P&H HC | “Right to Privacy cannot be raised to create a bubble to scuttle investigation”; HC holds direction to give voice samples is not contrary to Art. 20(3)

Punjab and Haryana High Court

Punjab and Haryana High Court: Avneesh Jhingan, J., while answering the question as to whether compelling an accused to give voice samples would amount to self-incrimination and hence, is violative of Article 20(3), stated,

“The infringement of Fundamental Right to Privacy cannot be raised to create a bubble to scuttle the investigation nullifying the evidence collected by merely denying that the voice of the tapped phone calls is not of the petitioners and there being no comparables.”

The instant revision petition had been filed to assail the order of Additional Sessions Judge, allowing the application of the Vigilance Bureau for taking voice samples of the petitioners.

The allegation was that the petitioners (both typist at Tehsil Banga Complex) were collecting money for getting the sale deeds registered from the Tehsildar and other revenue officials of the revenue department. After taking approval, the mobile used by the petitioners were tapped and after obtaining sufficient evidence from the transcripts the FIR was registered. During the proceedings, an application was filed by the Vigilance Bureau for permission to take voice samples of the petitioners and the same was allowed.

The petitioners argued that the impugned order was in violation of Article 20(3) of the Constitution as it would violate the right to privacy. The contention was that in Section 53 of the CrPC, 1973 there is no power to order taking of voice samples as the same is self incriminatory.

Analysis by the Court

  1. Would a judicial order compelling a person to give a sample of his voice violate the fundamental right to privacy under Article 20 (3)?

The Supreme Court while dealing with the question “Whether Article 20(3) of the Constitution of India, which protects a person accused of an offence from being compelled to be a witness against himself, extends to protecting such an accused from being compelled to give his voice sample during the course of investigation into an offence” in Ritesh Sinha v. State of U. P., 2019 (8) SCC 1, held that the directions to take voice sample does not infringe Article 20(3) of the Constitution of India. Similarly, in State of Bombay vs. Kathi Kalu Oghad; (1962) 3 SCR 10, the Supreme Court while addressing the issue with regard to specimen writings taken from the accused for comparison with other writings in order to determine the culpability of the accused and whether such a course of action was prohibited under Article 20(3) of the Constitution, 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…A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous, because they are unchangeable; except, in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based on other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of ‘testimony’.”

The nine Judges Bench of the Supreme Court in K.S. Puttaswamy v. Union of India; 2017 (10) SCC 1, held that right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21. However, holding that this right is not an absolute right, the Bench stated,

“In the context of Article 21 an invasion of privacy must be justified on the basis of a law which stipulates a procedure which is fair, just and reasonable…An invasion of life or personal liberty must meet the threefold requirement of

  1. legality, which postulates the existence of law;
  2. need, defined in terms of a legitimate State aim; and
  3. proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.”

Considering the above mentioned, the Bench held that voice sample in a sense resemble finger prints and hand writing, each person has a distinctive voice with characteristic features dictated by vocal cavities and articulates. Hence, the samples collected after having permission in accordance with law would not be a evidence, rather a mean to compare evidence already collected. The Bench clarified,

“To keep pace with the change, new technology is required to be used for collecting and comparing evidence. One method being tapping of communication devices but after compliance of the procedure laid down. It is in that context that taking of voice samples are necessitated. The samples collected are not evidence in itself, rather are tools to identify the voice recording collected as evidence.”

  1. Whether in absence of any provision in CrPC, can a Magistrate authorize the investigating agency to record voice sample of the accused?

The next question before the Bench was “Assuming that there is no violation of Article 20(3) of the, whether in the absence of any provision in the Code, can a Magistrate authorize the investigating agency to record the voice sample of the person accused of an offence?” Reliance was placed by the Court on Ritesh Sinha’s case, (2019) 8 SCC 1, wherein the Supreme Court had stated,

 “We unhesitatingly take the view that until explicit provisions are engrafted in 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 and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India. We order accordingly and consequently dispose the appeals in terms of the above.”

In view of the above discussion, the contentions raised by the petitioners were rejected and the impugned order was upheld.

[Kamal Pal v. State of Punjab, 2021 SCC OnLine P&H 1541, decided on 09-07-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

Counsel for the Petitioners: Manbir Singh Batth. Advocate

Counsel for the State: Monika Jalota, DAG, Punjab

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