Kerala High Court Directs Authority Notified By Central Govt U/S 79A IT Act To Record Voice Sample Of Accused For Investigation

The Kerala High Court on Monday reiterated that recording voice sample of accused does not violate his right against self-incrimination under Article 20(3) of the Constitution and directed that the recording and testing of voice samples as part of the investigation be done in a Centre as notified by the Central Government as per Section 79A of Information Technology Act.

The provision stipulates that the Central Government may, for the purpose of providing expert opinion on electronic form of evidence before any Court or other authority specify, by notification in the Official Gazette, any Department, body or agency of the Central Government or a State Government as an Examiner of Electronic Evidence.

Taking view of this, Justice A. Badharudeen modified the impugned order to the extent it directed the petitioner (accused in an NDPS case) to appear before the Director of All India Radio Station, and ordered him to appear before the Cyber Forensic Division, State Forensics Science Laboratory, as it is the centre notified under Section 79A of IT Act.

...who is the person capable of recording the voice sample of the petitioner? In fact, Section 79A of the IT Act, authorises the Central Government to issue notification in this regard. Therefore, the voice sample also can be collected by the Cyber Forensic Division, State Forensics Science Laboratory, Vellayambalam, Thiruvananthapuram.

Brief Factual Matrix 

The Criminal Miscellaneous Case was filed by an accused seeking to quash an order passed by a Special Court directing the accused to appear before the Director of All India Radio Station, Kozhikode on the date and time fixed by the Investigating Officer for the purpose of obtaining voice sample. 

The criminal case was initially registered against a man named Fajid as 2.100 Kg of Ganja was seized from an autorickshaw belonging to him. However, after being released on bail, Fajid was removed from the array of accused, and the petitioner and two other persons were implicated in the crime on the allegation that they had committed offences under Section 193 and 201 read with Section 34 of IPC and 20 (b)(ii)(B) of NDPS Act as CCTV footage revealed that the petitioner, along with the other accused, conspired and had intentionally put ganja in the autorickshaw.

Subsequently, an application was moved by the Investigating Officer before the Special Judge seeking an order directing the accused to appear for collecting his voice sample and comparing it with a phone conversation allegedly between the accused and the Sub-Inspector, which was recorded in the official's telephone. 

Even though the application preferred by the Investigating Officer was dismissed by the Special Judge twice, citing that there was no certification under Section 65B of the Evidence Act and the official phone of the Sub Inspector was not seized or produced, subsequently, after the seizing of the official phone, the Special Judge allowed the application.

The Counsel appearing for the petitioner (accused) contended before the Court that the petitioner cannot be compelled to give evidence against himself, which would amount to testimonial compulsion. It was also alleged that petitioner's voice was recorded by the Police on several occasions.

Additional Director General of Prosecution on the other hand submitted that the voice sample of the petitioner sought to be compared in this matter is a very relevant piece of evidence and that the Special Judge was well within its power. He placed reliance on Ritesh Sinha v. State of Uttar Pradesh and Another and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Others to substantiate his contentions. 

Main Legal Questions Involved:

1. In the absence of express provisions in the procedure law, can a Magistrate or Special Judge authorise the investigating agency to record the voice sample of the accused for comparison with the disputed voice of the accused?

2.  Would a judicial order compelling an accused to give his/her voice sample amounts to testimonial compulsion under Article 20(3) of the Constitution of India?

Findings 

Regarding the first query, the Court observed that the Apex Court has specifically answered it in Ritesh Sinha v. State of Uttar Pradesh and Another, that until explicit provisions are engrafted in CrPC 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. 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 Art.142 of the Constitution of India.

Regarding the second query, the Court further relied on the decision in Ritesh Sinha's case and observed that recording of the voice sample of an accused cannot be held as testimonial compulsion under Article 20(3) of the Constitution of India as of now and the issue requires further deliberation. 

Further, on the question as to who is capable of recording the voice sample of the petitioner, the Court observed that Section 79A of the IT Act authorises the Central Government to issue notification in this regard. The ADGP had pointed out that Cyber Forensic Division, State Forensics Science Laboratory, Vellayambalam, is the notified lab. Therefore, the Court observed that the voice sample can be collected in the aforesaid lab.

Thereby, the Court modified the impugned order directing the petitioner to appear before the Cyber Forensic Division, State Forensics Science Laboratory, Vellayambalam, Thiruvananthapuram, for giving a voice sample and on getting the same, the Special Judge is directed to complete the remaining steps for comparison in accordance with the law. 

It is made clear that the Investigating Officer can follow the process of collection of voice sample etc., as part of fair investigation, the Court further added.

Advocate Babu S Nair appeared for the Petitioner; Advocates Jamesheed Hafiz, Additional Director General of Prosecution Grashious Kuriakose, C. K. Suresh and K.K. Nesna appeared for the Respondents. 

Case Title: Abu Thahir v. State of Kerala and Anr. 

Citation: 2022 LiveLaw(Ker) 579

Click Here To Read/Download The Order