Supreme Court of India
RITESH SINHAversusTHE STATE OF UTIAR PRADESH & ANR.
- Citation
- 2012 INSC 571
- Decided
- 7 December 2012
- Disposal
- Matter referred to larger bench
- Bench
- AFTAB ALAM
Holding
Taking a voice sample is non‑testimonial evidence not barred by Article 20(3), and a magistrate may order it under the ancillary powers derived from Section 5 of the Identification of Prisoners Act and Section 53 of the CrPC.
Summary
The appellant was summoned by a Chief Judicial Magistrate to give a voice sample to aid the investigation of an alleged recruitment scam. He challenged the summons on the ground that it violated Article 20(3) of the Constitution and that no statutory provision empowered a magistrate to order a voice sample. The Supreme Court held that a voice sample is non‑testimonial physical evidence and does not fall within the protection of Article 20(3). While the Court noted the absence of an explicit provision, it interpreted Section 5 of the Identification of Prisoners Act together with Section 53 of the CrPC as conferring an ancillary power on the magistrate to direct the taking of a voice sample. Consequently, the order summoning the appellant for a voice sample was upheld. The appeal was dismissed.
Issues considered
- Whether Article 20(3) of the Constitution protects an accused from being compelled to give a voice sample during investigation.
- Whether, in the absence of a specific provision in the CrPC, a magistrate can authorize the police to record a voice sample of an accused.
Legislation cited
- Code of Criminal Procedure, 1973s. 2(h), s. 311A, s. 53, s. 54A
- Constitution of Indias. Art.20(3)
- Identification of Prisoners Act, 1920s. 2(a), s. 5, s. 6
- Indian Evidence Act, 1872s. 7, s. 73
Subjects
voice sampleself‑incriminationArticle 20(3)magistrate powerIdentification of Prisoners Actforensic evidencecriminal investigation
Judgment
[2012] 11 S.C.R. 683
RITESH SINHA A
v.
THE STATE OF UTIAR PRADESH & ANR.
(Criminal Appeal No. 2003 of 2012}
DECEMBER 7, 2012.
B
[AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]
Investigation:
Identification of accused - Voice sample - Power of c
Magistrate to issue summons to accused to appear before
Investigating Officer and give his voice sample - Held: Taking
voice sample of an accused by the police during investigation
is not hit by Art. 20(3) of the Constitution - However, there is
no specific provision either in the Code of Criminal Procedure 0
or in any other Jaw under which a Magistrate can authorize the
investigating agency to record voice sample of a person
accused of an offence - There being difference of opinion as
regards the interpretation of the provisions of s.53 CrPC and
s. 5 of the Prisoners Act so as to trace the power of the
Magistrate to authorise obtaining of voice sample of the E
accused, the matter referred to a bench of three Judges -
Code of Criminal Procedure, 1973 - ss.2(h), 53, Explanation
(a), and s.54A - Identification of Prisoners Act, 1920 - s. 5 -
Constitution of India, 1950 - Art.20(3).
F
The instant appeal was filed by the appellant
challenging the order of the High Court whereby it
rejected the petition filed by the appellant u/s 482 Cr.P.C.
seeking to quash the order of the Chief Judicial
Magistrate issuing summons to the appellant to appear G
before the investigating officer and give his voice sample
in the course of investigation into an FIR alleging
collection of money from people for getting them recruited
in the police department. The questions for consideration
683 H
684 SUPREME COURT REPORTS [2012] 11 S.C.R.
A before the Court were: (i) "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
from being compelled to give his voice sample during the
B course of investigation into an offence?" and (ii)
"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
c person accused of an offence?"
Referring the matter to a bench of three Judges, the
Court
HELD: (Per Ranjana Prakash Desai, J.)
D
1. If an accused person is directed to give his voice
sample during the course of investigation of an offence,
there is no violation of his right under Art. 20(3) of the
Constitution. When an accused is asked to give voice
E sample, he is not giving any testimony of the nature of a
personal testimony. It cannot be said, by any stretch of
imagination that by giving voice sample, the accused
conveyed any information based upon his personal
knowledge and became a witness against himself. The
accused by giving the voice sample merely gives
F 'identification data' to the investigating agency. He is not
subjected to any testimonial compulsion. Thus, taking
voice sample of an accused by the police during
investigation is not hit by Art. 20(3). [Para 18) [710-F-G;
711-B-D]
G
State of Bombay v. Kathi Kalu Oghad & Ors., (1962) 3
SCR 10 - relied on.
Se/vi and others v. State of Kamataka 2010 (5) SCR 381
H =(2010) 7 SCC 263; and M.P. Sharma v. Salish Chandra &
RITESH SINHA v. STATE OF UTIAR PRADESH & 685
ANR.
Ors. 1954 SCR 1077; Shyamla/ Mohan/al v. State of Gujarat A
1965 2 SCR 457; V.S. Kuttan Pillai v. Ramakrishnan & Anr.
=
1980 (1) SCR 673 (1980) 1 SCC 264 - referred to.
2.1 There is no specific provision either in the Code
or in any other law under which a Magistrate can
8
authorize the investigating agency to record voice
sample of a person accused of an offence. The Law
Commission, in its 87th Report, suggested that the
Prisoners Act should be amended inter a/ia to include
voice sample within the ambit of s.5 thereof. Parliament C
however has not amended the Prisoners Act nor is the
Code of Criminal Procedure, 1973 amended to add any
such provision therein. Resultantly, there is no specific
legal provision under which such a direction can be
given. [Para 19] [711-E-G]
D
2.2 However, a careful study of the relevant
provisions of the Code and other relevant statutes
discloses a scheme which aims at strengthening the
hands of the investigator. Sections 53, 54A and 311A of
the Code, s.73 of the Evidence Act and the Prisoners Act E
reflect Parliament's efforts in that behalf. [Para 20) [711-
G-H; 712-A]
2.3 Tape recorded conversation is a relevant fact and
is admissible u/s 7 of the Evidence Act. In view of this
legal position, to make the tape recorded conversation F
admissible in evidence, there must be provision under
which the police can get it identified. For that purpose,
the police must get the voice sample of the accused. The
purpt>se of taking voice sample which is non-testimonial
physical evidence is to compare it with tape recorded G
conversation. It is a physical characteristic of the
accused. It is identificatory evidence. [Para 28] [716-D-E-
F]
Central Bureau of Investigation, New Delhi v. Abdul H
686 SUPREME COURT REPORTS [2012] 11 S.C.R.
A Karim Ladsab Telgi and others 2005 Crl. L.J. 2868 -
approved.
Rakesh Bisht v. C.8.1. 2007 (1) JCC 482 and MANU/DE/
0338/2007 - disapproved.
B Amrit Singh v. State of Punjab 2006(8) Suppl. SCR 889
= (2006) 12 sec 79 - distinguished.
R. M. Malkani v. State of Maharashtra 1973 (2)
SCR 417= (1973) 1 SCC 471 - referred to.
c 2.4 Collection of voice sample of an accused is a step
in investigation. It is the duty of a Police Officer or any
person (other than a Magistrate) authorized by a
Magistrate to collect evidence, and proceedings under
the Code for the collection of evidence are included in
D 'Investigation'. The investigating officer cannot take
physical evidence from an accused unless he is
authorized by a Magistrate to do so. He cannot assume
powers which he does not possess. He can only act on
the strength of a direction given to him by a Magistrate
E and the Magistrate must have power to issue such a
direction. Though, the subordinate criminal courts do not
have inherent powers, they can exercise such incidental
powers as are necessary to ensure proper investigation.
[Para 22] [712-H; 713-A, F-H; 714-B]
F
Bindeshwari Prasad Singh v. Kali Singh 1977 (1)
SCR 125 = (1977) 1 SCC 57; Ada/at Prasad v. Roop/a/ Jindal
(2004) 7 SCC 338 and Sakiri Vasu v. State of Uttar Pradesh
2007 (12) SCR 1100 = (2008) 2 SCC 409; and State of West
G Bengal v. Swapan Guha 1982 (3) SCR 121 = (1982) 1 SCC
561 - referred to.
2.5 Prisoners Act is aimed at securing identification
of the accused. It is an Act to authorize the taking of
measurements and photographs of convicts and others.
H Section 5 provides for power of a Magistrate to order a
RITESH SINHA v. STATE OF UTTAR PRADESH & 687
ANR ..
person to be measured or photographed. Voice prints are A
like finger prints. Each p11rson has a distinctive voice with
characteristic featurek. It is clear that voiceprint
identification of voice involves measurement of
frequency and intensity of sound waves. Therefore,
measuring frequency or intensity of the speech-sound s
waves falls within the ambit of inclusive definition of the
term 'measurement' appearing in the Prisoners Act. Voice
sample can be included in the inclusive definition of the
term "measurements" appearing in s. 2(a) of the
Prisoners Act, which states that measurements include c
finger impressions and foot impressions. If voice prints
are like finger prints, they would be covered by the term
'measurements'. Therefore, a Magistrate acting uls 5 of
the Prisoners Act can give a direction to any person to
give his voice sample for the purposes of any
0
investigation or proceeding under the Code. [Para 23, 30-
31] [714-F, G; 718-C-D; 719-F-H, 720-A]
"Scientific Evidence in Criminal Cases" by Andre A.
Moenssens, Ray Edward Moses and Fred E. lnbau, Chapter
12; "Law Enforcement and Criminal Justice - an introduction" E
by Bennett-Sandler, Frazier, Torres, Waldron; and Law
Commission of India, 87th Report and "Law Enforcement
and Criminal Justice - an introduction" - referred to.
State of U.P. v. Ram Babu Misra (1980) 2 SCC 242 - F
referred to.
2.6 Section 53 of the Code pertains to examination
of the accused by medical practitioner at the request of
a police officer. Explanation (a) to s.53 states what is
'examination'. It is an inclusive definition. It states that the G
examination shall include the examination of blood,
blood stains, semen, swabs in case of sexual offences,
sputum and sweat, hair samples and finger nail clippings
by the use of modern and scientific techniques including
DNA profiling and such other tests which the registered H
688 SUPREME COURT REPORTS [2012) 11 S.C.R.
A medical practitioner thinks necessary in a particular case.
This explanation was substituted by the Code of Criminal
Procedure (Amendment) Act, 2005. It cannot be said that
the term "such other tests" mentioned in Explanation (a)
is controlled by the words "which the registered medical
B practitioner thinks necessary". Under s.53(1) the
registered medical practitioner can act only at the request
of a police officer. Obviously, he can have no say in the
process of investigation. The decision to get the accused
examined is to be taken by the investigating officer and
C not by the medical practitioner. It is the expertise of the
medical practitioner which the investigator uses to decide
the method of the test. [Para 36-37] [723-E-H; 724-B-D]
2.7 Voice sample is physical non-testimonial
evidence. It does not communicate to the investigator any
D information based on personal knowledge of the
accused which can incriminate him. Voice sample cannot
be held to be conceptually different from physical non-
testimonial evidence like blood, semen, sputum, hair etc.
Taking of voice sample does not involve any testimonial
E responses. [Para 41] [725-H; 726-A-B]
2.8 The tenor of the judgment in Se/vi makes it clear
that tests pertaining to physical non-testimonial evidence
can be included in the purview of the words "and such
F other tests" with the aid of the doctrine of 'ejusdem
generis'. The tests mentioned in Explanation (a) are of
bodily substances, which are examples of physical
evidence. Even if voice sample is not treated as a bodily
substance, it is still physical evidence involving no
transmission of personal knowledge. There is no
G difficulty in including voice sample test in the phrase
"such other tests" appearing in Explanation (a) to s.53 by
applying the doctrine of 'ejusdem generis' as it is a test
pertaining to physical non-testimonial evidence like
blood, sputum etc. Such interpretation of Se/vi would be
H in tune with the general scheme of the Code which
RITESH SINHA v. STATE OF UTTAR PRADESH & 689
ANR.
contain_s provisions for collection of evidence for A
comparison or identification at the investigation stage in
order to strengthen the hands of the investigating
agency. [Para 41] [726-E-H; 727-A]
2.9 Section 53 talks of examination by registered 8
medical practitioner of the person of the accused but,
does not use the words "medical examination". Similarly,
Explanation (a) to s.53 does not use the words "medical
examination". Section 53 need not be confined to medical
examination. It must be remembered that s.53 is primarily C
meant to serve as aid in the investigation. Examination
of the accused is to be conducted by a medical
practitioner at the instance of the police officer, who is
in charge of the investigation. On a fair reading of s.53 of
the Code, under that Section, the medical practitioner can
conduct the examination or suggest the mt:thod of D
examination. [Para 42] [727-B-C-F-G]
2.10 By adding the words 'and such other t.ests' in the
definition of term contained in Explanation (a) to s.53 of
the Code, the legislature took care of including within the E
scope of the term 'examination' similar tests which may
become necessary in the facts of a particular case.
Legislature exercised necessary caution and made the
said definition inclusive, not exhaustive and capable of
expanding to legally permissible limits with the aid of the F
doctrine of 'ejusdem generis'. [Para 43] [728-A-C]
2.11 Section 54A of the Code makes provision for
identification of arrested persons. It states that where a
person is arrested on a charge of committing an offence
and his identification by any other person or persons is G
considered necessary for the purpose of investigation of
such offence, the court having jurisdiction, may on the
request of the officer in charge of a police station, direct
the person so arrested to subject himself to identification
by any person or persons in such manner as the court H
690 SUPREME COURT REPORTS [2012] 11 S.C.R.
A may deem fit. Identification of the voice is precondition
for admission of tape recorded conversation in evidence.
Since s.54A of the Code uses the words "the Court, ...
may ... direct the person so arrested to subject himself
to identification by any person or persons in such
B manner as the court may deem fit", voice sample can be
identified by means of voice identification parade u/s 54A
or by some other person familiar with the voice. [Para 44]
[728-D-F]
R.M. Malkani v. State of Maharashtra 1973 (2) SCR 417
C =
(1973) 1 SCC 471; Nilesh Paradkar v. State of Maharashtra
=
2011 (3) SCR 792 (2011) 4 sec 143 and Mohan Singh
=
v. State of Bihar 2011 (12) SCR 327 (2011) 9 SCC 272 -
referred to.
