The Kerala High Court has held that there is no express or implied power conferred by the statute to the magistrate to direct the accused to give voice samples for the purposes of investigation. The ruling was rendered by a division bench comprising Justice AM Shaffique and Justice P Somarajan. While rendering the ruling, the division bench overruled an earlier decision of a single bench in Pratap v CBI (2017) (3) KLT 458, which had held that the magistrate has power under Section 311A of the Code of Criminal Procedure to direct the accused to give voice samples.
The court noted that Section 311A CrPC dealt with the power of magistrate to direct the accused to give specimen signatures or handwriting, and did not deal with voice samples. Therefore, the division bench held that the power to direct giving of voice samples cannot be read into Section 311A CrPC. On this point, the division bench followed the decision of the Supreme Court in Ritesh Sinha v State of UP (2013) 2 SCC 357, which held that Section 311A CrPC could not be invoked to take voice samples.
However, in the Supreme Court decision in Ritesh Sinha (supra), there was a split in verdict on the point whether the magistrate had implied powers to direct the accused to give voice samples. While Justice RP Desai held that the magistrate had ancilliary or inherent power as per Section 53 of the CrPC read with Section 5 of the Identification of Prisoners Act 1920 to order giving of voice samples. However, Justice Aftab Alam dissented on this point, and held that there was no such ancilliary or inherent power. In view of the split in verdict, the matter has been referred to larger bench, and authoritative pronouncement is awaited.
It may be noted that Section 53 of the CrPC deals with the power to order medical examination of the accused by a registered medical practitioner, which includes examination of bodily fluids, hair samples, nail clippings etc. Section 5 of the Identification of Prisoners Act 1920 deals with taking photographs and measurements of persons in custody. None of these provisions make explicit reference to voice samples.
In the instant matter, the division bench opined that the power to take voice samples was not traceable to the above said provisions. It was also held that no ancillary or implied power to make such a direction. It was observed as follows:
The very purpose of Code of Criminal Procedure in restricting Magisterial powers is to enable the accused to get a fair trial in any proceeding. Under such circumstances, if a Court is permitted to exercise a power, which is not specifically provided, such power cannot be impliedly conferred on the Magistrate. The question to be considered would be whether the express power that is already granted can take in a power to direct an accused against whom an investigation is pending to give his voice sample for the purpose of investigation. We are of the view that such an implied power cannot be read into the statute especially under S.5 of the 1920 Act, or Section 53 of CrPC.
In this context, it is worthwhile to mention that there is a cleavage of opinion amongst high courts on this issue. The Bombay High Court has held in CBI, New Delhi v Abdul Karim Telgi (judgment in Crl WP No.157/04) that voice samples can be taken drawing power from Section 5 of the 1920 Act. The Delhi High Court held in Rakesh Bisht v CBI that voice samples can be directed to be given only when proceedings are pending in Court, and not for the purposes of investigation. Recently, the Gujarat High Court held that accused cannot be subjected to voice spectrography test on similar reasoning as the Kerala High Court that there was no specific power in the statute. However, the Madras High Court held otherwise in two judgments and approved the orders directing giving of voice samples on the basis of Sections 53, 53A and 311A of CrPC. Till the authoritative pronouncement is rendered by the Supreme Court in the reference in Ritesh Sinha case, the confusion in the matter is bound to continue.