Voice Samples in Criminal Investigations and Legal/Constitutional Issues that Remain

It is now well settled that compelling the taking of voice samples from an accused for the purpose of an investigation does not amount to a violation of Article 20(3) of the Constitution. In other words, seeking voice samples from an accused does not amount to compelling an accused to be a witness against herself

 

But the question that still remains is: which statute or legal provision provides the power to compel the accused to provide a voice sample? In the last decade, 5 Judges of the Supreme Court (over three different opinions) have attempted to locate this power within the law. And, well, none of them have succeeded.

 

Justice Ranjana Prakash Desai in Ritesh Sinha v. State of U.P.[1], acknowledged that there is no specific legal provision under which the Magistrate can authorise the investigating agency to take voice samples. Justice Desai then proceeded to painstakingly identify provisions that could be purposively interpreted in order to empower the Magistrate to authorise the collection of voice samples.

 

For this purpose, the Court began the quest to find such authority in the Identification of Prisoners Act, 1920 — a legislation aimed at securing the identification of an accused person.

 

Previously (and before the matter landed before the Supreme Court in 2013 in Ritesh Sinha[2] case), in this context, the Bombay High Court in CBI v. Abdul Karim Ladsab Telgi[3] (Telgi), has held that measuring the frequency or intensity of speech sound waves can be considered to be “measurement” as defined under the Identification of Prisoners Act. Therefore, the Magistrate who is empowered under Section 5 of the Act to order a person to be “measured”, may compel the accused to provide their voice sample.

 

However, the Delhi High Court in Rakesh Bisht v. CBI[4], disagreed with the Bombay High Court and ruled that the purpose of Section 5 of the Act was only to identify the accused person after the investigation was complete.

 

Though the Delhi High Court’s logic in Rakesh Bisht[5] appears to be more sound, Justice Desai followed the reasoning of Telgi[6], without providing any reason to disagree with Rakesh Bisht[7].

 

In his dissent in the same judgment, Justice Aftab Alam recognises that even if – by some interpretive gymnastics — a voice sample can be considered “measurement” under the Act, that would lead to the unseen consequence that even the police (without magisterial authorisation) may be empowered to compel the accused persons to provide the voice sample. This is because Sections 3 and 4 of the Act empower the police to take measurement of convicted and non-convicted persons.

 

Apart from the Identification of Prisoners Act, Justice Desai also examined various provisions of the Evidence Act, 1872 and the Criminal Procedure Code, 1973 (CrPC). Section 73 of the Evidence Act, which deals with “comparison of signature, writing or seal with others admitted or proved”, only enables the court to compare these writing/signature specimens. It does not empower the court to direct the accused to provide such samples to the investigating agency for the purpose of investigation. While, Parliament attempted to correct this anomaly by the inserting Section 311-A CrPC, the problem still remains. This is because Section 311-A of the Code deals only with specimen signatures and handwriting and does not empower the Magistrate to authorise the taking of voice samples.

 

Having ruled out these provisions, the Court then examined Sections 53 and 54-A CrPC. Section 54-A provides that where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the court having jurisdiction, may, on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the court may deem fit. Surprisingly, the Court has consistently overlooked Section 54-A without providing any justification. In our opinion, a possible reason for this could be that Section 54-A relates to only arrested persons and not all accused persons.

 

Having examined the various provisions, Justice Desai eventually located the power of the Magistrate under Section 53 CrPC. Section 53 CrPC deals with “examination of accused by medical practitioner at the request of police officer”. According to the Explanation to this provision:

 

“examination” shall include the examination of blood, bloodstains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and fingernail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case.

 

A bare perusal of this section and its genealogy would reveal that it was never meant to apply to voice samples.

 

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Position elsewhere in the world

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Elsewhere in the world, a similar question came up before the Supreme Court of Appeal of South Africa, in Levack v. Regional Magistrate, Wynberg[8]. Even though the power to obtain voice samples was not explicitly mentioned in South Africa’s Criminal Procedure Act (51 of 1977), the Court provided a purposive interpretation to Section 37 of the South African legislation and held that the police was empowered to obtain voice samples as under this section they retained the power to take steps as they might deem necessary to ascertain the characteristic or distinguishing features of the accused.

 

Adopting a similar approach, Justice Desai applied the rule of ejusdem generis to the Explanation to Section 53 CrPC and held that voice samples were covered under “such other tests”. However, Justice Alam disagreed with this conclusion, as according to him, “such other tests” is to be decided by the medical practitioner and not the police.

 

More importantly, Justice Alam disagreed with the judicial exercise to purposively interpret statutes in order to locate the Magistrate’s power to authorise the collection of voice samples. According to him, such power must be explicitly granted by Parliament. The 87th Law Commission Report had made recommendations to provide statutory power to collect voice samples. Parliament’s non-implementation of the Report and other similar suggestions only add weight to Justice Alam’s reasoning, that the court should not legislate, when the Parliament is itself apprehensive about making law. Thus, unable to reach a consensus, the quest to discover the power of the Magistrate to compel the production of voice samples was now passed on to a three-Judge Bench of the Supreme Court.

 

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Making law, instead of finding it

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The problem that 2 Judges could not solve was – strikingly – now totally avoided by 3 Judges in Ritesh Sinha v. State of U.P.[9] (Ritesh Sinha 2). In the interregnum, before the matter was heard by the 3-Judge Bench, in a well-reasoned judgment, the Gujarat High Court painstakingly examined various provisions of the Code but also failed to locate the statutory powers of the Magistrate to compel the accused to submit to a voice spectrograph test.