D Levack, Hamilton Caesar & Ors. v. Regional Magistrate,
Wynberg & Anr. [2003] 1 All SA 22 (SCA) (28th November
2002) - referred to
2.12 The Magistrate's power to authorize the
E investigating agency to record voice sample of the person
accused of an offence can be traced to s.5 of the
Prisoners Act and s.53 of the Code. The Magistrate has
an ancillary or implied power uls 53 of the Code to pass
an order permitting taking of voice sample to aid
F investigation. [Para 47] [732-F-G]
2.13 The principle that a penal statute should be
strictly construed is not of universal application.
Therefore, whether the penal statute should be given
strict interpretation or not will depend on facts of each
G case. Considerations of public health, preservation of.
nation's wealth, public safety may weigh with the court
in a given case and persuade it not to give a narroW-
construction to a penal statute. In the facts of the instant
case, a narrow construction to the provisions of the
H Prisoners Act and s.53 of the Code need not be given.
RITESH SINHA v. STATE OF UTTAR PRADESH & 691
ANR.
Judicial note can be taken of the fact that there is a great A
deal of technological advance in means of
communication and use thereof in the commission of
crimes. Therefore, in order to strengthen the hands of
investigating agencies, purposive interpretation need be
given to the provisions of the Prisoners Act and s.53 of 8
the Code instead of giving a narrow interpretation to them.
However, Parliament needs to bring in more clarity and
precision by amending the Prisoners Act. The Code also
needs to be suitably amended. Technological and
scientific advance in the investigative process could be C
more effectively used if required amendments are
introduced by Parliament. This is necessary to strike a
balance between the need to preserve the right against
self incrimination guaranteed under Art. 20(3) of the
Constitution and the need to strengthen the hands of the
investigating agency to bring criminals to book. [Para 48] D
[733-B-E-G; 734-A-D]
Murlidhar Meghraj Loya v. State of Maharashtra 1977
(1) SCR 1 =AIR 1976 SC 1929; Kisan Trimbak Kothula &
Ors. v. State of Maharashtra 1977 (2) SCR 102 =AIR 1977 E
SC 435 and State of Maharashtra v. Natwarlal Damodardas
Soni 1980 (2) SCR 340 =AIR 1980 SC 593 - referred to.
2.14 Thus, there is no infirmity in the impugned order
passed by the High Court confirming the order passed F
by Chief Judicial Magistrate, summoning the appellant to
the court for, recording the sample of his voice. [Para 49]
[734-E]
S.N. Sharma v. Bipen Kumar Tiwari 1970 (3) SCR 946
= (1970) 1 SCC 653; Ba/raj Bhalla v. Sri Ramesh Chandra G
Nigam AIR 1960 All 157; Regional Provident Fund
Commissioner v. Hooghly Mills Co. Ltd. And others (2012) 2
SCC 489; H.N. Rishbud & Anr. V. State of Delhi 1955
SCR 1150 =AIR 1955 SC 196; Mahipal Maderna & Anr. V.
State of Rajasthan 1971 Cr.L.J. 1405; Jamshed v. State of H
692 SUPREME COURT REPORTS [2012] 11 S.C.R.
A U.P. 1976 Cri.L.J. 1680; State of U.P. v. Boota Singh 1979
=
(1) SCR 298 (1979) 1 sec 31- cited
Bennion on Statutory Interpretation 5th Edition at P.
516- cited
B Per Aftab Alam, J. (Dissenting, but partly concurring):
1. Broadly speaking, taking voice sample of an
accused by the police during investigation is not hit by
Article 20(3) of the Constitution. [para 5] [736-D]
c State of Bombay v. Kathi Ka/u Oghad & Others (1962) 3
SCR 10; Se/vi and others v. State of Karnataka 2010 (5)
=
· SCR 381 (2010) 7 SCC 263 - referred to.
2.1 On the question of compelling the accused to give
D voice sample, the law must come from the legislature and
not through the court process. First, because 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
E more than reasonable bending and stretching of the
principles of interpretation. Secondly, the legislature even
while making amendments in the Code of Criminal
Procedure 2005, aimed at strengthening the investigation,
despite express reminders chose not to include voice
F sample either in the newly introduced explanation to s.53
or in ss.53A, and 311A. [para 2] [735-D-F]
2.2 There is no provision in the Code of Criminal
Procedure to compel the accused to give his voice
sample and, therefore, a Magistrate cannot authorize the
G investigating agency to record the voice sample of the
person accused of an offence, regardless of the
constitutional guarantee against self-incrimination and
assuming that in case a provision in that regard is made
in the law that would not offend Art. 20 (3) of the
H Constitution. [para 4 and 7] [736-C-F-G; 737-A]
RITESH SINHA ii. STATE OF UTIAR PRADESH & 693
ANR.
2.3 Explanation (a) to s.53 of the Code of Criminal A
Procedure, 1973 cannot be said to include voice sample
and the ratio of the decision in Se/vi does not enlarge but
restricts the ambit of the expressions 'such other tests'
occurring in the Explanation. The Explanation in question
deals with material and tangible things related to the B
'
human body and not to something disembodied as voice.
[para 16-17) [740-B-C]
2.4 Section 53, CrPC applies to a situation where the
examination of the person of the accused is likely to
provide evidence as to the commission of an offence. C
Whether or not the examination of the person of the
accused would afford evidence as to the commission of
the offence undoubtedly rests on the satisfaction of the
police officer not below the rank of sub-inspector. But,
once the police officer makes a request to the registered D
medical practitioner for the examination of the person of
the accused, what other tests (apart from those expressly
enumerated) might be necessary in a particular case can
only be decided by the medical practitioner and not the
police officer referring the accused to him. Therefore, any E
tests other than those expressly mentioned in the
Explanation can only be those which the registered
medical practitioner would think necessary in a particular
case. And further that in any event a registered medical
practitioner cannot take a voice sample. [para 18) [740- F
D-G]
2.5 The principal object of the Identification of
Prisoners ~ct, 1920 is to sanction certain coercive
measures (which would otherwise invite criminal or
tortuous liability) in order to facilitate the identification of G
(i) convicts, (ii) persons arrested in connection with
certain offences, and (iii) persons ordered to give security
in certain cases. It is to be noted that the expression
"measurements" occurs not only in s.5 of the 1920 Act
but also in ss. 3 and 4 thereof. Thus, if the term H
694 SUPREME COURT REPORTS [2012] 11 S.C.R.
A "measurements" is to be read to include voice sample
then on arresting a person in a case relating to an offence
punishable with rigorous imprisonment for a term of one
year or upwards (and voice sample would normally be
required only in cases in which the punishment is one
B year or upward) it would be open to the police officer (of
any rank) to require the arrested person to give his/her
voice sample on his own and without seeking any
direction from the Magistrate u/s 5. Further, applying the
same parameters, not only voice sample but many other
c medical tests, for instance, blood tests such as lipid
profile, kidney function test, liver function test, thyroid
function test etc., brain scanning etc. would equally
qualify as "measurements" within,the meaning of the
Identification of Prisoners Act. Thus, on arresting a
person in a case relating to an offence punishable with
0
rigorous imprisonment for a term of one year or upwards
it would be possible for the police officer (of any rank) to
obtain not only the voice sample but the full medical
profile of the arrested person without seeking any
direction from the magistrate u/s 5 of the Identification of
E Prisoners Act or taking recourse to the provisions of s.53
or 53A of the Code of Criminal Procedure. It would be
impossible to extend the provisions of the Identification
of Prisoners Act to that extent. [para 21,30-31) [741-F-G;
745-F-H; 746-A-C]
F
2.6 In exercise of the rule-making powers u/s 8 of the
1920 Act, some of the State Governments have framed
rules. From a perusal of the rules so framed, it would
appear that all the State Governments· understood
G "measurements" to mean the physical measurements of
the body or parts of the body. The framing of the rules
by the State Government would not be binding on this
Court in interpreting a provision in the rules. But it needs
to be borne in mind that unless the provision are
incorporated in the Act in regard to the manner of taking
H voice sample and the person competent to take voice
RITESH SINHA v. STATE OF UTIAR PRADESH & 695
ANR.
sample etc. there may be difficulty in carrying out the A
direction of the court. [para 32] [746-D-F]
Central Bureau of Investigation, New Delhi v. Abdul
Karim Ladsab Telgi and others 2005 Crl.L.J. 2868 -
disapproved.
B
State of Uttar Pradesh v. Ram Babu Misra 1980 (2)
=
SCR 1067 (1980) 2 SCC 343 - referred to.
Rakesh Bisht v. Central Bureau of Investigation 2007 Cri.
=
L.J. 1530 MANU/DEI0338/2007 - approved. c
Law Commission of India, 87th Report - referred to.
2.7 It is pertinent to note that the Law Commission
of India in its 87th Report submitted in 1980 had
recommended appropriate amendments in relevant D
provisions to include voice identification. However, the
Code of Criminal Procedure was amended in 2005 when
the Explanation was added to s.53, and ss. 53A and 311A
were inserted into the Code. Voice sample was not
included either in the Explanation to s.53 or s.311A. [Para E
37, 41] [749-A-B; 751-C]
2.8 Therefore, the court should not insist that voice
sample is included in the definition of "measurements"
under the Identification of Prisoners Act and in the
Explanation to s.53 of the Code of Criminal Procedure. F
[Para 42] [751-D-E]
3. In view of the difference of opinion, the case be·
listed for hearing before a bench of three Judges. [para
45] [751-G] G
Case Law Reference:
Per (Smt.) Ranjana Prakash Desai, J.
(2004) 1 sec 338 referred to Para 5 H
696 SUPREME COURT REPORTS [2012] 11 S.C.R.
A 1982 (3) SCR 121 referred to para 5
2010 (5) SCR 381 referred to para 5
1970 (3) SCR 946 cited para 5
(1980) 2 sec 242 referred to Para 5
B
AIR 1960 All 157 cited para 5
(2012) 2 sec 489 cited para 5
(1962) 3 SCR 10 relied on Para 6
c
1954 SCR 1077 relied on Para 10
2007 (12) SCR 1100 referred to Para 5
2007 (1) JCC 482 =
D MANU/DE/0338/2007 disapproved Para 6
2005 Crl.L.J. 2868 approved para 6
1955 SCR 1150 cited para 7
E 1971 Cr.L.J. 1405 cited para 7
1976 Cri.L.J. 1680 cited para 7
1g.79 (1) SCR 298 cited para 7
1965 2 SCR 457 referred to para 16
F
1980 (1) SCR 673 referred to para 16
1977 (1) SCR 125 referred to Para 22
2006(8) Suppl. SCR 889 distinguished Para 24
G
2011 (3) SCR 792 referred to Para 45
2011 (12) SCR 327 referred to Para 45
[2003] 1 All SA 22 (SCA) referred to para 46
H
RITESH SINHA v. STATE OF UTIAR PRADESH & 697
ANR.
1977(1) SCR 1 referred to Para 48 A
1977 (2) SCR 102 referred to Para 48
1980 (2) SCR 340 referred to Para 48
Per Aftab Alam, J. B
[1962] 3 SCR 10 referred to para 5
2010 (5) SCR 381 referred to para 5
2005 Crl.L.J. 2868 disapproved para 33
c
2007 Cri. L.J. 1530=
MANU/DE/0338/2007 approved Para 33
1980 (2) SCR 1067 referred to Para 36
D
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2003 of 2012.
From the Judgment and Order dated 09.07.2010 of the
High Court of Judicature at Allahabad in Criminal Appeal No.
3272 of 2010. E
Aman Ahluwalia (AC), Siddhartha Dave, Jemliben Ao,
Vibha Datta Makhija, R.K. Dash, Atif Suhrawardy, Abhisth
Kumar (for Kamlendra Mishra) for the Appearing Parties.
The Judgments of the Court was delivered by F
(SMT.) RANJANA PRAKASH DESAI, J. 1. Leave
granted.
2. On 7/12/2009, one Prashant Kapil, In-charge, G
Electronics Cell, P.S. Sadar Bazar, District Saharanpur lodged
a First Information Report alleging that one Dhoom Singh in
connivance with the appellant was collecting money from people
on the pretext that he would get them recruited in the police
department. After his arrest, one mobile phone was seized from H
698 SUPREME COURT REPORTS [2012] 11 S.C.R.
A Dhoom Singh. As the police wanted to verify whether the
recorded conversation, which is in their possession, is between
accused Dhoom Singh and the appellant, they needed voice
sample of the appellant. The police, therefore, filed an
application before learned Chief Judicial Magistrate, Janpad
B Saharanpur, praying that the appellant be summoned to the
court for recording the sample of his voice. On 8/1/2010,
learned Chief Judicial Magistrate, Saharanpur issued
summons to the appellant to appear before the investigating
officer and give his voice sample. The appellant approached
C the Allahabad High Court under Section 482 of the Code of
Criminal Procedure, 1973 (for short, "the Code") for quashing
of the said order. The High Court by the impugned order dated
9/7/2010 rejected the said appli\;ation, hence, this appeal by
special leave.
D 3. In my view, two important questions of law raised in this
appeal, which we need to address, are as under:
"(i) Whether Article 20(3) of the Constitution of India,
which protects a person accused of an offence from
E being compelled to be a witness against himself,
extends to protecting such an accused from being
compelled to give his voice sample during the
course of investigation into an offence?
(ii) Assuming that there is no violation of Article 20(3)
F 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?"
G
4. We have heard, at considerable length, Mr. Siddhartha
Dave, learned counsel for the appellant, Mr. Aman Ahluwalia,
learned amicus curiae and Mr. R.K. Dash, learned counsel for
the respondent- State of Uttar Pradesh. We have also perused
H the written submissions filed by them.
RITESH SINHA v. STATE OF UTIAR PRADESH & 699
ANR. [RANJANA iPRAKASH DESAI, J.]
