Consent Of Accused Not Necessary To Obtain Voice Sample; No Violation Of Article 20(3) Of Constitution: Kerala High Court

The Kerala High Court has ruled that the consent of an accused is not necessary to acquire their voice sample for the purpose of comparison, since it has already been established that obtaining voice samples of the accused do not infringe Article 20 (3) of the Constitution of India.

While dismissing a petition alleging that the accused was not given an opportunity of being heard before being directed to produce his voice sample, Justice R. Narayana Pisharadi held that the accused has no right of option in the matter:

"Since the direction given by a court to an accused to give a voice sample for the purpose of comparison does not violate Article 20(3) of the Constitution, his consent is not required for that purpose. The accused has no right of option in the matter."

The petitioner, an Overseer in a Grama Panchayat, was the second accused in a case registered by the Vigilance and Anti-Corruption Bureau (VACB), Thrissur.

The de facto complainant's brother-in-law had constructed a new building and was awaiting the grant of completion certificate from the Panchayat. 

The first accused, a contractor, demanded money from the de facto complainant to pay the petitioner herein and other officials of the Panchayat to persuade them to grant the certificate.

In February 2021, the first accused met the de facto complainant and accepted an amount of Rs.25,000 from him.

As such, the first accused committed an offence punishable under Section 7A of the Prevention of Corruption Act, 1988 r/w Section 120B of the Indian Penal Code. 

The second accused committed the offence punishable under Section 7(a) of the Act read with Section 120B of the Indian Penal Code.  

During the investigation of the case, a notice was issued from the Court of the Enquiry Commissioner and Special Judge (Vigilance) directing the petitioner to appear at a Studio for recording samples of his voice. 

Challenging this notice, the petitioner moved the High Court under Section 482 of the Code of Criminal Procedure, 1973 to quash the notice and all further proceedings based on it.

Advocates Shabu Sreedharan, Meenu Thampi, Amal Stanly, Shyam Kumar M.P and Anisa Andrews appearing for the petitioner challenged the notice on two grounds:

(1) The order compelling the petitioner to give voice sample violates the protection guaranteed under Article 20(3) of the Constitution 

(2) The order directing the petitioner to give a voice sample was passed by the Special Court without granting him an opportunity of being heard. 

The Court noted that the first question did not stand since the Supreme Court in Ritesh Sinha v. State of Uttar Pradesh had clearly established that direction to an accused to give voice sample does not infringe Article 20(3).

Regarding the question of granting an opportunity of being heard, the Court found that such a question would only arise if his consent is required for taking the sample.

Since a direction to give a voice sample does not violate Article 20(3), his consent is not required for that purpose.

The investigating officer's statement had further disclosed that the mobile phone seized during the investigation contained details of a conversation between the petitioner and the de facto complainant about the demand for a bribe. 

It was stated that a voice analysis of both the accused and the de facto complainant was essential to prove the demand made. Therefore, the Court found that taking voice samples of the petitioner was very essential for an effective investigation of the case. 

Moreover, the Court opined that an investigating agency had to adopt advanced scientific technology and methods of investigation to solve crimes.

Finding that the challenge to the notice had failed, the petition was accordingly dismissed. 

Case Title: Mahesh Lal N.Y v. State of Kerala

Citation: 2022 LiveLaw (Ker) 29

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