After split verdict, larger Bench of Supreme Court to decide question of law

A three-judge Bench of the Supreme Court will decide whether the police can compel a person to give his voice sample for investigation in a criminal case and whether doing so would fall foul of Article 20 (3) of the Constitution, which prohibits a person from being a witness of his own cause.

A two-judge Bench gave a split verdict on this issue. Justice Aftab Alam said: “In today’s world when terrorism is a hard reality and terrorist violence is a common phenomenon, the police needs all the forensic aids from science and technology... But the question is whether the law has any provision under which a person, suspected of having committed an offence, may be compelled to give his voice sample to aid the police in investigation. More important, in case there is no express or evidently applicable provision in law in that regard, should the court invent one by the process of interpretation?”

Disagreeing with Justice Ranjana Desai, Justice Alam said she “seems to think that the gap in the law is so vital that the court must step in to bridge it…. There are, indeed, precedents where the court by the interpretative process has evolved old laws to meet cotemporary challenges and planted into them contents to deal with the needs of the present that could not be envisaged at the time of the making of the law. But, on compelling the accused to give his voice sample, the law must come from the legislature and not through the court process. First, because the compulsion does in some way involve invasion of the rights of the individual and to bring it within the ambit of the existing law would require a more than reasonable bending and stretching of the principles of interpretation.

“Secondly, if the legislature even while making amendments to the Criminal Procedure Code, aimed at strengthening investigation, as late as in 2005, is oblivious to something as obvious as this and despite express reminders chooses not to include voice sample either in the newly introduced explanation to Section 53 or in 53A, and 311A, 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.”

Justice Desai, in her judgment, said: “If an accused person is directed to give his voice sample during investigation, there is no violation of his right under Article 20(3).”

‘It’s innocuous’

She said: “By giving a voice sample the accused does not convey information based upon his personal knowledge which can incriminate him. A voice sample by itself is fully innocuous. By comparing it with tape-recorded conversation, the investigator may draw his conclusion but a voice sample by itself is no testimony at all. When an accused is asked to give his voice sample, he is not giving any testimony in the nature of personal testimony. When compared with the recorded conversation with the help of a mechanical process, it may throw light on the points in controversy. It cannot be said by any stretch of imagination that by giving a voice sample, the accused conveyed any information based upon his personal knowledge and became a witness against himself. The accused by giving the voice sample merely gives ‘identification data’ to the investigating agency. He is not subjected to any testimonial compulsion.”

U.P. case

In the instant case, the Uttar Pradesh police registered a First Information Report against Rites Sinhala on the charge that he was collecting money from persons, promising them recruitment in the police force. A mobile phone was seized and the police moved a magistrate court, which issued summons to Sinhala to obtain a voice sample to verify whether he had made certain calls from the phone.

After the lower court verdicts went against him, he filed an appeal in the Supreme Court. As there is a split verdict, the Bench of Justices Alam and Desai referred the matter to a three-judge Bench.

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