CASE ANALYSIS OF RITESH SINHA V.

STATE OF UTTAR PRADESH

By: -

SAKSHI SHARMA

Ist YEAR,

BANASTHALI VIDYAPITH, RAJASTHAN

Mob.: - 8279361330

Gmail: - sakshi31012001@gmail.com

Submission on: - 26th April, 2020

 BACKGROUND OF THE CASE

In 2012, a two-judge seat of the Supreme Court in Ritesh Sinha I set two issues under the steady
gaze of this bigger three-judge seat; (I) in the case of getting voice samples from a denounced
individual without assent would be violative of the privilege against self-implication secured
under Article 20(3) of the Constitution; and (ii) in any event, accepting it was not violative of
this right, regardless of whether it could be ordered without an administrative arrangement in
such manner. In 2005, the Code of Criminal Procedure (CrPC) was explicitly changed to
consider penmanship and substantial examples to be taken forcibly, if essential, from a charged
individual. Strikingly, the alteration didn't cover taking of voice samples.

On the primary inquiry, the Supreme Court held that getting voice samples without assent would
not be violative of the privilege against self-implication, because of the choice in Kathi Kalu
Oghad(1961), rendered by an eleven-judge seat of the Supreme Court with regards to
penmanship samples. This judgment reasoned that Article 20(3) just secured the denounced
against being compelled to pass on data dependent on her 'own insight', and didn't ensure against
giving 'material proof', as such material proof just fit correlation, instead of tending to
legitimately implicate the blamed.

As for the subsequent inquiry, the court found that there was no arrangement permitting a
Magistrate or examination office to guide a charged individual to give her voice samples, in spite
of a suggestion made by the Law Commission in such manner and the ensuing changes to the
CrPC for penmanship and real examples.

STATEMENT OF FACTS

On 7th December, 2009 the responsible for the Electronics Cell of Sadar Bazar Police Station
situated in the area of Saharanpur of the State of Uttar Pradesh held up a First Information
Report ("FIR" for short) asserting that one Dhoom Singh in relationship with the appealing party
– Ritesh Sinha, was occupied with assortment of monies from various individuals on the
guarantee of employments in the Police. Dhoom Singh was captured and one cell phone was
seized from him. The Investigating Authority needed to check whether the recorded discussion in
the cell phone was between Dhoom Singh and the litigant – Ritesh Sinha. They, in this manner,
required the voice sample of the litigant and likewise documented an application before the
learned jurisdictional Chief Judicial Magistrate ("CJM" for short) petitioning God for gathering
the appealing party to the Court for recording his voice sample.

The scholarly CJM, Saharanpur by request dated 8th January, 2010 gave request to the litigant to
show up before the Investigating Officer and to give his voice sample. This request for the
scholarly CJM was sampleed under the watchful eye of the High Court of Allahabad under
Section 482 of the Code of Criminal Procedure, 1973 (hereinafter alluded to as "Cr.P.C."). The
High Court having negatived the sample made by the litigant by its request dated ninth July,
2010, the current intrigue has been documented.

The intrigue was heard and discarded by a split decision of a two Judge Bench of this Court
requiring the current reference.

ISSUES BEFORE THE COURT

Two chief inquiries emerged for assurance of the intrigue:

(1) Whether Article 20(3) of the Constitution of India, which ensures an individual blamed for an
offense from being constrained to be an observer against himself, reaches out to securing such a
denounced from being constrained to give his voice sample over the span of examination
concerning an offense?

(2) Assuming that there is no infringement of Article 20(3) of the Constitution of India,
regardless of whether without any arrangement in the Code, can a Magistrate approve the
examining office to record the voice sample of the individual blamed for an offense?

While the principal question was replied in the negative by both the educated Judges (Justice
Ranjana Prakash Desai and Justice Aftab Alam) adhering to the proportion of the law set down
in State of Bombay vs.Kathi Kalu Oghad1, distinction of sentiment has happened to the extent
that subsequent inquiry is concerned.

1 State of Bombay v. Kathi Kalu Oghad, A.I.R 1961 SC 1808

 OBSERVATION OF ISSUES

In response of the first question, the Apex Court enhanced its assessment with the choice in
State of Bombay v. Kathi Kalu Oghad2 which is recreated beneath.

