“When the criminals are using modern technologies to commit the crime, it is not justified to restrain the police or investigating agency to counter it with the aid of scientific methods or modern technology on the ground that there is no provision of this effect under any law”
Directing an accused to give his voice sample, the Rajasthan High Court observed that the police cannot be restrained from taking voice sample of an accused for establishing his involvement in the crime for the reason that there is no provision under the law which permits to take voice sample of the accused during the course of investigation.
The Magistrate, in this case, had rejected the application filed by prosecution observing that the issue regarding the power of a Magistrate to authorize the investigating agency to record the voice sample of an accused of an offence is referred to the Larger Bench by the Hon'ble Supreme Court in Ritesh Sinha vs. State of U.P.
The magistrate also referred to a Gujarat High Court judgment that held that it is not permissible to subject an accused to voice spectrography test, in the absence of any specific provision empowering the police or court of law. Assailing magistrate’s order, the state approached the high court praising reliance on decisions of Madras and Allahabad High Courts.
Rejecting the preliminary objection about maintainability, Justice Vijay Bishnoi observed that there is no prohibition in deciding the matter even though if the point in issue is pending before the Larger Bench.
Referring to the facts of the case, the court observed: “The members of the gang made calls through Whatsapp or VOIP or other techniques from within country or from foreign country knowing well that it is very difficult for the police to trace them and even if the police is able to trace them, it is difficult to prove that they have called the victim because they cannot be compelled to give their voice sample. Misuse of the technology by the criminals can only be countered by good use of technology.”
The Court also added that though the voice sample has not been expressly included in any of the provisions of CrPC or in the definition of measurement as provided in Prisoners Act but there is no prohibition in drawing voice sample in CrPC or in any other law either. “We cannot stop any person, including the criminals, from using modern technology. When the criminals are using modern technologies to commit the crime, it is not justified to restrain the police or investigating agency to counter it with the aid of scientific methods or modern technology on the ground that there is no provision of this effect under any law. Rules of the game should be equal for all the players.” the court added.
The Court also said that it is in disagreement with the judgment of Gujarat High Court in Natvarlal Amarshibai Devani vs. State of Gujarat & Ors., and that of Kerala High Court in Rupesh @ Praveen vs. Union of India.
The Court then disposed of the petition with these directives