India: Filling The Yawning Gap In Statute By Judicial Interpretation: Voice Sample

Last Updated: 19 September 2019
Article by Varun Sharma and Abhishek Goyal

"Voiceprints resemble fingerprints, in that each person has a distinct voice with characteristic features dictated by vocal cavities and articulators[1]."

Spectrographic or "voiceprint" identification process is based on comparative analysis of voiceprints[2] or phonetic elements to arrive at an identification of an individual. Voiceprint technique has been often identified to have great potential for identifying individuals solely by sound spectrograms of their voices[3]. The importance of voice sampling has even been identified by the Law Commission of India[4] as early as the year, 1980. While carrying out an extensive review of the provisions of the Identification of Prisoners Act, 1920, the Law Commission observed that several Courts on the Federal and State levels in the United States of America have accepted voice print identification. The Commission, recognizing the importance of voice sample as an important device of identification, had proposed expanding the scope of Section 5[5] of the said Act.

A manifestation of the maxim, nemo tenetur seipsum accusare[6], Article 20(3) of the Constitution of India ("Constitution") provides, "No person accused of any offence shall be compelled to be witness against himself." The fundamental rationale of the same corresponds to two objectives, "firstly, that of ensuring reliability of the statements made by an accused, and secondly, ensuring that such statements are made voluntarily[7]." The right against self-incrimination acts as a vital safeguard against police tortures/ third-degree methods, which may be adopted by the investigating officers for eliciting information during investigation. The provision, therefore, ensures exclusion of compelled testimony, lest the investigating/ police officials be tempted to device coercive methods to extract testimonies from the accused.

Self-incrimination means[8] conveying information based upon the personal knowledge of the accused person giving the information and cannot include, merely the mechanical process of producing documents in Court which may throw a light any of the points in controversy but which do not contain any statement of the accused based on his personal knowledge. Further, the compulsion which comes within the prohibition of Article 20(3) of the Constitution must be of such a character that by itself it should have the tendency of incriminating the accused.

The Hon'ble Supreme Court in Ritesh Sinha v. State of U.P., (2013) 2 SCC 357 was confronted with the issues of permissibility of voice sampling, in the light of the provisions of Article 20(3) of the Constitution and the power of Magistrate to authorize the investigating agency to record the voice sample of the accused. While both the Judges[9] presiding the Hon'ble bench conceded[10] that furnishing of voice sample during the course of investigation would not amount to the violation[11] of accused's right under Article 20(3) of the Constitution. However, on the issue whether Magistrate[12] can authorize the investigating agency to record voice sample, there was a conflict of opinion, leading to a reference to a larger bench[13] of the Hon'ble Court. As per Hon'ble Ms. Justice Desai, Magistrate's power to authorize investigation agency to record voice sample of the accused could be traced to Section 5[14] of the Identification of Prisoners Act, 1920 and Section 53[15] of the Code of Criminal Procedure, 1973. In distinction, as per Hon'ble Mr. Justice Aftab Alam, power to direct voice sample by Magistrate cannot be read into the existing provisions and that, "on the question of compelling the accused to give voice sample, the law must come from the legislature and not through the Court process."

While deciding the issue on reference[16], larger bench of the Hon'ble Supreme Court, duly noted the apprehensions expressed by Hon'ble Mr. Justice Aftab Alam in his decision and the lacunae in the existing legal framework. The Hon'ble Judges were cognizant of the fact that despite making specific amendment[17] in the Code of Criminal Procedure, 1973, no power has been specifically conferred[18] on the Magistrate to direct investigating agencies to record voice samples of the Accused. However, as per the Hon'ble Court, "when a yawning gap in the Statute, in the considered view of the Court, calls for 19 temporary patchwork of filling up to make the Statute effective and workable and to sub-serve societal interests a process of judicial interpretation would become inevitable." Pertinently, while deciding the reference, the Hon'ble Judges did not confine the power of Magistrate to direct voice sampling within any existing legal provision. Rather, considering contemporaneous realities/ existing realities on ground, call of justice and principle of imminent necessity, the Hon'ble Supreme Court stepped forward and directed, "until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India."

Undoubtedly, principles of separation of power demands that the three limbs of democracy work within the confines of their respective authority. However, the Courts in India have never hesitated to step ahead where gaps existing in the legal framework are glaring and need of justice imminent. It is trite law[19], a Judge must not alter the material of which the Act is woven, but he can and should iron out the creases. The recent decision of the Hon'ble Supreme Court is another example where lacunae left in legislation have not impeded the Hon'ble Court to bridge the glaring gap to sub-serve societal interest.

[1] Law Enforcement and Criminal Justice- An Introduction by Bennett-Sandler, Fraizer, Torres and Waldron

[2] Hon'ble Supreme Court in Ritesh Sinha v. State of U.P., (2013) 2 SCC 357 has observed, "A voice print is a visual recording of voice"

[3] The Voiceprint Technique: Its Structure and Reliability Bernard S. Kamine

[4] Law Commission of India Eighty Seventh Report on Identification of Prisoners Act, 1920.

[5] Section 5 of Identification of Prisoners Act, 1920 provides for "Power of Magistrate to order a person to be measured or photographed"

[6] Latin maxim meaning, "no man is bound to accuse himself"

[7] Selvi and Others v. State of Karnataka, (2010) 7 SCC 263

[8] State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808

[9] Two Judge bench comprising of Hon'ble Mr. Justice Aftab Alam and Hon'ble Ms. Justice Ranjana P. Desai

[10] Relying on the judgment of the Hon'ble Supreme Court in State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808

[11] As per Hon'ble Ms. Justice Desai, "By giving voice sample, the accused does not convey information based upon his personal knowledge which can incriminate him. A voice sample by itself is fully innocuous."

[12] in the absence of clear provisions under the law

[13] Reference decided by Hon'ble Mr. Justice Ranjan Gogoi, Hon'ble Mr. Justice Deepak Gupta and Hon'ble Mr. Justice Sanjiv Khanna.

[14] As per HMJ Desai, "Section 2(a) stated that measurements include finger impressions and foot impressions. If voiceprints are like fingerprints, they would be covered by the term "measurements"

[15] As per HMJ Desai, "I find no difficulty in including voice sample test in the phrase "such other tests" appearing in Explanation (a) to Section 53 by applying the doctrine of "ejusdem generis" as it is a test pertaining to physical non-testimonial evidence like blood, sputum, etc."

[16] Ritesh Sinha v. State of Uttar Pradesh & Anr., Criminal Appeal No. 2003/2012 dated 02.08.2019 (SC)

[17] Code of Criminal Procedure (Amendment) Act, 2005 (Act No. 25 of 2005) with effect from 23.06.2006

[18] Even Section 311A of the Code of Criminal Procedure, 1973 confers power on Magistrate only to direct accused to give specimen signature or handwriting (and not to furnish voice sample).

[19] Seaford Court Estate Limited v. Asher, (1949) 2 All ER 155 (approved by the Hon'ble Supreme Court of India in Bangalore Water Supply & Sewerage Board v. A. Rajappa & Ors., (1978) 2 SCC 213)

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