This article is written by Moumita Mondal, pursuing Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from Lawsikho.com. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Ruchika Mohapatra (Associate, LawSikho).

Introduction

The word “voice” refers to the sound produced by human beings through their mouth in speech or song. In general, music professionals use the term “voice sample” to refer to the collection of an artist’s recorded sound for the purpose of composing a song. In law, “voice sample” means the recording of the voice which is only used for the purpose of criminal investigations and legal or constitutional issues. Here, the voice sample of the accused can only be obtained by the Investigating Agency or Police when the Magistrate directs to do so. But, there are a plethora of issues that can arise while taking the voice sample from the accused as it could infringe the right to privacy. 

Through this article, the author seeks to discuss the meaning of a voice sample, as well as other aspects of the right to privacy where a voice sample cannot be taken, and the constitutional basis on which the Magistrate allows the Investigating Agency to take a voice sample from an accused person without his consent.

What is a voice sample in law?

Voice sample refers to the recorded tone of the person. It is mainly based on the accent of the person. Voiceprint identification is a technique through which the voice features of the speaker are recognized. Voiceprint identification is generally used in criminal investigations to solve complicated matters or matters which are pending before the court. It is a technique through which the court can speed up the proceedings of adjudging the guilt or innocence of the accused. 

The 87th report of the Law Commission of India had mentioned the instance which took place in England in the year 1967 at the Winchester Magistrates Court in which the voice sample was taken from the accused to identify the malicious telephonic calls made by him. So, with the help of the voiceprint identification, it was confirmed that the calls were actually made by the accused person and thus, he was found guilty by the court. 

Is obtaining a voice sample from the accused without his consent constitutional?

Constitutional basis

Article 20(3) of the Constitution of India says that no person should be forced to become a witness against himself. In the recent case of Raj Kumar Singh Chouhan vs State of Rajasthan, the learned counsel on behalf of the accused contended that the voice sample cannot be taken against the choice of the accused otherwise it would result in self-incrimination under Article 20(3) of the Constitution of India. The learned counsel for the accused has also referred to the judgment given in Vikramjeet Singh vs.State of Rajasthan.  Thus, while relying on the judgment passed by the Supreme Court in Ritesh Sinha v State of Uttar Pradesh & Anr., the Hon’ble court rejected the plea of the accused. 

In the following judgments, High Courts have validated that the voice sample could be collected from the accused person without taking their permission. 

Significant case laws

1. In R.K. Akhande vs. Special Police Establishment, the Madhya Pradesh High Court held that necessitating the accused person to give the voice sample does not mean that he is giving evidence against himself.
2. In Kamal Pal and Another v. State of Punjab, the Punjab and Haryana High Court held that the accused who is judicially directed to give the voice sample for the purpose of inquiry or comparison purposes do not infringe the right to privacy.

Case analysis of Ritesh Sinha vs. State of Uttar Pradesh

Facts of the case

The FIR was lodged by the in-charge of the Electronic Cell of the Sadar Bazar Police Station which is situated in the Saharanpur district of the State of Uttar Pradesh.  The FIR stated that Dhoom Singh was connected with Ritesh Sinha, and was involved in collecting money from different people on the pretext of giving them jobs in the Police. The police confiscated the mobile phone while arresting Dhoom Singh. The Investigating Officer needed the voice sample of Ritesh Sinha to confirm whether the taped conversation on the mobile phone was between Ritesh Sinha and Dhoom Singh. So, an application was filed before the Chief Judicial Magistrate for directing Ritesh Sinha to give his recording for a voice sample. The summon was sent to him which directed him to give his recording for a voice sample. Ritesh Sinha was aggrieved by the decision of the Court and thus, he filed an appeal before the High Court under Section 482 of the Code of Criminal Procedure, 1973. But, the High Court had rejected the appeal filed by him. Thereafter, he filed an appeal through a Special Leave Application before the Supreme Court.