“In order that a testimony by an accused person may be said to have been selfincriminatory,
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 ought to be an explanation which puts forth the defense against the charged
individual in any event likely, considered by itself. An example penmanship or mark or finger
impressions without anyone else are no declaration by any stretch of the imagination, being
entirely harmless, in light of the fact that they are unchangeable; aside from, in uncommon
situations where the edges of the fingers or the style of composing have been messed with. They
are just materials for correlation so as to loan affirmation to the Court that its derivation in view
of different bits of proof is dependable. They are neither oral nor narrative prove yet have a place
with the third classification of material proof which is outside the constraint of,"testimony."

In response of the second question, in particular, regardless of whether without a particular

arrangement in the Cr.P.C. would a Court be equipped to approve the Investigating Agency to
record the voice test of an individual blamed for an offense, the Apex Court replied in certifiable.
The Apex Court emphasized the rule that method is the handmaid and not the paramour of equity
the Apex Court continued to allude to Sushil Kumar Sen v. State of Bihar3 on this point.

Further, the Apex Court saw that in the current case, in the judgment of this Court from which
the reference has exuded, the view that the law on the point ought to radiate from the Legislature
and not from the Court is established on two principle reasons, (I) the impulse to give voice test
does somehow or another include an intrusion of the privileges of the individual and to bring it
inside the ambit of the current law would require more than sensible twisting what's more,
extending of the standards of understanding and (ii) if the lawmaking body, even while making
revisions in the Criminal Procedure Code (Act No. 25 of 2005), is neglectful and in spite of
2 State of Bombay v. Kathi Kalu Oghad, A.I.R 1961 SC 1808
3 Kumar Sen v. State of Bihar, (1975) 1 SCC 774
express updates decides not to incorporate voice test either in the recently presented clarification
to Section 53 or in Sections 53A and 311A of Cr.P.C., at that point it might even be fought that
in the bigger plan of things the assembly can see something which maybe the Court is absent. So
as to answer the primary reservation, the Apex Court went to the agreeing assessment of Hon‟ble
Justice K. C. Dasgupta in the State of Bombay v. Kathi Kalu Oghad4 wherein he opined that,
"it must be seen that Article 20(3) of our Constitution doesn't state that an blamed individual will
not be constrained to be an observer. It says that such an individual will not be constrained to be
an observer against himself. In this way, when a blamed individual is constrained to give an
example penmanship or impressions of his finger, palm or foot, it might be said that he has been
constrained to be an observer; it can't anyway be said that he has been constrained to be an
observer against himself."

Most definitely the Apex court communicated a sentiment that what may have all the earmarks
of being authoritative inaction to fill in the holes in the Statute could be on record of supported
administrative concern and exercise of care and alert. Be that as it may, when a yawning hole in
the Statute, in the thought about perspective on the Court, calls for impermanent interwoven of
topping off to make the Statute successful and functional and to sub-serve cultural interests a
procedure of legal understanding would get inescapable.

The activity of jurisdiction by Constitutional Courts must be guided by contemporaneous real

factors/existing real factors on the ground. Legal force ought not be permitted to be captured
inside resolute parameters or guided by unbending standards. Valid, the legal capacity isn't to
administer however in a circumstance where the call of equity and that too of a huge number
who are not gatherings to the lis under the watchful eye of the Court, requests articulation of an
conclusion on a quiet part of the Statute, such void must be topped off not just on the rule of
ejusdem generis yet on the guideline of up and coming need with a call to the Legislature to act
instantly in the issue. The Apex Court on this point alluded to its choice in Bangalore Water
Supply and Sewerage Board v. A Rajappa5.

Accordingly, the Apex Court inferred that until unequivocal arrangements are engrafted in the
Code of Criminal Procedure by Parliament, a Judicial Magistrate must be surrendered the ability

4 Bombay v. Kathi Kalu Oghad, A.I.R 1961 SC 1808

5 Bangalore Water Supply and Sewerage Board v. A Rajappa, (1978) 2 SCC 213
to request an individual to give an example of his voice with the end goal of examination of a
wrongdoing. Such power must be given on a Magistrate by a procedure of legal translation and
in exercise of locale vested in the Apex Court under Article 142 of the Constitution of India.

