Case Briefing: RITESH SINHA V. STATE OF UTTAR PRADESH & ANR.
Case Title and Citation:
RITESH SINHA VERSUS STATE OF UTTAR PRADESH & ANR. CRIMINAL APPEAL NO.2003 OF 2012 (With connected appeals).
Date: August 02, 2019.
Facts:
A First Information Report (“FIR”) was lodged on December 7, 2009, alleging that the appellant, Ritesh Sinha, was involved with one Dhoom Singh in the collection of monies on the promise of jobs in the Police. A mobile phone was seized from Dhoom Singh after his arrest. The Investigating Authority sought to verify whether the recorded conversation in the mobile phone was between Dhoom Singh and the appellant. Accordingly, the authority filed an application before the Chief Judicial Magistrate (CJM) praying for summoning the appellant to the Court for recording his voice sample.
The learned CJM, Saharanpur, by order dated January 8, 2010, issued summons to the appellant to appear before the Investigating Officer and give his voice sample. This order was challenged by the appellant before the High Court of Allahabad under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.), but the challenge was negatived by the High Court’s order dated July 9, 2010. The appeal was initially heard by a two-Judge Bench of the Supreme Court and resulted in a split verdict, requiring the present reference.
Issue(s):
The reference required the determination of two principal questions:
- Whether Article 20(3) of the Constitution of India, which protects an accused 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?
- 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?
Rule of Law:
- Article 20(3) of the Constitution: Protects a person accused of an offence from being compelled to be a witness against himself. The prohibition applies only in cases of testimony of an accused which are self-incriminatory or of a character which has the tendency of incriminating the accused himself.
- State of Bombay vs. Kathi Kalu Oghad (1961): Held that the prohibition in Article 20(3) does not include the merely mechanical process of producing documents or specimens, which are “wholly innocuous” and are only “materials for comparison”.
- Sections 53, 53A, and 311-A of the Cr.P.C. (as amended by Act No. 25 of 2005): These provisions deal with the medical examination of an accused and the power of a Magistrate to order specimen signatures or handwriting, but do not specifically authorize a Magistrate to direct a person to give his/her voice sample.
- Doctrine of Judicial Interpretation: The Court should be guided by the view that “Procedure is the handmaid, not the mistress, of justice and cannot be permitted to thwart the fact-finding course in litigation”. When a “yawning gap in the Statute” calls for temporary filling up to make the Statute effective and workable and to sub-serve societal interests, a process of judicial interpretation becomes inevitable.
Holding:
- Article 20(3) is not violated when an accused is compelled to give a voice sample.
- The Court held that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime.
- Such power is conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in the Supreme Court under Article 142 of the Constitution of India.
Reasoning:
Regarding Issue 1 (Article 20(3)):
Both learned Judges on the initial split Bench and the subsequent Bench answered the first question in the negative, following the ratio in State of Bombay vs. Kathi Kalu Oghad. The prohibition under Article 20(3) is directed against self-incrimination by an accused person.
- A specimen voice, like specimen handwriting or finger impressions, is no testimony at all, being wholly innocuous.
- Giving a voice sample is merely a mechanical process and does not mean conveying information based upon the personal knowledge of the person giving the information.
- The sample is only material for comparison to lend assurance to the Court that its inference based on other pieces of evidence is reliable.
Regarding Issue 2 (Lack of Statutory Provision):
The Court acknowledged that existing amendments (Sections 53, 53A, and 311-A Cr.P.C.) do not specifically empower a Magistrate to direct voice samples. However, the Court deemed it necessary to fill this “yawning gap in the Statute” by judicial interpretation.
- The need to fill the gap is based on the principle of imminent necessity to make the statute effective and workable and to sub-serve societal interests.
- Relying on precedents emphasizing that procedure is the handmaid, not the mistress, of justice, the Court emphasized that judicial power should not be entrapped within inflexible parameters.
- The Court noted the views of the Law Commission (87th Report, 1980) which had suggested suitable legislation to specifically empower a Judicial Magistrate to compel an accused person to give a voice sample.
- The Court invoked the principle of “ironing out the creases” in legislation (as articulated by Lord Denning and approved by the Indian Supreme Court), concluding that where a Statute leaves its intention in a nebulous state, the Court must step in to make sense of the enactment.
Regarding Privacy (Unargued but Noted): The Court noted that although the fundamental right to privacy under Article 20(3) was not specifically argued, prior judgments, including the Nine Judge’s Bench in K.S. Puttaswamy v. Union of India, establish that the fundamental right to privacy cannot be construed as absolute and must bow down to compelling public interest.
