The right to privacy is not absolute and must bow down to compelling public interest. The Court conceded powers to the Judicial Magistrate to order giving of voice samples until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament.

JUDGMENT :

AVNEESH JHINGAN, J.

1. The matter is taken up for hearing through video conference due to COVID-19 situation.

2. Aggrieved of the order dated 27th April, 2021 of the learned Additional Sessions Judge, SBS Nagar allowing the application of the Vigilance Bureau for taking voice samples of the petitioners, the present revision petition is filed.

3. The facts in brief are that Vigilance Bureau, Punjab received an information of money being extorted from local public at Tehsil Banga for getting the sale deeds registered. The information was that the petitioners (both typist at Tehsil Banga Complex) were collecting money for getting the sale deeds registered from the Tehsildar and other revenue officials of the revenue department. After taking approval, the mobile used by the petitioners were tapped. From the transcripts of various dates finding sufficient evidence the FIR was registered.

4. During the proceedings, an application was filed by the Vigilance Bureau for permission to take voice samples of the petitioners. The application was allowed, hence, the present petition.

5. Learned counsel for the petitioners argues that the impugned order is in violation of Article 20(3) of the Constitution of India and infringes the right of privacy. The contention is that in Section 53 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.), there is no power to order taking of voice samples.

6. As per Article 20(3) of the Constitution of India, “No person can be compelled to be a witness against himself”.

7. The issues raised by counsel for the petitioners are no longer res-integra.

8. The Supreme Court in “Ritesh Sinha vs. State of Uttar Pradesh; 2019 (8) SCC 1, held that the directions to take voice sample does not infringe Article 20(3) of the Constitution of India.

9. The Supreme Court while dealing with the question “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” considering the earlier decision in “State of Bombay vs. Kathi Kalu Oghad; AIR 1961 SC 1808, held:-

“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 laid down by this Court in State of Bombay v. Kathi Kalu Oghad (supra). Speaking on behalf of the majority the then learned Chief Justice B.P. Sinha was of the view that the prohibition contemplated by the constitutional provision contained in Article 20(3) would come in 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. The issue in the case was with regard to specimen writings taken from the accused for comparison with other writings in order to determine the culpability of the accused and whether such a course of action was prohibited under Article 20(3) of the Constitution. The following observations of the then Chief Justice B.P. Sinha would be apt for recollection as the same conclusively determines the first question arising. The same, therefore, is extracted below:

"(11)..........It is well-established that clause (3) of Article 20 is directed against self-incrimination by an accused person. Self-Incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge..........

(12) In order that a testimony by an accused person may be said to have been self-incriminatory, the com