The two short questions that this post purports to answer is :

• Whether directing an accused to give voice samples (voice spectography test) amounts to compelling him to be a witness against himself and consequently is violative of Article 20(3) of the Constitution ?; if not
• Whether the procedural law as it stands today (CrPC/IEA/Identification of Prisoners Act) provides for such a direction to the accused, and if not, whether such a direction can be passed in the absence of a specific statutory power in that regard.

This decision has to be read in the backdrop of Supreme Court decisions in Kathi Kalu Oghad (1961), Selvi (2010), Ritesh Sinha (2012) and the latest decision of a Single Judge of the Gujarat High Court in Devani v. State of Gujarat [Spl. Criminal Application Direction 5226 of 2015, decided on 18.01.2017].

The issue came up before Gujarat High Court in Devani in writ petition filed by an accused who was charged with offences under the Prevention of Corruption Act. The prosecution case revolved around an incriminating telephonic conversation between the accused and the person from whom the bribe was allegedly demanded. The prosecution wanted to conduct a voice spectography test so that the voice samples can be matched and element of ‘demand of bribery’ could be established. The accused, aggreived by this, challenged the decision in a Writ Petition.

Students will recall that the issue of ‘Whether the existing statutory provisions permit the court to subject the accused to voice spectography test’ is pending before the larger bench of the Supreme Court. The question had arose in Ritesh Sinha’s case in 2012, wherein the two judges bench, though agreeing on the primary point that such a test does not amount to ‘testimonial compulsion’, disagreed on the procedural point as to whether any provision in CrPC/IEA etc permitted such a test. The question was, therefore, posted to a larger bench, and a decision on the same is still awaited.

It is an established practice that merely because a legal question is pending adjudication before the larger bench of the Supreme Court, merely on that ground alone, the other courts are not precluded from deciding that question (in the absence of a clear stay) on the basis of their understanding of the prevailing law. This is what the Gujarat High Court went on to do.

The Court framed the first question as :

(1) Whether calling upon the accused to lend his voice sample tantamounts “to be a witness against himself”? To put in other words, whether the voice spectrography test of an accused amounts to testimonial compulsion within the meaning of Article 20(3) of the Constitution of India and whether such test should be put at par with tests like brain mapping, lie detector test, narco analysis test etc. 

The court relied on Oghad and Selvi to answer this question. Oghad and Selvi, read together, as students will recall, effectively confine the protection against self incrimination to ‘testimonial compulsion’ or ‘psychiatric knowledge’. That is to say, to information that is mental and testimonial in nature and not physical evidence such as blood, semen, etc. The idea is to protect the mental privacy/integrity of the individual and give him a right to silence with respect to facts in his mental knowledge. The protection does not extend to physical phenomena such as DNA/Handwriting/Fingerprints etc as there is no testimonial compulsion involved and since these evidences are ‘objective’ and ‘physical’ in nature, there is no threat of induced/tortured testimony creeping in.

Based on the above reasoning, the Gujarat High Court held that giving of voice samples for matching does not amount to being compelled to be a witness against oneself.

The next question proved more difficult to answer. The court framed it thus :

(2) Whether in the absence of any provision in the Criminal Procedure Code, can a magistrate authorise the investigating agency to record the voice sample of the person accused of an offence? 

The Court analysed various statutory provisions such as Section 53 CrpC, 73/165 IEA but failed to locate this power under the present statutory regime. Therefore, it concluded that no directions could be passed to the accused to participate in the voice-print tests.

The Court sums up its conclusions in para 101 :

[a] The Voice Spectrography Test does not fall within the ambit of a psychiatric treatment. The Voice Spectrography Test is in no manner violative of Article 20(3) of the Constitution of India.

[b] However, in the absence of any specific provision empowering the police officer or the Court in law, it is not permissible to subject an accused to the Voice Spectrography Test.

The Court gave the Government some serious food for thought for legislation on this subject and passed the necessary directions.