directions to take voice samples do not infringe Article 20 (3) of the Constitution.“The fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest.”.The judgement in Ritesh Sinha also dealt with a Magistrate’s power to authorise recording of voice samples in the absence of a specific provision in the Code.“The Supreme Court in exercising the powers under Article 142 of the Constitution of India till there is a specific provision in the CrPC for taking voice samples conceded powers to the Judicial Magistrate to order giving of voice samples,” the Court noted. .The Court also said that each person has a distinctive voice very much like fingerprints and handwriting. "Voice sample in a sense resemble finger prints and hand writing, each person has a distinctive voice with characteristic features dictated by vocal cavities and articulates," the order said. Moreover, the samples in this case were collected after having permission in accordance with law. The sample taken itself would not be an evidence, rather they are for comparing the evidence already collected, the Court added. The Court also referred to the Supreme Court judgement in State of Bombay vs. Kathi Kalu Oghad where it was observed that, “the prohibition contemplated by the constitutional provision contained in Article 20(3) would come in only in cases of testimony of an accused which are self-incriminatory or of a character which has the tendency of incriminating the accused himself.”.The Court, therefore, dismissed the petition. .[Read Order]