CAN A MAGISTRATE ORDER VOICE SAMPLE OF AN ACCUSED UNDER

SECTION 53 OF CRPC?

INTRODUCTION
In August 2019, the Supreme Court delivered the controversial judgment on voice sampling of
the accused without his consent in the three-judge bench of Ritesh Sinha v. Union of India
(hereinafter ‘Ritesh Sinha’). The issue of whether ordering an accused to provide a voice sample
was violative of Article 20(3) of the Constitution were not discussed, especially in the backdrop
of the recent judgment on right to privacy in K.S Puttaswamy v. Union of India. Higher priority
was directed towards bridging the ‘gap’ in the legislature by judicial interpretation – therefore,
providing powers to the Magistrate to order an accused to provide voice samples. This case was
the result of a split verdict, who referred the case to a three-judge bench. The main question
before this bench was whether, in the absence of explicit statutory provisions, a magistrate was
authorised to order voice sampling of an accused, without his consent.
The Bench found that there was no statutory authorisation for the process, but it then noted that
the procedure was the handmaiden of justice. The bench wanted to ‘fill in the gap’ by invoking
its powers under art. 142 of the Constitution to do ‘complete justice’, and authorised Magistrates
to demand voice samples. This paper aims to elaborate on the significant flaws in the judgment,
with a focus on the application of art. 20(3) of the Constitution and Section 53 of the Code of
Criminal Procedure, 1973 (hereinafter CrPC).

FACTUAL MATRIX LEADING TO THE CASE

An FIR was lodged against Dhoom Singh, allegedly engaged in the collection of monies from
different people on the promise of jobs in the Police. Dhoom Singh was arrested, and his 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 applied to the learned
jurisdictional Chief Judicial Magistrate, who issued the summons.
This order was challenged before the High Court of Allahabad under Section 482 of the Cr. P.C.
The High Court having negated the challenge made by the appellant by its order in 2010, an
appeal was favoured to the Supreme Court. The appeal was heard and disposed of by a split
verdict of a two-Judge Bench of the Supreme Court, as a result of which it was directed to a
three-judge bench.

ORDERING VOICE SAMPLES OF ACCUSED - HIT BY THE BAR OF ARTICLE 20(3)

The Court in “Ritesh Sinha” proceeded under the assumption that ordering the voice sample of
an accused without his consent by a Magistrate is entirely undisputed. The Court did not analyse
deeply if compelling voice samples would violate right against self-incrimination under art.
20(3) of the Constitution, mainly because the issue was not raised before them, briefly noting
that the High Court and the divided bench were clear that compelling an accused to provide his
voice sample did not violate art. 20(3).

● SCOPE OF ART. 20(3) RESTRICTED, NOT EXHAUSTIVE.

Art. 20(3) of the Constitution protects persons accused of any offence against self-incrimination.
More precisely, an accused shall not be ‘compelled’ to be a ‘witness’ against himself. Before
delving into the question of whether collecting voice samples without consent of the accused
violates art. 20(3), it is imperative to look into specific judicial landmarks relating to it.
The most notable definition of ‘witness’ in the context of art. 20(3) finds its place in the eleven
judge Supreme Court bench in the case of State of Bombay v Kathi Kalu Oghad. The primary
consideration before this bench was to re-visit the scope of self-incrimination: whether
handwriting samples and fingerprints were protected under art. 20(3). The court opined that the
giving of finger impression or specimen signature or handwriting, strictly speaking, is not ‘to be
a witness.’
‘To be a witness’ means imparting knowledge in respect of relevant fact, by means of oral
statements or statements in writing, by a person who has personal knowledge of the facts to be
communicated to a court or to a person holding an enquiry or investigation.
A detailed analysis of the judgment reveals that by taking a restricted view, the Court had set a
dangerous precedent which infringes fundamental rights way back in 1961 drastically limiting
the scope of art. 20(3). The crucial motive behind the court’s interpretation was to narrow the
scope of self-incrimination set by M.P. Sharma v Union of India. The three-judge bench in MP
Sharma held that being a witness was equivalent to ‘furnishing evidence.’
 ● LINE BETWEEN TESTIMONIAL AND NON-TESTIMONIAL EVIDENCE
RELATING TO PHYSICAL AND MENTAL PRIVACY

