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? (ii) 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?
The above question of law was raised in Ritesh Sinha Vs The state of Uttar
Pradesh and Anr. [(2013) 2 SCCC357].
On 7/12/2009, one Prashant Kapil,
In-charge, Electronics Cell, P.S. Sadar Bazar, District Saharanpur lodged a
First Information Report alleging that one Dhoom Singh in connivance with the
Appellant was collecting money from people on the pretext that he would get
them recruited in the police department. After his arrest, one mobile
phone was seized from Dhoom Singh. As the police wanted to verify whether
the recorded conversation, which is in their possession, is between accused
Dhoom Singh and the Appellant, they needed voice sample of the Appellant.
The police, therefore, filed an application before learned Chief Judicial
Magistrate, Janpad Saharanpur, praying that the Appellant be summoned to the
court for recording the sample of his voice. On 8/1/2010, learned Chief
Judicial Magistrate, Saharanpur issued summons to the Appellant to appear
before the investigating officer and give his voice sample. The Appellant
approached the Allahabad High Court under Section 482 of the Code of Criminal
Procedure, 1973 for quashing of the said order. The High Court by the impugned
order dated 9/7/2010 rejected the said application; hence, this appeal was
filed before the Supreme Court.
Justice Ranjana Prakash Desai, observed:
The principle that a penal statute should
be strictly construed is not of universal application. In Murlidhar Meghraj
Loya v. State of Maharashtra: AIR 1976 SC 1929, this Court was dealing with the
Prevention of Food Adulteration Act, 1954. Speaking for this Court, Krishna
Iyer, J. held that any narrow and pedantic, literal and lexical construction of
Food Laws is likely to leave loopholes for the offender to sneak out of the
meshes of law and should be discouraged and criminal jurisprudence must depart
from old canons defeating criminal statutes calculated to protect the public
health and the nation's wealth. Similar view was taken in Kisan Trimbak Kothula
and Ors. v. State of Maharashtra: AIR 1977 SC 435. In State of Maharashtra v.
Natwarlal Damodardas Soni: AIR 1980 SC 593, while dealing with Section 135 of
the Customs Act and Rule 126-H(2)(d) of the Defence of India Rules, a narrow
construction given by the High Court was rejected on the ground that will
emasculate these provisions and render them ineffective as a weapon for
combating gold smuggling. It was further held that the provisions have to be
specially construed in a manner which will suppress the mischief and advance
the object which the legislature had in view. Therefore, whether the penal
statute should be given strict interpretation or not will depend on facts of
each case. Considerations of public health, preservation of nation's wealth,
public safety may weigh with the court in a given case and persuade it not to
give a narrow construction to a penal statute. In the facts of this case, I am
not inclined to give a narrow construction to the provisions of the Prisoners
Act and Section 53 of the Code. Judicial note can be taken of the fact that
there is a great deal of technological advance in means of communication.
Criminals are using new methodology in committing crimes. Use of landlines,
mobile phones and voice over internet protocol (VoIP) in the commission of
crimes like kidnapping for ransom, extortion, blackmail and for terrorist
activities is rampant. Therefore, in order to strengthen the hands of
investigating agencies, I am inclined to give purposive interpretation to the
provisions of the Prisoners Act and Section 53 of the Code instead of giving a
narrow interpretation to them. I, however, feel that Parliament needs to bring
in more clarity and precision by amending the Prisoners Act. The Code also
needs to be suitably amended. Crime has changed its face. There are new
challenges faced by the investigating agency. It is necessary to note that many
local amendments have been made in the Prisoners Act by several States.
Technological and scientific advance in the investigative process could be more
effectively used if required amendments are introduced by Parliament. This is
necessary to strike a balance between the need to preserve the right against
self incrimination guaranteed under Article 20(3) of the Constitution and the
need to strengthen the hands of the investigating agency to bring criminals to
book.
The Hon’ble Justice held that the impugned order passed by the
High Court confirming the order passed by learned Chief Judicial Magistrate,
Saharanpur summoning the Appellant to the court for recording the sample of his
voice.
Justice Aftab Alam, differed from the
above conclusion and held that:
“The Code of Criminal Procedure was amended in 2005 when the
Explanation was added to Section 53 and Sections 53A and 311A were inserted
into the Code. Voice sample was not included either in the Explanation to
Section 53 or Section 311A.
Should the Court still insist that voice sample is included in the
definition of "measurements" under the Identification of Prisoners
Act and in the Explanation to Section 53 of the Code of Criminal Procedure? I
would answer in the negative.”
In view of two different opinions, the
appeal therefore was placed before the Hon’ble chief justice of India for
referring it for the appropriate bench.
Prepared
by: S. Hemanth
Advocate
at Hemanth
& Associates