5. Mr. Dave, learned counsel for the appellant, at the A
outset, made it clear that he was not pressing the challenge that
the order passed by the Magistrate violates the appellant's
fundamental right of protection from self-incrimination as
guaranteed under Article 20(3) of the Constitution. Counsel
submitted, however, that there is no provision in the Code or B
·in any other law which authorizes the police to make an
application for an order directing the accused to permit
recording of his voice for voice sample test. Counsel submitted
that a Magistrate has no inherent powers and, therefore,
learned Magistrate could not have given such a direction c
(Ada/at Prasad v. Roop/a/ Jinda/1). Counsel submitted that
because there is no other provision providing for a power, it
ought not to be read in any other provision (State of U.P. v. Ram
Babu Misra 2, S.N. Sharma v. Bipen Kumar Tiwari3). Counsel
pointed out that in Ram Babu Misra, this Court restricted the D
scope of Section 73 of the Indian Evidence Act and took-out
from the purview of Section 5 of the Identification of Prisoners
Act, 1920 (for short, "the Prisoners Act), handwritings and
signatures. As suggested by this Court, therefore, the Code
was amended and Section 311A was inserted. Counsel
submitted that Section 5 of the Prisoners Act is inapplicable E
to the present case because it is enacted only for the purpose
of keeping a record of the prisoners and other convicts and not
for collection of evidence (Ba/raj Bhalla v. Sri Ramesh
Chandra Nigam4). Counsel submitted that this is supported by
Section 7 of the Prisoners Act, which provides for destruction F
of photographs and records of measurement on acquittal. The
term "measuremenf' defined in Section 2(a) of the Prisoners
Act covers only those things which could be physically
measured. Counsel submitted that the Prisoners Act, being a
penal statute, the term measurement appearing therein must G
1. (2004) 1 sec 338.
2. (1980) 2 sec 242.
3. (1970) 1 sec 653.
4. AIR 1960 All 157. · H
700 SUPREME COURT REPORTS (2012] 11 S.C.R.
A be given a restricted meaning (Regional Provident Fund
Commissioner v. Hooghly Mills Co. Ltd. and others5). Counsel
submitted that investigation has to be conducted within the
parameters of the Code. It is not uncontrolled and unfettered
(State of West Bengal v. Swapan Guha6). Counsel submitted
B that the High Court judgments. where unamended Section 53
of the Code is involved, are not relevant. Counsel submitted that
Explanation (a) to Section 53 of the Code was introduced in
2005 and, therefore, those judgments cannot be relied upon for
interpreting the said Section as it stands today. Counsel
C submitted that various examinations listed in the said
Explanation are the ones for which the police can have the
accused examined by a medical practitioner. These tests are
all of physical attributes present in the body of a person like
blood, nail, hair etc., which once taken can be examined by
modern and scientific techniques. Voice sample specifically has
0
not been included as one of the tests in the said Explanation
even though the amendment was made in 2005 when
Parliament was well aware of such test being available and,
has, therefore, been intentionally omitted. Counsel submitted
that the words "such other tests" mentioned in the said
E Explanation are controlled by the words "which the registered
medical practitioner thinks necessary". Therefore, the
discretion, as to the choice of the test, does not vest in the
police but it vests in the medical practitioner. This would clearly
exclude voice test on the principle of ejusdem generis. Counsel
F submitted that in Se/vi and others v. State of Kamataka 7 this
Court has held that Section 53 of the Code has to be given a
restrictive interpretation and not an expansive one. Counsel
submitted that the decision of this Court in Sakiri Vasu v. State
of Uttar Pradesh 8 is inapplicable since to do an act under
G ancillary power the main power has to be conferred, which has
5. c2012i 2 sec 489.
6. (1982) 1 sec 561.
1. (201oi 1 sec 263.
H 8. (2009) 2 sec 409.
RITESH SINHA v. STATE OF UTTAR PRADESH & 701
ANR. [RANJANA PRAKASH DESAI, J.]
not been conferred in this case. Therefore, there is no question A
of resorting to ancillary power. Counsel submitted that the High
Court fell into a grave error in refusing to quash the order
passed by learned Magistrate summoning the appellant for the
purpose of giving sample of his voice to the investigating
officer. B
6. Mr. Aman Ahluwalia, learned Amicus Curiae has
submitted a very detailed and informative note on the issues
involved in this case. Gist of his submissions could be stated.
Counsel submitted that voice sample is only a material for C
comparison with something that is already in possession of the
investigating agency. Relying on 11 Judges' Bench decision
of this court in State of Bombay v. Kathi Kalu Oghad & Ors. 9,
counsel submitted that evidence for such identification
purposes would not attract the privilege under Article 20(3) of
the Constitution. According to learned counsel, there is no D
specific provision enabling the Magistrate to direct an accused
to give his voice sample. There are certain provisions of the
Code in which such power can be read into by the process of
implication viz. Section 2(h), Section 53, Section 311A and
Section 54A. So far as Section 311 A of the Code is E
concerned, counsel however, fairly pointed out that in Rakesh
Bisht v. C.B.1. 10 the Delhi High Court has held that with the aid
of Section 311A of the Code the accused cannot be compelled
to give voice sample. Counsel also relied on Section 5 of the
Prisoners Act and submitted that it expressly confers power on F
the Magistrate to direct collection of demonstrative evidence
during investigation. Counsel submitted that in Central Bureau
of Investigation, New Delhi v. Abdul Karim Ladsab Telgi and
others11 the Bombay High Court has interpreted the term
"measurement" appearing in Section 5 of the .Prisoners Act G
expansively and purposefully to include measurement of voice
i.e. speech sound waves. Counsel submitted that Section 53
9. (1962) 3 SCR 10.
10. 2007 (1) JCC 482 and MANU/DE/033812007.
11. 2005 Cr1.L.J. 2868. H
702 SUPREME COURT REPORTS [2012] 11 S.C.R.
A of the Code could be construed expansively on the basis of
presumption that an updating construction can be given to the
statute (Bennion on Statutory lnterpretation' 2). Relying on
Se/vi. counsel submitted that for the purpose of Section 53 of
the Code, persons on anticipatory bail would be deemed to be
B arrested persons. It is, therefore, reasonable to assume that
where the person is not actually in the physical custody of the
police, the investigating agency could approach the Magistrate
for an order directing the person to submit himself for
examination under Section 53 of the Code. Counsel also
c submitted that in Sakiri Vasu, this Court has referred to the
incidental and implied powers of a Magistrate during
investigation. Counsel submitted that in Se/vi, Explanation to
Section 53 has been given a restrictive meaning to include
physical evidence. Since voice is physical evidence, it would
fall within the ambit of Section 53 of the Code. The Magistrate
0
has, therefore, ancillary or implied powers under Section 53 of
the Code to direct a person to give voice sample in order to
aid investigation. Counsel submitted that the most natural
construction of the various statutes may lead to the conclusion
that there is no power to compel a person to give voice sample.
E However, the administration of justice and the need to control
crime effectively require the strengthening of the investigative
machinery. While considering various provisions of law this
angle may be kept in mind.
F 7. Mr. Dash, learned counsel for the State of Uttar Pradesh
submitted that the definition of the term 'investigation'
appearing in the Code is inclusive. It means collection of
evidence for proving a particular fact. A conjoint reading of the
definition of the term 'investigation' and Sections 156 and 157
G of the Code would show that while investigating a crime, the
police have to take various steps (H.N. Rishbud & Anr. v. State
of Delh113 ). Counsel pointed out that in Se/vi, meaning and
12. 5th Edition at P. 516.
H 13. AIR 1955 SC 196.
RITESH SINHA v. STATE OF UTTAR PRADESH & 703
ANR. [RANJANA PRAKASH DESAI, J.]
scope of the term 'investigation' has been held to include A
measures that had not been enumerated in the statutory
provisions. In this connection, in Se/vi. this Court took note of
Rajasthan High Court judgment in Mahipa/ Madema & Anr. v.
State of Rajasthan 14 and Allahabad High Court judgment in
Jamshed v. State of U.P. 15 Relying on Kathi Kalu Oghad & B
Ors. 15 , counsel submitted that taking of thumb impressions,
impression of palm or foot or fingers or specimen writing or
exposing a part of the body by an accused for the purpose of
identification is not furnishing evidence in the larger sense
because Constitution makers never intended to put obstacles c
in the way of effective investigation. Counsel also relied on State
of U.P. v. Boota Singh 16 where the contention that taking
specimen signatures of the respondents by police during
investigation was hit by Section 162 of the Code was rejected.
Counsel submitted that the question of admissibility of tape D
recorded conversation is relevant for the present controversy.
In this connection, he relied on R.M. Malkani v. State of
Maharashtra' 7 • Counsel submitted that under Section 5 of the
Prisoners Act, a person can be directed to give voice sample.
In this connection, he relied on the Bombay High Court's E
judgment in Te/qi. Counsel submitted that a purposive
interpretation needs to be put on the relevant sections to
strengthen the hands of the investigating agency to deal with
the modern crimes where tape recorded con.versations are
often very crucial.
F
8. Though, Mr. Dave, learned counsel for the appellant has
not pressed the submission relating to infringement of
guarantee enshrined in Article 20(3) of the Constitution, since
extensive arguments have been advanced on Article 20(3) and
since the right against self-incrimination enshrined therein is of G
14. 1971 Cr.L.J. 1405.
15. 1976 Cri.L.J. 1680.
16. (1979) 1 sec 31.
11. (1973) 1 sec 471. H
704 SUPREME COURT REPORTS [2012] 11 S.C.R.
A great importance to criminal justice system, I deem it
appropriate to deal with the said question also to make the
legal position clear.
9. Article 20(3) of the Constitution reads thus:
B "Article 20: Protection in respect of conviction for
offences.
(1)
(2)
c
(3) No person accused of any offence shall be
compelled to be a witness against himself."
10. In M.P. Sharma v. Satish Chandra & Ors. 18, a seven
D Judges Bench of this court did not accept the contention that
the guarantee against testimonial compulsion is to be confined
to oral testimony while facing trial in the court. The guarantee
was held to include not only oral testimony given in the court or
out of court, but also the statements in writing which
E incriminated the maker when figuring as an accused person.
11. In Kathi Kalu Oghad, this court agreed- with the above
conclusion drawn in M.P. Sharma. This court, however, did not
agree with the observation made therein that "to be a witness"
may be equivalent to "furnishing evidence" in larger sense of
F the expression so as to include giving of thumb impression or
impression of palm or foot or fingers or specimen writing or
exposing a part of the body by an accused person for the
purpose of identification. This court expressed that the
observations in M.P. Sharma that Section 139 of the Evidence
G Act which says that a person producing a document on
summons is not a witness, has no bearing on the connotation
of the word "witness" is not entirely well-founded in law. It is
necessary to have a look at Kathi Kalu Oghad.
H 18. 1954 SCR 1077.
RITESH SINHA v. STATE OF UITAR PRADESH & 705
ANR. [RANJANA PRAKASH DESAI, J.]
12. In Kathi Ka/u Oghad, the prosecution adduced in A
evidence a chit stated to be in the handwriting of the accused.
In order to prove that the chit was in the handwriting of the
accused, the police had taken specimen signatures of the
accused while he was in police custody. Handwriting expert
opined that the chit was in the handwriting of the accused. B
Question was raised as to the admissibility of the specimen
writings ir. view of Article 20(3) of the Constitution. The High
Court had acquitted the accused after excluding the specimen
writings from consideration. The questions of constitutional
importance which this court considered and which have c
relevance to the case on hand are as under:
{a) Whether by production of the specimen
handwriting, the accused could be said to have
been a witness against himself within the meaning
of Article 20(3) of the Constitution? D
(b) Whether the mere fact that when those specimen
handwritings had been given, the accused was in
po!ice custody, could by itself amount to
compulsion, apart from any other circumstances E
111Jhich could be urged as vitiating the consent of the
accused in giving these specimen handwritings?
{c) Whether a direction given by a court to an accused
present in court to give his specimen writing and
signature for the purpose of comparison under
F
Section 73 of the Indian Evidence Act infringes the
fundamental right enshrined in Article 20(3) of the
Constitution?
13. While departing from the view taken in M.P. Sharma G
that "to be witness is nothing more than to furnish evidence"
and such evidence can be furnished through lips or by
production of a thing or of a document or in other modes, in
Kathi Kalu Oghad this Court was alive to the fact that the
investigating agencies cannot be denied their legitimate power H
706 SUPREME COURT REPORTS (2012] 11 S.C.R.
A to investigate a case properly and on a proper analysis of
relevant legal provisions it gave a restricted meaning to the term
"to be witness". The relevant observations may be quoted.
"'To be a witness' may be equivalent to 'furnishing
evidence' in the sense of making oral or written
B statements, but not in the larger sense of the expression
so as to include giving of thumb impression or
impression of palm or foot or fingers or specimen writing
or exposing a part of the body. 'Furnishing evidence' in
the latter sense could not have been within the
c contemplation of the Constitution-makers for the simple
reason that - thought they may have intended to protect
an accused person from the hazards of self-
incrimination, in the light of the English Law on the
subject - they could not have intended to put obstacles
D in the way of efficient and effective investigation into
crime and of bringing criminals to justice. The taking of
impressions or parts of the body of an accused person
very often becomes necessary to help the investigation
of a crime. It is as much necessary to protect an accused
E person against being compelled to incriminate himself,
as to arm the agents of law and the law courts with
legitimate powers to bring offenders to justice. n
14. In· support of the above assertion, this court referred
F to Section 5 of the Prisoners Act which allows measurements
and photographs of an accused to be taken and Section 6
thereof which states that if anyone resists taking of
measurements and photographs, all necessary means to
secure the taking of the same could be used. This court also
referred to Section 73 of the Indian Evidence Act which
G authorizes the court to permit the taking of finger impression
or specimen handwriting or signature of a person present in
the court, if necessary for the purpose of comparison. This court
observed that self-incrimination must mean conveying
information based upon the personal knowledge of the person
H giving the information and cannot include merely the mechanical
RITESH SINHA v. STATE OF UTIAR PRADESH & 707
ANR. [RANJANA PRAKASH DESAI, J.]
process of producing documents in court which may throw a A
light on any of the points in controversy, but which do not contain
any statement of the accused based on his personal
knowledge. Example was cited of an accused who may be in
possession of a document which is in his writing or which
contains his signature or his thumb impression. It was observed B
that production of such document with a view to comparison of
the writing or the signature or the impression of the accused is
not the statement of an accused person, which can be said to
be of the nature of a personal testimony. I may quote another
relevant observation of this court: c
"When an accused person is called upon by the Court or
any other authority holding an investigation to give his
finger impression or signature or a specimen of his
handwriting, he is not giving any testimony of the nature of
a 'personal testimony'. The giving of a 'personal testimony' D
must depend upon his volition. He can make any kind of
statement or may refuse to make any statement. But his
finger impressions or his handwriting, in spite of efforts at
conceail:ig the true nature of it by dissimulation cannot
change their intrinsic character. Thus, the giving of finger E
impressions or cf specimen writing or of signatures by an
accused person, though it may amount to furnishing
evidence in the larger sense, is not included within the
expression 'to be a witness."
