Judicial Magistrate Can Order Voice Samples Of Accused For Investigation Of Crime: Gujarat High Court

The Gujarat High Court has recently observed that judicial magistrates have the power to order individuals, including accused persons, to provide voice samples for crime investigations.

Referring to the Supreme Court's decision in Ritesh Sinha v State of Uttar Pradesh and Another, a single judge bench of Justice Gita Gopi in its July 16 judgment said, "Judicial Magistrate do have power to order a person to give a sample of his voice, such an order can be even against an accused, which would be for the purpose of investigation of crime". 

The judgment came in response to an appeal filed by a woman challenging orders of the magisterial and sessions court that had rejected her plea for voice samples of her husband to substantiate claims of cruelty under the Domestic Violence Act. The woman had recorded conversations with her husband and in-laws, presenting a CD as evidence. The magistrate court had previously ruled that without a legal provision authorizing such an order, it could not issue one since there was no crime investigation involved.

Magistrate was to compare the voices of the parties

Justice Gopi observed that in the present case it was not necessary for the lower court to send the voice sample of the parties, as the recorded evidence of the wife and husband, his family was only after the parties had "orally" deposed before the court. It further said that the concerned magistrate was required to only compare the voices in the CD

"The voice of both the parties are heard by the Court. The Magistrate was only required to compare the voice of the parties recorded in the CD. The prayer to send the voice samples of both the parties was for the assistance of Court. The rejection of such prayer could only be on the ground that the Court is competent enough to compare the voice without any expert opinion. The Court can draw the authority of comparison under the provision of Section 73 of the Indian Evidence Act, 1872," the high court underscored.

Observing that the court had "ample power" of comparison, the high court thereafter said that in the present case the voice of both the parties was heard before the lower court as they had deposed before it in the cross-examination and so the voice for comparison was already before it.

"Thus, the Court could have on its own compared the voice,” the high said.

Can Magistrate direct a person to give voice samples?

Addressing whether the Magistrate has the power to direct a person to provide voice samples, the High Court explained that proceedings under the DV Act follow the Criminal Procedure Code and are partly "quasi-civil in nature." Justice Gopi noted, “the proceedings before the Judicial Magistrate are under DV Act and the proceedings are dealt with as per the criminal procedure Code. As per the provision of law, the respondent cannot be considered as an 'Accused' till there is breach of protection order. Here the prayer was not for a direction to any police to collect voice sample of any accused, but an order to both the parties, for the giving their voice sample.”

What has the Supreme Court said

The High Court in its judgment makes a reference to the Supreme Court's 2019 decision in Ritesh Sinha v State of Uttar Pradesh and Another where the apex court had said that until explicit provisions are engrafted in the Code of Criminal Procedure 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". 

The high court however noted the extract of the Law Commission's 87th report mentioned the Supreme Court's verdict which said that if the accused refuses to furnish such voice, there is no legal sanction for compelling him to do so, and the use of force for that purpose would be illegal. 

Trial under DV Act akin to civil suit

In contrast, the high court said that the present matter pertained to a trial under the DV Act which is partly quasi civil in nature. It further said that in criminal proceedings–where the accused has the right to remain silent, there would be "no compulsion" to give a voice sample as the prosecution must prove the case against the accused beyond a reasonable doubt. In contrast, Justice Gopi observed, under the DV Act, both sides "equally contribute" to the decision of the trial.

The High Court further noted that proceedings under the DV Act, while following the Criminal Procedure Code, are "quasi-civil in nature" and akin to a civil suit between a plaintiff and defendant.

Before parting the high court said that in matrimonial proceedings, unless it is under the Indian Penal Code, no bar would operate against spouses to disclose communication between them during their marriage. 

The court referred to Section 122 of the Indian Evidence Act and said that husband or wife "cannot claim any privilege of nondisclosure of communication during marriage", in a proceeding filed by one against the another.

Hence, the communication recorded in the CD by the woman would become part of the proceeding under the DV Act, the high court said.

It thereafter allowed the woman's plea and set aside the orders passed by the magisterial and sessions court.

Case Title - JIL W/O Priyank Manubhai Choksi Versus State Of Gujarat & Anr.

LL Citation: 2024 LiveLaw (Guj) 103

Click Here To Download The Judgment