Holding

A Judicial Magistrate may be conferred the power to order a voice sample for investigation via judicial interpretation under Article 142, and Article 20(3) does not bar such compulsion as it is not self‑incriminatory testimony.

Summary

The appellant Ritesh Sinha was implicated in a fraud case and the police sought a voice sample to match a recorded phone conversation. The Chief Judicial Magistrate ordered him to appear and give his voice sample, which the appellant challenged under Section 482 of the Cr.P.C. The High Court upheld the magistrate's order and the appellant appealed to the Supreme Court. The Court examined whether Article 20(3) of the Constitution bars compelling an accused to provide a voice sample and whether a magistrate can order such a sample in the absence of a specific statutory provision. It held that a voice sample is not self‑incriminatory testimony and therefore does not fall within the protection of Article 20(3). Moreover, until Parliament enacts a specific provision, a magistrate may be empowered to order a voice sample through judicial interpretation under Article 142. Consequently, the appeals were dismissed and the magistrate's order was affirmed.

Issues considered

Whether Article 20(3) of the Constitution prohibits compelling an accused to give a voice sample for investigation.
Whether, in the absence of an explicit provision in the Criminal Procedure Code, a Judicial Magistrate can order the recording of a voice sample of an accused.

Legislation cited

Code of Criminal Procedure, 1973s. Explanation (a) to Section 53, s. Section 311-A, s. Section 482, s. Section 53, s. Section 53A
Constitution of Indias. Article 142, s. Article 20(3)
Criminal Procedure Code (Amendment) Act, 2005s. Act No.25 of 2005 (amending Sections 53, 53A, 311-A)
Identification of Prisoners Act, 1920s. Section 5

Subjects

voice samplecriminal investigationArticle 20(3)self‑incriminationmagistrate powerjudicial interpretationArticle 142statutory gapprivacyidentification of prisoners

Judgment

1006 [2019] REPORTS
SUPREME COURT 10 S.C.R. 1006 [2019] 10 S.C.R.

A RITESH SINHA
v.
STATE OF UTTAR PRADESH & ANR.
(Criminal Appeal No.2003 of 2012)
B AUGUST 02, 2019
[RANJAN GOGOI, CJI, DEEPAK GUPTA AND
SANJIV KHANNA, JJ.]
Investigation:
C Power of Judicial Magistrate – To order a person to give
sample of his voice – For the purpose of investigation – Held: Such
power has not been invested with the Magistrate by any statutory
provision – Pending formal legislative exercise i.e. until explicit
provisions are engrafted in Cr.P.C., a Judicial Magistrate shall be
conceded the power to order a person to give a sample of his voice
D
for the purpose of investigation – Such power is conferred on the
Magistrate by a process of judicial interpretation and in exercise
of jurisdiction vested in Art.142 of the Constitution – Constitution
of India – Art.142.
Constitution of India:
E
Art.20(3) – Applicability of – Held: Art.20(3) would come
into play, only when testimony of an accused is self-incriminatory
or of a character which has the tendency of incriminating the
accused himself.
F Jurisdiction:
Jurisdiction of constitutional courts – Exercise of – Scope –
Held: Exercise of jurisdiction by constitutional courts must be guided
by contemporaneous realities/existing realities on the ground –
Judicial power should not be entrapped within inflexible parameters
G or guided by rigid principles – Though, to legislate is not the judicial
function, but where there is demand of justice for a larger number,
to express an opinion on a silent aspect of statute, Court must fill
such void not only by the principle of ejusdom generis but also on
the principle of imminent necessity with a call to the Legislature to
act promptly in the matter.
H
1006
RITESH SINHA v. STATE OF UTTAR PRADESH & ANR. 1007