F
15. Four of the conclusions drawn by this court, which are
relevant for our rurpose, could be quoted:
"(3) 'To be a witness' is. not equivalent to 'furnishing
evidence' in its widest significance; that is to say, as
including not merely making of oral or written statements G
but also production of documents or giving materials which
may be relevant at a trial to determine the guilt or innocence
of the accused. ·
(4) Giving thumb impressions or impressions of foot or H
708 SUPREME COURT REPORTS [2012] 11 S.C.R.
A palm or fingers or specimen writings or showing parts of
the body by way of identification are not included in the
expression 'to be a witness'.
(5) 'To be·a witness' means imparting knowledge in
respect of relevant facts by an oral statement or a
B
statement in writing, made or given in court or otherwise.
(6) 'To be a witness' in its ordinary grammatical sense
means giving oral testimony in court. Case law has gone
beyond this strict literal interpretation of the expression
c which may now bear a wider meaning, namely, bearing
testimony in court or out of court by a person accused of
an offence, orally or in writing."
16. Before I proceed further, it is necessary to state that
0 our attention was drawn to the judgment of this Court in
Shyamla/ Mohan/al v. State of Gujarat19• It was pointed out
that, there is some conflict between observations of this Court
in M.P. Sharma as reconsidered in Kathi Ka/u Oghad and,
Shyamla/ Mohan/a/ and this is noted by this Court in V.S.
E Kuttan Pillai v. Ramakrishnan & Anr. 20• I, however, find that in
V. S. Kuttan Pillai, this Court has not specifically given the nature
of the conflict. Having gone through Shyam/a/ Mohan/al v.
State of Gujarat21, I find that in that case, the Constitution Bench
was considering the question whether Section 94 of the Code
F of Criminal Procedure (Act 5 of 1898) (Section 91 (1) of the
Code) applies to accused persons. The Constitution Bench
observed that in Kathi Ka/u Oghad it has been held that an
accused person cannot be compelled to disclose documents
which are incriminatory and based on his own knowledge.
Section 94 of the Code of Criminal Procedure (Act 5 of 1898)
G permits the production of all documents including the
documents which are incriminatory and based on the personal
19. 1965 2 SCR 457.
20. (1980) 1 sec 264.
H 21. (1965) 2 SCR 457.
RITESH SINHA v. STATE OF UTIAR PRADESH & 709
ANR. [RANJANA PRAKASH DESAI, J.]
knowledge of the accused person. The Constitution Bench A
observed that if Section 94 is construed to include an accused
person, some unfortunate consequences follow. If the police
officer directs an accused to attend and produce a document,
the court may have to hear arguments to determine whether the
document is prohibited under Article 20 (3). The order of the B
trial court will be final under the Code for no appeal or revision
would lie against that order. Therefore, if Section 94 is
construed to include an accused person, it would lead to grave
hardship to the accused and make investigation unfair to him.
The Constitution Bench concluded that Section 94 does not c
apply to an accused person. Though there is reference to M.P.
Sharma as a judgment stating that calling an accused to
produce a document does amount to compelling him to give
evidence against himself, the observations cannot be read as
taking a view contrary to Kathi Kalu Oghad, because they were D
made in different context. As I have already noted, the
conclusion drawn in Kathi Ka/u Oghad that the accused cannot
be compelled to produce documents which are incriminatory
and based on his own knowledge has been restated. I,
therefore, feel that it is not necessary to go into the question of E
alleged conflict.
17. In Se/vi a three Judge Bench of this Court was
considering whether involuntary administration of certain
scientific techniques like narco-analysis, polygraph examination
and the Brain Electrical Activation Profile (BEAP) tests and the F
results thereof are of a 'testimonial character' attracting the bar
of Article 20(3) of the Constitution. This Court considered the
protective scope of right against self-incrimination, that is
whether it extends to the investigation stage and came to the
conclusion that even the investigation at the police level is G
embraced by Article 20(3). After quoting extensively from Kathi
Kalu Oghad, it was observed that the scope of 'testimonial
compulsion' is made clear by two premises. The first is that
ordinarily it is the oral or written statements which convey the
personal knowledge of a person in respect of relevant facts that H
710 SUPREME COURT REPORTS [2012] 11 S.C.R.
A amount to 'personal testimony' thereby coming within the
prohibition contemplated by Article 20(3). In most cases, such
'personal testimony' can be readily distinguished from ll'aterial
evidence such as bodily substances and other physical objects.
The second premise is that in some cases, oral or written
B statements can be relied upon but only for the purpose of
identification or comparison with facts and materials that are
already in the possession of the investigators. The bar of Article
20(3) can be invoked when the staternents are likely to lead to
•
incrimination by themselves or furnish a link in the chain of
c evidence. It was held that all the three techniques involve
testimonial responses. They impede the subject's right to
remain silent. The subject is compelled to convey personal
knowledge irrespective of his/her own volition. The results of
these tests cannot be likened to physical evidence so as to
exclude them from the protective scope of Article 20(3). This
0
Court concluded that compulsory administration of the
impugned techniques violates the right against self-
incrimination. Article 20(3) aims to prevent the forcible
conveyance of personal knowledge that is relevant to the facts
in issue. The results obtained from each of the impugned tests
E bear a testimonial character and they cannot be categorized
as material evidence such as bodily substances and other
physical objects.
18. Applying the test laid down by this court in Kathi Kalu
F Oghad .which is relied upon 'in Se/vi, I have no hesitation in
coming to a conclusion that if an accused person is directed
to give his voice sample during the course of investigation of
an offence, there is no violation of his right under Article 20(3)
of the Constitution. Voice sample is like finger print impression,
G signature or specimen handw+iting of an accused. Like giving
of a finger print impression or specimen writing by the accused
for the purposes of investigation, giving of a voice sample for
the purpose of investigation cannot be included in the
expression "to be a witness". By giving voice sample the
H accused does not convey information based upon his personal
RITESH SINHA v. STATE OF UTIAR PRADESH & 711
ANR. [RANJANA PRAKASH DESAI, J.]
knowledge which can incriminate him. A voice sample by itself A
is fully innocuous. By comparing it with tape recorded
conversation, the investigator may draw his conclusion but,
voice sample by itself is not a testimony at all. When an
accused is asked to give voice sample, he is not giving any
testimony of the nature of a personal testimony. When B
compared with the recorded conversation with the help of
mechanical 'process, it may throw light on the points in
controversy. It cannot be said, by any stretch of imagination that
by giving voice sample, the accused conveyed any information
based upon his personal knowledge and became a witness c
against himself. The accused by giving the voice sample merely
gives 'identification data' to the investigating agency. He is not
subjected to any testimonial compulsion. Thus, taking voice
sample of an accused by the police during investigation is not
hit by Article 20(3) of the Constitution.
D
19. The next question which needs to be answered is
whether there is any provision in the Code, or in any other law
under which a Magistrate can authorize the investigating agency
to record voice sample of a person accused of an offence.
Counsel are ad idem on the point that there is no specific E
provision either in the Code or in any other law in that behalf.
In its 87th Report, the Law Commission suggested that the
Prisoners Act should be amended inter a/ia to indude voice
sample within the ambit of Section 5 thereof. Parliament
however has not amended the Prisoners Act in pursuance to F
the recommendation of the Law Commission nor is the Code
amended to add any such provision therein. Resultantly, there
is no specific legal provision under which such a direction can
be given. It is therefore, necessary to see whether such power
can be read into in any of the available provisions of law. G
20. A careful study of the relevant provisions of the Code
and other relevant statutes discloses a scheme which aims at
strengthening the hands of the investigator. Section 53, Section
54A, Section 311A of the Code, Section 73 of the Evidence H
712 SUPREME COURT REPORTS [2012] 11 S.C.R.
A Act and the Prisoners Act to which I shall soon refer reflect
Parliament's efforts in that behalf. I have already noted that in
Kathi Ka/u Oghad, while considering the expressions "to be a
witness" and "furnishing evidence", this Court clarified that "to
be a witness" is not equivalent to "furnishing evidence" in the
B larger sense of the expression so as to include giving of thumb
impression or impression of palm or foot or fingers or specimen
writing or exposing a part of the body by an accused for the
purpose of identification because such interpretation would not
have been within the contemplation of the Constitution makers
c for the simple reason that though they may have intended to
protect an accused person from the hazards of self-
incrimination, they could not have intended to put obstacles in
the way of efficient and effective investigation into crime and
bringing criminal to justice. Such steps often become necessary
to help the investigation of crime. This Court expressed that it
0
is as much necessary to protect an accused person against
being compelled to incriminate himself, as to arm the agents
of law and law courts with legitimate powers to bring offenders
to justice. This, in my opinion, is the basic theme and, the
controversy regarding taking of voice sample involved in this
E case will have to be dealt with keeping this theme in mind and
by striking a balance between Article 20(3) and societal interest
in having a. legal framework in place which brings to book
criminals.
F 21, Since we are concerned with the stage of investigation,
it is necessary to see how the Code defines 'investigation'.
Section 2 (h) of the Code is material. It reads thus:
"Investigation" includes all the proceedings under this Code
for the collection of evidence conducted by a police officer
G
or by any person (other than a Magistrate) who is
authorized by a Magistrate in this behalf."
22. It is the duty of a Police Officer or any person (other
than a Magistrate) authorized by a Magistrate to collect
H
RITESH SINHA v. STATE OF UTTAR PRADESH & 713
ANR. [RANJANA PRAKASH DESAI, J.]
evidence and proceedings under the Code for the collection A
of evidence are included in 'Investigation'. Collection of voice
sample of an accused is a step•in investigation. It was argued
by learned counsel for the State that various steps which the
police take during investigation are not specifically provided in
the Code, yet they fall within the wider definition of the term B
'investigation' and investigation has been held to include
measures that had not been enumerated in statutory provisions
and the decisions to that effect of the Rajasthan High Court in
Mahipal Madema and Allahabad High Court in Jamshed have
been noticed by this Court in Se/vi and, therefore, no legal c
provisior1 need be located under which voice sample can be
taken. I find it difficult to accept this submission. In the course
of investigation, the police do use force. In a country governed
by rule of law police actions which are likely to affect the bodily
integrity of a person or likely to affect his personal dignity must D
have legal sanction. That prevents possible abuse of the power
by the police. It is trite that every investigation has to be
conducted within the parameters of the Code. The power to
investigate into a cognizable offence must be exercised strictly
on the condition on which it is granted. (State of West Bengal E
v. Swapan Guha). The accused has to be dealt with strictly in
accordance with law. Even though, taking of physical evidence
which does not amount to communicating information based
on personal knowledge to the investigating officer by the
accused which may incriminate him, is held to be not violative
of protection guaranteed by Article 20(3), the investigating F
officer cannot take physical evidence from an accused unless
he is authorized by a Magistrate to do so. He cannot assume
powers which he does not possess. He can only act on the
strength of a direction given to him by a Magistrate and the
Magistrate must have power to issue such a direction. In G
Bindeshwari Prasad Singh v. Kali Singh 22 , this Court has
clarified that subordinate criminal courts have no inherent
powers. Similar view has been taken by this court in Ada/at
22. (1977) 1 sec s1. H
714 SUPREME COURT REPORTS [2012] 11 S.C.R.
A Prasad. Our attention was drawn to Sakiri Vasu ·in support of
the submission that the Magistrate has implied or incidental
powers. In that case, this ,Court was dealing with the
Magistrate's powers under Section 156(3) of the Code. It is
observed that Section 156(3) includes all such powers as are
B necessary for ensuring a proper investigation. It is further
observed that when a power is given to an authority to do
something, it includes such incidental or implied powers which
would ensure proper doing of that thing. It is further added that
where an Act confers jurisdiction, it impliedly also grants power
c of doing all such acts or employ such means as are essentially
necessary for execution. If we read Bindeshwar Prasad, Ada/at
Prasad and Sakiri Vasu together, it becomes clear that the
subordinate criminal courts do not have inherent powers. They
can exercise such incidental powers as are necessary to
ensure proper investigation. Against this background, it is
0
necessary to find out whether power of a Magistrate to issue
direction to a police officer to take voice sample of the accused
during investigation can be read into in any provisions of the
Code or any other law. It is necessary to find out whether a
Magistrate has implied or ancillary power under any provisions
E of the Code to pass such order for the purpose of proper
investigation of the case.
23. In search for such a power, I shall first deal with the
Prisoners Act. As its short title and preamble suggests it is
F aimed at securing identification of the accused. It is an Act to
authorize the taking of measurements and photographs of
convicts and others. Section 2(a) defines the term
'measurements' to include finger-impressions and foot-print
impressions. Section 3 provides for taking of measurements,
G etc., of convicted persons and Section 4 provides for taking of
measurements, etc., of non-convicted persons. Section 5
provides for power of a Magistrate to order a person to be
measured or photographed. Section 6 permits the police officer
to use all means necessary to secure measurements etc. if
H such person puts up resistance. Section 7 states that all
RITESH SINHA v. STATE OF UITAR PRADESH & 715
ANR. [RANJANA PRAKASH DESAI, J.]
measurements and photographs taken of a person who has not A
been previously convicted shall be destroyed unless the court
directs otherwise, if such person is acquitted or discharged. In
Kathi Ka/u Oghad, this Court referred to the Prisoners Act as
a statute empowering the law courts with legitimate powers to
bring offenders to justice. B
24. In Amrit Singh v. State of Punjab 23 the appellant was
charged for offences under Sections 376 and 302 of the Indian
Penal Code {for short "the IPC") and an application was filed
by the investigating officer for obtaining the appellant's hair C
sample. He refused to give hair sample. It was argued that hair
sample can be taken under the provisions of the Prisoners Act.
This Court held that the Prisoners Act may not be ultra vires
the Constitution, but it will have no application to the case
before it because it cannot be said to be an area contemplated
under~ D
25. In Telgi, the Bombay High Court was dealing with a
challenge to the order passed by the Special Judge, Pune,
rejecting application filed by the investigating agency praying
that it may be permitted to record the voice samples of the E
accused. The High Court relying on Kathi Kalu Oghad rejected
the contention that requiring the accused to lend their voice
sample to the investigating officer amounts to testimonial
compulsion and results in infringement of the accused's right
under Article 20(3) of the Constitution. The High Court held that F
measuring frequency or intensity of the speech sound waves
falls within the ambit of the scope of the term "measurement"
as defined in Section 2{a) of the Prisoners Act. The High Court
also relied on Sections 5 and 6 of the Prisoners Act as
provisions enabling the court to pass such orders.
