SC does ‘temporary patchwork’ in CrPC by granting power to Magistrate order accused to give voice samples

Supreme Court: The 3-judge bench of Ranjan Gogoi, CJ and Deepak Gupta and Sanjiv Khanna, JJ, has held,

“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.”

The Court was dealing with the question as to whether the Magistrate has power under CrPC to pass an order permitting taking of voice sample in the aid of criminal investigation. Noticing that the CrPC is silent on the said issue, the Court said that the law on the point should emanate from the Legislature and not from the Court for the following reasons,

  • the compulsion to give voice sample does in some way involve an invasion of the rights of the individual and to bring it within the ambit of the existing law would require more than 17 reasonable bending and stretching of the principles of interpretation and
  • if the legislature, even while making amendments in the Criminal Procedure Code (Act No.25 of 2005), is oblivious and despite express reminders chooses not to include voice sample either in the newly introduced explanation to Section 53 or in Sections 53A and 311A of CR.P.C., 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.

The Court, however, said,

“what may appear to be legislative inaction to fill in the gaps in the Statute could be on account of justified legislative concern and exercise of care and caution. However, 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.”

It said that the judicial function is not to legislate but in a situation where the call of justice and that too of a large number who are not parties to the lis before the Court, demands expression of an opinion on a silent aspect of the Statute, 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. It, hence, conferred the power on the Judicial Magistrate to order a person to give a sample of his voice for the purpose of investigation of a crime.

[Ritesh Sinha v. State of Uttar Pradesh, 2019 SCC OnLine SC 956, decided on 02.08.2019]

One comment

  • 1. Violation of Self- incrimination Fundamental Rights is baffling, when settled point is that voice recordings are not reliable and scores odjudgements have been pronounced. So, is SC interested in accused being harassed without any result to prosecution?

    2. More insinuating is asking ACCUSED TO SIGN AS COMPLAINANT to test FORGERY. Apart from reeking of mental incapacity of comprehension, that real culprit Accused can always sign differently, isn’t it against all principles of criminal law.

    India must consider Constitutional and Fundamental Rights sacrosanct and above all

    3. SC also had ruled, illegal search can become evidence. Unless, some justices are troubled by these rulings, I guess, no one gives a damb about Citizens and sanctity of criminal prosecution principles

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