Disposing of the appeals, the Court A
HELD:1. The prohibition contemplated by the constitutional
provision contained in Article 20(3) would come in, only in cases
of testimony of an accused which are self-incriminatory or of a
character which has the tendency of incriminating the accused
himself. [Para 9] [1012-G-H; 1013-A] B
State of Bombay v. Kathi Kalu Oghad AIR 1961 SC
1808 : [1962] 3 SCR 10 – relied on.
2.1 Medical examination of an accused for the purposes of
effective investigation of a criminal charge has received a wider
meaning by the amendment of the Explanation to Section 53 C
Cr.P.C. made by Act No.25 of 2005 with effect from 23rd June,
2006. Similarly, Section 53A has been inserted by the same
Amending Act (No.25 of 2005) to provide for examination of a
person accused of rape. Likewise, by insertion of Section 311-A
by the same Amending Act (No.25 of 2005) a Magistrate has been D
empowered to order any person, including an accused person, to
give specimen signatures or handwriting for the purposes of any
investigation or proceeding under the Cr.P.C.[Para 11]
[1014-B-C]
2.2 The Law Commission of India, in its 87th report dated E
29th August, 1980, in the context of the working of the provisions
of the Identification of Prisoners Act, 1920, took the view that a
suitable legislation which could be in the form of an amendment
to Section 5 of the Identification of Prisoners Act, 1920 would be
appropriate so as to specifically empower a Judicial Magistrate
to compel an accused person to give a sample of his voice. F
[Para 13] [1014-F-G]
2.3 Section 5 of the Identification of Prisoners Act, 1920
coincidentally empowers the Magistrate to order/direct any
person to allow his measurements or photographs to be taken
for the purposes of any investigation or proceeding. The above G
amendments in the Cr.P.C., could very well have been a sequel
to the recommendation of the Law Commission in its Report dated
29th August, 1980 though the said recommendation was in slightly
narrower terms i.e. in the context of Section 5 of the Identification
of Prisoners Act, 1920. [Para 14] [1016-A-B]
H
1008 SUPREME COURT REPORTS [2019] 10 S.C.R.

A 2.4 Though this Court in *Ram Babu Misra case, had held
that a Judicial Magistrate has no power to direct an accused to
give his specimen writing for the purposes of investigation, had
suggested to Parliament that a suitable legislation be made on
the analogy of Section 5 of the Identification of Prisoners Act,
1920 so as to invest a Magistrate with the power to issue
B
directions to any person including an accused person to give
specimen signatures and writings. The consequential amendment,
instead, came by way of insertion of Section 311-A in the Cr.P.C
by the Code of Criminal Procedure (Amendment) Act, 2005 (Act
No.25 of 2005) with effect from 23 rd June, 2006. [Para 14]
C [1016-C-D]
State of Uttar Pradesh vs. Ram Babu Misra AIR 1980
SC 791 : [1980] 2 SCR 1067 – referred to.
3.1 “Procedure is the handmaid, not the mistress, of justice
and cannot be permitted to thwart the fact-finding course in
D litigation”. [Para 16] [1017-F]
Vatal Nagraj v. R. Dayanand Sagar AIR 1975 SC 349:
[1975] 2 SCR 384; Sushil Kumar Sen v. State of Bihar
(1975) 1 SCC 774 : [1975] 3 SCR 942 – relied on.

E 3.2 The legislative response in remaining silent or acting
at a “slow” pace can always be explained by legislative concerns
and considerations of care and caution. It is in the aforesaid
context and in the admitted absence of any clear statutory
provision that the question arising has to be answered which is
primarily one of the extent to which by a process of judicial
F interpretation a clear gap in the statute should be filled up pending
a formal legislative exercise. [Para 15] [1017-E-F]
3.3 In the present case, the view that the law on the point
should emanate from the Legislature and not from the Court, as
expressed in the judgment of this Court from which the reference
G has emanated is founded on two main reasons, viz., (i) the
compulsion to give voice sample does in some way involve an
invasion of the rights of the individual and to bring it within the
ambit of the existing law would require more than reasonable
bending and stretching of the principles of interpretation and (ii)
if the legislature, even while making amendments in the Criminal
H
RITESH SINHA v. STATE OF UTTAR PRADESH & ANR. 1009

Procedure Code (Act No.25 of 2005), is oblivious and despite A
express reminders chooses not to include voice sample either in
the newly introduced explanation to Section 53 or in Sections
53A and 311A of Cr.P.C., then it may even be contended that in
the larger scheme of things the legislature is able to see something
which perhaps the Court is missing. [Para 18] [1019-A-C]
B
3.4 The exercise of jurisdiction by Constitutional Courts
must be guided by contemporaneous realities/existing realities
on the ground. Judicial power should not be allowed to be
entrapped within inflexible parameters or guided by rigid
principles. True, the judicial function is not to legislate but in a
situation where the call of justice and that too of a large number C
who are not parties to the lis before the Court, demands
expression of an opinion on a silent aspect of the Statute, such
void must be filled up not only on the principle of ejusdem generis
but on the principle of imminent necessity with a call to the
Legislature to act promptly in the matter. [Para 21] [1020-D-E] D
Seaford Court Estates Ltd. v. Asher (1949) 2 All. E.R.
155; Magor & St. Mellons Rural District Council v.
Newport Corporation (1951) 2 All.E.R 1226
– referred to.
4. Until explicit provisions are engrafted in the Code of E
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 F
under Article 142 of the Constitution of India. [Para 25]
[1022-E-F]
Bangalore Water Supply & Sewerage Board v. A
Rajappa and Others (1978) 2 SCC 213 : [1978] 3 SCR
207; Modern Dental College and Research Centre and G
others vs. State of Madhya Pradesh and Others (2016)
7 SCC 353 ; Gobind v. State of Madhya Pradesh and
Another (1975) 2 SCC 148 : [1975] 3 SCR 946; K.S.
Puttaswamy and Another v. Union of India and Others
(2017) 10 SCC 1 : [2017] 10 SCR 569 – referred to.
H
1010 SUPREME COURT REPORTS [2019] 10 S.C.R.

