Paragraph numbers below are the court’s original numbering, recovered from the source text.
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 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 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, 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 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.
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 c 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?" (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 & Others1 which was followed in the more recent decision in Se/vi and others v. State of Kamataka2 she held that "taking voice sample of an accused by the police during investigation is not hit by Article 20 (3) of the Constitution."
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.
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. H 2. c201 OJ 1 sec 263. law that would not offend Article 20 (3) of the Constitution.
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.
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 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 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 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 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 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.
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.
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 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 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 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 practitioner.• -·I RITESH SINHA v. STATE OF UTTAR PRADESH & . ANR. [AFTAB ALAM, J.]
14. In the year 2005, a number of amendments were made 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 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 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; (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 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 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 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 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.
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: RITESH SINHA v. STATE OF UTTAR PRADESH & ANR. [AFTAB ALAM, J.] "Thus, it is clear that voiceprint identification of voice 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" 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 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'." 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 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 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 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: "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) )()()( )()()( )()()( (c) "prescribed" means prescribed by rules made under this Act."
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 – (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 (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 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: "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 to be taken in the prescribed manner."
24. Section 5 deals with the power of Magistrate to order 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), 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 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."
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: "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. (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)." c
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 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 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."
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 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 – (a) restrictions on the taking of photographs of persons under section 5; (b) the places at which measurements and photographs may be taken; (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 photographed under section 3; and (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.]"
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 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 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 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 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, 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 & 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 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" 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- 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 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 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 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. [2012) 11 S.C.R.
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 8 pertains to the period prior to June 2~, 2006, when the 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 Misra5 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.
37. The decision in Ram Babu Misra was rendered by this 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 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)
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 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 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 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 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 8 taking voice sample can be appropriately included; whether in 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: "(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 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. the Magistrate may make an order to that effect, recording his reasons for such an order. (2) The person to whom the order relates – (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 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 or a Magistrate of the first class. RITESH SINHA v. STATE OF UTTAR PRADESH & ANR. [AFTAB ALAM, J.] (4) No order shall be made under this section unless 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 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 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.
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 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 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.