Collecting Voice Samples Against Wish Of Accused Not Violative Of Right To Privacy, Right Against Self-Incrimination: Rajasthan High Court

Rajasthan High Court has ruled that Article 20(3) of the Constitution of India only states that accused could not be compelled to be a witness against himself and not that the accused could not be compelled to be a witness at all.

Consequently, asking the accused to furnish his/her voice samples did not amount to self-incrimination when the incrimination was contingent on comparing that voice sample with the recordings available.

The bench of Justice Sameer Jain further observed that under Section 349 of BNSS, the Legislature had explicitly empowered the Class-I Magistrate to direct individuals, including the accused to furnish voice samples for investigation.

The Court was hearing a petition against an order of the Chief Metropolitan Magistrate (“CJM”) wherein the accused-petitioner charged under the Prevention of Corruption Act (“the Act”) was directed to submit voice samples for the purpose of investigation.

The petitioner was alleged to have indulged in accepting undue gratification of 1% commission of the bill amount from contractors for clearing their bills. A charge sheet was filed in this regard along with certain recordings of telephonic conversations between the petitioner and the contractors.

Subsequently, the Public Prosecutor filed an application for collecting voice samples of the petitioner and pursuant to this application, the petitioner was directed to furnish voice samples to be forensically compared with the telephonic conversations. This order was challenged by the petitioner before the Court.

It was the case of the petitioner that firstly, the order was against Article 20(3) since no person could be compelled to provide evidence against self. Secondly, the order was submitted to be violative of fundamental right to privacy since it required collection of voice samples against petitioner' wishes.

On the contrary, the counsel appearing for the CBI argued that right to privacy could not be seen as an absolute right and since the voice samples were crucial for concluding the investigation in a fair and transparent manner, permission for the same could be granted in public interest.

After hearing the arguments, the Court stated that interpretation of Article 20(3) reflected that the Article did not state that the accused could not be compelled to be a witness, but only that s/he could not be a witness against self.

In this light, in the instant matter, recording voice samples in itself did not establish incrimination of the petitioner since the incrimination was contingent on comparison of voice samples with the telephonic recordings.

The Court also highlighted that voice was a unique personality trait and providing the same was akin to providing a blood sample which could not be equated with a statement given by the petitioner.

“Like other methods of identification- such as fingerprints, blood samples, and DNA tests—voice is a unique personal trait that can aid in verifying identity through scientific means, essential for the admissibility of evidence. Importantly, the accused-petitioners are not required to provide any additional self-incriminatory information but are only asked to furnish a voice sample, akin to providing a blood sample. This voice recording by the investigating agency cannot be equated with a statement by the accused and should not relate to the crime's subject matter.”

Furthermore, the Court observed that the voice samples were needed for investigation in a corruption matter and thus was necessary in public interest. And relying upon the Supreme Court case of Ritesh Kumar vs. State of Uttar Pradesh it was observed that the right to privacy was not absolute and must bow down to compelling public interest.

The Court also highlighted the Supreme Court case of Pravin Sinh Nrupat Sinh Chauhan vs. State of Gujrat in which it was held that collection of voice samples did not infringe on the right to privacy.

Finally, the Court referred to Section 349, BNSS, to rule that the provision was explicit that the Class-I Magistrate was empowered to direct individuals to furnish voice samples as deemed necessary for investigation. The provision was opined to be a careful balance between the investigative needs with constitutional safeguards ensuring that the requirement of providing voice samples did not violate Article 20(3) of the Constitution.

Accordingly, the Court dismissed the petition warranting no interference with the order of the trial court.

Title: Badri Prasad v Central Bureau of Investigation and other connected petition

Citation: 2024 LiveLaw (Raj) 379

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