A Case Law Reference
[1962] 3 SCR 10 relied on Para 9
[1980] 2 SCR 1067 referred to Para 14
[1975] 2 SCR 384 relied on Para 16
B [1975] 3 SCR 942 relied on Para 17
[1978] 3 SCR 207 relied on Para 22
(2016) 7 SCC 353 referred to Para 2 4
[1975] 3 SCR 946 referred to Para 2 4
C
[2017] 10 SCR 569 referred to Para 2 4

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 2003 of 2012
D From the Judgment and Order dated 09.07.2010 of the High Court
of Judicature at Allahabad in Criminal Misc. Application No. 3272 of
2010
With
Criminal Appeal Nos. 1318 of 2013. 1187, 1188, 1189 and 1190 of
E 2019.
Sanjay Jain, ASG, Guru Krishnakumar, S. Nagamuthu, Sr. Advs.,
Siddhartha Dave, Ms. Jemtiben AO, Senthil Jagadeesan, Prakash
Gautam, Yuvraj Sharma, Ms. Saniya Scott, V. Balaji, B. V. Balaram
Das, Arunabh Chowdhury, Ankur Chawla, Amir Khan, Karma Dorjee,
F Ms. Pallavi Pratap, Ms. Garima Prashad, Ashish Pratap Singh, Mohit
Kumar Bansal, Y. Arunagiri, P. Soma Sundaram, Ms. Prerna Mehta,
Saurabh Ajay Gupta, Bharat Singh, Vishwa Pal Singh, Irshad Ahmad,
Ardhendumauli Kumar Prasad, Ms. Taruna Ardhendumauli Prasad,
Namit Saxena, Piyush Singh, Amritesh Raj, Nitesh Ranjan, Vaibhav
Shrivastava, Nachiketa Joshi, Rajesh K. Singh, Mukul Singh, Aniket Seth,
G
Arvind Kumar Sharma, Ashwani Kumar, Ms. Iti Sharma, Ms. Kumud
Lata Das, Jay Kumar, Ravinder Nain, Advs. for the appearing parties.
Aman Ahluwalia, Adv. (AC).

H
RITESH SINHA v. STATE OF UTTAR PRADESH & ANR. 1011

The Judgment of the Court was delivered by A
RANJAN GOGOI, CJI.
1. Leave granted in Special Leave Petition (Criminal) Nos. 9671
of 2017, 1048 of 2018, 2225 of 2018 and 3272 of 2018.
2. Criminal Appeal No.2003 of 2012. B
Facts:
On 7th December, 2009 the In-charge of the Electronics Cell of
Sadar Bazar Police Station located in the district of Saharanpur of the
State of Uttar Pradesh lodged a First Information Report (“FIR” for
short) alleging that one Dhoom Singh in association with the appellant – C
Ritesh Sinha, was engaged in collection of monies from different people
on the promise of jobs in the Police. Dhoom Singh was arrested and one
mobile phone was seized from him. The Investigating Authority wanted
to verify whether the recorded conversation in the mobile phone was
between Dhoom Singh and the appellant – Ritesh Sinha. They, therefore, D
needed the voice sample of the appellant and accordingly filed an
application before the learned jurisdictional Chief Judicial Magistrate
(“CJM” for short) praying for summoning the appellant to the Court for
recording his voice sample.
3. The learned CJM, Saharanpur by order dated 8th January, 2010
E
issued summons to the appellant to appear before the Investigating Officer
and to give his voice sample. This order of the learned CJM was
challenged before the High Court of Allahabad under Section 482 of the
Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”).
The High Court having negatived the challenge made by the appellant
by its order dated 9th July, 2010, the present appeal has been filed. F
4. The appeal was heard and disposed of by a split verdict of a
two Judge Bench of this Court requiring the present reference.
5. Two principal questions arose for determination of the appeal
which have been set out in the order of Justice Ranjana Prakash Desai
dated 7th December, 2012 in the following terms. G

“(1) Whether Article 20(3) of the Constitution of India, which
protects a person accused of an offence from being compelled to
be a witness against himself, extends to protecting such an accused

H
1012 SUPREME COURT REPORTS [2019] 10 S.C.R.