Brief of the case

The appeal was filed by Ritesh Sinha which had challenged the order of obtaining a voice sample from him. The appeal was dividedly dealt with by the Supreme Court composed of two-bench, Justice Prakash Desai and Justice Aftab Alam. While dealing with the appeal, the two principal questions were raised before the Court. The first issue was whether Article 20(3) protects the accused person compelling him to give a voice sample for investigation or not. The second issue was whether the Magistrate could direct the accused person to give the voice sample without the absence of provisions. Before answering both the issues, Justice Prakash Desai contended that if the phrase “voice sample” is added as other tests in Explanation (a) to Section 53 of Code of Criminal Procedure, 1973 through the application of ejusdem generis, then the Magistrate is authorized to direct the accused person to give the voice sample for inquiry in the Criminal matters whereas Justice Aftab Alam contended that the accused person can be forced to give the voice sample if such law is passed by the legislature. 

For the first issue, the Court had relied on the issue which was raised in State of Bombay vs. Kathi Kalu Ogad. The issue raised in the case of Kathi Kalu Ogad was whether the taking of specimen handwriting of the accused to determine his guilt would amount to infringement of right against self-incrimination under Article 20(3) of the Constitution. The answer to this issue was given by Chief Justice B.P. Sinha opined that Article 20(3) of the Constitution of India is only applicable when an accused person is compelled to incriminate himself. He added that self Incrimination includes the evidence given by the accused person when he is under compulsion to do so and such evidence is based on the personal knowledge of the other person but it does not depend on the knowledge of the accused person. He contended that the violation of Article 20(3) occurs if the force is applied to the accused person who incriminates against himself. He opined that a specimen of signature or fingerprint is obtained to confirm that the inference made by the Court is true. He added that these pieces of evidence are neither in the category of oral or documentary evidence and thus, they are regarded as the third category which is beyond the evidence.

The court stated that the judicial interpretation can be given in such cases where there are shortcomings in the letter of the law. For the second issue, the Court had referred to Section 53, 53-A, and Section 311 which were added when the Code of Criminal Procedure was amended. These amendments were referred to for ascertaining the power of the Magistrate to give direction to the accused person in the cases where the accused has to undergo medical examination for the alleged offences committed by him or where the specimen of handwriting or signature is required for inquiry or procedure under the Cr.P.C. But, this amendment does not include any provision which could empower the Magistrate to order any person or accused person to supply the voice sample for the inquiry. No laws relating to this issue were made by the Legislature and so, the confusion in the mind of Justice Aftab Alam arose while determining whether the Legislature was in favour of debarring or deletion of this provision so as not to enable the courts to give the judicial interpretation. To clear the confusion, the Court had referred to the 87th report of the Law Commission of India. The Court had also referred to the judgment given in State of Uttar Pradesh v. Ram Babu Mishra, which held that in the absence of any specific provision, the Magistrate could not direct the accused person to give his specimen signatures and writing samples. The Court suggested that suitable legislation may be made on the analogy of  Section 5 of the Identification of 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 signature and writings.

The decision of the Court

Before coming to the decision, the question was raised before the court that the order of the court to take the voice sample would infringe the right to privacy under Article 20(3) of the Constitution of India. The Court had relied on the judgment given in Modern Dental College and Research Centre and others vs. State of Madhya Pradesh and others, Gobind vs. Madhya Pradesh and another, K.S. Puttuswamy and others vs. Union of India and others state that the fundamental right to privacy cannot be infringed when the accused is compelled under the direction of the Magistrate to give the voice sample for inquiry in a criminal matter.  The Court decided that the Magistrate is empowered to direct the accused person to give his voice sample for criminal investigation until the subsequent provisions are embedded by the Legislature and thus, such power has been given to the Magistrate under Article 142 of the Constitution of India. Therefore, the appeal of Ritesh Sinha was rejected by the Court.

Can investigative agencies be allowed to take voice samples of the accused?

In Union of India THR. National Investigating Agency vs. Roopesh @ Praveen, the Investigating Agency had approached the Supreme Court through Special Leave Petition against the order given by the Kerala High Court which refused the Investigating Agency to collect the voice sample for purpose of identifying whether the voice of the accused person matches with the voice in the video recording taken during the investigation. The accused had approached the Kerala High Court against the NIA and opined that there is no statutory provision that allows the court to direct the accused to deliver his voice sample to the investigating agency for authentication.