On the point whether a legal request convincing an individual to give an example of his voice
abuse the basic right to protection under Article 20(3) of the Constitution, the Apex Court opined
taking into account the supposition rendered by the Apex Court in Modern Dental College and
Research Center v. State of Madhya Pradesh6, Gobind v. State of Madhya Pradesh7 and
K.S. Puttaswamy v. Union of India8, the crucial right to protection can't be translated as
supreme and must bow down to convincing open intrigue.

PROVISIONS OF THE LAW

Section 311A of the Code of Criminal Procedure (CrPc) managed the officer to guide the blamed
to give example mark or penmanship however made no notice of Voice sample or recording.

Under Section 53 of the CrPC, Justice RP Desai held that the Magistrate had subordinate or
natural capacity to command the police or an enlisted clinical specialist to altogether inspect a
denounced individual or a respondent including hair samples, body liquids, nail clippings, and so
on.

Section 5 of the Identification of Prisoners Act 1920 likewise specifies that the police can take
photos and estimation of people while they are in authority. However, this does exclude voice
sample as it was not unequivocally referenced in the Act. In this manner, none of these
arrangements make express reference to voice sample.

The ability to make voice sample was not detectable. It is deserving of note that there is a
cleavage of sentiment among High courts on this issue.

The Bombay High Court held CBI, New Delhi v. Abdul Karim Telgi that voice sample can be
taken or be coordinated to be given just when procedures are pending in Court. It is on the

6 Modern Dental College and Research Center v. State of Madhya Pradesh, (2016) 7 SCC 353
7 Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148
8 K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
grounds that the voice sample is ventured to have attracted its forces to be required courts from
section 5 of the 1920 Act.

In a judgment, the Kerala High Court had held that there is no express or suggested power gave
by the rule to the Magistrate to guide the denounced to give voice samples for the motivations
behind examination – Pratap v. CBI9. This decision was rendered by a division seat including
Justice AM Shafique and Justice P Somarajan.

Likewise, the Delhi High Court held that voice sample can be coordinated to be given just when
procedures are pending in court, not with the end goal of examination. However the Supreme
Court presently can't seem to endorse the utilization of voice sample in any procedures – Ritesh
Sinha v. State of UP10.

In the Supreme Court choice in Ritesh Sinha, there was a part in the decision on the point
whether the Magistrate had suggested forces to guide the denounced to give voice samples.

The absence of a legitimate arrangement with respect to voice sample could end the motivation
behind account discussion for proof which probably won't be permitted as proof in court.

This hints discussion recorded may not fill any need during the preliminary and there is no
arrangement in the law under which an individual could be approached to give his voice sample
– Article 20(3) of the constitution of India.

Additionally, Section 16(2) of Cr.P.C specifies that no individual can be constrained to give self-
separating explanations which would tend to open him to a criminal allegation or to a
punishment.

The solicitors can't be constrained to give their voice samples by perusing an announcement
containing implicating material. Section 311A of Cr P.C applies just to the penmanship example
and not voice samples. The explanation Voice sample ought to be remembered for the Code of
Criminal Procedure. The Supreme Court has stepped in to guarantee that this lacuna is filled.

9 Pratap v. CBI, (2017) (3) KLT 458

10 Ritesh Sinha v. State of UP, (2019) 8 SCC 1
A lacuna in the law alludes to a circumstance where there is no appropriate law. In certain
circumstance, where there is no law overseeing a circumstance. At the point when a lacuna
emerges in an issue, court, notwithstanding, ought to settle on the issue in other for equity to win.
On the off chance that the issue is imperative to the point that the court must mediate.

The Rajasthan High Court held that the police can't immediate a charged individual to give a
voice sample. That is, a charged individual or the litigant can't be made to build up his inclusion
in a wrongdoing by giving a voice sample over the span of the police examination as such isn't
given under the law.

In any case, the Rajasthan High Court took a sensational move and uncommon choice on 27th
May 2018. The court conceded authorization for the voice sample of a blamed individual to be
taken over the span of a police examination. This is just pertinent where the blamed individual or
the litigant is accused of the homicide of the business first class in the city or terminating a
worker for coercion.

Equity Vijay Bishnoi in allowing the authorization illustrated that the arrangements of the law
isn't clear concerning taking voice samples yet it is the obligation of the courts to address such
mistakes. The court is gave with the ability to decipher enactments so as to fix abandons and give
equity.