A from being compelled to give his voice sample during the course
of investigation into an offence?
(2) 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
B record the voice sample of the person accused of an offence?”
6. While the first question was answered in the negative by both
the learned Judges (Justice Ranjana Prakash Desai and Justice Aftab
Alam) following the ratio of the law laid down in State of Bombay
vs.Kathi Kalu Oghad1, difference of opinion has occurred insofar as
C second question is concerned.
7. Justice Desai took the view that voice sample can be included
in the phrase “such other tests” appearing in Explanation (a) to Section
53 Cr.P.C. by applying the doctrine of ejusdem generis and, therefore,
the Magistrate would have an implied power under Section 53 Cr.P.C.
D to pass an order permitting taking of voice sample in the aid of criminal
investigation.
8. On the other hand, Justice Aftab Alam took the view that
compulsion on an accused to give his/her voice sample must be authorized
on the basis of a law passed by the Legislature instead of a process of
E judicial interpretation. In this regard, the learned judge (Aftab Alam, J.)
also took note of the amendments in Sections 53, 53A and 311-A of the
Cr.P.C. by Act No.25 of 2005 introduced with effect from 23rd June,
2006 which amendments did not bring, within the fold of the aforesaid
provisions of the Cr.P.C., any power in the trial Court to compel an
accused to give sample of his/her voice for the purpose of investigation
F of a criminal charge.
9. Despite unanimity amongst the learned Judges hearing the
appeal on the first question on which the learned counsel for the appellant
has also not laid much stress it would be appropriate to make the
discussions complete to answer the question on the strength of the test
G laid down by this Court in State of Bombay vs.Kathi Kalu Oghad
(supra). Speaking on behalf of the majority the then learned Chief Justice
B.P. Sinha was of the view that the prohibition contemplated by the
constitutional provision contained in Article 20(3) would come in only in
cases of testimony of an accused which are self-incriminatory or of a
1
H A.I.R. 1961 SC 1808
RITESH SINHA v. STATE OF UTTAR PRADESH & ANR. 1013
[RANJAN GOGOI, CJI]

character which has the tendency of incriminating the accused himself. A
The issue in the case was with regard to specimen writings taken from
the accused for comparison with other writings in order to determine the
culpability of the accused and whether such a course of action was
prohibited under Article 20(3) of the Constitution. The following
observations of the then Chief Justice B.P. Sinha would be apt for
B
recollection as the same conclusively determines the first question arising.
The same, therefore, is extracted below:
“(11)……….It is well-established that cl. (3) of Art. 20 is directed
against self-incrimination by an accused person. Self-Incrimination
must mean conveying information based upon the personal
knowledge of the person giving the information and cannot include C
merely the mechanical process of producing documents in court
which may throw a light on any of the points in controversy, but
which do not contain any statement of the accused based on his
personal knowledge……….
(12) In order that a testimony by an accused person may be D
said to have been self-incriminatory, the compulsion of
which comes within the prohibition of the constitutional
provision, it must be of such a character that by itself it
should have the tendency of incriminating the accused, if
not also of actually doing so. In other words, it should be a E
statement which makes the case against the accused person at
least probable, considered by itself. A specimen handwriting or
signature or finger impressions by themselves are no testimony at
all, being wholly innocuous, because they are unchangeable;
except, in rare cases where the ridges of the fingers or the style
of writing have been tampered with. They are only materials F
for comparison in order to lend assurance to the Court that
its inference based on other pieces of evidence is reliable.
They are neither oral nor documentary evidence but belong to the
third category of material evidence which is outside the limit of
‘testimony’. G
[emphasis supplied]”
10. We may now proceed to answer the second question, namely,
whether in the absence of any specific provision in the Cr.P.C. would a
Court be competent to authorize the Investigating Agency to record the
H
1014 SUPREME COURT REPORTS [2019] 10 S.C.R.

