The Rajasthan High Court has held that collecting voice samples against the wish of the accused is not violative of the Fundamental Right to Privacy and Right Against Self-Incrimination.

The Court was considering petition filed under Section 528 of B.N.S.S. 2023 against Trial Court order via which directions were issued for recording of voice sample of the accused-petitioners by Chief Metropolitan Magistrate.

The single-bench of Justice Sameer Jain observed, "This provision, as construed by this Court, carefully balances investigative needs with constitutional safeguards, ensuring that the requirement to provide a voice sample does not violate Article-20(3) of the Constitution, which protects against self-incrimination."

The Petitioner was represented by Advocate D.K. Garg while the Respondent was represented by Special Public Prosecutor Shyam Singh Yadav.

The Petitioners are alleged to have cleared bills of contractors for a consideration of one percent commission, which constitutes as illegal enrichment and gratifications. Accordingly, an FIR was registered for the offences under Section 120-B of IPC read with Section 7-A and 8 of the Prevention of Corruption Act 1988. Thereafter, the Investigation Agency submitted a charge sheet against the accused-petitioners wherein, voice recording was collected by the investigating agency qua the exchange of communication between the employees and the contractor during a telephonic conversation and accordingly, an application was filed by Special Public Prosecutor for collecting voice samples of the accused-petitioners. This led to the impugned order for recording of voice sample of the accused- petitioners.

Counsel for the Petitioner submitted that accused-petitioners had denied to provide the voice samples, however voice samples qua other person(s) are already sent to the Laboratory. He submitted that the Court cannot compel the accused to provide voice sample against his/her will. He argued that no person can be compelled for giving voice samples against himself and further stated that even learned Trial Court is not empowered to make any observation qua drawing any adverse inference against the accused as a consequence of denial for providing voice sample. He averred that compelling accused-petitioners to provide evidence against themselves is violative of the fundamental right to privacy and provisions of Article 20 (3) of the Constitution of India, wherein it is stated that no person can be ordered to give evidence against himself.

On the other hand, Counsel for CBI opposed the argument qua right to privacy and submitted that the said right cannot be constituted as an absolute right and for justified reasons permission qua recording of voice sample can be granted in the interest of the public.

The Court at the outset noted that it has analyzed that recording of voice sample for the purpose of investigation into the instant matter, that is Anti-Corruption, is required in public interest.

The Court cited Supreme Court's ruling in Pravinsinh (supra) in which it was categorically held that collection of voice sample would not infringe upon the right to privacy, and the said inference was drawn upon while placing reliance upon in the Judgment cited in the said case titled as Ritesh (supra) wherein, it was held that the fundamental right to privacy cannot be construed as absolute and must bow down to compelling public interest.

"In the facts and circumstances of the case, while interpreting the Article 20(3) of the Constitution of India, this Court has noted that the said Article does not state that an accused person shall not be compelled to be a witness. It only states that such a person shall not be compelled to be a witness against himself therefore in the instant matter recording of voice sample does not, in and of itself, establish incrimination qua the accused-petitioners, and the result qua incrimination is contingent upon comparison of such recording with the record available. Moreover, the accused-petitioners can rebut the ultimate result, therefore, they will always have a right to defend themselves," the Court observed.

It was of the view that recording a voice sample in the present case was necessary to facilitate a fair, independent, and impartial investigation

"Like other methods of identification—such as fingerprints, blood samples, and DNA tests—voice is a unique personal trait that can aid in verifying identity through scientific means, essential for the admissibility of evidence. Importantly, the accused-petitioners are not required to provide any additional self-incriminatory information but are only asked to furnish a voice sample, akin to providing a blood sample. This voice recording by the investigating agency cannot be equated with a statement by the accused and should not relate to the crime's subject matter," the Court observed.

The Court further referred to Supreme Court ruling in Omkar Sapre (supra) to reiterate that the Trial Court retains exclusive authority to address matters regarding an accused's refusal to provide a voice sample, with the directive that no adverse inference should arise solely from such refusal.

"This judgment underscores the competency of the Magistrate to adjudicate applications for obtaining voice samples. Moreover, considering the authoritative guidance provided by the Hon'ble Supreme Court in Pravin Sinh (supra) and Ritesh (supra), and with the codification of Section 349 under the Bharatiya Nagarik Suraksha Sanhita (B.N.S.S.), 2023, this Court interprets that the legislature has explicitly empowered First-Class Magistrates to direct individuals, including the accused, to furnish voice samples or other specimen samples deemed necessary for the purpose of investigation. Section 349 clarifies that such an order may be issued if the individual has been previously arrested in connection with the investigation, although this requirement may be waived at the Magistrate’s discretion, provided the reasons are recorded in writing," the Court observed.

The Court concluded that Section 349 carefully balances investigative needs with constitutional safeguards, ensuring that the requirement to provide a voice sample does not violate Article 20(3) of the Constitution, which protects against self-incrimination.

"The legislative framework thus enables a lawful and structured approach for collecting voice samples, upholding the procedural and constitutional propriety of such investigative measures," the Court observed.

The Petition was accordingly dimissed.

Cause Title: Badri Prasad Meena vs. Central Bureau of Investigation (2024:RJ-JP:43286)

Appearances:

Petitioner- Advocate D.K. Garg, Advocate Rahul Sharma, Advocate Rajneesh Gupta

Respondent- Special Public Prosecutor Shyam Singh Yadav

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Rajasthan High CourtJustice Sameer JainVoice SampleInvestigationPrivacyRight to Privacy

Sheetal Joon