G
26. In Rakesh Bisht, the Delhi High Court disagreed with
the view taken by the Bombay High Court in Telgi. The Delhi
High Court held that if after investigation, charges are framed
23. (2oos) 12 sec 79. H
716 SUPREME COURT REPORTS [2012] 11 S.C.R.
A and in the proceedings before the court, the court feels that
voice sample ought to be taken for the purposes of establishing
identity, then such a direction may be given provided the voice
sample is taken only for the purposes of identification and it
does not contain inculpatory statement so as to be hit by Article
B 20(3) of the Constitution.
27. Having carefully perused the provisions of the Prisoners
Act, I am inclined to accept the view taken by the Bombay High
Court in Telgi as against the view taken by the Delhi High Court
in Rakesh Bisht. Voice sample stands on a different footing
C from hair sample with which this Court was concerned in Amrit
Singh because there is no provision express or implied in the
Prisoners Act under which such a hair sample can be taken.
That is not so with voice sample.
D 28. The purpose of taking voice sample which is non-
testimonial physical evidence is to compare it with tape
recorded conversation. It is a physical characteristic of the
accused. It is identificatory evidence. In R.M. Malkani, this
Court has taken a view that tape recorded conversation is
E admissible provided the conversation is relevant to the matters
in issue; there is identification of the voice and the tape
recorded conversation is proved by eliminating the possibility
of erasing the tapa recorded conversation. It is a relevant fact
and is admissible under Section 7 of the Evidence Act. In view
F of this legal position, to make the tape recorded conversation
admissible in evidence, there must be provision under which
the police can get it identified. For that purpose, the police must
get the voice sample of the accused.
29. The dictionary meaning of the term 'measurement is
G the act or process of measuring. The voice sample is analysed
or measured on the basis of time, frequency and intensity of
the speech-sound waves. A voice print is a visual recording of
voice. Spectrographic Voice Identification is described in
Chapter 12 of the Book "Scientific Evidence in Criminal
H
RITESH SINHA v. STATE OF UTIAR PRADESH & 717
ANR. [RANJANA PRAKASH DESAI, J.]
Cases" written by Andre A. Moenssens, Ray Edward Moses A
and Fred E. lnbau. The relevant extracts of this chapter could
be advantageously quoted.
·"Voiceprint identification requires (1) a recording of
the questioned voice, (2) a recording of known origin for B
comparison, and (3) a sound spectrograph machine
adapted for 'voiceprint' studies."
12.02 Sound and Speech
In order to properly understand the voiceprint C
technique, it is necessary to briefly review some
elementary concepts of sound and speech.
Sound, like heat, can be defined as a vibration of air
molecules or described as energy in the form of waves or
pulses, caused by vibrations. In the speech process, the D
initial wave producing vibrations originate in the vocal
cords. Each vibration causes a compression and
corresponding rarefications of the air, which in turn form
the aforementioned wave or pulse. The time interval
between each pulse is called the frequency of sound; it is E
expressed generally in hertz, abbreviated as hz., or
sometimes also in cycles-per-second, abbreviated as cps.
It is this frequency which determines the pitch of the sound.
The higher the frequency, the higher the pitch, and vice
versa. F
Intensity is another characteristic of sound. In speech,
intensity is the characteristic of loudness. Intensity is a
function of the amount of energy in the sound wave or
pulse. To perceive the difference between frequency and G
intensity, two activities of air molecules in an atmosphere
must be considered. The speed at which an individual
vibrating molecule bounces back and forth between the
other air molecules surrounding it is the frequency.
Intensity, on the other hand, may be measured by the H
718 SUPREME COURT REPORTS [2012] 11 S.C.R.
A number of air molecules that are being caused to vibrate
at a given frequency."
"12.03 The Sound Spectrograph
The sound spectrograph is an electromagnetic
B instrument which produces a graphic display of speech in
the parameters of time, frequency and intensity. The display
is called a sound spectrogram."
30. Thus, it is clear that voiceprint identification of voice
C involves measurement of frequency and intensity of sound
waves. In my opinion, therefore, measuring frequency or
intensity of the speech-sound waves falls within the ambit of
inclusive definition of the term 'measurement' appearing in the
Prisoners Act.
D
31. There is another angle of looking at this issue. Voice
prints are like finger prints. Each person has a distinctive voice
with characteristic features. Voice print experts have to
compare spectrographic prints to arrive at an identification. In
this connection, it would be useful to read following paragraphs
E from the book "Law Enforcement and Criminal Justice - an
introduction" by Bennett-Sandler, Frazier, Torres, Waldron.
"Voiceprints. The voiceprint method of speaker
identification involves the aural and visual comparison of
F one or more identified voice patterns with a questioned or
unknown voice. Factors such as pitch, rate of speech,
accent, articulation, and other items are evaluated and
identified, even though a speaker may attempt to disnuice
his or her voice. Through means of a sound spectrograph,
G voice signals can be recorded magnetically to produce a
permanent image on electrically sensitive paper. This visual
recording is called a volceprint.
A voiceprint indicates resonance bars of a person's voice
(called formants), along with the spoken word and how it
H
RITESH SINHA " STATE OF UTIAR PRADESH & 719
ANR. [RA~ J/\NA PRAKASH DESAI, J.]
is articulated. Fi1:1ure 9.7 is an actual voiceprint sample. A
The loudness of a voice is indicated by the density of lines;
the darker the lines on the print, the greater the volume of
the sound. When voiceprints are being identified, the
frequency and pitch of the voice are indicated on the
vertical axis; the time factor is indicated on the horizontal B
axis. At least ten matching sounds are needed to make a
positive identification, while fewer factors lead to a
probable or highly probable conclusion.
Voiceprints are like fingerorints in that each person has a
distinctive voice with characteristic features dictated by C
vocal cavities and articulators. Oral arid nasal cavities act
as resonators for energy expended by the vocal cords.
Arttculators are generated by the lips, teeth, tongue, soft
palate, and jaw muscles. Voiceprint experts must compare
spectrographic prints or phonetic elements to arrive at an D
identification. These expert laboratory technicians are
trained to make subjective conclusions, much as
fingerprint or criminalistic experts must make
determinations on the basis of evidence." (emphasis
supplied.) E
Thus, my conclusion that voice sample can be included in
the inclusive definition of the term "measurements" appearing
in Section 2(a) of the Prisoners Act is supported by the above-
quoted observation that voice prints are like finger prints. F
Section 2(a) states that measurements include finger
impressions and foot impressions. If voice prints are like finger
prints, they would be covered by the term 'measurements'. I
must note that the Law Commission of India in its 87th Report
referred to the book "Law Enforcement and Criminal Justice. G
- an introduction". The Law commission observed that voice
prints resemble finger prints and made a recommendation that
the Prisoners Act needs to be amended. I am, therefore, of the
opinion that a Magistrate acting under Section 5 of the
Prisoners Act can give a direction to any person to give his
H.
720 SUPREME COURT REPORTS [2012] 11 S.C.R.
A voice sample for the purposes of any investigation or
proceeding under the Code.
32. I shall now turn to Section 73 of the Indian Evidence
Act to see whether it empowers the court to give such a
direction. It reads thus:
8
"Section 73 - Comparison of signature, writing or seal with
others admitted or proved.
In order to ascertain whether a signature, writing, or seal
c is that of the person by whom it purports to have been written
or made, any signature, writing, or seal admitted or proved to
the satisfaction of the Court to have been written or made by
that person may be compared with the one which is to be
proved, although that signature, writing, or seal has not been
0 produced or proved for any other purpose.
The Court may direct any person present in court to write
any words or figures for the purpose of enabling the Court to
compare the words or figures so written with any words or
figures alleged to have been written by such person."
E
[This section applies also, with any necessary
modifications, to finger-impressions.]
33. In Ram Babu Misra, the investigating officer made an
F application to the Chief Judicial Magistrate, Lucknow seeking
a direction to the accused to give his specimen writing for the
purpose of comparison with certain disputed writings. Learned
Magistrate held that he had no power to do so when the case
was still under investigation. His view was upheld by the High
Court. This Court held that the second paragraph of Section
G 73 enables the court to direct any person present in court to
give specimen writings "for the purpose of enabling the court
to compare" such writings with writings alleged to have been
written by such person. The clear implication of the words "for
the purpose of enabling the court to compare" is that there is
H some proceeding before the court in which or as a
RITESH SINHA v. STATE OF UTTAR PRADESH & 721
ANR. [RANJANA PRAKASH DESAI, J.]
consequence of which it might be necessary for the court to A
compare such writings. This Court further observed that the
direction is to be given "for the purpose of enabling the court
to compare" and not for the purpose of enabling the
investigating or other agency to compare. While dismissing the
appeal, this Court expressed that a suitable legislation may be B
made on the analogy of Section 5 of the Prisoners Act to
provide for the investiture of Magistrates with the power to
issue directions to any person including an accused person to
give specimen signatures and writings. Thus Section 73 of the
Evidence Act does not empower the court to direct the accused c
to give his specimen writings during the course of investigation.
Obviously, Section 73 applies to proceedings pending before
the court. They could be civil or criminal. In view of the
suggestion made by this Court by Act 25 of 2005 with effect
from 23.6.2006, Section 311A was added in the Code D
empowering the Magistrate to order a person to give specimen
signature or handwriting during the course of investigation or
proceeding under the Code.
34. Seciion 311A of the Code reads thus:
E
"311A. Power of Magistrate to order person to give
specimen signatures or handwriting:
If a Magistrate of the first class is satisfied that, for the
purposes of any investigation or proceeding under this
F
Code, it is expedient to direct any person, including an
accused person, to give specimen signatures or
handwriting, he may make an order to that effect and in
that case the person to whom the order relates shall be
produced or shall attend at the time and place specified
in such order and shall give his specimen signatures or G
handwriting:
Provided that no order shall be made under this section
unless the person has at some time been arrested in
connection with such investigation or proceeding." H
722 SUPREME COURT REPORTS [2012] 11 S.C.R.
A A bare reading of this Section makes it clear that
Section 311A cannot be used for obtaining a direction
from a Magistrate for taking voice sample.
35. Section 53 of the Code pertains to examination of the
B accused by medical practitioner at the request of a police
officer. Section 53A refers to examination of person accused
of rape by medical practitioner and section 54 refers to
examination of arrested person by a medical officer. Section
53 is material. It reads as under:
c "Section 53 - Examination of accused by medical
practitioner at the request of police officer
(1) When a person is arrested on a charge of committing
an offence of such a nature and alleged to have been
D committed under such circumstances that there are
reasonable grounds for believing that an examination of
his person will afford evidence as to the commission of an
offence, it shall be lawful for a registered medical
practitioner, acting at the request of a police officer not
below the rank of sub-inspector, and for any person acting
E
in good faith in his aid and under his direction, to make
such an examination of the person arrested as is
reasonable necessary in order to ascertain the facts which
may afford such evidence, and to use such force as is
reasonably necessary for that purpose.
F
(2) Whenever the person of a female is to be examined
under this section, the examination shall be made only by,
or under the supervision of, a female registered medical
practitioner.
G
Explanation:-
ln this section and in sections 53A and 54,
(a) "examination" shall include the examination of blood,
H blood stains, semen, swabs in case of sexual offences,
RITESH SINHA v. STATE OF UTIA~ PRADESH & 723
ANR. [RANJANA PRAKASH DESAI, J.)
sputum and sweat, hair samples and finger nail clippings A
by the use of modern and scientific techniques including
DNA profiling and such other tests which the registered
medical practitioner thinks necessary in a particular case;
(b) "registered medical practitioner" means a medical
B
practitioner who possess any medical qualification as
defined in clause (h) of section 2 of the Indian Medical
Council Act. 1956(102 of 1956) and whose name has
been entered in a State Medical Register.
1. Substituted by The Code of Criminal Procedure C
(Amendment) Act, 2005. Earlier the text was as under:
.
Explanation.-ln this section and in section 54, "registered
medical practitioner" means a medical practitioner who
possesses any recognized medical qualification as D
defined in clause (h) of section 2 of the Indian Medical
Council Act, 1956 (102 of 1956), and whose name has
been entered in a State Medical Register."
36. In short, this section states that if a police officer feels
that there are reasonable grounds for believing ·that an E
examination of the person of the accused will afford evidence
as to commission of the offence, he may request a registered
medical practitioner to make such examination of his person
as is reasonably necessary. For such examination, it is
permissible to use such force as may be reasonably necessary. F
Explanation (a) to Section 53 states what is 'examination'. It is
an inclusive definition. It states that the examination shall
include the examination of blood, blood stains, semen, swabs
in case of sexual offences, sputum and sweat, hair samples
and finger nail clippings by the use of modern and scientific G
techniques including DNA profiling and such other tests which
the registered medical practitioner thinks necessary in a
particular case. This explanation was substituted by the Code
of Criminal Procedure (Amendment) Act, 2005. The question
is whether with the aid of the doctrine 'ejusdem generis' voice H
724 SUPREME COURT REPORTS [2012] 11 S.C.R.
A sample test could be included within the scope of the term
'examination'.
37. I am not impressed by the submission that the term
"such other tests" mentioned in Explanation (a) is controlled by
the words "which the registered medical practitioner thinks
8
necessary". It is not possible to hold that Explanation (a) vests
the discretion to conduct examination of the accused in the
registered medical practitioner and not in the investigating
officer and therefore the doctrine of 'ejusdem generis' cannot
be pressed into service. Under Section 53(1) the registered
C medical practitioner can act only at the request of a police
officer. Obviously, he can have no say in the process of
investigation. The decision to get the accused examined is to
be taken by the investigating officer and not by the medical
practitioner. It is the expertise of the medical practitioner which
D the investigator uses to decide the method of the test. It would
be wrong, therefore, to state that the discretion to get the
accused examined vests in the medical practitioner. This
submission must, therefore, be rejected.
E 38. It is argued that voice sample test cannot be included
in the definition of 'examination' because in Se/vi, this Court
has held that Section 53 needs to be given a restrictive
interpretation. I must, therefore, revisit Se/vi.
