A voice is an intrinsic characteristic of every living being. Its uniqueness just like fingerprints makes it a means of identification for humans. The identification mechanism relies on the intensity, frequency and time of the sound or speech waves to identify each individual.
Voice sample is typically used in the police station in course of an investigation against the accused or the defendant for the purpose of Identification and comparison with a recording which had been made in the course of an illegal or legal operation and as such, can be tendered in court.
The non-use of Voice Sample in any proceedings by the magistrate in court, in most cases, could lead to divergence of opinion and purposive interpretation to the case at hand. Collection of voice samples in some cases of an accused is a step in an investigation.
There are currently no statutory provisions in India governing voice samples in magistrate courts or mandating police officers to require an accused person or a Suspect to take a recording of his or her voice for further investigation.
The pertinent questions to ask are:
• Is a Magistrate vested with the Power to take voice samples?
• Is it a violation of the rights enshrined in the constitution to take voice samples?
Is a Magistrate Vested With the Power to Take Voice Samples?
Provisions of the Law and Cases-
Section 311A of the Code of Criminal Procedure (CrPc) dealt with the magistrate to direct the accused to give specimen signature or handwriting but made no mention of Voice sample or recording.
Under Section 53 of the CrPC, Justice RP Desai held that the Magistrate had ancillary or inherent power to mandate the police or a registered medical practitioner to thoroughly examine an accused person or a defendant including hair samples, body fluids, nail clippings, etc.
Section 5 of the Identification of Prisoners Act 1920 also stipulates that the police can take photographs and measurement of persons while they are in custody. But this does not include voice sample as it was not explicitly mentioned in the Act. Thus, none of these provisions make explicit reference to voice sample.
The power to make voice sample was not traceable. It is worthy of note that there is a cleavage of opinion amongst High courts on this issue.
The Bombay High Court held CBI, New Delhi v Abdul Karim Telgi that voice sample can be taken or be directed to be given only when proceedings are pending in Court. It is because the voice sample is presumed to have drawn its powers to be required in courts from section 5 of the 1920 Act.
In a judgment, the Kerala High Court had held that there is no express or implied power conferred by the statute to the Magistrate to direct the accused to give voice samples for the purposes of investigation – Pratap v CBI (2017) (3) KLT 458. This ruling was rendered by a division bench comprising Justice AM Shafique and Justice P Somarajan.
Also, the Delhi High Court held that voice sample can be directed to be given only when proceedings are pending in court, not for the purpose of investigation. Yet the Supreme Court has yet to approve the use of voice sample in any proceedings – Ritesh Sinha v State of UP (2013) 2 SCC 357.
In the Supreme Court decision in Ritesh Sinha, there was a split in the verdict on the point whether the Magistrate had implied powers to direct the accused to give voice samples.
The lack of a legal provision regarding voice sample could end the purpose of recording conversation for evidence which might not be allowed as evidence in court.
This connotes that conversation recorded may not serve any purpose during the trial and there is no provision in the law under which a person could be asked to give his voice sample – Article 20(3) of the constitution of India.
Also, Section 16(2) of Cr.P.C stipulates that no person can be compelled to give self-discriminating statements which would have a tendency to expose him to a criminal charge or to a penalty.
The petitioners cannot be compelled to give their voice samples by reading a statement containing incriminating material. Section 311A of Cr P.C applies only to the handwriting specimen and not voice samples. The reason Voice sample should be included in the Code of Criminal Procedure. The Supreme Court has stepped in to ensure that this lacuna is filled.
A lacuna in the law refers to a situation where there is no applicable law. In certain situation, where there is no law governing a situation. When a lacuna arises in an issue, court, however, should decide on the matter in other for justice to prevail. If the issue is so vital that the court must intervene.
The Rajasthan High Court held that the police cannot direct an accused person to give a voice sample. That is, an accused person or the defendant cannot be made to establish his involvement in a crime by providing a voice sample in the course of the police investigation as such is not provided under the law.
But the Rajasthan High Court took a dramatic move and rare decision on 27th May 2018. The court granted permission for the voice sample of an accused person to be taken in the course of a police investigation. This is only applicable where the accused person or the defendant is charged with the murder of the business elite in the city or firing an employee for extortion.
Justice Vijay Bishnoi in granting the permission adduced that the provisions of the law is not clear with regards to taking voice samples but it is the duty of the courts to correct such errors. The court is bestowed with the power to interpret legislations in order to cure defects and provide justice.
• The courts ought to understand the police difficulties in investigating and arresting the right criminals to ensure justice is served. If criminals commit crimes with advanced technologies, why should the police be restrained from investigating such crimes with advanced methods or modern technology on the ground that there is no provision of this effect under any law?
On Whether Taking Of An Accused Voice Sample Is In Violation Of Article 20(3) Of The Constitution
The above question was raised in Ritesh Sinha Vs The State of Uttar Pradesh and Anor [(2013)2 SCCC357].
• Can an accused person protected under Article 20(3) of the Constitution be compelled to give voice samples for an investigation?
• What if there is no express violation of the provisions of Article 20 (3) and no provision of voice samples in the Criminal Procedure Code, can the Magistrate mandate the police to record the voice of the accused as a sample?
As iterated earlier, voice sample has the same uniqueness as fingerprints, thumbprint impression, specimen handwriting or signature, or facial recognition of an accused. Thus, whereby an accused provides his or her thumbprint, fingerprint, facial, specimen or signature for the purpose of an investigation, it does not amount to being tagged a witness.
So, why should it be different for voice samples? Voice sample is simply carrying out voice recognition on an accused to determine if he or she is the real suspect in a criminal case.
Therefore, under Article 20(3), a suspect should not be given the illusion that recording his/her voice or providing a voice sample will make him or her a witness if the required information is conveyed.
The voice sample does not contravene any section of the law as it pertains to individual’s right especially under Article 20(3). Rather, it should be encouraged as a means of the investigation by the police.