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Criminal Appeal No. 2003 of 2012 (Arising out of Special Leave Petition (Crl.) No. 7259 of 2010). Case: Ritesh Sinha Vs The State of Uttar Pradesh and Anr.. Supreme Court (India)

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Case NumberCriminal Appeal No. 2003 of 2012 (Arising out of Special Leave Petition (Crl.) No. 7259 of 2010)
JudgesRanjana Prakash Desai and Aftab Alam, JJ.
IssueEvidence Act, 1872 - Sections 7, 73, 139; Identification of Prisoners Act, 1920 - Sections 2, 3, 4, 5, 6, 7, 8, 9; Indian Medical Council Act, 1956 - Section 2; Code of Criminal Procedure (CrPC) (Amendment) Act, 2005; Prevention of Food Adulteration Act, 1954; Customs Act - Section 135; Defence of India Rules - Rule 126H(2); Code of Criminal ...
Citation2013 (I) AD (SC) 109, AIR 2013 SC 1132, 2013 (2) ALJ 435, 2013 (3) ALT 233 (Cri), 2013 CriLJ 1301, JT 2012 (12) SC 258, 2013 MLJ 30 (Crl), 2012 (12) SCALE 10, 2013 (2) SCC 357, 2013 (80) ACC 724
Judgement DateDecember 07, 2012
CourtSupreme Court (India)

Judgment:

Ranjana Prakash Desai, J.

  1. Leave granted.

  2. 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 short, "the Code") for quashing of the said order. The High Court by the impugned order dated 9/7/2010 rejected the said application, hence, this appeal by special leave.

  3. In my view, two important questions of law raised in this appeal, which we need to address, are as under:

    (i) 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?

  4. We have heard, at considerable length, Mr. Siddhartha Dave, learned Counsel for the Appellant, Mr. Aman Ahluwalia, learned amicus curiae and Mr. R.K. Dash, learned Counsel for the Respondent - State of Uttar Pradesh. We have also perused the written submissions filed by them.

  5. Mr. Dave, learned Counsel for the Appellant, at the outset, made it clear that he was not pressing the challenge that the order passed by the Magistrate violates the Appellant's fundamental right of protection from self-incrimination as guaranteed under Article 20(3) of the Constitution. Counsel submitted, however, that there is no provision in the Code or in any other law which authorizes the police to make an application for an order directing the accused to permit recording of his voice for voice sample test. Counsel submitted that a Magistrate has no inherent powers and, therefore, learned Magistrate could not have given such a direction (Adalat Prasad v. Rooplal Jindal (2004) 7 SCC 338). Counsel submitted that because there is no other provision providing for a power, it ought not to be read in any other provision (State of U.P. v. Ram Babu Misra (1980) 2 SCC 242, S.N. Sharma v. Bipen Kumar Tiwari (1970) 1 SCC 653). Counsel pointed out that in Ram Babu Misra, this Court restricted the scope of Section 73 of the Indian Evidence Act and took-out from the purview of Section 5 of the Identification of Prisoners Act, 1920 (for short, "the Prisoners Act), handwritings and signatures. As suggested by this Court, therefore, the Code was amended and Section 311A was inserted. Counsel submitted that Section 5 of the Prisoners Act is inapplicable to the present case because it is enacted only for the purpose of keeping a record of the prisoners and other convicts and not for collection of evidence (Balraj Bhalla v. Sri Ramesh Chandra Nigam AIR 1960 All 157). Counsel submitted that this is supported by Section 7 of the Prisoners Act, which provides for destruction of photographs and records of measurement on acquittal. The term "measurement" defined in Section 2(a) of the Prisoners Act covers only those things which could be physically measured. Counsel submitted that the Prisoners Act, being a penal statute, the term measurement appearing therein must be given a restricted meaning (Regional Provident Fund Commissioner v. Hooghly Mills Co. Ltd. and Ors. (2012) 2 SCC 489). Counsel submitted that investigation has to be conducted within the parameters of the Code. It is not uncontrolled and unfettered (State of West Bengal v. Swapan Guha (1982) 1 SCC 561). Counsel submitted that the High Court judgments, where unamended Section 53 of the Code is involved, are not relevant. Counsel submitted that Explanation (a) to Section 53 of the Code was introduced in 2005 and, therefore, those judgments cannot be relied upon for interpreting the said Section as it stands today. Counsel submitted that various examinations listed in the said Explanation are the ones for which the police can have the accused examined by a medical practitioner. These tests are all of physical attributes present in the body of a person like blood, nail, hair etc., which once taken can be examined by modern and scientific techniques. Voice sample specifically has not been included as one of the tests in the said Explanation even though the amendment was made in 2005 when Parliament was well aware of such test being available and, has, therefore, been intentionally omitted. Counsel submitted that the words "such other tests" mentioned in the said Explanation are controlled by the words "which the registered medical practitioner thinks necessary". Therefore, the discretion, as to the choice of the test, does not vest in the police but it vests in the medical practitioner. This would clearly exclude voice test on the principle of ejusdem generis. Counsel submitted that in Selvi and Ors. v. State of Karnataka (2010) 7 SCC 263 this Court has held that Section 53 of the Code has to be given a restrictive interpretation and not an expansive one. Counsel submitted that the decision of this Court in Sakiri Vasu v. State of Uttar Pradesh (2009) 2 SCC 409 is inapplicable since to do an act under ancillary power the main power has to be conferred, which has not been conferred in this case. Therefore, there is no question of resorting to ancillary power. Counsel submitted that the High Court fell into a grave error in refusing to quash the order passed by learned Magistrate summoning the Appellant for the purpose of giving sample of his voice to the investigating officer.

