# RITESH SINHA v. THE STATE OF UTIAR PRADESH & ANR

- **Citation:** [2012] 11 S.C.R. 683
- **Court:** Supreme Court of India
- **Decided:** 2012-12-07
- **Case number:** Criminal Appeal No. 2003 of 2012
- **Bench:** Aftab Alam, Ranjana Prakash Desai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ritesh-sinha-v-the-state-of-utiar-pradesh-anr-28205
- **Pages:** 69

## Headnote

Investigation:
A
B
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?"
D
Referring the matter to a bench of three Judges, the
Court
HELD: (Per Ranjana Prakash Desai, J.)
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 Howev

## Text

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[2012] 11 S.C.R. 683
RITESH SINHA
v.
THE STATE OF UTIAR PRADESH & ANR.
(Criminal Appeal No. 2003 of 2012}
DECEMBER 7, 2012.
[AFTAB ALAM AND RANJANA PRAKASH DESAI, JJ.]
Investigation:
A
B
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?"
D
Referring the matter to a bench of three Judges, the
Court
HELD: (Per Ranjana Prakash Desai, J.)
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) [711G-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
F
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. 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-EF]
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
c
= (2006) 12 sec 79 - distinguished.
R. M. Malkani v. State of Maharashtra 1973 (2)
SCR 417= (1973) 1 SCC 471 - referred to.
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, 3031] [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 nontestimonial 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 narroWconstruction 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):
c
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]
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) [740F
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
0 person in a case relating to an offence punishable with
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.
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.
B
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
B
(1980) 2 sec 242
referred to
Para 5
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
1977 (2) SCR 102
referred to
Para 48
1980 (2) SCR 340
referred to
Para 48
Per Aftab Alam, J.
[1962] 3 SCR 10
referred to
para 5
2010 (5) SCR 381
referred to
para 5
2005 Crl.L.J. 2868
disapproved
para 33
2007 Cri. L.J. 1530=
MANU/DE/0338/2007
approved
Para 33
1980 (2) SCR 1067
referred to
Para 36
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.
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
(SMT.) RANJANA PRAKASH DESAI, J. 1. Leave
granted.
A
B
c
D
E
F
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
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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
E
F
G
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
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)
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?"
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 Misra2, 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. ·
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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
0 modern and scientific techniques. Voice sample specifically has
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 Kamataka7 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 Pradesh8 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
0 fall within the ambit of Section 53 of the Code. The Magistrate
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 Rajasthan14 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.
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[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.
B
c
9. Article 20(3) of the Constitution reads thus:
"Article 20: Protection in respect of conviction for
offences.
(1)
(2)
(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.