JURIDICAL LAW FORMULATION

In a perfect world, the judgment should have finished here since without a law, no authority
could practice this force. However, the court chose to utilize standards of 'legal understanding' to
acquire a completely new law, because of having the ability to do 'impermanent interwoven of
topping off to make the Statute viable and useful'.

Unmistakably, the court didn't decipher a current arrangement of the CrPC or the Identification
of Prisoners Act, 1920 to hold that such arrangement incorporated the ability to take voice
samples, as had been finished by one of the appointed authorities in Ritesh Sinha I. In the event
that this seat of the Supreme Court had followed such a methodology, the 'standards of legal
understanding' could ostensibly have been summoned.
Neither did the court clarify how the CrPC was rendered 'unworkable' without this arrangement.
Up until this point, examination organizations have utilized different strategies to recognize
voice samples, for example, considering observers that know about the voice of the denounced to
distinguish it, which abstained from taking voice samples from the blamed.

Henceforth, one thinks about how the standards of legal understanding were pertinent at all in the
current case – particularly since in the end, the court proclaimed that it has practiced its
unprecedented capacity to announce law under Article 142 of the Constitution to present this
force on Magistrates.

It drives us into the bigger issue of the Supreme Court making another law, regardless of
recognizing that the council has explicitly decided to not establish such an arrangement. While
Supreme Court has taken on the mantle to make laws a few times previously, a significant
separation must be attracted between acquainting law with secure the crucial privileges of
residents as opposed to making laws that limit the principal privileges of its residents. In the
main situation, the court is acting in advancement of its obligation to ensure essential rights
under Article 32 of the Constitution, while in the other, it is settling on the equivalent.

INFRINGEMENT OF RIGHT TO PRIVACY

The Supreme Court noticed the contention that the impulse to give voice samples ought not
originate from the court, since it included encroachment of fundamental rights. Nonetheless, the
contention was excused expressing that such a law would not fall foul of the privilege against
self-implication. The privacy ramifications of such a necessity were excused toward the finish of
the judgment, nearly as an after-suspected, on the ground that this issue was not raised under the
watchful eye of the court.

Nonetheless, when the court chose to present a law utilizing Article 142, it will undoubtedly
investigate whether such a law would be conflicting with some other fundamental rights also – in
this case, the right to privacy, regardless of whether it was an issue under the steady gaze of the
court.
The Supreme Court had drawn the connection between the right to privacy and Article 20(3) of
the Constitution in the milestone administering of Selvi v. State of Karnataka(2010), which
banned narco-investigation and the scandalous 'lie identifier sample'. The Court had held:

"We ought to see the importance of individual independence in points of view, for instance, the
choice between remaining calm and talking. A person's choice to say something is the result of a
private decision and there ought to be no degree for some other individual to meddle with such
independence, particularly in conditions where the individual faces presentation to criminal
allegations or punishments. Thusly, it is our viewed as sentiment that exposing an individual to
the condemned methods in an automatic way disregards the endorsed limits of security."

While giving a voice sample may not add up to giving an 'statement', the court's decision on self-
sufficiency and private decision identifying with talking or being quiet as a component of 'right
to privacy' expect noteworthiness considering the nine-judge bench judgment on the right to
privacy in 2017 (Puttaswamy). In Puttaswamy, the Supreme Court found the right to privacy
entomb alia justified to self-rule and the option to settle on private choices about oneself.

Firmly connected to the possibility of respect and self-rule, is the idea of bodily privacy. The
majority share supposition in Puttaswamy held that security empowers the person to hold self-
governance of the body and brain. Past decisions of the Supreme Court in Suchita Srivastava
(2009) and NALSA (2014) maintained the option to settle on choices as for one's own body as a
significant aspect of the right to privacy. Subsequently, the compulsion associated with taking
voice samples would without anyone else encroach on the right to autonomy and of bodily
privacy.

Since voice sanple add up to character or biometric data, enlightening privacy concerns would
likewise emerge over assortment of such examples by the State. In Puttaswamy, each of the nine
adjudicators unequivocally maintained the option to control the assortment, use, stockpiling and
scattering of individual data as an indispensable part of the right to privacy. Henceforth, inquiries
on to what extent the State could hold such voice sample, regardless of whether they could
impart it to other law requirement offices, whether the individual concerned has the option to
request annihilation of the record after vindication for the situation (as on account of Section 7 of
the Identification of Prisoners Act) should have been considered by the court.
In the event that the court had entered this examination and discovered that the right to privacy
would be confined by the necessity to give voice samples without assent, it should have avoided
practicing its capacity under Article 142. It is settled law that the Supreme Court can't utilize its
capacity under Article 142 to pass a request conflicting with fundamental rights.