39. In Se/vi, it was contended that the phrase "modern and
F scientific techniques including DNA profiling and such other
tests" should be liberally construed to include narco-analysis
test, polygraph examination and the BEAP test. These tests
could be read in with the help of the words "and such other tests",
because the list of "modern and scientific techniques"
G contemplated was illustrative and not exhaustive. This Court
observed that it was inclined to take the view that the results of
the impugned tests should be treated as testimonial. acts for
the purpose of invoking the right against self-incrimination and,
therefore, it would be prudent to state that the phrase "and such
H
RITESH SINHA v. STATE OF UTIAR PRADESH & 725
ANR. (RANJANA PRAKASH DESAI, J.]
other tests" appearing in Explanation (a) to Section 53 of the A
Code should be read so as to confine its meaning to include
only those tests which involve the examination of physical
evidence. This Court accepted the submission that while bodily
substances such as blood, semen, sputum, sweat, hair and
finger nail clippings can be characterized as physical evidence, B
the same cannot be said about the. techniques in question. This
Court reiterated the distinction between physical evidence and
testimonial acts and accepted the submission that the doctrine
of 'ejusdem generis' entails that the meaning of general words
which follow specific words in a statutory provision should be c
construed in light of commonality between those specific words.
This Court acknowledged that the substances mentioned in
Explanation (a) to Section 53 are examples of physical
evidence and, hence, the words "and such other tests"
mentioned therein should be construed to include the D
examination of physical evidence but not that of testimonial acts.
This Court made it clear that it was not examining what was
the legislative intent in not including the tests impugned before
it in the Explanation.
40. Our attention was drawn to the observation of this E
Court in Se/vi that the dynamic interpretation of the amended
Explanation to Section 53 is obstructed because the general
words " d such other tests" should ordinarily be read to include
tests which are of the same genus as the other forms of
medical examination which are examinations of bodily F
substances. It is argued that voice sample is not a bodily
substance like blood, sputum, finger nail clippings etc.
41. Voice emanat-=s from the human body. The human
body determines its volume and distinctiveness. Though it G
cannot be touched or seen like a bodily substance, being a
bodily emanation, it could be treated as a part of human body
and thus could be called a bodily substance. But, I feel that there
is no need to stretch the meaning of the term 'bodily substance'
in this case. I have already expressed my opinion that voice H
726 SUPREME COURT REPORTS [2012] 11 S.C.R.
A sample is physical non-testimonial evidence. It does not
communicate to the investigator any information based on
personal knowledge of the accused which can incriminate him.
Voice sample cannot be held to be conceptually different from
physical non-testimonial evidence like blood, semen, sputum,
B hair etc. Taking of voice sample does not involve any
testimonial responses. The observation of this Court in Se/vi
that it would not be prudent to read Explanation (a) to Section
53 of the Code in an expansive manner is qualified by the
words "so as to include the impugned techniques". What must
c be borne in mind is that the impugned techniques were held to
be testimonial and hit by Article 20(3) of the Constitution. This
Court emphasized that Explanation (a) to Section 53 does not
enumerate certain other kinds of medical examination that
involve testimonial acts, such as psychiatric examination among
others and this demonstrates that the amendment made to this
0
provision was informed by a rational distinction between the
examination of physical substances and testimonial acts. If this
Court wanted to interpret Explanation (a) as referring only to
bodily substances there was no reason for it to draw such
E distinction. Pertinently, this distinction was employed while
applying the doctrine of 'ejusdem generis' to Section 53. The
tenor of this judgment makes it clear that tests pertaining to
physical non-testimonial evidence can be included in the
purview of the words "and such other tests" with the aid of the
doctrine of 'ejusdem generis'. In my opinion, Se/vi primarily
F rests on the distinction between physical evidence of non-
testimonial character as against evidence involving testimonial
compulsions. The tests mentioned in Explanation (a) are of
bodily substances, which are examples of physical evidence.
Even if voice sample is not treated as a bodily substance, it is
G still physical evidence involving no transmission of personal
knowledge. On the reasoning of Se/vi which is based on Kathi
Kalu Oghad, I find no difficulty in including voice sample test
in the phrase "such other tests" appearing in Explanation (a)
to Section 53 by applying the doctrine of 'ejusdem generis' as
H it is a test pertaining to physical non-testimonial evidence like
RITESH SINHA v. STAIE OF UTIAR PRADESH & 727
ANR. [RANJANA PRAKASH DESAI, J.]
blood, sputum etc. In my opinion, such interpretation of Se/vi A
would be in tune with the general scheme of the Code which
contains provisions for collection of evidence for comparison
or identification at the investigation stage in order to strengthen
the hands of the investigating agency.
B
42. It was argued that Section 53 of the Code only
contemplates medical examination and taking of voice sample
is not a medical examination. Section 53 talks of examination
by registered medical practitioner of the person of the accused
but, does not use the words "medical examination". Similarly, C
Explanation (a) to Section 53 does not use the words "medical
examination". In my opinion, Section 53 need not be confined
to medical examination. It is pertinent to note that in Se/vi, this
court was considering whether narco-analysis, polygraph
examination and the BEAP tests violate Article 20(3) of the
Constitution. While examining this question, this Court analyzed D
Section 53 and stated that because those tests are testimonial
in nature, they do not fall within the ambit of Section 53 of the
Code but this Court did not restrict examination of person
contemplated in Section 53 to medical examination by a
medical practitioner even though the tests impugned therein E
were tests that were clearly not to be conducted by the medical
practitioner. It must be remembered that Section 53 is primarily
meant to serve as aid in the investigation. Examination of the
accused is to be conducted by a medical practitioner at the
instance of the police officer, who is in charge of the F
investigation.. On a fair reading of Section 53 of the Code, I am
of the opinion that under that Section, the medical practitioner
can conduct the examination or suggest the method of
examination.
G
43. I must also deal with the submission of learned counsel
for the appellant that non-inclusion of voice sample in
Explanation (a) displays legislative intent not to include it though
legislature was aware of such test. In Se/vi, this court.has made
ii clear that it was not examining the question regarding
H
728 SUPREME COURT REPORTS [2012) 11 S. C.R.
A legislative intent in not including the test impugned before it in
Explanation (a). Therefore. Se/vi does not help the appellant
on this point. On the contrary, in my opinion, by adding the
words 'and such other tests' in the definition of term contained
in Explanation (a) to Section 53 of the Code, the legislature
B took care of including within the scope of the term 'examination'
similar tests which may become necessary in the facts of a
particular case. Legislature exercised necessary caution and
made the said definition inclusive, not exhaustive and capable
of expanding to legally permissible limits with the aid of the
c doctrine of 'ejusdem generis'. I, therefore, reject this
submission.
44. Section 54A of the Code makes provision for
identification of arrested persons. It states that where a person
is arrested on a charge of committing an offence and his
D identification by any other person or persons is considered
necessary for the purpose of investigation of such offence, the
court having jurisdiction, may on the request of the officer in
charge of a police station, direct the person so arrested to
subject himself to identification by any person or persons in
E such manner as the court may deem fit. Identification of the voice
is precondition for admission of tape recorded conversation in
evidence (R. M. Malkani). Since Section 54A of the Code uses
the words "the Court, .... may ...... direct the person so arrested
to subject himself to identification by any person or persons in
F such manner as the court may deem fit". voice sample can be
identified by means of voice identification parade under Section
54A or by some other person familiar with the voice.
45. I may usefully refer to the judgment of this Court in
G Nilesh Paradkar v. State of Maharashtra 24 where the voice test
identification was conducted by playing cassette in the presence
of panchas, police officers and prosecution witnesses. This
Court rejected the voice identification evidence because
precautions similar to the precautions which are normally taken
H 24. c2011i 4 sec 143.
RITESH SINHA v. STATE OF UTIAR PRADESH & 729
ANR. [RANJANA PRAKASH DESAI, J.]
in visual identification of suspects by witnesses were not taken. A
But this court did not reject the evidence on the ground that
voice identification parade is not contemplated under Section
54A of the Code. It is important to note that in Mohan Singh v.
State of Biha~ 5 • after noticing Nilesh Paradkar, this Court held
that where the witnesses identifying the voice had previous B
acquaintance with the caller i.e. the (!ccused, such identification
of voice can be relied upon; but identification by voice has to
be considered carefully by the court. This, however, is no
answer to the question of availability of a legal provision to pass
.an order directing the accused to give voice sample during c
investigation. Tiie legal provision, in my opinion, can be traced
to the Prisoners Act and Section 53 of the Code.
46. I am mindful of the fact that foreign decisions are not
binding on our courts. But, I must refer to the judgment of the
Supreme Court of Appeal of South Africa in Levack, Hamilton D
Caesar & Ors. v. Regional Magistrate, Wynberg & Anr. 26
because it throws some light on the issue involved in the case.
In that case, the Magistrate had granted an order under Section
37(3) of the Criminal Procedure Act 51 of 1977 (for short,
"South African Act") directing the accused to give voice E
samples as specified by a named 'voice expert' in the presence
of the legal representatives of the accused. The object was to
compare the samples with tape recordings of telephone
conversations in the State's possession, for possible later use
during the trial. The accused were unsuccessful in the High F
Court in their challenge to the said order of the lower court.
Hence, they appealed to the Supreme Court of South Africa.
Under Section 37(1) of the South African Act, any police officer
may take the fingerprints, palm-prints and foot-prints or may
cause any such prints to be taken, inter alia, of any person G
arrested upon any charge. Sections 37(1 )(a)(i) and (ii) and
Section 37(1)(c) of the South African Act read thus:
25. (2011) 9 sec 212.
26. [2003) 1 All SA 22 (SCA) (28th November 2002) H
730 SUPREME COURT REPORTS [2012] 11 S.C.R.
A "37. Powers in respect of prints and bodily
appearance of accused.-(1) Any police official may-
(a) take the finger-prints, palm-prints or foot-prints or
may cause any such prints to be taken-
B (i) of any person arrested upon any charge;
(ii) of any such person released on bail or on
warning under section 72;
(iii) )()()( )()()( )()()(
c
(iv) )()()( )()()( )()()(
(v) )()()( )()()( )()()(
(b) )()()( )()()( )()()(
D
(c) take such steps as he may deem necessary in
order to ascertain whether the body of any person
referred to in paragraph (a) (i) or (ii) has any mark,
characteristic or distinguishing feature or shows any
E condition or appearance: Provided that no police
official shall take any blood sample of the person
concerned nor shall a police official make any
examination of the body of the person concerned
where that person is a female and the police official
F concerned is not a female;"
The first question which fell for consideration was whether
voice of a person is a characteristic or distinguishing feature
of the body. The Supreme Court of South Africa considered the
Oxford Dictionary meaning of 'voice' as '1. Sound formed in
G larynx etc. and uttered by mouth, especially human utterance
in speaking, shouting, singing, etc. 2. Use of voice, utterance.
3. (Phonetic) Sound uttered with resonance of vocal chords, not
with mere breath'. It observed that voice is thus a sound formed
in the larynx and uttered by the mouth and emanates from and
H is formed by the body. Therefore, there can be no doubt that it
RITESH SINHA v. STATE OF UTIAR PRADEBH & 731
ANR. [RANJANA PRAKASH DESAI, J.]
is a 'characteristic' (in the sense of a distinctive trait or quality) A
of the human body. Though voice sample was mot specifically .
mentioned in Section 37, it was held that it fell within the scope
of Section 37. It was observed that Section 37 does not
expressly mention the voice because it is o.ne of the
'innumerable' bodily features that the wording expressly B
contemplates. Section 37 merely contemplates bodily
appearance of the accused. It was further observed that it is
true that the voice, unlike palm or other prints, is not itself part
of the body. It is a sound. But, the sound is a bodily emanation.
And the body from which it emanates determines its timbre, C
volume and distinctive modulations. It was further observed that
nothing in the provision suggests that the 'distinguishing
features' it envisages should be limited to those capable of
apprehension through the senses of touch and sight (or even
taste or smell). Relevant observation of the Supreme Court of D
South Africa could be quoted.
"14. Hearing is as much a mode of physical apprehension
as feeling or seeing. For the sight-impaired it is indeed.
the most important means of distinguishing between
people. It would therefore be counter-literal to interpret the E
section as though the ways of 'ascertaining' bodily
features it contemplates extend only to what is visible or
tangible."
The Supreme Court of South Africa then considered the
question of self-incrimination. It observed that it is wrong to F
suppose that requiring the accused to submit voice samples
infringes their right either to remain silent in the court
proceedings against them or not to give self-incriminating
evidence. It was further observed that voice falls within the
same category as complexion, stature, mutilations, marks and G
prints i.e. 'autoptic evidence' - evidence derived from the
accused's own bodily features. It was held that there is no
difference in principle between the visibly discernible physical
traits and features of an accused and those that under law can
be extracted from him through syringe and vial or through the H
732 SUPREME COURT REPORTS [2012] 11 S.C.R.
A compelled provision of a voice sample. In neither ca.se is the
accused required to provide evidence of a testimonial or
communicative nature, and in neither case is any constitutional
right violated. The Supreme Court of South Africa then
examined as to under which provision a Magistrate could issue
B a direction to the accused to supply his voice samples. It
observed that Section 37(1 )(a)(i) and (ii) permit any police
officer to take the finger-prints, palm-prints or foot-prints or may
cause any such prints to be taken of any person arrested upon
any charge. Section 37(1 )(c) states that any police officer may
c take such steps as he may deem necessary in order to
ascertain w~.ather the body of any person referred to in
paragraph (a) (i) or (ii) has any mark, characteristic or
distinguishing feature or shows any condition or appearance.
Though 'voice sample' was not specifically mentioned
anywhere, on a conjoint reading of the two provisions, the
D Supreme Court of South Africa held that the police retained the
power under Section 37(1)(c) to take steps as they might deem
necessary to ascertain the characteristic or distinguishing
features of the accused's voice. That included the power to
request the accused to supply voice samples. The court further
E observed that this power, in turn, could properly be
supplemented by a court order requiring the accused to do so.
47. In the ultimate analysis, therefore, I am of the opinion
that the Magistrate's power to authorize the investigating
F agency to record voice sample of the person accused of an
offence can be traced to Section 5 of the Prisoners Act and
Section 53 of the Code. The Magistrate has an ancillary or
implied power under Section 53 of the Code to pass an order
permitting laking of voice sample lo aid investigation. This
G conclusion of mine is based on the interpretation of relevant
sections of the Prisoners Act and Section 53 of the Code and
also is in tune with the concern expressed by this court in Kathi
Ka/u Oghad that it is as much necessary to protect an accused
person against being compelled to incriminate himself, as to
arm the agents of law and the law courts with legitimate powers
H to bring offenders to justice.