A voice sample of a person accused of an offence. We are told that no
authoritative pronouncement of this Court has been rendered by this
Court.
11. Medical examination of an accused for the purposes of
effective investigation of a criminal charge has received a wider meaning
B by the amendment to the Explanation to Section 53 Cr.P.C. made by Act
No.25 of 2005 with effect from 23rd June, 2006. Similarly, Section 53A
has been inserted by the same Amending Act (No.25 of 2005) to provide
for examination of a person accused of rape. Likewise, by insertion of
Section 311-A by the same Amending Act (No.25 of 2005) a Magistrate
has been empowered to order any person, including an accused person,
C to give specimen signatures or handwriting for the purposes of any
investigation or proceeding under the Cr.P.C.
12. None of the said amendments specifically authorize or
empower a Magistrate to direct an accused person or any other person
to give his/her voice sample for the purposes of an inquiry or investigation
D under the Code. “Omission” of the Legislature to specifically so provide
has led the learned judge (Justice Aftab Alam) on the two judge Bench
to doubt as to whether legislative wisdom was in favour of a specific
exclusion or omission so as to make a judicial exercise through a process
of interpretation impermissible.
E 13. The Law Commission of India, in its 87th report dated 29th
August, 1980, also had an occasion to deal with the question presently
confronting the Court. The Law Commission examined the matter
(almost four decades earlier) in the context of the working of the
provisions of the Identification of Prisoners Act, 1920. The view taken
F was that a suitable legislation which could be in the form of an amendment
to Section 5 of the Identification of Prisoners Act, 1920 would be
appropriate so as to specifically empower a Judicial Magistrate to compel
an accused person to give a sample of his voice. The following extract
from the 87th Report of the Law Commission dated 29th August, 1980
would be relevant.
G
“A voice print is a visual recording of voice. It mainly depends on
the position of “formants”. These are concentrates of sound energy
at a given frequency. It is stated that their position in the “frequency
domain” is unique to each speaker. Voice prints resemble finger
prints, in that each person has a distinctive voice with characteristic
H features dictated by vocal cavities and articulates.
RITESH SINHA v. STATE OF UTTAR PRADESH & ANR. 1015
[RANJAN GOGOI, CJI]

Voice-print Identification seems to have a number of practical A
uses. In England, in November 1967, at the Winchester
Magistrate’s Court, a man was accused of making malicious
telephone calls. Voice-print Identification (spectrograph) was used
and the accused was found guilty.”2
*** *** *** B
“Often, it becomes desirable to have an accused person speak
for the purposes of giving to the police an opportunity to hear his
voice and try to identify it as that of the criminal offender. A
comparison may even be desired between the voice of an accused
person and the recorded voice of a criminal which has been C
obtained by, say, telephone tapping. To facilitate proof of the crime
the police may like that the accused should be compelled to speak,-
and even that his voice as recorded may be converted into a “voice
print”
…………………………………………………………… D
……………………………………………………………
However, if the accused refuses to furnish such voice, there
is no legal sanction for compelling him to do so, and the use of
force for that purpose would be illegal.”3
E
*** *** ***
“The scope of Section 5 needs to be expanded in another aspect.
The general power of investigation given to the police under the
Criminal Procedure Code may not imply the power to require the
accused to furnish a specimen of his voice. Cases in which the
F
voice of the accused was obtained for comparison with the voice
of the criminal offender are known but the question whether the
accused can be compelled to do so does not seem to have been
debated so far in India
There is no specific statutory provision in India which
expressly gives power to a police officer or a court to require an G
accused person to furnish a specimen of his voice.”4

2
Paragraph 5.27, 87th Report of the Law Commission of India
3
Paragraph 3.16, 87th Report of the Law Commission of India
4
Paragraph 5.26, 87th Report of the Law Commission of India H
1016 SUPREME COURT REPORTS [2019] 10 S.C.R.

