Whether the accused is bound to provide voice sample to investigation officers. Whether he has any protection against such obligation?

The Indian Constitution provides immunity to an accused against self-incrimination under Article 20(3).  It  provides that no person accused of any offence shall be compelled to be a witness against himself.

It is based on the maxim " Nemon tenetur seipsum accusare " which means ‘No one is obligated to blame himself.’  This protection is also backed by various other principles of criminal law, which are as follows:

Presumption – Accused to be innocent until proven guilty.

Onus – Rests upon the head of the Prosecution to prove the guilty beyond reasonable doubt.

Right to remain silent – Accused cannot be compelled to disclose any information against his will.

In M.P. Sharma v. Satish Chandra AIR 1954 SC 300 court made a view that "to be witness is nothing more than to furnish evidence" and the court held 

1. 'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.

2. Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness'.

3. 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in court or otherwise.

4.' To be a witness' in its ordinary grammatical sense means giving oral testimony in court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in court or out of court by a person accused of an offence, orally or in writing.

There are three essentials to be fulfilled in order to claim the privilege or benefit of Article 20(3) as follows:

1.Person must be “accused of an offence”

2. Protection against “Compulsion” to be a witness 

3. Compulsion” to Give Evidence Against Himself

The Rajasthan High Court recently dismissed a plea of an accused in which he contended that his voice sample cannot be taken against his wishes, as it would amount to self-incrimination under Article  20 of the Constitution of India.

The court in this regard, referred to the Supreme Court judgment in Ritesh Sinha Vs. State of Uttar Pradesh [(2019) 8 SCC 1, AIR 2019 SC 3592].

In Ritesh Sinha, the Supreme Court initially delivered a split verdict on the point whether the magistrate had implied powers to direct the accused to give voice samples. The issue raised in that case were:

(1) 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?

(2) 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 was initially Before the two judge bench of Justices Ranjana Prakash Desai and Aftab Alam.

In the case Justice Desai proceeded  by referring to the following judgments on the scope of Article 20(3).

In State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808, the question considered by an eleven Judges Bench was regarding the admissibility of the specimen writings in view of Article 20(3) of the Constitution. 

In Selvi v. State of Karnataka (2010) 7 SCC 263, court held that that compulsory administration of the Narco Analysis techniques violates the right against self-incrimination and observed that the tests and the results thereof are of a 'testimonial character' attracting the bar of Article 20(3) of the Constitution.

Relying on these judgments, Justice Desai observed that if an accused person is directed to give his voice sample during the course of investigation of an offence, there is no violation of his right under Article 20(3) of the Constitution.

Following  are the observations of the court :

1.Voice sample is like finger print impression, signature or specimen handwriting of an accused. 

2.Like giving of a finger print impression or specimen writing by the accused for the purposes of investigation, giving of a voice sample for the purpose of investigation cannot be included in the expression "to be a witness".

3.By giving voice sample the accused does not convey information based upon his personal knowledge which can incriminate him. 

4. A voice sample by itself is fully innocuous. By comparing it with tape recorded conversation, the investigator may draw his conclusion but, voice sample by itself is not a testimony at all.

5.When an accused is asked to give voice sample, he is not giving any testimony of the nature of a personal testimony. When compared with the recorded conversation with the help of mechanical process, it may throw light on the points in controversy. It cannot be said, by any stretch of imagination that by giving voice sample, the accused conveyed any information based upon his personal knowledge and became a witness against himself. 

6.The accused by giving the voice sample merely gives 'identification data' to the investigating agency. He is not subjected to any testimonial compulsion.

On the second issue , in relation to the reference to the three judge bench of Justices Ranjan Gogoi, Deepak Gupta and Sanjiv Khanna held that until explicit provisions are engrafted in the Code of Criminal Procedure 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.

Thereby,  in the judgment of Justice Desai, it was held that there is nothing unconstitutional in directing an accused person to give his voice sample during the course of investigation of an offence. However, relying on the three judges bench judgment, some High Courts have upheld the orders directing taking of voice sample from the accused. For instance, recently the Madhya Pradesh High Court held that requiring an accused to give voice sample does not mean that he is asked to testify against himself. The Punjab and Haryana High Court has also held that a judicial order to collect voice samples for Investigation purposes can't be said to be violative of the right to privacy.