Direction To Take Voice Sample Of Accused Does Not Infringe Rights Under Article 20(3) Of Constitution: Punjab & Haryana High Court

The infringement of the 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 in recording is not of the petitioner and there being no comparison.

The case came up as a result of the order delivered by the learned Additional Sessions Judge directing the petitioner to give a voice sample. An FIR was registered against the petitioner under the Prevention of Corruption Act, 1988 for taking illegal gratification. The telephone conversation of accused was taken into possession by the police.

Thereafter, the prosecution filed an application for taking a voice sample, opposing which the petitioner argued that the impugned order is in violation of Article 20(3) of the Constitution of India, and it also infringes his right to privacy.

While dealing with this contention, the court held that this issue raised by the petitioner is no longer res Integra. While placing reliance on the case of Ritesh Sinha v. State of Uttar Pradesh, 2019 (8) SCC 1, the court held that the directions to take voice samples do not infringe Article 20(3) of the Constitution of India.

Coming on to the issue of taking a voice sample as being against the right to privacy of the petitioner, the court relied on the case of Justice K.S.Puttaswamy (Retd.), and Anr vs. Union of India and Ors; 2017 (10) SCC 1, in which it was held that the right to privacy is not absolute though it is protected as an intrinsic part of the right to life and personal liberty under Article 21 of the Constitution of India.

While defining a voice sample, the court held that a voice sample in a sense resembles fingerprints and handwriting that are used for comparing the evidence already collected.

Voice samples in a sense resemble fingerprints and handwriting, each person has a distinctive voice with characteristic features dictated by vocal cavities and articulates. The samples are collected after having permission in accordance with the law. The sample taken itself would not be an evidence, rather they are for comparing the evidence already collected.

Court further held that the infringement of the Fundamental Right to Privacy cannot be raised to create a bubble to scuttle the investigation. With the advancement of technology, the modes of communication are also changing, and to keep pace with the change there is a need for a new technology that can collect and compare the evidence.

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 for comparison the voice recording.

In the instant case, the court delved into the question of the power of the judicial magistrate to order a person to give his sample and provided that until a specific provision is inserted in the Cr.P.C. for taking voice samples, a Judicial Magistrate must be conceded the power to order to give a sample.

In the light of the above discussions, we unhesitatingly take the view that 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 the exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India.

Accordingly, the court dismissed the petition.