The Kerala High Court consisting of Justice AM Shaffique and Justice P Somarajan accepted the contention of the accused as correct while relying on finding in Ritesh Sinha v. The State of Uttar Pradesh &Anr. Thus, the Kerala High Court held that the accused cannot be directed to give a voice sample to the Investigating Agency. However, the High Court also observed that the issue of whether the Investing Agency could take the voice sample from the accused person or not is still not determined by the Supreme Court.

While dealing with the present case, the Supreme Court had referred to Ritesh Sinha’s case. In Ritesh Sinha’s case, Justice Prakash Desai opined that the Magistrate could direct the accused to give a voice sample whereas Justice Aftab Alam opined that it is not correct to include the voice sample in the meaning of measurement under the Explanation of Section 53 of the Code of Criminal Procedure, 1973.

The Supreme Court held that the voice sample of the accused could be given to the Investigating Agency for the purpose of the inquiry. Thus, the decision was passed in favour of the Investigating Agency.

Voice sample and right to privacy

Article 21 of the Constitution of India protects the privacy of the people. The term, “Privacy” has been defined in the Black’s Law dictionary which means the right to be free from any public attention. The right to privacy prevents the third party from accessing the information related to the personal lives of people. A person cannot be forced by any other person to disclose his details regarding his personal life. In People’s Union of Civil Liberties v. Union of India, the Supreme court held that the telephonic conversation is related to the private life of the man, and tapping the conversation without the consent of any person would infringe Article 21 of the Constitution of India. 

A voice sample is an effective tool that determines the authenticity of the recording when it is compared with the voice of the accused person. The privacy of the person is violated when the other person takes the recording of his voice or conversation without taking his consent. Thus, the Supreme Court had observed that the court cannot compel the accused person by directing him to give his voice sample which would infringe his right to privacy. 

While relying on Ritesh Sinha v. State of Uttar Pradesh & Anr, the Supreme Court had declared that the fundamental right to privacy must not rise above the public interest, and thus, it is not absolute. The Supreme Court had also relied on the landmark judgment of Selvi v. State of Karnataka in which the connection between the right to privacy and Article 20(3) of the Constitution was drawn. In this case, the court had declared that the narco-analysis and lie detector test cannot be conducted without the permission of the accused person otherwise it would infringe the right of the accused person. The court held that the choice is left to the person who chooses to speak or remain silent and cannot be restrained by anyone especially in a situation where he faces criminal charges and punishment. In Puttaswamy’s case, the Supreme Court had already declared that privacy allows the person to think and act freely. Earlier, the Supreme Court in Suchita Srivastava (2009) and NALSA (2014) held that the right to make a personal choice of one’s life is regarded as the important aspect of the right to privacy. Therefore, the court cannot force a person to give a voice sample which would infringe the fundamental right to privacy under Article 20(3) of the Constitution. 

Conclusion

A voice sample is a method through which the recording of the voice is taken from the accused of the purpose of comparing the other recording speech or conversation. The legislation had not made any laws relating to a voice sample. The court had tried its best to pronounce its judgment which would deliver justice to the society without ignoring the intent of the legislation. Such an instance can be seen in Ritesh Sinha v. State of Uttar Pradesh & Anr in which the Supreme Court declared that the accused person has to give a voice sample for investigation in criminal matters and thus, it does not violate Article 20(3) of the Constitution of India. 

Right to privacy refers to the choice of the person to safeguard his details about his private life. The mobile phone, laptop, or any other form containing the personal details of the person cannot be disclosed to the third party without seeking his permission. And, so the Supreme Court had already stated that the court cannot issue an order against the person or accused person to give his voice sample without his will otherwise it would resultantly violate his right to privacy.

References

1. https://www.livelaw.in/know-the-law/voice-sample-accused-consent-not-unconstitutional-181959
2. https://www.livelaw.in/news-updates/madhya-pradesh-high-court-article-203-violated-magistrate-directs-accused-voice-samples-investigation-consent-176778
3. https://www.livelaw.in/top-stories/magistrate-can-direct-accused-voice-samples-without-consent-sc-146868
4. http://www.legalservicesindia.com/article/1630/Right-To-Privacy-Under-Article-21-and-the-Related-Conflicts.html
5. https://lawcommissionofindia.nic.in/51-100/Report87.pdf

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