A Division Bench of Justice Prakash Shrivastava and Justice Virender Singh of Madhya Pradesh High Court at Jabalpur, in the judgment titled R.K. Akhande vs. Special Police Establishment, Lokayukt, Bhopal and another has laid down explicitly that,
“1. Direction by the Magistrate to give voice sample during the investigation does not violate Article 20(3) of the Constitution of India.
2. Article 20 of the Constitution of India extends certain protections to a person in respect of the conviction for offence and sub-clause (3) thereof provides that no person accused of any offence shall be compelled to be a witness against himself. The protection extended by Article 20(3) is only to the extent of being written against himself. Thus, it is clear that clause (3) of Article 20 extends protection against self-incrimination to an accused person. Self-incrimination is held to mean conveying information based upon the personal knowledge of the person giving the information and it does not mean to include merely the mechanical process of producing a document in the Court which may throw a light on any points of controversy but which does not contain any statement of accused based upon his present knowledge. Requiring an accused to give a voice sample does not mean that he is asked to testify against himself. Voice sample is taken only for comparison. Hence, it cannot be said that when an accused is asked to give a voice sample, he is compelled to be a witness against himself. Therefore fundamental right under Article 20(3) of the Constitution is not violated in such a case.
3. No opportunity of hearing to the accused is necessary while issuing such a direction. Since power exists with the Magistrate to issue a direction to give voice sample during the investigation and such a direction does not violate Article 20(3) of the Constitution of India, therefore, unless the accused is in a position to show that any prejudice is caused with the direction, he has no right of hearing at the stage of issuing the direction.”
The Court has reiterated the Supreme Court’s 2019 ruling titled Ritesh Sinha vs State of Uttar Pradesh in Criminal Appeal No. 2003 of 2012 delivered on August 2, 2019, by a Bench led by the then CJI Ranjan Gogoi along with Justice Deepak Gupta and Justice Sanjiv Khanna which held that a judicial magistrate can direct an accused to provide his voice samples for investigation even without his consent. In this 2019 ruling, it is held,
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. We order accordingly and consequently dispose the appeals in terms of the above.”
Factual Background
By this writ petition under Section 482 of the Criminal Procedure Code, the petitioner challenged the order of the Trial Court dated 21.10.2020 whereby for the purpose of investigation permission has been granted to take the voice sample of the petitioner.”
Cases of the Petitioner
The submission of learned counsel for the petitioner was that such a direction violated the petitioner’s right under Article 20(3) of the Constitution of India and infringes the petitioner’s privacy. In support of his submission, he placed reliance upon the judgment of the Supreme Court in the matter of Selvi and others vs. the State of Karnataka reported in AIR 2010 SC 1974. He has also submitted that no opportunity of hearing was given to the petitioner before passing the order.
Case of the Respondent
Opposing the prayer, learned counsel for respondent No.1 has submitted that the matter was at the investigation stage and the petitioner’s right under Article 20(3) of the Constitution was not violated and that no prejudice was caused to the petitioner by the impugned order.
Reasoning & Decision of the Court
Having heard the learned counsel for the parties and on perusal of the record, the Court noticed that the petitioner is an accused in a trap case and the voice sample of the petitioner is required to tally it with the recorded voice, hence the petitioner was given the notice to appear in the Office of the Collector and give his voice sample which was refused by him, therefore, the investigating agency had approached the trial court and the trial court after examining the entire case and the case diary has found that the voice sample of the petitioner is required, hence it has granted permission to the investigating agency to take the voice sample and directed the petitioner to give the voice sample.
Further, the Court observed,
“Article 20 of the Constitution of India extends certain protection to a person in respect of the conviction for offence and sub-clause (3) thereof provides that no person accused of any offence shall be compelled to be a witness against himself. Article 20(3) reads as under: “20(3) No person accused of any offence shall be compelled to be a witness against himself.” The protection extended by Article 20(3) is only to the extent of being witness against himself. Thus, clause (3) of Article 20 extends protection against self incrimination to an accused person. Self incrimination is held to mean conveying information based upon the personal knowledge of the person giving the information and it does not mean to include merely the mechanical process of producing document in the Court which may throw a light on any points of controversy but which does not contain any statement of accused based upon his present knowledge. Requiring an accused to give voice sample does not mean that he is asked to testify against himself. Voice sample is taken only for comparison. Hence, it cannot be said that when an accused is asked to give voice sample, he is compelled to be a witness against himself. Therefore, fundamental right under Article 20(3) of the Constitution is not violated in such a case.”
While citing the most relevant case law, the Bench held in para 7 that,
"Thus, now it is settled that the Magistrate has the power to order a person to give his voice sample for the purpose of investigation of a crime.”
With respect to the next question raised by the counsel for the petitioner that was to the effect that the petitioner was not heard while passing the impugned order, the Court observed that,
"The counsel for the petitioner has failed to point out any prejudice caused to him while passing the impugned order without hearing him. The prejudice is required to be pointed out as the issue is squarely covered by the judgment of the Supreme Court and the power exists with the Magistrate to issue such a direction. The Supreme Court in the matter of Natwar Singh vs. Director of Enforcement and another reported in 2010 (13) SCC 255 has held that even in the application of the doctrine of fair play there must be real flexibility and mere technical infringement of natural justice is not enough but some real prejudice is required to be shown."
While referring to yet another pertinent case law, the Bench then states in para 10 that,
“The Supreme Court in the matter of Sunil Mehta and another vs. the State of Gujarat and another reported in 2013 (9) SCC 209 while considering the question of issuing a show-cause notice to the accused while examining the complainant under Section 200 of the Cr.P.C. has held that there is a qualitative difference between the approach that the court adopts and the evidence adduced at the stage of taking cognizance and summoning of the accused and that recorded at the trial. The difference lies in the fact that the former is a process that is conducted in absence of the accused and the latter is undertaken in his presence with an opportunity to him to cross-examine the witnesses produced by the prosecution.”
While declining to intervene, the Bench then held in para 11 that,
“In the present case also, the matter is at the investigating stage where the prosecution is only collecting the evidence, hence no error has been committed by the trial court in passing the impugned order without giving the opportunity of hearing to the petitioner. Thus, no case for interference is made out.”
Held
While dismissing the petition, the Court held that Article 20(3) of the Constitution which propounds the “right to protection against self-incrimination” isn’t violated if Magistrate directs an accused to give voice samples during investigation sans consent. The 180th report of the Law Commission of India also deals exhaustively with Article 20(3) and the “right to silence” of a person accused.
Case Details
Case Name: R.K. Akhande vs. Special Police Establishment, Lokayukt, Bhopal and another
Bench: Justice Prakash Shrivastava and Justice Virender Singh
Case No.: M.Cr.C. No.45036/2020
Read Order ;
SOURCE ; www.latestlaws.com
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