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In a significant judgment, the Supreme Court today held that a Magistrate would have the power to direct accused to furnish voice samples for investigation.
This judgment was rendered by a Bench headed by Chief Justice of India Ranjan Gogoi and comprising Justices Deepak Gupta and Sanjiv Khanna.
On 7th December, 2009 the In-charge of the Electronics Cell of Sadar Bazar Police Station located in the district of Saharanpur of the State of Uttar Pradesh lodged a First Information Report (“FIR” for short) alleging that one Dhoom Singh in association with the appellant – Ritesh Sinha, was engaged in collection of monies from different people on the promise of jobs in the Police. Dhoom Singh was arrested and one mobile phone was seized from him. The Investigating Authority wanted to verify whether the recorded conversation in the mobile phone was between Dhoom Singh and the appellant – Ritesh Sinha. They, therefore, needed the voice sample of the appellant and accordingly filed an application before the Chief Judicial Magistrate (CJM) praying for summoning the appellant to the Court for recording his voice sample.
CJM, Saharanpur by order dated 8th January, 2010 issued summons to the appellant to appear before the Investigating Officer and to give his voice sample.
This order of the CJM was challenged before the High Court of Allahabad under Section 482 of the Code of Criminal Procedure, 1973 (CrPC). The High Court having negatived the challenge made by the appellant, an appeal was preferred before the Supreme Court.
The appeal was heard and disposed of by a split verdict of a two-Judge Bench of this Court requiring the present reference to a 3-judge bench.
Questions of reference
The reference order passed on December 7, 2012 by Justice Ranjana Prakash Desai set out the following questions of reference
“(1) Whether Article 20(3) of the Constitution of India, which protects a person accused of an offence from being compelled to be a witness against himself, extends to protecting such an accused from being compelled to give his voice sample during the course of investigation into an offence?
(2) Assuming that there is no violation of Article 20(3) of the Constitution of India, whether in the absence of any provision in the Code, can a Magistrate authorize the investigating agency to record the voice sample of the person accused of an offence?
While the first question was answered in the negative by both the Judges (Justice Ranjana Prakash Desai and Justice Aftab Alam) following the ratio of the law laid down in State of Bombay vs.Kathi Kalu Oghad, a difference of opinion occurred insofar as the second question was concerned.
Regarding the first question, the Court cited the test laid down by this Court in State of Bombay vs.Kathi Kalu Oghad.
The issue, in that case, was with regard to specimen writings taken from the accused for comparison with other writings in order to determine the culpability of the accused and whether such a course of action was prohibited under Article 20(3) of the Constitution.
In the said case, the Court had held that the prohibition contemplated by the constitutional provision contained in Article 20(3) would come in only in cases of the testimony of an accused which are self-incriminatory or of a character which has the tendency of incriminating the accused himself.
In order that 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. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous, because they are unchangeable, the Court had held in that judgment.
The above judgment conclusively determined the first question, the Supreme Court held.
The Court then proceeded to consider the second question.
It noted the amendments made to CrPC for the purpose of effective investigation of a criminal charge.
Medical examination of an accused for the purposes of effective investigation of a criminal charge has received a wider meaning by the amendment to the Explanation to Section 53 CrPC made by Act No.25 of 2005. Similarly, Section 53A has been inserted by the same Amending Act to provide for the examination of a person accused of rape. Likewise, by insertion of Section 311- A by the same Amending Act, a Magistrate has person, to give specimen signatures or handwriting for the purposes of any investigation or proceeding under the CrPC been empowered to order any person, including an accused.
The Court, however, also noted that none of the above amendments specifically authorize or empower a Magistrate to direct an accused person or any other person to give his/her voice sample for the purposes of an inquiry or investigation under the Code.
The Court then adverted to the 87th report of the Law Commission. The Law Commission had examined the matter in the context of the working of the provisions of the Identification of Prisoners Act, 1920. The view taken was that a suitable legislation which could be in the form of an amendment to Section 5 of the Identification of Prisoners Act, 1920 would be appropriate so as to specifically empower a Judicial Magistrate to compel an accused person to give a sample of his voice.
Section 5 of the Identification of Prisoners Act, 1920 coincidentally empowers the Magistrate to order/direct any person to allow his measurements or photographs to be taken for the purposes of any investigation or proceeding.
The Court then proceeded to consider the absence of legislative response to the issue which had been cited by the Division bench which had referred the matter to the current Bench.
The view that the law on the point should emanate from the Legislature and not from the Court, as expressed by the Division Bench was founded on two main reasons:
(i) the compulsion to give voice sample does in some way involve an invasion of the rights of the individual and to bring it within the ambit of the existing law would require more than reasonable bending and stretching of the principles of interpretation and
(ii) if the legislature, even while making amendments in the CrPC, is oblivious and despite express reminders chooses not to include voice sample either in the newly introduced explanation to Section 53 or in Sections 53A and 311A of CrPC, then it may even be contended that in the larger scheme of things the legislature is able to see something which perhaps the Court is missing.
The Court held that the first reservation would stand dispelled due to the judgment of the Supreme Court in State of Bombay vs.Kathi Kalu Oghad.
Regarding the second issue, the Court stated that what may appear to be legislative inaction to fill in the gaps in the Statute could be on account of justified legislative concern and exercise of care and caution. 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 exercise of jurisdiction by Constitutional Courts must be guided by contemporaneous realities/existing realities on the ground. Judicial power should not be allowed to be entrapped within inflexible parameters or guided by rigid principles.
“True, the judicial function is not to legislate but in a situation where call for justice and that too of a large number who are not parties to the lis before the Court, demands expression of an opinion on a silent aspect of the Statute, such void must be filled up not only on the principle of ejusdem generis but on the principle of imminent necessity with a call to the Legislature to act promptly in the matter.”
The Court, therefore, 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.
The Court clarified that 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.