BY-PRAKHAR SINGH[1]
IN THE SUPREME COURT OF INDIA
| NAME OF THE CASE | Ritesh Sinha vs. State of U.P & Anr. |
| CITATION | Criminal Appeals No. 2003 of 2012 |
| DATE OF THE JUDGEMENT | 2 August 2019 |
| APPELANT | Ritesh Sinha |
| RESPONDANT | State of U.P & Anr. |
| BENCH/JUDGE | Chief Justice Ranjan Gogoi, Justice Deepak Gupta, Justice Sanjiv Khanna |
| STATUTES/CONSTITUTION INVOLVED | Criminal Procedure Code, 1973; Constitution of India; Evidence Act, 1872; Identification of Prisoners Act, 1920 |
| IMPORTANT SECTIONS/ARTICLES | Criminal Procedure Code, 1973, S. 53, S. 53-A, S. 311-A, S. 482Evidence Act, 1872, S. 132Constitution of India, Arts. 142, Arts. 20(3), Arts. 21Identification of Prisoners Act, 1920, S. 5 |
ABSTRACT
Ritesh Sinha, the appellant in the current case, filed an F.I.R. at the police station in Uttar Pradesh. According to the F.I.R., Dhoom Singh is allegedly involved in collecting money from numerous individuals under the pretence of providing them with police jobs. While detaining Dhoom Singh, the cops seized one cell phone. The Chief Judicial Magistrate ordered Ritesh Sinha to appear before the investigating officer and provide his voice sample because the investigating officer needed the voice sample of Ritesh Sinha to confirm whether the conversation that was recorded on the mobile phone was between Ritesh Sinha and Dhoom Singh.
In order to contest the decision of the Chief Judicial Magistrate, Ritesh Sinha appealed to the High Court of Allahabad. However, the High Court of Allahabad dismissed his case. After that, he appealed to the Supreme Court of India.
The Supreme Court of India decided that, according to Article 142 of the Indian Constitution, the Magistrate has the authority to order the defendant to provide a sample of his voice for a criminal investigation up until the time that the following provisions are enshrined by the Legislature. As a result, the court denied the petition submitted by the appellant Ritesh Sinha.
INTRODUCTION
The sound produced by human beings through their mouth while speaking or singing is referred to as their “voice.” The phrase “voice sample” is typically used by music industry experts to describe a collection of an artist’s recorded sounds used in song composition. In law, “voice sample” means the recording of a person’s voice that is only used for legal or constitutional disputes as well as criminal investigations. In this case, the Investigating Agency or Police can only get the voice sample of the accused when the Magistrate orders them to. However, there are numerous problems that could come up while obtaining the accused’s voice sample because it might violate their right to privacy.
The incident that occurred in England in 1967 was discussed in the 87th report of the Law Commission of India at “the Winchester Magistrates Court in which the voice sample was taken from the accused to identify the malicious telephonic calls made by him. So, with the help of the voiceprint identification, it was confirmed that the calls were actually made by the accused person and thus, he was found guilty by the court[2].”
The taking of the appellant’s voice sample in this instance violates his or her right to privacy, right to privacy is “the right not to have one’s personal matters disclosed or publicized, the right to be left alone”.
Special Leave Petition-“The Constitution of India under Article 136 vests the Supreme Court of India with a special power to grant special leave to appeal against any judgment or order or decree in any matter or cause passed or made by any Court/tribunal in the territory of India”.
“This is special power confer upon the Supreme Court of India which is the Apex Court of the country to grant leave to appeal against any judgment in case any substantial constitutional question of law is involved or gross injustice has been done”.
“Special leave petition or SLP hold a prime place in the Indian judicial system. It provides the aggrieved party a special permission to be heard in Apex court in appeal against any judgment or order of any Court/tribunal in the territory of India”.
FACTS OF THE CASE
The in-charge of the electronics cell at the Sadar Bazaar Police Station in the state of Uttar Pradesh’s district of Saharanpur filed an F.I.R. on December 7, 2009, alleging that Dhoom Singh, who was connected to the appellant Ritesh Sinha, was engaged in collecting money from various people under the pretence of promising them police jobs. Dhoom Singh was taken into custody by the investigating authorities, and one cell phone was taken from him. The investigating authorities wanted to confirm that whether the recorded conversation on the phone belonged to the appellant Ritesh Sinha and Dhoom Singh.
Since they required the appellant’s voice sample, they submitted an application to the learned jurisdictional Chief Judicial Magistrate (CJM) requesting that the appellant be called before the Court so that his voice sample may be recorded.
By order dated January 8, 2010, the learned CJM of Saharanpur summoned the appellant to appear before the investigating officer and to give his voice sample. Under Section 482 of the Code of Criminal Procedure, 1973, this learned CJM’s order was contested before the High Court of Allahabad, which also dismissed Ritesh Sinha’s appeal by the High Court. After that, the case was heard by the Supreme Court’s two-judge panel, which issued a divided decision and sent the case to a three-judge panel.
ISSUE RAISED BEFORE THE COURT
- Does Article 20(3) of the Indian Constitution, which protects someone accused of committing a crime from being forced to testify against themselves, also prevent that person from being forced to provide a voice sample as part of an investigation into the crime?
- Can a Magistrate authorise the investigating agency to record the voice sample of the person accused of an offence in the absence of any provisions in the Criminal Procedure Code, 1973?
RELATED PROVISIONS
- Constitution of India
- Article 142:- Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc.
(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.[3]
- Article 20(3):- No person accused of any offence shall be compelled to be a witness against himself. [4]
- Article 21:-Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.[5]
- Criminal Procedure Code, 1973
- Section 53:- Examination of accused by medical practitioner at the request of police officer.
