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 mobile phones, 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 there was no hesitation in concluding that 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. Like giving of a fingerprint impression or specimen writing by the accused for the purposes of investigation, giving of a voice sample for the purpose of investigation cannot be included in the expression ‘to be a witness’.

“By giving voice sample, the accused does not convey information based upon his personal knowledge which can incriminate him. A voice sample by itself is fully innocuous. By comparing it with tape-recorded conversation, the investigator may draw his conclusion but voice sample by itself is not a testimony at all.”

According to the judge, by no stretch of imagination could it be inferred that by giving voice sample, the accused conveyed any information based upon his personal knowledge and became a witness against himself, which is prohibited by Article 20 (3).

“The accused by giving the voice sample merely gives ‘identification data’ to the investigating agency. He is not subjected to any testimonial compulsion. Thus, taking voice sample of an accused by the police during investigation is not hit by Article 20 (3) of the Constitution,” she said.

The judge said crimes like kidnapping for ransom, extortion, blackmail and terrorist activities were rampant.

Therefore, to strengthen the hands of investigating agencies, “I am of the opinion that the magistrate’s power to authorise the investigating agency to record voice sample of the person accused of an offence can be traced to Section 5 of the Prisoners Act and Section 53 of the Code.”

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 and assuming that in case a provision in that regard is made in the law that would not offend Article 20 (3) of the Constitution.”