Judicial Order To Collect Voice Sample For Investigation Purposes Doesn't Violate Right To Privacy: Punjab & Haryana High Court

The Bench of Justice Avneesh Jhingan remarked:

"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 facts in brief

The Vigilance Bureau, Punjab received information of money being extorted from the local public at Tehsil Banga for getting the sale deeds registered.

The information was that the petitioners (both typists 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 from the transcripts of various dates finding sufficient evidence the FIR was registered.

During the proceedings, an application was filed by the Vigilance Bureau for permission to take voice samples of the petitioners, which was allowed, hence, challenging the same, the instant petition had been filed.

The counsel for the petitioners argued that the impugned order was in violation of Article 20(3) of the Constitution of India and infringed their right to privacy.

It was also contended that under Section 53 of the Code of Criminal Procedure, 1973 there is no power to order taking of voice samples.

Court's observations

At the outset, the Court referred to Supreme Court's ruling in the case of Ritesh Sinha v. State of Uttar Pradesh, wherein it was held that a judicial magistrate can direct an accused to provide his voice samples for investigation even without his consent.

Further, the Court observed that the voice samples, in a sense, resemble the fingerprints and handwriting and that each person has a distinctive voice with characteristic features dictated by vocal cavities and articulates.

The Court also noted thus:

"With the advancement of technology, the modes of communication are changing. 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."

[It may be noted that in State of Bombay vs Kathi Kalu Oghad, the Supreme Court had held that there is no infringement of Art.20(3) of the Constitution if an accused person is asked to give his specimen handwriting or signature; or impressions of his fingers, palm or foot to the investigating officer or under orders of a court for the purpose of comparison under the provisions of s.73 of the Indian Evidence Act.]

On the question, as to whether in absence of power under CrPC empowering the magistrate for directing the taking of voice samples of an accused, the Court referred to Ritesh Simha Judgment.

In Ritesh Sinha, the question considered was "Assuming that there is no violation of Article 20(3) of the Constitution of India, 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?"

Answering the question, the Supreme Court in exercising the powers under Article 142 of the Constitution of India, had directed thus:

"…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. We order accordingly and consequently dispose the appeals in terms of the above" (read full coverage of the judgment by Live Law here)

Case title - Kamal Pal and Another v. State Of Punjab

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