 

The 3-Judge Bench of the Supreme Court, instead of considering the applicability of various provisions including Section 54-A of the Code, appears to have decided that it would rather make the law, than find it. The Court observed that:

 

27. … we unhesitatingly take the view that until explicit provisions are engrafted in the Code of Criminal Procedure 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 and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India.[10]

 

The judgment of the Court was premised on the principle that “procedure is the handmaid, not the mistress, of justice and cannot be permitted to thwart the fact-finding course in litigation”. Therefore, instead of dealing with this procedural thorn in the State’s right to investigate, the Court invoked its extraordinary powers under Article 142 of the Constitution and gave a carte blanche to the investigators without laying down any safeguards against the abuse of this power, or laying down the modalities of exercise of this right.

 

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Privacy concerns

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In our humble opinion, this is deeply problematic. The Court ought not to use its discretion under Article 142 in a manner that may infringe and violate the inalienable fundamental rights of the citizens. While the issue of Article 20(3) is no longer res integra, it is pertinent to note that compelling voice samples from an accused may also raise right to privacy concerns. The Court acknowledged this concern but dismissed it without any analysis by stating that:

 

26. … the fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest. We refrain from any further discussion and consider it appropriate not to record any further observation on an issue not specifically raised before us.[11]

 

The Court may have dodged the bullet but the silence has only compounded the problems. For instance, the Punjab and Haryana High Court, has placed reliance on the abovementioned observation of the Supreme Court to dismiss any and all privacy concerns vis-à-vis the collection of voice samples. Apart from the issue of privacy, many other crucial questions remain unanswered.

 

What is most problematic is that while the 3-Judge Bench has allowed the Magistrate to authorise the collection of voice samples, the Court has provided absolutely no guidelines or procedure by which the Magistrate must exercise these powers. While, the power has finally been identified/granted, the dilemma on implementation or exercise of the power remains:

• How should the voice samples be collected?
• Should the Magistrate direct and oversee the collection of voice samples?
• Can the legal representative of the accused person oversee and supervise the collection of the samples?
• How long should the sample be?
• Can the Magistrate direct the investigating agency to use the voice samples only for a specific purpose?
• Can any and all police officers be authorised to collect samples?
• Who decides the transcript of the voice sample?
• What, if at all, is the quality control and how can false positives be avoided.

 

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Procedural issues/issues of implementation

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Some of these questions have already reached courts. For instance, in Sudhir Chaudhary v. State (NCT of Delhi)[12] the accused person consented to providing a voice sample, but raised an issue with the transcript that was provided by the investigating agency. It was argued that the transcript contained serious inculpatory statements. This was problematic, since a sample of the inculpatory statements would be similar to a testimonial confession. Compelling a voice sample does not violate Article 20(3) because the sample is to be matched with the evidence. But the sample itself cannot be a confession or a testimony. On the other hand, science demands that the transcript must incorporate the language of the recorded evidence, to ensure best results. Such cases drive home the point that issues of science and policy, which require specialised training and understanding, cannot be comprehensively resolved by a court of law on a case-by-case basis or an ad hoc decisional basis and need a more nuanced response. In this case, the Supreme Court while balancing the right of the accused under Article 20(3) and the interest of the State to prosecute, directed that the proposed passage which the accused person shall be required to read out for the purpose of giving their voice samples shall use words, but not the sentences from the inculpatory text.

 

While, this safeguard is laudable (particularly since the judgment has been followed by a few High Courts[13]) it is crucial that the Court acknowledges that the numerous unanswered questions reflect a dire need to provide more such protections to the accused persons. Doing complete justice, would not only be to recognise or grant powers to the courts/investigators but also provide an instruction manual on how such power must be exercised, for the process to be just, fair and reasonable.

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† Bharat Chugh is a former Judge and independent counsel.

† † Siddharth Shivakumar is an advocate and a counsel at the Chambers of Bharat Chugh. They can be reached at contact@bharatchugh.in.

[1] (2013) 2 SCC 357 : AIR 2013 SC 1132.

[2] (2013) 2 SCC 357 : AIR 2013 SC 1132.

[3] 2004 SCC OnLine Bom 1187 : 2005 Cri LJ 2868.

[4] 2007 SCC OnLine Del 13 : 2007 Cri LJ 1530.

[5] 2007 SCC OnLine Del 13 : 2007 Cri LJ 1530.

[6] 2004 SCC OnLine Bom 1187 : 2005 Cri LJ 2868.

[7] 2007 SCC OnLine Del 13 : 2007 Cri LJ 1530.

[8] (2003)1 All SA 22 (SCA).

[9] (2019) 8 SCC 1 : AIR 2019 SC 3592.

[10] Ritesh Sinha (2) case, (2019) 8 SCC 1, 12 : AIR 2019 SC 3592.

[11] Ritesh Sinha (2) case, (2019) 8 SCC 1, 12 : AIR 2019 SC 3592.

[12] (2016) 8 SCC 307.

[13] Kumar v. State,  2021 SCC OnLine Mad 5486 : (2021) 1 LW (Cri) 147; Manish Mourya v. State of M.P., Misc. Crl. Case No. 35470 of 2019, decided on 28-8-2019 (MP).