RITESH SINHA v. STATE OF UTTAR PRADESH & 733
ANR. [RANJANA PRAKASH DESAI, J.]
48. The principle that a penal statute should be strictly A
construed is not of universal application. In Mur/idhar Meghraj
Loya v. State of Maharashtra 27 , this court was dealing with the
Prevention of Food Adulteration Act, 1954. Speaking for this
court, Krishna Iyer, J. held that any narrow and pedantic, literal
and lexical construction of Food Laws is likely to leave B
loopholes fQ/ the offender to sneak out of the meshes of law
and should be discouraged and criminal jurisprudence must
depart from old canons defeating criminal statutes calculated
to protect the public health and the nation's wealth. Similar view
was taken in Kisan Trimbak Kothula & Ors. v. State of c
Maharashtra 2 •. In State of Maharashtra v. Natwar/al
Damodardas Soni29 , while dealing with Section 135 of the
Customs Act and Rule 126-H(2)(d) of the Defence of India
Rules, a narrow construction given by the High Court was
rejected on the ground that that will emasculate these D
provisions and render them ineffective as a weapon for
combating golcfsmuggling. It was further held that the provisions
have to be speCially construed in a manner which will suppress
the mischief and advance the object which the legislature had
in view. Therefore, whether the penal statute should be given
E
strict interpretation or not will depend on facts of each case.
Consideration§ of public health, preservation of nation's wealth,
public safety may weigh with the court in a given case and
persuade it n"Ot to give a narrow construction to a penal statute.
In the facts Of this case, I am not inclined to give a narrow
construction-ti:> the provisions of the Prisoners Act and Section F
53 of the Coae. Judicial note can be taken of the fact that there
is a great deal of technological advance in means of
communication. Criminals are using new methodology in
committing crimes. Use of landlines, mobile phones and voice
over internet protocol (VoIP) in the commission of crimes like G
kidnapping for ransom, extortion, blackmail and for terrorist
27. AIR 1976 SC 1929.
28. AIR 1977 SC 435.
29. AIR 1980 SC 593. H
734 SUPREME COURT REPORTS (2012] 11 S.C.R.
A activities is rampant. Therefore, in order to strengthen the hands
of investigating agencies, I am inclined to give purposive
interpretation to the provisions of the Prisoners Act and Section
, 53 of the Code instead of giving a narrow interpretation to
them. I, however, feel that Parliament needs to bring in more
· B clarity and precision by amending the Prisoners Act. The Code
also needs to be suitably amended. Crime has changed its
•
•• face. There are new Challenges faced by the investigating
agency. It is necessary to note that many local amendments
have been made in the Prisoners Act by several States.
c Technological and scientific advance in the investigative
process could be more effectively used if required amendments
are introduced by Parliament. This is necessary to strike a
balance between the need to preserve the right against self
incrimination guaranteed under Article 20(3) of the Constitution
D and the need to strengthen the hands of the investigating
agency to bring criminals to book.
49. In the view that I have taken, I find no infirmity in the
impugned order passed by the High Court confirming the order
passed by learned Chief Judicial Magistrate, Saharanpur
E summoning the appellant to the court for recording the sample
of his voice. The appeal is dismissed.
50. Before I part with this judgment, I must express my
sincere thanks to learned counsel Mr. Siddhartha Dave, Mr.
F Aman Ahluwalia and Mr. R.K. Dash, who have very ably
assisted the court.
AFTAB ALAM, J. 1. Leave granted.
2. In to-day's world when terrorism is a hard reality and
G terrorist violence is a common phenomenon, the police needs
all the forensic aids from science and technology. The
technology is in position to-day to say whether two voice-
recordings are of the same perso111 or of two different people
and, thus, to provide valuable aidl in investigation. But, the
question is whether the law has any provision under which a
H
RITESH SINHA v. STATE OF µTIAR PRADESH & 735
ANR. [AFTAB A~M. J.]
person, suspected of having committed an offence, may be A
compelled to give his voice sample to aid the police in
investigation of the case. The next and the more important
question is, in case there is no express or evidently applicable
provision in law in that regard, should the court invent one by
the process of interpretation. My sister Desai J. seems to think B
that the gap in the law is so vital that the court must step in to
bridge the gap. I hesitate to do so.
2. There are, indeed, precedents where the court by the
interpretative process has evolved old laws to meet
cotemporary challenges and has planted into them contents to C
deal with the demands and the needs of the present that could
not be envisaged at the time of the making of the law. But, on
the question of compelling the accused to give voice sample,
the law must come from the legislature and not through the court
process. First, because the compulsion to give voice sample D
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. Secondly, if the legislature even
while making amendments in the Criminal Procedure Code, E
aimed at strengthening the investigation, as late as in 2005, is
oblivious to something as obvious as this 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, then it may even be contended that in the larger F
schemes of things the legislature is able to see something
which perhaps the Court is missing.
3. Coming now to the specifics, I would briefly record my
reasons for not being able to share the view taken by Desai J. G
4. At the beginning of her judgment Desai J. has framed
two questions that the Court is called upon to answer in this
case. These are:
"(i) Whether Article 20(3) of the Constitution of India, which H
736 SUPREME COURT REPORTS [2012] 11 S.C.R.
A protects a person accused of an offence from being
compelled to be a witness against himself, extends to
protecting such an accused from being compelled to give
his voice sample during the course of investigation into an
offence?
B
(ii) 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?"
c
(emphasis added)
5. As regards the first question, relying primarily on the
eleven (11) Judges' Bench decision of this Court in State of
0 Bombay v. Kathi Kalu Oghad & Others 1 which was followed
in the more recent decision in Se/vi and others v. State of
Kamataka 2 she held that "taking voice sample of an accused
by the police during investigation is not hit by Article 20 (3) of
the Constitution."
E 6. I am broadly in agreement with the view taken by her
on Article 20 (3) but, since I differ with her on the second
question, I think the issue of constitutional validity in compelling
the accused to give his/her voice sample does not really arise
in this case.
F
7. Coming to the second question, as may be seen, it has
the recognition that there is no provision in the Criminal
Procedure Code to compel the accused to give his voice
sample. That being the position, to my mind the answer to the
G question can only be in the negative, regardless of the
constitutional guarantee against self-incrimination and
assuming that in case a provision in that regard is made in the
1. [1962] 3 SCR 10.
H 2. c201 OJ 1 sec 263.
RITESH SINHA v. STATE OF UTIAR PRADESH & 737
ANR. [AFTAB ALAM, J.]
law that would not offend Article 20 (3) of the Constitution. A
8. Desai J., however, answers the question in the
affirmative by means of a learned and elaborate discourse. She
has navigated the arduous course to the conclusion at which
she arrived very painstakingly and skillfully. 8
9. First, she firmly rejects the submission advanced on
behalf of the State that in the absence of any express provision
in that regard, it was within the inherent and implied powers of
the Magistrate to direct the accused to give his/her voice
sample to ensure a proper investigation. In this regard, she C
observes as follows:-
"In the course of investigation, the police do use force. In
, country governed by rule of law police actions which are
likely to affect the bodily integrity of a person or likely to D
affect his personal dignity must have legal sanction. That
prevents possible abuse of the power by the police. It is
triie that every investigation has to be conducted within the
parameters of the Code. The power to investigate into a
cognizable offence must be exercised strictly on the E
condition on which it is granted. (State of West Bengal
v. Swapan Guha). The accused has to be dealt with
strictly in accordance with law. Even though, taking of
physical evidence which does not amount to
communicating information based on personal knowledge F
to the investigating officer by the accused which may
incriminate him, is held to be not violative of protection
guaranteed by Article 20(3), the investigating officer cannot
take physical evidence from an accused unless he is
authorized by a Magistrate to do so. He cannot assume
powers which he does not possess. He can only act on G
the strength of a direction given to him by a Magistrate and
the Magistrate must have power to issue such a direction."
10. I am fully in agreement with what is said above.
H
738 SUPREME COURT REPORTS [2012] 11 S.C.R.
A 11. However, having rejected the submission based on the
inherent and implied powers of the Magistrate she makes a
"search" for the power of the Magistrate to ask the accused to
give his/her voice sample. She shortlists for that purpose (i) the
provisions of the Identification of Prisoners Act, 1920, (ii)
B Section 73 of the Evidence Act and (iii) Sections 311A and 53
of the Code of Criminal Procedure.
12. She finds and holds that Section 73 of the Evidence
Act and Section 311A of the Code of Criminal Procedure are
of no help and those two provisions cannot be used for
C obtaining a direction from the Magistrate for taking voice
sample and finally rests her conclusion on the provisions of The
Identification of Prisoners Act, 1920 and Section 53 of the
Code of Criminal Procedure.
D 13. Section 53 of the Code of Criminal Procedure originally
read as under:-
"53. Examination of accused by medical practitioner
at the request of police officer. - (1) When a person is
arrested on a charge of committing an offence of such a
E nature and alleged to have been committed under such
circumstances that there are reasonable grounds for
believing that an examination of his person will afford
evidence as to the commission of an offence, it shall be
lawful for a registered medical practitioner, acting at the
F request of a police officer not below the rank of sub-
inspector, and for any person acting in good faith in his
aid and under his direction, to make such an examination
of the person arrested as is reasonably necessary in order
to ascertain the facts which may afford such evidence, and
G to use such force as is reasonably necessary for that
purpose.
(2) Whenever the person of a female is to be examined
under this section, the examination shall be made only by,
or under the supervision of, a female registered medical
H practitioner.•
-·I
RITESH SINHA v. STATE OF UTTAR PRADESH & 739
. ANR. [AFTAB ALAM, J.]
14. In the year 2005, a number of amendments were made A
in the Criminal Procedure Code by Act 25 of 2005. Those
amendments included the addition of an explanation to Section
53 and insertion of Sections 53-A and 311-A. The explanation
added to Section 53 reads as under:-
"[Exp/anation. - In this section and in sections 53A and B
54, -
(a) "examination" shall include the examination of blood,
blood stains, semen, swabs in case of sexual offences,
sputum and sweat, hair samples and finger nail clippings C
by the use of modern and scientific techniques including
DNA profiling and such other tests which the registered
medical practitioner thinks. necessary in a particular
case;
D
(emphasis added)
(b) "registered medical practitioner" means a medical
practitioner who possess any medical qualification as
defined in clause (h) of section 2 of the Indian Medical
Council Act, 1956 (102 of 1956) and whose name has E
been entered in a State Medical Register.]"
15. Desai J. rejects the submission made on behalf of the
appellant that "the term 'such other tests' mentioned in
Explanation (a) is controlled by the words 'which the registered F
medical practitioner thinks necessary'" and relying heavily upon
the decision of this Court in Se/vi holds:
" ... by adding the words 'and such other tests' in the
definition of term contained in Explanation (a) to Section
53 of the Code, the legislature took care of including within G
the scope of the term 'examination' similar tests which may
become necessary in the facts of a particular case.
Legislature exercised necessary caution and made the
said definition inclusive, not exhaustive and capable of
H
740 SUPREME COURT REPORTS [2012] 11 S.C.R.
A expanding to legally permissible limits with the aid of the
doctrine of 'ejusdem generis'."
16. I am completely unable to see how Explanation (a) to
Section 53 can be said to include voice sample and to my mind
the ratio of the decision in Se/vi does not enlarge but restricts
8 the ambit of the expressions 'such other tests' occurring in the
Explanation.
17. In my opinion the Explanation in question deals with
material and tangible things related to the human body and not
C to something disembodied as voice.
18. Section 53 applies to a situation where the
examination of the person of the accused is likely to provide
evidence as to the commission of an offence. Whether or not
D the examination of the person of the accused would afford
evidence as to the commission of the offence undoubtedly rests
on the satisfaction of the police officer not below the rank of
sub-inspector. But, once the police officer makes a request to
the registered medical practitioner for the examination of the
person of the accused, what other tests (apart from those
E expressly enumerated) might be necessary in a particular case
can only be decided by the medical practitioner and not the
police officer referring the accused to him. In my view, therefore,
Mr. Dave, learned counsel for the appellant, is right in his
submission that any tests other than those expressly mentioned
F in the Explanation can only be those which the registered
medical practitioner would think necessary in a particular case.
And further that in any event a registered medical practitioner
cannot take a voice sample.
G 19. Apart from Section 53 of the Code of Criminal
Procedure, Desai J. finds another source for the power of the
Magistrate in Section 5 of the Identification of Prisoners Act,
1920. Referring to some technical literature on voice print
identification, she holds:
H
RITESH SINHA v. STATE OF UTTAR PRADESH & 741
ANR. [AFTAB ALAM, J.]
"Thus, it is clear that voiceprint identification of voice A
involves measurement of frequency and intensity of sound
waves. In my opinion, therefore, measuring frequency or
intensity of the speech-sound waves falls within the ambit
of inclusive definition of the term 'measurement' appearing
in the Prisoners Act" B
And further:
"Thus, my conclusion that voice sample can be included
in the inclusive definition of the term "measurements"
appearing in Section 2(a) of the Prisoners Act is C
supported by the above-quoted observation that voice
prints are like finger prints. Section 2(a) states that
measurements include finger impressions and foot
impressions. If voice prints are like finger prints, they would
be covered by the term 'measurements'." D
She finally concludes:
"I am, therefore, of the opinion that a Magistrate acting
under Section 5 of the Prisoners Act can give a direction
to any person to give his voice sample for the purposes E
of any investigation or proceeding under the Code."
20. I am unable to agree.
21. In order to clearly state my views on the provisions of F
the Identification of Prisoners Act, I may refer to the object and
the scheme of the Act. The principal object of the Act is to
sanction certain coercive measures (which would otherwise
invite criminal or tortuous liability) in order to facilitate the
identification of (i) convicts, (ii) persons arrested in connection G
with certain offences, and (iii) persons ordered to give security
in certain cases. The scheme of the Act is as follows. The first
section relates to the short title and the extent of the Act. The
second section has the definition clauses and defines
'measurements' and 'prescribed' in clauses (a) and (c)
respectively which are as under: H
742 SUPREME COURT REPORTS [2012] 11 S.C.R.
A "2. Definitions. - (1) In this Act, unless there is anything
repugnant in the subject or context, -
(a) "measurements" include finger impressions and foot-
print impressions;
B (b) )()()( )()()( )()()(
(c) "prescribed" means prescribed by rules made under
this Act."