FASCINATING PUBLIC INTEREST

However, in Ritesh Sinha II the court went onto see that in any occasion, the right to privacy isn't
total and should "bow down to fascinating public interest". By excusing the privacy worries with
this one proclamation, the Supreme Court has, in actuality, announced that its very own law
creation can be dependent upon lesser investigation than a law passed by the official or
assembly.

Any law encroaching on the right to privacy must show that the encroachment is proportionate to
the item looked to be accomplished. The State would need to show the adequacy and need of
voice print distinguishing proof, the presence of procedural protections to check against misuse
and that the law is barely customized to guarantee the privilege is encroached to the least degree
conceivable. For instance, while penmanship samples, real examples and estimations must be
taken of people who have been captured sooner or later regarding the examination, the Supreme
Court's 'law' doesn't indicate which people could be dependent upon this necessity. Subsequently,
unimportant reference to 'fascinating public interest' couldn't approve a law that encroaches the
right to privacy.

CONCLUSION

There is a need to amend the law to make provisions for requesting an individual to give voice
sample as certain specialists in the central forensic science laboratory center which bargains in an
Audio measurable division can investigation the voice ID.

The sound forensic expert utilizes basic tuning in, recurrence and waveform examination and
voice biometric programming to guarantee that the investigation is as exact as could be expected
under the circumstances. Voice Identification is a strategy for distinguishing people by the
recurrence and force of their discourse sound waves.
It is noticed that there is a need to reasonably change the Code of Criminal Procedure (Cr.P.C).
At times, an intercession by the court isn't an avocation in light of the fact that there must be a
reference to the arrangement of the law on voice test. If not, it might be considered as an
encroachment of the major right of the individuals on recording and protection.

The way that there is a lot of innovative progression in methods for correspondence, for
example, the clients of cell phones, PCs, and so on by lawbreakers in carrying out wrongdoings,
for example, grabbing for deliver, fear based oppressor exercises, murder, and so on. are
widespread on the planet today.

There ought to be lawful methods for the utilization of Voice sample so as to fortify the hands of
exploring organizations just as the court to give a purposive translation to the arrangement. The
innovative progression particularly telephones discussions could hold the way to explaining
some criminal cases like (pay off, defilement, misrepresentation, unlawful exchange, telephone
danger and so forth.).

The Parliament needs to get greater clearness and exactness by appropriately altering the
provision Act and Cr.P.C receipt inspecting. The judge guiding the arraignment to record voice
sample of the blamed individual unlawful isn't satisfactory and at times absence of proof is seen
which will bring about letting the as blameworthy pull off violations.

ICT has ruled the world and as such the court ought to likewise stay aware of the modernization
that has come to remain. Unlawful data has been gone down through calls, messages, fax, and so
on which can be handily gotten the chance to manage some illicit cases, in this way indicating
solid proof against the blamed.

However the law has enslaved the utilization of voice inspecting as proof against the charged.
There ought to be a lawful law expressing the intensity of the Magistrate to take a voice test in
managing the procedures conveyed in court.

REFERENCES

● Ritesh Sinha v. State Of Uttar Pradesh, (2019) 8 SCC 1

● State of Bombay v . Kathi Kalu Oghad, A.I.R. 1961 SC 1808
 ● Sushil Kumar Sen v. State of Bihar, (1975) 1 SCC 774
● Bangalore Water Supply & Sewerage Board v. A Rajappa, (1978) 2 SCC 213
● Modern Dental College and Research Centre v. State of Madhya Pradesh, (2016) 7 SCC
353
● Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148
● K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
● Pratap v. CBI, (2017) (3) KLT 458

ABOUT THE AUTHOR

Sakshi Sharma is pursuing B.A.LL.B from Banasthali Vidhyapeeth, Rajasthan. She is working as
an intern at Probono India. She is keenly intent towards assigning Research Paper and Articles.
She is captivated in Contract Law, Law of Torts and Corporate Law. By being part of Team
ProBono, she is contributing to society through legal aid.