A 14. Section 5 of the Identification of Prisoners Act, 1920
coincidentally empowers the Magistrate to order/direct any person to
allow his measurements or photographs to be taken for the purposes of
any investigation or proceeding. It may be significant to note that the
amendments in the Cr.P.C., noticed above, could very well have been a
sequel to the recommendation of the Law Commission in its Report
B
dated 29th August, 1980 though the said recommendation was in slightly
narrower terms i.e. in the context of Section 5 of the Identification of
Prisoners Act, 1920. In this regard, it may also be usefully noticed that
though this Court in State of Uttar Pradesh vs. Ram Babu Misra5
after holding that a Judicial Magistrate has no power to direct an accused
C to give his specimen writing for the purposes of investigation had
suggested to Parliament that a suitable legislation be made on the analogy
of Section 5 of the Identification of Prisoners Act, 1920 so as to invest a
Magistrate with the power to issue directions to any person including an
accused person to give specimen signatures and writings. The
consequential amendment, instead, came by way of insertion of Section
D
311-A in the Cr.P.C by the Code of Criminal Procedure (Amendment)
Act, 2005 (Act No.25 of 2005) with effect from 23rd June, 2006.
15. The legislative response in remaining silent or acting at a “slow”
pace can always be explained by legislative concerns and considerations
of care and caution. It is in the aforesaid context and in the admitted
E absence of any clear statutory provision that the question arising has to
be answered which is primarily one of the extent to which by a process
of judicial interpretation a clear gap in the statute should be filled up
pending a formal legislative exercise. It is the aforesaid question that
we shall now turn to.
F 16. “Procedure is the handmaid, not the mistress, of justice
and cannot be permitted to thwart the fact-finding course in
litigation”6. We would like to proceed in the matter keeping the above
view of this Court in the backdrop.
17. A detailed reference to the facts of a case decided by this
G Court in “Sushil Kumar Sen vs. State of Bihar”7 is deemed appropriate.
5
A.I.R. 1980 S.C. 791
6
A.I.R. 1975 SC 349 [Vatal Nagaraj vs. R. Dayanand Sagar)
7
(1975) 1 SCC 774

H
RITESH SINHA v. STATE OF UTTAR PRADESH & ANR. 1017
[RANJAN GOGOI, CJI]

The appellant in the above case was the owner of a plot of land A
measuring about 3.30 acres located in the district of Purnea in Bihar.
The said parcel of land was acquired under the provisions of the Land
Acquisition Act, 1894. The Land Acquisition Officer by order/Award
dated 12th October, 1957 awarded compensation to the appellant(s)
therein at the rate of Rs.14 per katha. The learned Additional District
B
Judge, Purnea while hearing the reference under Section 18 of the Land
Acquisition Act, 1894 enhanced the compensation to Rs.200 per katha.
This was by order dated 18th August, 1961. The State of Bihar sought a
review of the aforesaid order dated 18th August, 1961 which was allowed
on 26th September, 1961 scaling down the compensation to Rs.75 per
katha. Not satisfied, the State of Bihar preferred an appeal before the C
High Court against the order dated 26th September, 1961 passed in the
review application granting compensation at the rate of Rs.75 per katha.
No appeal was, however, filed by the State of Bihar against the original
order dated 18th August, 1961 awarding compensation at the rate of
Rs.200 per katha. Cross appeal(s) before the High Court against the
D
order dated 26th September, 1961 passed in the review application was
filed by the appellant – landowner. The High Court by its order dated
16th February, 1968 held the review application of the State of Bihar, in
which the order dated 26th September, 1961 was passed, to be not
maintainable. However, the High Court adjudicated the case on merits
and awarded compensation to the landowner(s) at the rate of Rs.75 per E
katha. Aggrieved, the landowner – Sushil Kumar Sen approached this
Court.
Justice K.K. Mathew who delivered the lead judgment in the case
took the view that the original decree/award of the Reference Court
dated 18th August, 1961 stood superseded by the decree/award dated F
26th September, 1961 passed in the review application. However, once
the said decree/award dated 26th September, 1961 was set aside in the
cross appeal filed by the landowner(s) the earlier decree/award dated
18th August, 1961 stood revived. As there was no appeal against the
said decree/award dated 18th August, 1961 the landowner(s) would be
entitled to compensation in terms of the said original decree/award dated G
18th August, 1961.
Justice Krishna Iyer delivered a concurring opinion agreeing with
the aforesaid conclusions but expressing a thought process which would

H
1018 SUPREME COURT REPORTS [2019] 10 S.C.R.