- When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub- inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably for that purpose.
- Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner. Explanation- In this section and in section 54, “registered medical practitioner” means a medical practitioner who possesses any recognized medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956 ) and whose name has been entered in a State Medical Register.[6]
- Section 53-A:-Examination of person accused of rape by medical practitioner.
- When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometres from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.
- The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely;
- The name and address of the accused and of the person by whom he was brought.
- The age of the accused.
- Marks of injury, if any, on the person of the accused.
- The description of material taken from the person of the accused for DNA profiling.
- Other material particulars in reasonable detail.
- The report shall state precisely the reasons for each conclusion arrived at.
- The exact time of commencement and completion of the examination shall also be noted in the report.
- The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of Sub-Section (5) of that section.[7]
- Section 311-A:-Power of Magistrate to order person to give specimen signature or handwriting.
If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting.
Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.
Subject to any rules made by the State Government, any Criminal Court may, if it thinks fit, order payment, on the part of Government, of the reasonable expenses of any complainant or witness attending for the purposes of any inquiry, trial or other proceeding before such Court under this Code.[8]
- Section 482:- Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.[9]
- Indian Evidence Act, 1872
- Section 132:- Witness not excused from answering on ground that answer will criminate-a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind.
(Proviso) -Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.[10]
- Identification of Prisoners Act, 1920
- Section 5:- Power of Magistrate to order a person to be measured or photographed-If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898 (5 of 1898) it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to that effect, and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer. Provided that no order shall be made directing any person to be photographed except by a Magistrate of the First Class. Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.[11]
JUDGEMENT
The Hon’ble Court observed that the two-judge bench had reached a consensus when addressing the first question and had referred to the rule laid down in State of Bombay vs. Kathi Kalu Oghad[12]. In Kathi Kalu, the question of evaluating the accused’s guilt by comparing the accused’s writing sample with other writings in light of the restriction under Article 20(3) was addressed, and held that “the prohibition contemplated by the constitutional provision contained in Article 20(3) would come in only in cases of testimony of an Accused which are self-incriminatory or of a character which has the tendency of incriminating the Accused himself ” and “does not say that an Accused person shall not be compelled to be a witness.”
The court also pointed out that requiring an accused person to provide a sample of their handwriting or finger impression did not implicate the person being accused as they “belong to the third degree of material evidence which is outside the limit of ‘testimony’” and “are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable”. The Court concluded that Article 20(3) did not forbid compelling the accused to record a voice sample in light of this ruling.
In deciding the second question, the Court noted that there was no particular statutory provision in India that allowed a police official or a court the authority to force an accused to provide a specimen of his voice. Instead, the Court cited revisions to Sections 53, 53A, and 311-A of the Code of Criminal Procedure, 1973 made by Act No. 25 of 2005 and the 87th Report of the Law Commission of India, which considered a related issue in the context of the Identification of Prisoners Act, 1920.
The Court noted that notwithstanding explicit requests to close this gap in the Act, the Legislature may have legitimate grounds for silence, but “such void must be filled up not only on the principle of ejusdem generis but on the principle of imminent necessity with a call to the Legislature to act promptly in the matter”. The Court adopted the view enunciated by Lord Denning in Seaford Court Estates Ltd. vs. Asher[13], that “When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament–and then he must supplement the written words so as to give ‘force and life’ to the intention of legislature”, and held that “until explicit provisions are engrafted in the CrPC by the 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”, while exercising its power under Article 142.
CONCLUSION
My opinion is that the legislation needs to amend the law to make provisions for the request of an individual to give voice sample to some experts at the central forensic science laboratory centre, which deals in an audio quantifiable section, are able to investigate voice ID.
The voice sample and CrPc receipt inspecting provisions need to be more precise and obvious to the lawmakers. The legislature make the laws for this, to ensure uniformity and coherence, the use of voice analysis in criminal investigations by law enforcement agencies needs to be governed by legislation. In Ritesh Sinha vs. State of Uttar Pradesh & Anr[14]in which as a result that, it does not violate Article 20(3) of the Indian Constitution, according to the Supreme Court, which ruled that the accused person must provide a voice sample for analysis in criminal cases.
[1] Author is 3rd semester student of Amity Law School, Lucknow.
[2] BLOG I PLEADERS, https://blog.ipleaders.in/is-taking-a-voice-sample-from-the-accused-without-his-consent-unconstitutional/, (last visited Jul. 14, 2022).
[3] INDIA CONST. art. 142.
[4] INDIA CONST. art. 20, cl. 3.
[5] INDIA CONST. art. 21.
[6] Code of Criminal Procedure, 1973, §53, No. 2, Acts of Parliament, 1973(India).
[7] Code of Criminal Procedure, 1973, §53, cl. a, No. 2, Acts of Parliament, 1973(India).
[8] Code of Criminal Procedure, 1973, §311, cl. a, No. 2, Acts of Parliament, 1973(India).
[9] Code of Criminal Procedure, 1973, §482, No. 2, Acts of Parliament, 1973(India).
[10] Indian Evidence Act, 1872, §132.
[11] Identification of Prisoners Act, 1920, §5.
[12] State of Bombay vs. Kathi Kalu Oghad, AIR 1961 SC 1808.
[13] Seaford Court Estates Ltd. vs. Asher, 1949 2 ALL ER 155, 164.
[14] Ritesh Sinha vs. State of Uttar Pradesh & Anr, 2010 SCC ONLINE ALL 1235.