By: Shreya Kohli
The three-judge bench of the Supreme Court comprising of then CJI Ranjan Gogoi, JJ Deepak Gupta, and JJ Sanjiv Khanna on 2nd August 2019 decided the case of Ritesh Sinha v State of Uttar Pradesh (Crl. Appeal 2003 of 2012, decided on 02.08. 2019), dealing with a question of whether an accused can be compelled by a Magistrate to give his voice samples during the course of a criminal investigation.
This case is the latest example of the Court using its extraordinary power enshrined in Article 142 for doing “complete justice” and filling the lacuna of a statute by Judicial Interpretation. However, it seems like, while doing complete justice, the Fundamental Right of the citizen protected by Article 20(3)[i] of the Indian Constitution and his Right to Privacy was ignored by the Supreme Court. New provisions to Cr.P.C was added, the matter reserved for the Legislature by compromising on the Fundamental Rights of a citizen.
The present case is referred by a two-judge bench of the Supreme Court to a larger bench placing the following two issues:
- 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 an investigation into an offence?
- Assuming that there is no violation of Article 20(3)of the Constitution of India, whether the Magistrate can order the investigating agency to record the voice sample of the person accused of an offence in case of absence of the relevant provision in the code?
FACTS OF THE CASE
On December 7, 2009, the Incharge of the Electronics Cell of Sadar Bazaar Police Station lodged a First Information Report alleging that two persons, named Dhoom Singh and Appellant Ritesh Sinha were extracting monies from the people in return of the promise of jobs in Police. Dhoom Singh was arrested by the police and a mobile phone was seized from him. The Investigating Authority found recordings of conversations between Dhoom Singh and Appellant Ritesh Sinha and wanted to verify whether the voice in the call was that of the appellant. For that, they needed the voice samples of the appellant and accordingly filed an application seeking the same, before the learned Chief Judicial Magistrate (CJM) of Saharanpur.
The CJM summoned the appellant for recording his voice sample. This order of the CJM was challenged in the High Court of Allahabad under Section 482 of the Cr.P.C.[ii] The High Court uplifted the order of the CJM and an appeal was then filed in the Supreme Court before a two-judge bench. The appeal was disposed of by a split verdict of the two judges requiring the present reference.
VIEW OF THE TWO-JUDGE BENCH (Split Verdict- 2012)
While the first question was answered in negative by both the judges (Justice Ranjana Prakash Desai and Justice Aftab Alam), there was a conflict in opinions of the two-judges regarding the answer to the second question. Justice Desai took the view that the voice samples can be included in the phrase “such other tests” appearing in Explanation (a) of Section 53 Cr.P.C[iii] by following the Principle of ejusdem generis.[iv] Therefore the magistrate can order for obtaining voice samples of an accused during an investigation. However, on a contrary, Justice Alam took the view that such a compulsion to an accused must be authorized based on a law passed in the parliament instead of the process of Judicial Interpretation.
On the first question, The Supreme Court held that obtaining the voice samples of an accused without his consent during an investigation will not be a violation of his Right against Self-incrimination.
The judgment referred for reaching this conclusion was the State of Bombay v Kathi Kalu Oghad[v] regarding obtaining handwriting samples. This judgment laid down that the prohibition contemplated by the constitutional provision contained in Article 20(3) would come only in case of the testimony of an accused which are self- incriminatory, whereas a specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous. They are only materials for the purpose of comparison in order to satisfy Court that its inference based on other pieces of evidence is reliable.
Concerning the second question the court believed, that in the absence of any provision allowing a magistrate to direct an accused person to give his voice samples, despite a recommendation by the Law Commission, it is to the court to fill this lacuna in the legislature by doing a temporary patchwork until a legislature comes on the same issue. Quoting from the Judgement;
- “True, the judicial function is not to legislate but in a situation where they call of justice and that too of a large number who are not parties to the lis before the Court, demands the expression of an opinion on a silent aspect of the Statute, such void must be filled up not only on the principle of ejusdem generis but on the principle of imminent necessity with a call to the Legislature to act promptly in the matter”.
- RIGHT TO PRIVACY
The Apex court in the present case also highlighted that the Right to Privacy is not an absolute right and is subject to reasonable restrictions. It was held in the landmark case of Puttaswamy v Union of India[vi] that the State can impose reasonable restrictions after following three tests, one of them is: There should be an existence of a law that justifies a privacy infringement. However, as far as the present case is concerned, even though there is no expressed provision in Cr.P.C regarding the compulsory collection of voice samples during an investigation, the Apex Court have considered it reasonable to infringe the accused’s Right to Privacy.
- A NEED FOR JUDICIAL RESTRAINT
Article 142 is an essential tool that upholds the presence of justice in our legal system and its importance is not questioned by the writer, but the manner in which this tool is being used is highly questionable in this case. In an absence of legislation, the court has the power to do the ‘Temporary Patchwork’ till new legislation is made and the same has been done by the court in the past. In the Vishakha Case[vii], where the Court had provided detailed guidelines while formulating a new law regarding Sexual Harassment at the Workplace for women in the absence of an enacted law.
However, in the present case, the court had only granted the power to a magistrate without formulating detailed guidelines for them while exercising such power. Just for the sake of “filing the yawning gap in the statute”, the actions of the Apex Court for stepping into the shoes of the legislature by adding new provisions to the Code and taking away the Fundamental Rights of a Citizen cannot be justified.
Quoting the words of Justice Benjamin Cardozo, “the judge is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness”, it is most respectfully concluded that the Apex Court in the present case has compromised his role as a protector/guardian of Fundamental Rights. The uncertain approach of the court has created an ambiguity in the newly framed law and has therefore made this judgment debatable.
[i] Right against Self Incrimination
[ii] The Inherent Powers of the High Court
[iii] Examination of accused by medical practitioner at the request of the police officer
[iv] A rule for interpreting statutes and other writings by assuming that a general term describing a list of specific terms denotes other things those are like the specific elements.
[v] 1961 AIR 1808, 1962 SCR (3) 10
[vi] Writ Petition (Civil) No. 494 of 2012
[vii] Vishaka v. State of Rajasthan, (1997) 6 SCC 241