Magistrates Can Direct Witnesses To Give Voice Samples, Not Just Accused; Article 20(3) Not Violated : Supreme Court

The Supreme Court held that a Magistrate can direct the collection of voice samples not only from accused persons but also from witnesses. It ruled that such samples, whether voice, fingerprints, handwriting, or DNA, constitute material evidence rather than testimonial evidence, and therefore do not infringe the constitutional protection against self-incrimination under Article 20(3). A Bench of Chief Justice B.R. Gavai and Justice K. Vinod Chandran relied on the 2019 precedent Ritesh Sinha v. State of Uttar Pradesh & Anr., which held that even in the absence of an explicit provision in the Cr.P.C., a Judicial Magistrate has the authority to direct a “person” to provide a voice sample for investigation. The Court clarified that the term “person” is not confined to the accused alone but also extends to witnesses. “it was held in Ritesh Sinha that despite absence of explicit provisions in Cr.P.C., a Judicial Magistrate must be conceded the power to order a person, to give a sample of his voice for the purpose of investigation for a crime. We specifically note that this Court had not spoken only of the accused and specifically employed the words 'a person', consciously because the Rule against self-incrimination applies equally to any person whether he be an accused or a witness.”, the court said. The case stemmed from a 2021 incident involving the death of a young woman, which led to cross-allegations between her family and her in-laws. During the investigation, police alleged that a key witness (the 2nd respondent) had acted as an agent for the deceased's father and threatened another witness. The Investigating Officer sought a voice sample from this individual to compare with recorded conversations, and a Magistrate allowed the request. The witness challenged the Magistrate's order before the Calcutta High Court, which struck it down. The High Court reasoned that the issue of whether such directions were permissible was pending before a Larger Bench of the Supreme Court. Setting aside the High Court's decision, the judgment authored by Justice Chandran emphasized that mere pendency of the reference to a larger bench cannot disregard Supreme Court ruling. The Court said that ruling of Ritesh Sinha's case empowered the magistrates to record voice samples alike other material evidences till the provision is incorporated in the procedural law. Noting that Section 349 of the BNSS specifically incorporated the provision allowing the magistrates to record voice samples, the Court said that taking a voice sample is not testimonial compulsion but merely physical or material evidence, akin to fingerprints, handwriting, or DNA. Therefore, Article 20(3) is not attracted. “If it is the BNSS that is applicable, then there is a specific provision enabling such sampling. The reasoning was also that mere furnishing of a sample of the fingerprint, signature or handwriting would not incriminate the person as such. It would have to be compared with the material discovered on investigation, which alone could incriminate the person giving the sample, which would not fall under a testimonial compulsion, thus not falling foul of the rule against self-incrimination.”, the court said, referring to Ritesh Sinha, which cited State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808. Accordingly, the appeal was allowed, and the magistrate's order was upheld. Cause Title: Rahul Agarwal Versus The State of West Bengal & Anr.Citation : 2025 LiveLaw (SC) 1002Click here to read/download the orderAppearance: For Petitioner(s) : Mr. Dama Sheshadri Naidu,Sr.Adv. Mr. Sunil Kumar Sharma, AOR For Respondent(s) : For Res. No.2 Mr. Ranjan Mukherjee, Adv. Mr. Anindo Mukherjee, Adv. Mr. Rameshwar Prasad Goyal, AOR For Res. No.1 Mr. Kunal Mimani, AOR

Magistrates Can Direct Witnesses To Give Voice Samples, Not Just Accused; Article 20(3) Not Violated : Supreme Court

Yash Mittal

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