Judicial magistrate can order voice sample for probe: Supreme Court

New Delhi: The Supreme Court on Monday said that despite the absence of explicit provisions in the CrPC, a judicial magistrate must be conceded the power to order a person to give a sample of his voice for the investigation of a crime.

A bench of Chief Justice of India B R Gavai and Justice K Vinod Chandran pointed out in Ritesh Sinha Vs State of Uttar Pradesh & Anr (2019) that the apex court had not spoken only of the accused and specifically employed the words "a person" consciously because the rule against self incrimination applied equally to any person — whether an accused or a witness.

It was also directed that till explicit provisions were incorporated in the CrPC, the judicial magistrate would be so empowered by virtue of the said judgment, the court noted. 

The issue was also pending with the government and, with the advent of the BNSS, had been specifically incorporated under Section 349, the bench pointed out in its judgment.

The court allowed an appeal filed by Rahul Aggarwal against the Calcutta High Court's judgment, which set aside the judicial magistrate's order to a person to give a voice sample in a case of threatening a witness in a criminal case.

"We need not hence consider the question as to whether it is the CrPC or the BNSS which would apply to the present case. If it is the CrPC, the three-judge bench decision in Ritesh Sinha permits the same on the identical principle adopted by this court in Kathi Kalu Oghad (1961) to permit furnishing of handwriting, signature and finger impressions," said the bench. 

"If it is the BNSS that is applicable, then there is a specific provision enabling such sampling," said the bench. 

The court explained that the reasoning was also that mere furnishing of a sample of the fingerprint, signature, or handwriting would not incriminate the person as such. 

"It would have to be compared with the material discovered on investigation, which alone could incriminate the person giving the sample, which would not fall under a testimonial compulsion, thus not falling foul of the rule against self-incrimination," said the bench.