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SUPREME COURT OF INDIA
RANJAN GOGOI, CJI., DEEPAK GUPTA, SANJIV KHANNA, JJ.
Ritesh Sinha – Appellants
Versus
State of Uttar Pradesh & Anr – Respondents
Criminal Appeal No.2003 of 2012 With Criminal Appeal No.1318 of 2013 Criminal Appeal No.1187 of 2019 [Arising Out of SLP (Criminal) No.9671 of 2017] Criminal Appeal No.1188 of 2019 [Arising Out of SLP (Criminal) No.1048 of 2018] Criminal Appeal No.1189 of 2019 [Arising Out of SLP (Criminal) No.2225 of 2018] Criminal Appeal No.1190 of 2019 [Arising Out of SLP (Criminal) No.3272 of 2018]
Decided On : 02-08-2019
(A) Criminal Procedure Code, 1973 – Section 53 – Identification of Prisoners Act, 1920 – Section 5 – Constitution of India – Article 20(3) – Recording of voice sample of accused – Until explicit provisions are engrafted in Code of Criminal Procedure by Parliament, Judicial Magistrate must be conceded power to order a person to give a sample of his voice for the purpose of investigation of a crime – Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of Constitution of India – Fundamental right to privacy cannot be construed as absolute and but must bow down to compelling public interest. (Paras 24 and 25)
(B) Interpretation of Statute – Rule of Purposive Construction – What may appear to be legislative inaction to fill in gaps in Statute could be on account of justified legislative concern and exercise of care and caution – However, when a yawning gap in Statute, calls for temporary patchwork of filling up to make the Statute effective and workable and to sub-serve societal interests a process of judicial interpretation would become inevitable. (Para 20)
(C) Administration of Justice – Parameters – Exercise of jurisdiction by Constitutional Courts must be guided by contemporaneous realities/existing realities on the ground – Judicial power should not be allowed to be entrapped within inflexible parameters or guided by rigid principles – Judicial function is not to legislate but in a situation where call of justice and that too of a large number who are not parties to lis before Court, demands expression of an opinion on a silent aspect of Statute, such void must be filled up not only on principle of ejusdem generis but on principle of imminent necessity with a call to Legislature to act promptly in the matter. (Para 21)
Facts of the Case:
Question of law to be considered in this appeal is whether in absence of any specific provision in Cr.P.C. would a Court be competent to authorize Investigating Agency to record voice sample of a person accused of an offence. View that the law on the point should emanate from the Legislature and not from the Court, as expressed in the judgment of this Court from which the reference has emanated is founded on two main reasons, viz., (i) 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 principles of interpretation and (ii) if legislature, even while making amendments in Criminal Procedure Code (Act No.25 of 2005), is oblivious 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 of CR.P.C., then it may even be contended that in larger scheme of things legislature is able to see something which perhaps Court is missing.
Findings of the Court:
Exercise of jurisdiction by Constitutional Courts must be guided by contemporaneous realities/existing realities on the ground. Judicial power should not be allowed to be entrapped within inflexible parameters or guided by rigid principles. True, judicial function is not to legislate but in a situation where call of justice and that too of a large number who are not parties to lis before Court, demands expression of an opinion on a silent aspect of Statute, such void must be filled up not only on principle of ejusdem generis but on the principle of imminent necessity with a call to Legislature to act promptly in the matter.
Result : Appeals disposed of in terms.
Certainly. Based on the provided legal document, the key points are as follows:
Judicial Magistrates must be granted the authority to order an individual to provide a voice sample for investigative purposes, even in the absence of explicit statutory provisions, through judicial interpretation and exercise of constitutional jurisdiction (!) (!) .
The fundamental right to privacy is not absolute and may be overridden when there is a compelling public interest, especially during criminal investigations (!) .
When there are significant gaps or ambiguities in statutory law, courts may adopt a temporary interpretative approach to fill these gaps to ensure the law remains effective and societal interests are served, with a call for legislative action to address such issues promptly (!) (!) .
The exercise of judicial power should be guided by current realities and societal needs, emphasizing flexibility rather than rigid adherence to inflexible principles, particularly when addressing silent or unaddressed aspects of law (!) (!) .
