Breaking - Magistrate Has Power To Direct An Accused To Give Voice Samples During Investigation Without His Consent : SC [Read Judgment]

In a significant ruling, the Supreme Court on Friday held that a judicial magistrate can direct an accused to provide his voice samples for investigation even without his consent.

The three-judges bench led by the CJI thus settled the confusion which arose out of the split verdict in the 2012 verdict by a two judges bench in Ritesh Sinha v State of UP.

The CJI-led bench said that in the absence of specific powers in the Code of Criminal Procedure, inherent powers under Article 142 of the Constitution should be invoked to confer such power on the Magistrate.

In Ritesh Sinha (supra), there was a split in verdict on the point whether the magistrate had implied powers to direct the accused to give voice samples. While Justice RP Desai held that the magistrate had ancillary or inherent power as per Section 53 of the CrPC read with Section 5 of the Identification of Prisoners Act 1920 to order giving of voice samples. However, Justice Aftab Alam dissented on this point, and held that there was no such ancillary or inherent power. In view of the split in verdict, the matter was referred to larger bench, which is now answered.

It may be noted that Section 53 of the CrPC deals with the power to order medical examination of the accused by a registered medical practitioner, which includes examination of bodily fluids, hair samples, nail clippings etc. Section 5 of the Identification of Prisoners Act 1920 deals with taking photographs and measurements of persons in custody. None of these provisions make explicit reference to voice samples.

Different views by High Courts

The Bombay High Court has held in CBI, New Delhi v Abdul Karim Telgi (judgment in Crl WP No.157/04) that voice samples can be taken drawing power from Section 5 of the 1920 Act. The Delhi High Court held in Rakesh Bisht v CBI that voice samples can be directed to be given only when proceedings are pending in Court, and not for the purposes of investigation. The Gujarat High Court has held that accused cannot be subjected to voice spectrography test. The High Court of Kerala has also held that there is no express or implied power conferred by the statute to the magistrate to direct the accused to give voice samples for the purposes of investigation. 

However, the Madras High Court held otherwise in two judgments and approved the orders directing giving of voice samples on the basis of Sections 53, 53A and 311A of CrPC.

(Story to be updated after receiving full text of judgment)

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