Case Note & Summary
The case arises from an FIR lodged on 7th December 2009 at Sadar Bazar Police Station, Saharanpur, Uttar Pradesh, alleging that Dhoom Singh and appellant Ritesh Sinha collected money from people on the promise of police jobs. Dhoom Singh was arrested and a mobile phone seized. The investigating authority sought the appellant's voice sample to verify if recorded conversations were between Dhoom Singh and the appellant. The Chief Judicial Magistrate, Saharanpur, on 8th January 2010, summoned the appellant to give his voice sample. The appellant challenged this order before the Allahabad High Court under Section 482 CrPC, which was dismissed on 9th July 2010. The appellant then appealed to the Supreme Court. A two-judge bench delivered a split verdict, leading to the present reference. The Supreme Court considered two issues: whether compelling voice sample violates Article 20(3) of the Constitution, and whether a Magistrate can authorize voice sample in the absence of a specific provision in the CrPC. On the first issue, the Court held, following State of Bombay v. Kathi Kalu Oghad, that voice sample is not testimonial evidence and does not attract Article 20(3). On the second issue, the Court held that by applying the doctrine of ejusdem generis, the phrase 'such other tests' in Explanation (a) to Section 53 CrPC includes voice sample, and thus a Magistrate has implied power to order it. The Court noted that the Law Commission's 87th Report recommended amending the Identification of Prisoners Act, 1920, but that does not preclude the interpretation under CrPC. The appeals were disposed of accordingly, with the Court answering the reference in favor of the prosecution's power to seek voice sample.
Headnote
A) Constitutional Law - Right Against Self-Incrimination - Article 20(3) of the Constitution of India - Compelled voice sample does not violate Article 20(3) as it is not testimonial evidence - Following State of Bombay v. Kathi Kalu Oghad, specimen handwriting, signature, finger impressions, and voice samples are material evidence, not testimony, and do not convey information based on personal knowledge - Held that Article 20(3) is not attracted (Paras 9-10). B) Criminal Procedure - Power of Magistrate to Order Voice Sample - Section 53, Explanation (a) of Code of Criminal Procedure, 1973 - Doctrine of ejusdem generis - The phrase 'such other tests' in Explanation (a) to Section 53 CrPC includes voice sample by applying ejusdem generis - Magistrate has implied power to order recording of voice sample for investigation - Held that absence of specific provision does not preclude judicial interpretation to include voice sample (Paras 11-12, 14). C) Criminal Procedure - Legislative Intent - Sections 53, 53A, 311-A of Code of Criminal Procedure, 1973 - Amendments by Act No.25 of 2005 did not specifically include voice sample, but omission does not bar implied power - Law Commission's 87th Report recommended amendment to Identification of Prisoners Act, 1920, but that does not affect interpretation of CrPC - Held that Magistrate can authorize voice sample under Section 53 CrPC (Paras 11-14).
Issue of Consideration
Whether Article 20(3) of the Constitution protects an accused from being compelled to give voice sample during investigation, and whether in absence of specific provision in CrPC, a Magistrate can authorize recording of voice sample of accused.
Final Decision
The Supreme Court answered the reference by holding that (1) Article 20(3) does not protect an accused from being compelled to give voice sample as it is not testimonial evidence; (2) a Magistrate has implied power under Section 53 CrPC to authorize recording of voice sample of an accused for investigation. The appeals were disposed of accordingly.
Law Points
- Article 20(3) does not prohibit compelled voice sample
- Magistrate has implied power under Section 53 CrPC to order voice sample
- Doctrine of ejusdem generis applies to Explanation (a) of Section 53 CrPC
- Voice sample is not testimonial evidence
- Identification of Prisoners Act
- 1920 Section 5 does not bar such order
