By- Rhytham Jain
While dismissing the plea of an accused in which he reported that his voice sample cannot be taken without his permission as it would be against his fundamental right of self-incrimination under article 20, Justice Pushpendra Singh Bhati, gave a reference to the supreme court judgment of Ritesh Sinha vs. State of Uttar Pradesh case.
In the above-said case of Ritesh Kumar Sinha, the supreme court gave the split decision that whether the magistrate had implied power to direct the accused to give his voice sample or not. That case raised the issue, whether article 20(3) which protects an accused from being compelled to be a witness against himself extends to protecting him from being compelled to give his voice sample or not.
Before the two-judge bench Justices Ranjana Desai and Aftab Alam, the bench submitted that he was not pressing the challenge that the order passed by the magistrate violates the fundamental right of the appellant under Article 20(3).
In the case of State of Bombay vs Kathi Kalu Oghaad AIR 1961 SC 1808, the eleven judges bench considered a question regarding the admissibility of specimen writing in the view of article 20(3). Court also said that to be a witness against himself is not equivalent to furnishing evidence. Giving thumb impressions and signs on papers does not amount to witness against himself.
Observing many similar observations justice Ranjana Desai observed that if any accused is directed to give his voice notes during the investigation does not amount to a violation of his right to self-incrimination.
Justice Alam said that in this case constitutionality of the right of self-incrimination does not arise as just only giving voice sample does not amount to a violation of any right.
Another three-judge bench led by Ranjan Gogoi, Deepak Gupta, Sanjiv Khanna held that till there is no specific provision is not written in CRPC by the parliament, a judicial magistrate has full power to order an accused to give his voice sample. He can grant such order according to section 142 of the Indian constitution.
So, the three-judge bench did not answer the question inappropriate manner. But in the judgment of Justice Desai, it was clear that there is nothing unconstitutional in giving voice samples.