Compelling to give voice samples does not infringe the right to privacy, and a Judicial Magistrate has the power to order a person to give a sample of his voice for the purpose of investigation of a crime until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament.

JUDGMENT

Avneesh Jhingan, J (Oral). - Aggrieved of the orders dated 30.10.2018 and 10.1.2019 of Chief Judicial Magistrate, Nuh and Sessions Judge, Mewat directing the petitioner to give voice sample, the present revision petition is filed.

2. The facts in brief are that the prosecution moved an application for taking voice sample of the petitioner which was allowed by the trial court. The petitioner made a statement that he had no objection in giving voice sample and that he shall appear before the laboratory as an when required by the police subject to reasonable prior notice. When the petitioner suffered the aforesaid statement before the trial court, he was assisted by his counsel. The aforesaid order was upheld in revision.

3. Learned counsel for the petitioner argues that the impugned order is in violation of Article 20(3) of the Constitution of India and infringes the right of privacy.

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

5. The issue raised by counsel for the petitioner is no longer res- integra. 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.

6. 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. SelfIncrimination 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 compulsion of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous, because they are unchangeable; except, in rare cases where the ridges of the fingers