A be of significant relevance to the issue in hand. The position can be best
explained by extracting the following observations from the opinion
rendered by Justice Krishna Iyer in Sushil Kumar Sen vs. State of
Bihar (supra)
“I concur regretfully with the result reached by the infallible logic
B of the law set out by my learned Brother Mathew, J. The mortality
of justice at the hands of law troubles a Judge’s conscience
and points an angry interrogation at the law reformer.
6.The processual law so dominates in certain systems
as to overpower substantive rights and substantial justice.
C The humanist rule that procedure should be the handmaid,
not the mistress, of legal justice compels consideration of
vesting a residuary power in Judges to act ex debito
justiciae where the tragic sequel otherwise would be wholly
inequitable. In the present case, almost every step a reasonable
litigant could take was taken by the State to challenge the
D extraordinary increase in the rate of compensation awarded by
the civil court. And, by hindsight, one finds that the very success,
in the review application, and at the appellate stage has proved a
disaster to the party. Maybe, Government might have successfully
attacked the increase awarded in appeal, producing the additional
E evidence there. But maybes have no place in the merciless
consequence of vital procedural flaws. Parliament, I hope,
will consider the wisdom of making the Judge the ultimate guardian
of justice by a comprehensive, though guardedly worded, provision
where the hindrance to rightful relief relates to infirmities, even
serious, sounding in procedural law. Justice is the goal of
F jurisprudence — processual, as much as substantive. While
this appeal has to be allowed, for reasons set out impeccably
by my learned brother, I must sound a pessimistic note that
it is too puritanical for a legal system to sacrifice the end
product of equity and good conscience at the altar of
G processual punctiliousness and it is not too radical to avert
a breakdown of obvious justice by bending sharply, if need
be, the prescriptions of procedure. The wages of procedural
sin should never be the death of rights.”
[Emphasis is ours]
H
RITESH SINHA v. STATE OF UTTAR PRADESH & ANR. 1019
[RANJAN GOGOI, CJI]

18. In the present case, the view that the law on the point should A
emanate from the Legislature and not from the Court, as expressed in
the judgment of this Court from which the reference has emanated is
founded on two main reasons, viz., (i) the compulsion to give voice sample
does in some way involve an invasion of the rights of the individual and
to bring it within the ambit of the existing law would require more than
B
reasonable bending and stretching of the principles of interpretation and
(ii) if the legislature, even while making amendments in the Criminal
Procedure Code (Act No.25 of 2005), is oblivious and despite express
reminders chooses not to include voice sample either in the newly
introduced explanation to Section 53 or in Sections 53A and 311A of
CR.P.C., then it may even be contended that in the larger scheme of C
things the legislature is able to see something which perhaps the Court is
missing.
19. Insofar as the first reservation is concerned, the same would
stand dispelled by one of the earlier pronouncements of this Court on the
subject in State of Bombay vs.Kathi Kalu Oghad (supra), relevant D
extracts of which judgment has already been set out. The following
views in the concurring opinion of Justice K.C. Das Gupta in State of
Bombay vs.Kathi Kalu Oghad (supra) would further strengthen the
view of this Court to the contrary.
“(32)………It has to be noticed that Article 20(3) of our E
Constitution does not say that an accused person shall not
be compelled to be a witness. It says that such a person
shall not be compelled to be a witness against himself. The
question that arises therefore is: Is an accused person
furnishing evidence against himself, when he gives his
specimen handwriting, or impressions of his fingers, palm F
or foot? The answer to this must, in our opinion, be in the
negative.
(33)…….the evidence of specimen handwriting or the impressions
of the accused person’s fingers, palm or foot, will incriminate him,
only if on comparison of these with certain other handwritings or G
certain other impressions, identity between the two sets is
established. By themselves, these impressions or the handwritings
do not incriminate the accused person, or even tend to do so. That
is why it must be held that by giving these impressions or specimen
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1020 SUPREME COURT REPORTS [2019] 10 S.C.R.

A handwriting, the accused person does not furnish evidence against
himself. So, when an accused person is compelled to give a
specimen handwriting or impressions of his finger, palm or foot, it
may be said that he has been compelled to be a witness; it cannot
however be said that he has been compelled to be a witness against
himself.”
B
[Emphasis is ours]
20. So far as the second basis for the view taken is concerned,
we have already expressed an opinion that what may appear to be
legislative inaction to fill in the gaps in the Statute could be on account of
C justified legislative concern and exercise of care and caution. However,
when a yawning gap in the Statute, in the considered view of the Court,
calls for temporary patchwork of filling up to make the Statute effective
and workable and to sub-serve societal interests a process of judicial
interpretation would become inevitable.