Another critical decision pertaining to art. 20(3) is the case of Selvi v State of Karnataka decided
by a three-judge bench on the constitutionality of three investigative techniques: Narco-analysis,
Polygraph test, and Brain Electrical Activation Profile.
In Kathi Kalu, the term ‘volition’ with regards to changeability played a vital role. Information
or facts that could not be altered, inevitably, could not be fabricated. The court observed that
fingerprints and handwriting samples were either oral or documentary evidence but belonged to
the third category of material evidence which is outside the limit of ‘testimony’. However, little
or no regard was extended to the mental aspect of the accused. Obtaining physical samples such
as blood, hair, sweat cannot be regarded as synonymous with providing information which
inherently contains some mental aspect attached to it. Providing handwriting samples, voice
samples are good examples- it cannot be stated that it is purely physical without any mental
component; even though it is a fact which cannot be fabricated.
This is where the court in Selvi ultimately differed- although the Court’s main issue revolved
around constitutionality of the three techniques, it rightly recognised the distinction between
‘physical privacy’ (blood samples, fingerprints) and ‘mental privacy’. Noting the definition of
witness from Kathi Kalu, the court established a slightly different perspective, although very
significant in terms of arriving at a conclusion.
It observed ‘testimony’ as the sharing of information, factual or not, present within a person’s
mental sphere. The Court placed a particular conception of mental privacy. In the same vein,
voice samples can be categorised as testimonial evidence, since it involves mental aspects.
However, even if voice samples are considered testimonial or non-testimonial, the legality of the
same is hugely ambiguous in the absence of valid law. The subordination of the fundamental
right to privacy to ‘compelling public interest’ ignores the ratio in KS Puttaswamy, where an
encroachment on the right to privacy is permitted by the state only if it concurrently satisfies the
threefold test of the existence of a valid law, legitimate state aim and proportionality.
Interestingly, this test or KS Puttaswamy finds no mention in Ritesh Sinha, rendering it
ambiguous with respect to self-incrimination and privacy.
 VOICE SAMPLING AND SECTION 53 - PLAGUED WITH LEGAL ‘VACUUM’?
Before delving into the question of whether voice sampling can be read into Section 53 of the
CrPC or not, it is pertinent to examine the intent of the legislature. The intent of the legislature is
paramount in examining whether the said provision contains any legal vacuum or void for the
judiciary to bridge.

