Law Maker

Ritesh Sinha v. State of Uttar Pradesh

Supreme Court of India · 2 August 2019 · 3 judges

Until Parliament makes an express provision in the Code of Criminal Procedure, a Judicial Magistrate may order a person to give a voice sample for the investigation of a crime; this does not violate Article 20(3).

Facts

An FIR lodged at Saharanpur in December 2009 alleged that one Dhoom Singh, together with the appellant, was collecting money from people on the promise of police jobs. A mobile phone was seized from Dhoom Singh. To verify whether a recorded conversation on it was between Dhoom Singh and the appellant, the police applied to the Chief Judicial Magistrate, who in January 2010 summoned the appellant to give his voice sample to the Investigating Officer. The Allahabad High Court rejected his challenge under Section 482 Cr.P.C. A two-Judge Bench of the Supreme Court agreed that Article 20(3) was not violated but differed on whether a Magistrate could order a voice sample without a provision in the Code, and the matter was referred to a three-Judge Bench.

Questions before the Court

  1. Does Article 20(3) protect an accused from being compelled to give a voice sample during investigation?
  2. In the absence of any provision in the Code of Criminal Procedure, can a Magistrate authorise the investigating agency to record the voice sample of a person accused of an offence?

What the Court held

  • The first question, on Article 20(3), stands conclusively determined by State of Bombay v. Kathi Kalu Oghad: compulsion is barred only for testimony that by itself tends to incriminate the accused, and specimen handwriting or finger impressions are only materials for comparison. Both Judges of the two-Judge Bench had answered it in the negative.
  • None of the 2005 amendments to the Cr.P.C. (the Explanation to Section 53, Section 53A and Section 311A) expressly empowers a Magistrate to direct a person to give a voice sample. There is a clear gap in the statute.
  • Where a gap in a statute calls for it, the Court may fill the void by judicial interpretation, on the principle of imminent necessity and not only ejusdem generis, while calling on the Legislature to act promptly.
  • Until explicit provisions are made in the Code 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. This power is conferred by judicial interpretation and under Article 142.
  • The right to privacy was not argued. The Court only noted that it is not absolute and must yield to compelling public interest, and made no further observation.

Why it matters

The judgment settles, pending legislation, that a Judicial Magistrate can direct an accused or any other person to give a voice sample for investigation. It applies Kathi Kalu Oghad to voice samples under Article 20(3), and openly uses judicial interpretation together with Article 142 to fill a gap the Legislature had left in the Cr.P.C.

In the Court's words

Copied from the official judgment; each passage links to its page.

“In the light of the above discussions, we unhesitatingly take the view that 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.”
Ranjan Gogoi, CJIPage 23 of the judgment
“The exercise of jurisdiction by Constitutional Courts must be guided by contemporaneous realities/existing realities on the ground. Judicial power should not be allowed to be entrapped within inflexible parameters or guided by rigid principles. True, the judicial function is not to legislate but in a situation where the call of justice and that too of a large number who are not parties to the lis before the Court, demands 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.”
Ranjan Gogoi, CJIPage 19 of the judgment
“So far as the second basis for the view taken is concerned, we have already expressed an opinion that what may appear to be legislative inaction to fill in the gaps in the Statute could be on account of justified legislative concern and exercise of care and caution. However, when a yawning gap in the Statute, in the considered view of the Court, calls for 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.”
Ranjan Gogoi, CJIPage 18 of the judgment

Provisions interpreted

Related judgments

Case and bench

Parties
Ritesh Sinha v. State of Uttar Pradesh
Case
Criminal Appeal No. 2003 of 2012
Decided
2 August 2019
Bench
Ranjan Gogoi, CJI, Deepak Gupta, Sanjiv Khanna
Opinions
Unanimous judgment of a three-Judge Bench delivered by Ranjan Gogoi, CJI. The matter came on reference after a split verdict of a two-Judge Bench (Ranjana Prakash Desai and Aftab Alam, JJ.) on the second question.

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