The law should be interpreted purposively, considering the context and intent of the legislature, especially when legislative silence or omission creates practical difficulties, and courts may fill such voids to uphold justice (!) (!) .
Specific statutory provisions are necessary to explicitly empower courts or authorities to compel individuals to give voice samples; until such provisions are enacted, courts may rely on constitutional powers to fill the gap (!) (!) .
The law has recognized the potential utility of voice print identification and similar methods, but there is no current statutory authority in India explicitly permitting courts or police to compel voice samples from accused persons, highlighting a legislative gap (!) (!) (!) .
The interpretation of constitutional protections, such as the right against self-incrimination, suggests that providing voice samples does not necessarily constitute self-incrimination or violate constitutional rights if such samples are used for comparison rather than as testimonial evidence (!) (!) (!) (!) .
Judicial interpretation can be employed to bridge legislative gaps, especially when societal interests and justice demand prompt action, provided such interpretation aligns with constitutional principles and respects individual rights (!) (!) (!) .
Until explicit legal provisions are enacted, courts can exercise their constitutional jurisdiction to permit voice sampling for investigations, emphasizing the importance of judicial discretion guided by constitutional mandates and societal needs (!) (!) .
Would you like a more detailed explanation of any specific point?
JUDGMENT :
RANJAN GOGOI, CJI.
1. Leave granted in Special Leave Petition (Criminal) Nos. 9671 of 2017, 1048 of 2018, 2225 of 2018 and 3272 of 2018.
2. Criminal Appeal No.2003 of 2012.
Facts:
On 7th December, 2009 the In-charge of the Electronics Cell of Sadar Bazar Police Station located in the district of Saharanpur of the State of Uttar Pradesh lodged a First Information Report (“FIR” for short) alleging that one Dhoom Singh in association with the appellant – Ritesh Sinha, was engaged in collection of monies from different people on the promise of jobs in the Police. Dhoom Singh was arrested and one mobile phone was seized from him. The Investigating Authority wanted to verify whether the recorded conversation in the mobile phone was between Dhoom Singh and the appellant – Ritesh Sinha. They, therefore, needed the voice sample of the appellant and accordingly filed an application before the learned jurisdictional Chief Judicial Magistrate (“CJM” for short) praying for summoning the appellant to the Court for recording his voice sample.
3. The learned CJM, Saharanpur by order dated 8th January, 2010 issued summons to the appellant to appear before the Investigating Officer and to give his voice sample. This order of the learned CJM was challenged before the High Court of Allahabad under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”). The High Court having negatived the challenge made by the appellant by its order dated 9th July, 2010, the present appeal has been filed.
4. The appeal was heard and disposed of by a split verdict of a two Judge Bench of this Court requiring the present reference.
5. Two principal questions arose for determination of the appeal which have been set out in the order of Justice Ranjana Prakash Desai dated 7th December, 2012 in the following terms.
“(1) 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?
(2) 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?”
6. While the first question was answered in the negative by both the learned Judges (Justice Ranjana Prakash Desai and Justice Aftab Alam) following the ratio of the law laid down in State of Bombay vs. Kathi Kalu Oghad, (AIR 1961 SC 1808), difference of opinion has occurred insofar as second question is concerned.
7. Justice Desai took the view that voice sample can be included in the phrase “such other tests” appearing in Explanation (a) to Section 53 Cr.P.C. by applying the doctrine of ejusdem generis and, therefore, the Magistrate would have an implied power under Section 53 Cr.P.C. to pass an order permitting taking of voice sample in the aid of criminal investigation.
8. On the other hand, Justice Aftab Alam took the view that compulsion on an accused to give his/her voice sample must be authorized on the basis of a law passed by the Legislature instead of a process of judicial interpretation. In this regard, the learned judge (Aftab Alam, J.) also took note of the amendments in Sections 53, 53A and 311-A of the Cr.P.C. by Act No.25 of 2005 introduced with effect from 23rd June, 2006 which amendments did not bring, within the fold of the aforesaid provisions of the Cr.P.C., any power in the trial Court to compel an accused to give sample of his/her voice for the purpose of investigation of a criminal charge.
9. Despite unanimity amongst the learned Judges hearing the appeal on the first question on which the learned counsel for the appellant has also not laid much stress it would be appropriate to make the discussions complete to answer the question on the strength of the test la
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