● ABSENCE OF LEGISLATIVE INTENT

It may be relevant to note that the Explanation (a) to Section 53 was incorporated by way of an
amendment to CrPC. in the year 2005. It is, therefore, evident that the Parliament did not include
voice examination by requiring a person to give his voice sample in Explanation (a). It is
pertinent to note that such exclusion was made even though the Law Commission of India had
recommended in its 87th Report that Section 5 of the Identification of Prisoners Act, 1920,
which empowered the Magistrate to direct the taking of measurements or photographs of any
person for any investigation or proceeding under CrPC, may be amended to confer any
additional power on the Magistrate to direct a person to give his voice sample or a specimen of
his signature or handwriting.
The Magistrate, being a creature of statute, is bound by the powers conferred on him by CrPC
and he has no inherent powers over and above such expressly conferred powers. This aspect was
correctly appreciated by Desai, J. in the split verdict of Ritesh Sinha, when she observed that
‘the subordinate criminal courts do not have inherent powers.’
The requirement of a legislative vacuum or void was absent in Ritesh Sinha to justify the
conferment of subject power on the Magistrate. The subject matter of Magistrate’s powers (both
during investigation and trial) is elaborately dealt with in Cr. P.C, Indian Evidence Act and
Identification of Prisoners Act whereby Parliament has provided for specific powers as well as
limitations.
The Supreme Court in Ritesh Sinha did not notice that while conferring diverse powers on the
Magistrate under different enactments, the Parliament had articulated the legislative intent to
confer only such specific powers, as well as the legislative intent to confer no power on the
Magistrate to order a voice sample. Instead, the Supreme Court viewed such lack of power as a
‘silent aspect of the statute’, justifying it to legislate and bring into the statute a Magisterial
power to order a person to give his voice sample for an investigation.
In Selvi, the three-Judge Bench interpreted the expression: ‘and such other tests’ as meant to
cover the examination of bodily substances/ physical evidence, such as blood, semen, sputum,
sweat, hair and fingernails.
The concept of ‘ejusdem generis’ was followed to restrict the scope of ‘and such other tests’ to
involve physical evidence only and, also rightly recognised that the Parliament was aware of the
tests and deliberately in its collective wisdom decided not to incorporate such tests under Section
53. Interestingly, Ritesh Sinha makes no mention of this crucial aspect of Selvi. While noting
that ‘bending and stretching’ of the legislature is required to read voice samples in Section 53,
the Court had the singularonly goal of expanding Magisterial powers to include voice samples.
The statutory boundaries of powers conferred on courts have been emphasised by the Supreme
Court. The Supreme Court, while examining an orderunder passed by the High Court under
Section 438 Cr. P.C, reiterated as follows:
“A court of law has to act within the statutory command and not deviate from it. It is a well-
settled proposition of law that what cannot be done directly cannot be done indirectly. While
exercising a statutory power, a court is bound to act within the four corners thereof…..”
The Court in Selvi rightly observed that it is the task of the legislature to arrive at a pragmatic
balance between the often competing interests of ‘personal liberty’ and ‘public safety’. The
Supreme Court can only preserve the balance between these competing interests as reflected in
the text of the Constitution and its interpretation. However, the Court in Ritesh Sinha, noting that
compelling an accused to provide voice samples does amount to infringing fundamental rights of
privacy, went on to briefly mention in passing that ‘fundamental right to privacy cannot be
construed as absolute and but must bow down to compelling public interest’ as observed in
several cases, including KS Puttaswamy.
The subordination of the fundamental right to privacy to ‘compelling public interest’ ignores the
ratio of K.S. Puttaswamy, whereby an encroachment on the right to privacy is permissible by the
State only if it concurrently satisfies the threefold test of the existence of a valid law, legitimate
State aim and proportionality.
● ACTING ON THE ‘INTENTION’ OF THE LEGISLATURE OR AN ACT OF
‘LEGISLATING’?
The Supreme Court felt the need to empower Magistrates to order a person to give his voice
specimen, as it was of the view that there was a ‘yawning gap in the Statute’ and, therefore,
‘temporary patchwork of filling up to make the Statute effective and workable and to sub-serve
societal interests’ was deemed expedient. The three-judge bench significantly did not provide
any instance of the ‘yawning gap in the statute’, ‘imminent necessity’ and ‘contemporaneous
realities’, even though such reasons were principally stated for conferring powers on the
Magistrate, they have been mentioned in passing without any elaboration.
Lord Denning’s opinion in Seaford Court Estates Ltd. v. Asher has been referred to, paying
attention only to ‘iron out the creases’ in the legislature. Other points have been left out:
“A judge must not alter the material of which the Act is woven…, A Judge should ask himself the
question how, if the makers of the Act had themselves come across this ruck in the texture of it,
they would have straightened it out?”
This also signifies the inadvertent lack of knowledge on the part of the legislature about any
lacuna in the law, which could not have been intended by the legislature. The Court cannot
rewrite, recast or reframe the legislation for the very good reason that it has no power to
legislate. The power to legislate has not been conferred on the courts. The Court cannot add
words to a statute or read words into it which are not there. Assuming there is a defect or an
omission in the words used by the legislature the Court could not go to its aid to correct or make
up the deficiency. Courts should decide what the law is and not what it should be. The Court
adopts a construction which carries out the obvious intention of the legislature; however, it
cannot legislate itself.
CONCLUSION
Without passing a valid law, the Court in Ritesh Sinha has set a dangerous precedent by failing
to provide right against self-incrimination of an accused ordered to produce his voice sample.
Undeniably, this goes against the right to privacy of the accused, which the bench did not deeply
analyse. Furthermore, the Court ‘bent and stretched’ the interpretation of the law to incorporate
‘voice sampling’ under Section 53 CrPC – well aware of the fact that the legislature had no
intention for the same. This essentially translates to new additional powers conferred to the
Magistrate, which the Court felt was imminent, but failed to carve out valid explanations. The
judgment is plagued with uncertainty, delivered solely with the ultimate aim of conferring the
said power to the Magistrate. If voice sampling is to be included under Section 53 of CrPC, it has
to be done through a valid law passed by the Parliament. Art. 142 of the Constitution cannot be
invoked to infringe on a fundamental right of privacy, the very touchstone of personal liberty.