C 22. Then there are the three substantive provisions of the
Act. Section 3 deals with taking of measurements, etc of
convicted persons. It is as under:
"3. Taking of measurements, etc., of convicted
persons. - Every person who has been -
D
(a) convicted of any offence punishable with rigorous
imprisonment for a term of one year or upwards, or of any
offence which would render him liable to enhanced
punishment on a subsequent conviction; or
E (b) ordered to give security for his good behaviour under
section 118 of the Code of Criminal Procedure, 1898 (5
of 1898),
shall, if so required, allow his measurements and
F photograph to be taken by a police officer in the
prescribed manner."
23. Section 4 deals with taking of measurement, etc. of
non-convicted persons. It is as under:
G "4. Taking of measurements, etc., of non-convicted
persons. - Any person who has been arrested in
connection with an offence punishable with rigorous
imprisonment for a term of one year or upwards shall, if
so required by a police officer, allow his measurements
H to be taken in the prescribed manner."
RITESH SINHA v. STATE OF UTIAR PRADESH & 743
ANR. [AFTAB ALAM, J.]
24. Section 5 deals with the power of Magistrate to order A
a person to be measured or photographed. It is as under:
"5. Power of Magistrate to order a person to be
measured or photographed. - If a Magistrate is satisfied
that, for the purposes of any investigation or proceeding
under the Code of Criminal Procedure, 1898 (5of1898), 8
it is expedient to direct any person to allow his
measurements or photograph to be taken, he may make
an order to that effect, and in that case the person to whom
the order relates shall be produced or shall attend at the
time and place specified in the order and shall allow his C
measurements or photograph to be taken, as the case
may be, by a police officer:
Provided that no order shall be made directing any person
to be photographed except by a Magistrate of the First o
Class:
Provided further, that no order shall be made under this
section unless the person has at some time been arrested
in connection with such investigation or proceeding."
E
25. The rest of the provisions from Section 6 to Section 9
deal with incidental or consequential matters. Section 6 deals
with resistance to the taking of measurements, etc. and it is as
under:
F
"6. Resistance to the taking of measurements, etc. -
(1) If any person who under this Act is required to allow
his measurements or photograph to be taken resists or
refuses to allow the taking of the same, it shall be lawful
to use all means necessary to secure the taking thereof.
G
(2) Resistance to or refusal to allow the taking of
measurements or photograph under this Act shall be
deemed to be an offence under section 186 of the Indian
Penal Code (45 of 1860)."
H
744 SUPREME COURT REPORTS [2012] 11 S.C.R.
A 26. Section 7 deals with destruction of photographs and
records of measurements, etc., on acquittal and it is as under:
"Destruction of photographs and records of
measurements, etc., on acquittal. - Where any person
who, not having been previously convicted of an offence
B punishable with rigorous imprisonment for a term of one
year or upwards, has had his measurements taken or has
been photographed in accordance with the provisions of
this Act is released without trial or discharged or acquitted
by any court, all measurements and all photographs (both
c negatives and copies) so taken shall, unless the court or
(in a case where such person is released without trial) the
District Magistrate or Sub-Divisional Officer for reasons to
be recorded in writing otherwise directs, be destroyed or
made over to him."
D
27. Section 8 gives the State Governments the power to
make rules and it is as under:
"8. Power to make rules. - (1) The State Government
may, [by notification in the Official Gazette,] make rules for
E the purpose of carrying into effect the provisions of this Act.
(2) In particular and without prejudice to the generality of
the foregoing provision, such rules may provide for -
F (a) restrictions on the taking of photographs of persons
under section 5;
(b) the places at which measurements and photographs
may be taken;
G (c) the nature of the measurements that may be taken;
(d) the method in which any class or classes of
measurements shall be taken;
(e) the dress to be worn by a person when being
H
RITESH SINHA v. STATE OF UTIAR PRADESH & 745
ANR. [AFTAB ALAM, J.]
photographed under section 3; and A
(f) the preservation, safe custody, destruction and disposal
of records of measurements and photographs.
[(3) Every rule made under this section shall be laid, as
soon as may be after it is made, before State Legislature.]" 8
28. Section 9 finally lays down the bar of suits.
29. A careful reading of Sections 3, 4 and 5 would make
it clear that the three provisions relate to three categories of C
persons. Section 3 relates to a convicted person. Section 4
relates to a person who has been arrested in connection with
an offence punishable with rigorous imprisonment for. term of
1 year or upwards. Section 5 is far wider in amplitude than
Sections 3 and 4 and it relates to any person, the taking of
whose measurements or photographs might be expedient for D
the purposes of any investigation or proceeding under the Code
of Criminal Procedure. In the case of the first two categories
of persons, the authority to take measurements vests in a police
officer but in the case of Section 5, having regard to its much
wider amplitude, the power vests in a Magistrate and not in any E
police officer.
30. It is to be noted that the expression "measurements"
occurs not only in Section 5 but also in Sections 3 and 4. Thus,
if the term "measurements" is to be read to include voice F
sample then on arresting a person in a case relating to an
offence punishable with rigorous imprisonment for a term of 1
year or upwards (and voice sample would normally be required
only in cases in which the punishment is one year or upward!)
it would be open to the police officer (of any rank) to require G
the arrested person to give his/her voice sample on his own
and without seeking any direction from the Magistrate under
Section 5. Further, applying the same parameters, not only
voice sample but many other medical tests, for instance, blood
tests such as lipid profile, kidney function test, liver function test, H
746 SUPREME COURT REPORTS [2012] 11 S.C.R.
A thyroid function test etc., brain scanning etc. would equally
qualify as "measurements" within the meaning of the
Identification of Prisoners Act. In other words on arresting a
person in a case relating to an offence punishable with rigorous
imprisonment fo' a term of 1 year or upwards it would be
B possible for the police officer (of any rank) to obtain not only
the voice sample but the full medical profile of the arrested
person without seeking any direction from the magistrate under
Section 5 of the Identification of Prisoners Act or taking
recourse to the provisions of Section 53 or 53A of the Code
c of Criminal Pro,,;edure.
31. I find it impossible to extend the provisions of the
Identification of Prisoners Act to that extent.
32. It may not be inappropriate here to point out that in
D exercise of the rule-making powers under Section 8 of the
Identification of Prisoners Act some of the State Governments
have framed rules. I have examined the rules framed by the
States of Maharashtra, Madhya Pradesh, Orissa, Pondicherry
and Jammu & Kashmir. From a perusal of those rules it would
E appear that all the State Governments understood
"measurements" to mean the physical measurements of the
body or parts of the body. The framing of the rules by the State
Government would not be binding on this Court in interpreting
a provision in the rules. But it needs to be borne in mind that
F unless the provision are incorporated in the Act in regard to the
manner of taking voice sample and the person competent to
take voice sample etc. there may be difficulty in carrying out
the direction of the Court.
33. For arriving at her conclusion regarding the scope of
G Section 5 of the Identification of Prisoners Act, Desai J. has
considered two High Court judgments. One is of the Bombay
High Court in Central Bureau of Investigation, New Delhi v.
Abdul Kanin Ladsab Te/gi and others3 and the other by the
H 3. 2005 Crl. L.J. 2868.
RITESH SINHA v. STATE OF UTTAR PRADESH & 747
ANR. [AFTAB ALAM, J.]
Delhi High Court in Rakesh Bisht v. Central Bureau of A
Investigation• she has approved the Bombay High Court
decision in Telgi's case and disapproved the Delhi High Court
decision in Bisht's case. The Bombay decision is based on
exactly the same reasoning as adopted by Desai J that the
definition of "measurements" in Section 2{a) is wide enough to B
include voice sample and hence a Magistrate is competent to
order a person to give his voice sample. The relevant passage
in the decision is as under:-
"Be that as it may, the expression "measurements" C
occurring in Section 5 has been defined in Section 2{a),
which reads thus:
2. Definitions. - In that Act .......... .
{a) "measurements include finger-impressions and foot- D
print impressions".
The said expression is an inclusive term, which also
includes finger-impressions and foot-print impressions.
Besides, the term measurement, as per the dictionary
meaning is the act or an instance of measuring; an amount E
determined by measuring; detailed dimensions. With the
development of Science and Technology, the voice sample
can be analysed or measured on the basis of time,
frequency, and intensity of the speech-sound waves so as
to compare and identify the voice of the person who must F
have spoken or participated in recorded telephonic
conversation. The expression "measurements" occurring
in Section 5, to my mind, can be construed to encompass
even the act undertaken for the purpose of identification
of the voice in the tape-recorded conversation. Such G
construction will be purposive one without causing any
violence to the said enactment, the purpose of which was
to record or make note of the identity of specified
persons."
4. 2007 Cri. L.J. 1530 =MANU/DE/0338/2007. H
748 SUPREME COURT REPORTS [2012) 11 S.C.R.
A 34. For the reasons discussed above, I am unable to
accept the views taken in the Bombay decision and to my mind
the decision in Telgi is not the correct enunciation of law.
35. The Delhi High Court decision in the case of Bisht
pertains to the period prior to June 2~, 2006, when the
8
amendments made in the Code of Criminal Procedure by Act
25 of 2005 came into effect. It, therefore, did not advert to
Sections 53 or 311A and considered the issue of taking voice
sample of the accused compulsorily, primarily in light of Section
73 of the Indian Evidence Act, 1872. Though the decision does
C not refer to the provisions of the Criminal Procedure Code that
came into force on June 23, 2006, in my view, it arrives at the
correct conclusions.
36. At this stage, I may also refer to the decision of this
D Court in State of Uttar Pradesh v. Ram Babu Misra 5 where the
Court considered the issue whether the Magistrate had the
authority to direct the accused to give his specimen writing
during the course of investigation. The first thing to note in
regard to this decision is that it was rendered long before the
E introduction of Section 311A in the Code of Criminal Procedure
which now expressly empowers the Magistrate to order a
person to give specimen signature or handwriting for the
purposes of any investigation or any proceeding under the
Code. In Ram Babu Misra the Court noted that signature and
F writing are excluded from the range of Section 5 of the
Identification of Prisoners Act, though finger impression was
included therein. In that decision the Court made a suggestion
to make a suitable law to provide for the investiture of
Magistrates with the power to issue directions to any person,
G including an accused person, to give specimen signatures and
writings. The suggestions made by the Court materialized 25
years later when Section 311A was introduced in the Code of
Criminal Procedure.
H s. c1saoi 2 sec 343.
RITESH SINHA v. STATE OF UTIAR PRADESH & 749
ANR. [AFTAB ALAM, J.]
37. The decision in Ram Babu Misra was rendered by this A
Court on February 19, 1980 and on August 27, the same year,
the Law Commission of India submitted its 87th Report which
was aimed at a complete revamp of the Identification of
Prisoners Act, 1920 and to update it by including the scientific
advances in the aid of investigation. In Paragraph 3.16 of the B
Report n was observed as under:
"3.16 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 C
the criminal offender ... 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."
(emphasis added) D
38. Further, in Paragraph 5.26 it was stated as under:
··s.26 The scope of section 5 needs to be expanded in
another respect. The general power of investigation given
to the police under the Criminal Procedure Code may not E
imply the power to require the accused to furnish a
specimen of his voice. Cases in which the 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 F
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 accused person to furnish a specimen G
of his voice."
(emphasis added)
39. I am not suggesting for a moment that the above
extracts are in any way binding upon the Court but they do H
750 SUPREME COURT REPORTS [2012] 11 S.C.R.
A indicate the response of a judicial mind while reading the
provisions of the Indian Prisoners Act nonnally, without any urge
to give the expression 'measurements' any stretched meaning.
40. The Report then discussed where a provision for
taking voice sample can be appropriately included; whether in
8
the Identification of Prisoners Act or in the Evidence Act or in
the Code of Criminal Procedure. It concluded that it would be
appropriate to incorporate the provision by amending Section
5 of the Identification of Prisoners Act as follows:
C "(1) If a Magistrate is satisfied that, for the purpose of any
investigation or proceeding under the Code of Criminal
Procedure, 1973, it is expedient to direct any person -
(a) to allow his measurements or photograph to be
D taken, or
(b) to furnish a specimen of his signature or writing, or
(c) to furnish a specimen of his voice by uttering the
specified words or making the specified sounds.
E
the Magistrate may make an order to that effect, recording
his reasons for such an order.
(2) The person to whom the order relates -
F (a) shall be produced or shall attend at the time and
place specified in the order, and
(b) shall allow his measurements or photograph to be
taken by a police officer, or furnish the specimen
signature or writing or furnish a specimen of his
G
voice, as the case may be in conformity with the
orders of the Magistrate before a police officer.
(3) No order directing any person to be photographed
shall be made except by a metropolitan Magistrate
H or a Magistrate of the first class.
"
RITESH SINHA v. STATE OF UTTAR PRADESH & 751
ANR. [AFTAB ALAM, J.]
(4) No order shall be made under this section unless A
the person has at some time been arrested in
connection with such investigation or proceeding.
(5) Where a court has taken cognizance of an offence
a Magistrate shall not under this section, give to
8
the person accused of the offence any direction
which could, under section 73 of the Indian
Evidence Act 1872, be given by such Magistrate."
41. The Report as noted was submitted in 1980. The
Code of Criminal Procedure was amended in 2005 when the C
Explanation was added to Section 53 and Sections 53A and
311A were inserted into the Code. Voice sample was not
included either in the Explanation to Section 53 or Section
311A.
D
42. Should the Court still insist that voice sample is included
in the definition of "measurements" under the Identification of
Prisoners Act and in the Explanation to Section 53 of the Code
of Criminal Procedure? I would answer in the negative.
43. In light of the above discussion, I respectfully differ from E
the judgment proposed by my sister Desai J. I would allow the
appeal and set aside the order passed by the Magistrate and
affirmed by the High Court.
44. Let copies .of this judgment be sent to the Union Law F
Minister and the Attorney General and their attention be drawn
to the issue involved in the case.
45. In view of the difference of opinion between us, let this
case be listed for hearing before a bench of three Judges after
obtaining the necessary direction from the Honourable the Chief G
Justice of India.
R.P. Matter referred to a Bench of three Judges.
H
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