  6. Mr. Aman Ahluwalia, learned Amicus Curiae has submitted a very detailed and informative note on the issues involved in this case. Gist of his submissions could be stated. Counsel submitted that voice sample is only a material for comparison with something that is already in possession of the investigating agency. Relying on 11 Judges' Bench decision of this Court in State of Bombay v. Kathi Kalu Oghad and Ors. (1962) 3 SCR 10 counsel submitted that evidence for such identification purposes would not attract the privilege under Article 20(3) of the Constitution. According to learned Counsel, there is no specific provision enabling the Magistrate to direct an accused to give his voice sample. There are certain provisions of the Code in which such power can be read into by the process of implication viz. Section 2(h), Section 53, Section 311A and Section 54A. So far as Section 311A of the Code is concerned, counsel however, fairly pointed out that in Rakesh Bisht v. C.B.I. 2007 (1) JCC 482 and the Delhi High Court has held that with the aid of Section 311A of the Code the accused cannot be compelled to give voice sample. Counsel also relied on Section 5 of the Prisoners Act and submitted that it expressly confers power on the Magistrate to direct collection of demonstrative evidence during investigation. Counsel submitted that in Central Bureau of Investigation, New Delhi v. Abdul Karim Ladsab Telgi and Ors. 2005 Cri. L.J. 2868 the Bombay High Court has interpreted the term "measurement" appearing in Section 5 of the Prisoners Act expansively and purposefully to include measurement of voice i.e. speech sound waves. Counsel submitted that Section 53 of the Code could be construed expansively on the basis of presumption that an updating construction can be given to the statute (Bennion on Statutory Interpretation 5th Edition at P. 516). Relying on Selvi, counsel submitted that for the purpose of Section 53 of the Code, persons on anticipatory bail would be deemed to be arrested persons. It is, therefore, reasonable to assume that where the person is not actually in the physical custody of the police, the investigating agency could approach the Magistrate for an order directing the person to submit himself for examination under Section 53 of the Code. Counsel also submitted that in Sakiri Vasu, this Court has referred to the incidental and implied powers of a Magistrate during investigation. Counsel submitted that in Selvi, Explanation to Section 53 has been given a restrictive meaning to include physical evidence. Since voice is physical evidence, it would fall within the ambit of Section 53 of the Code. The Magistrate has, therefore, ancillary or implied powers under Section 53 of the Code to direct a person to give voice sample in order to aid investigation. Counsel submitted that the most natural construction of the various statutes may lead to the conclusion that there is no power to compel a person to give voice sample. However, the administration of justice and the need to control crime effectively require the strengthening of the investigative machinery. While considering various provisions of law this angle may be kept in mind.

  7. Mr. Dash, learned Counsel for the State of Uttar Pradesh submitted that the definition of the term 'investigation' appearing in the Code is inclusive. It means collection of evidence for proving a particular fact. A conjoint reading of the definition of the term...

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