SC says accused can be ordered to give voice samples

The Supreme Court on Friday ruled that a judicial magistrate can order for collecting voice sample of an accused without consent during the investigation until Parliament amends the Criminal Procedure Code.

A bench of Chief Justice Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna passed the direction using its extra-ordinary power under Article 142 of the Constitution.

“Until explicit provisions are engrafted in the CrPC by Parliament, a judicial magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a magistrate by a process of judicial interpretation,” the bench said, in a landmark judgement.

The court settled the issue on voice samples of accused in absence of a specific legal provision to “fill the void” and using the principle of “imminent necessity with a call to the Legislature to act promptly in the matter”.

It said the exercise of jurisdiction by constitutional courts must be guided by "contemporaneous realities/existing realities on the ground". Judicial power should not be allowed to be entrapped within inflexible parameters or guided by rigid principles, it added.

A bench of two judges had earlier given split verdict on December 7, 2012, in 'Ritish Sinha Vs State of UP ' and made a reference to a larger bench.

The court had then framed two questions whether Article 20(3) of the Constitution, which protected an accused from being compelled to be a witness against himself, extended to protecting him from being compelled to give his voice sample during the investigation and whether in the absence of any provision in the CrPC, can a magistrate authorise the investigating agency to record the voice sample.

Answering the reference in affirmative, the CJI, who wrote the judgement on behalf of the bench, said, “when a yawning gap in the statute, in the considered view of the court, calls for temporary patchwork of filling up to make the statute effective and workable and to sub-serve societal interests, a process of judicial interpretation would become inevitable.”

With regard to Article 20(3), the court refrained from recording any observation but it did cite the 9-judge bench decision in K S Puttaswamy's case to point out the fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest.