New Delhi, Dec. 8: The Supreme Court has referred to a larger bench the question whether mobile phone voice samples of a crime accused can be collected for investigation.

The reference was made after Justices R.P. Desai and Aftab Alam gave a split verdict in the case of one Ritesh Sinha, who challenged the orders of a Saharanpur magistrate and Allahabad High Court directing him to give his voice samples in a 2010 police personnel recruitment racket.

Justice Desai said there was nothing wrong in police taking voice samples as there was a rise in criminal and terrorist activities conducted through mobiles, Internet and other modern gadgets. But Justice Alam ruled there was no provision in law to force a person to give voice samples against his/her wishes.

In the case, in which Sinha had a mobile phone chat with another suspect, Dhoom Singh, two questions cropped up:

i) Whether Article 20 (3) of the Constitution, which protects an accused from being forced to be a witness against himself, extends to shielding him from being compelled to give his voice samples for investigation;

ii) Assuming there is no violation of Article 20 (3), whether in the absence of any provision in the Criminal Procedure Code a magistrate can authorise an investigating agency to record the voice samples of the accused.

Justice Desai, who wrote the main judgment, said if an accused is directed to give his voice sample, there is no violation of his right under Article 20 (3).

“Voice sample is like fingerprint impression, signature or specimen handwriting of an accused…. By giving voice sample, the accused does not convey information based upon his personal knowledge which can incriminate him.”

However, Justice Alam, interpreting the CrPC, Indian Evidence Act and the Prisoners Act, said: “There is no provision in the Criminal Procedure Code to compel the accused to give his voice sample. That being the position, to my mind the answer to the question can only be in the negative, regardless of the constitutional guarantee against self-incrimination….”