D 21. The exercise of jurisdiction by Constitutional Courts must be
guided by contemporaneous realities/existing realities on the ground.
Judicial power should not be allowed to be entrapped within inflexible
parameters or guided by rigid principles. True, the judicial function is not
to legislate but in a situation where the call of justice and that too of a
large number who are not parties to the lis before the Court, demands
E expression of an opinion on a silent aspect of the Statute, such void must
be filled up not only on the principle of ejusdem generis but on the
principle of imminent necessity with a call to the Legislature to act
promptly in the matter.
22. Illustratively, we may take the decision of this Court in
F Bangalore Water Supply & Sewerage Board vs. A Rajappa and
others8 . A lone voice of dissent against expansion of the frontiers of
judicial interpretation to fill in gaps in the Statute enunciated by Lord
Denning, L.J, in Seaford Court Estates Ltd. vs.Asher9 though did not
find immediate favour of the learned Judge’s contemporaries was
G acknowledged to have carried within itself the vision and the perception
of the future. Coincidentally, the view enunciated by Lord Justice
Denning in Seaford Court Estates Ltd. vs.Asher (supra) of ironing of
the creases in the legislation has been approved by the Indian Supreme
Court in the following words of the then Chief Justice M.H. Beg:
8
(1978) 2 SCC 213
H 9
(1949) 2 All. E.R. 155 (at 164)
RITESH SINHA v. STATE OF UTTAR PRADESH & ANR. 1021
[RANJAN GOGOI, CJI]

“147. My learned Brother has relied on what was considered in A
England a somewhat unorthodox method of construction in
Seaford Court Estates Ltd. v. Asher [(1949) 2 ALL ER 155,
164] where Lord Denning, L.J., said:
“When a defect appears a Judge cannot simply fold his
hands and blame the draftsman. He must set to work on B
the constructive task of finding the intention of Parliament
— and then he must supplement the written words so as to
give ‘force and life’ to the intention of legislature. A Judge
should ask himself the question how, if the makers of the
Act had themselves come across this ruck in the texture
of it, they would have straightened it out? He must then do C
as they would have done. A Judge must not alter the
material of which the Act is woven, but he can and should
iron out the creases.”
When this case went up to the House of Lords it appears that the
Law Lords disapproved of the bold effort of Lord Denning to D
make ambiguous legislation more comprehensible. Lord Simonds
found it to be “a naked usurpation of the legislative function under
the thin disguise of interpretation”. Lord Morton (with whom Lord
Goddard entirely agreed) observed: “These heroics are out of
place” and Lord Tucker said “Your Lordships would be acting in E
a legislative rather than a judicial capacity if the view put forward
by Denning, L.J., were to prevail.”
148.Perhaps, with the passage of time, what may be
described as the extension of a method resembling the
“arm-chair rule” in the construction of wills. Judges can F
more frankly step into the shoes of the legislature where
an enactment leaves its own intentions in much too
nebulous or uncertain a state. In M. Pentiah v. Muddala
Veeramallappa [AIR 1961 SC 1107, 1115] Sarkar, J., approved
of the reasoning, set out above, adopted by Lord Denning. And, I
must say that, in a case where the definition of “industry” is left in G
the state in which we find it, the situation perhaps calls for
some judicial heroics to cope with the difficulties raised.”
[Emphasis is ours]

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1022 SUPREME COURT REPORTS [2019] 10 S.C.R.

A 23. A similar view of Lord Justice Denning in Magor & St.
Mellons Rural District Council vs. Newport Corporation10 would be
equally apt to notice.
“we sit here to find out the intention of Parliament and of ministers
and carry it out, and we do this better by filling in the gaps and
B making sense of the enactment than by opening it up to destructive
analysis.”
24. Would a judicial order compelling a person to give a sample of
his voice violate the fundamental right to privacy under Article 20(3) of
the Constitution, is the next question. The issue is interesting and debatable
C but not having been argued before us it will suffice to note that in view
of the opinion rendered by this Court in Modern Dental College and
Research Centre and others vs.State of Madhya Pradesh and
others11,Gobind vs. State of Madhya Pradesh and another12 and the
Nine Judge’s Bench of this Court in K.S. Puttaswamy and another vs.
Union of India and others13 the fundamental right to privacy cannot be
D construed as absolute and but must bow down to compelling public
interest. We refrain from any further discussion and consider it
appropriate not to record any further observation on an issue not
specifically raised before us.
25. In the light of the above discussions, we unhesitatingly take
E 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 exercise of jurisdiction vested
F in this Court under Article 142 of the Constitution of India. We order
accordingly and consequently dispose the appeals in terms of the above.

Kalpana K. Tripathy Appeals disposed of.

G
10
(1951) 2 All.E.R. 1226
11
(2016) 7 SCC 353
12
(1975) 2 SCC 148
13
(2017) 10 SCC 1
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