voice sample

SUPREME COURT OF INDIA

Monday, April 13, 2020.

‘Judicial Magistrate can Order Accused to Give Voice Sample’ Supreme Court'

                                      

'Bombay High Court ordered to destroy voice sample'

Legal Confusion?

The Supreme Court of India in an historic Judgment has allowed the court to compel a person to give his voice sample to investigating agency during investigation. The Bombay High Court on the contrary ordered to destroy voice sample. So which is a settled law? A plain reading will say Bombay High Court erred in the judgment and overlooked The Supreme Court Judgment.

October 2019 judgment in Vinit Kumar v. Central Bureau of Investigations and Ors , wherein the Bombay High Court outlined the ambit of the State’s power to surveillance its subjects particularly on matters that do not fall under the  of ‘public emergency /in the interest of public safety.

To my best knowledge and legal expertise, I feel the Bombay court has not erred in the judgment.

For an interception under section 5(2) of the IT Act, “public emergency” and “public safety” need to meet the compliance with the rules and guidelines made there under are mandatory in nature. Even a slight deviation from the process will lead to the evidence being inadmissible in the house of Law. The Supreme Court held that the two statutory pre-conditions, namely, the occurrence of any ‘public emergency’ or in the ‘interest of public safety’, have to be satisfied. Since the terms has not been defined under the IT Act, The Supreme Court interpreted them to mean “the prevalence of a sudden condition or state of affairs affecting the people at large calling for immediate action”, and “the state or condition of freedom from danger or risk for the people at large”.

Insofar as wiretaps or voice recording and their infringement of constitutional rights were concerned, The Supreme Court laid down the following touchstones. The right to privacy “is a part of the right to ‘life’ and ‘personal liberty’ enshrined under Art. 21 of the Constitution of India’’. The right to hold a telephone conversation is the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. Since telephonic conversations are often of an intimate and confidential nature. Any right enshrined under Art. 21 cannot be curtailed except according to the procedure established by law, which has to be just, fair and reasonable – The Supreme Court went on to issue guidelines to curb administrative overreach. Following the judgment, the guidelines were codified in Rule 419(A) of the Indian Telegraph Rules, 1951 in 2007. As per Rule 419(A), a direction for interception under Section 5(2) may be issued only by 
The Union Home Secretary at the Center, or 
The State Home Secretary or 
In unavoidable circumstances, by another authorized officer.

The V.Kumar case is a landmark judgment towards protection of Fundamental Rights of an Individual making sure phone tapping is not misused to target specific person in economic offence cases and procedure established by law is not overlooked. An inside view of both the cases had led to a conflicting view. But it is not so. A legal analysis of both the cases is, that the Authority can tape the phone abiding Legal compliance but within the permitted jurisdiction. The economic offence cases are outside the preview of phone tapping. The Supreme Court in an earlier case dealing with section 5(1) of the IT Act has held that the forerunner of “public emergency” and “interest of public safety” to an order of interception are to be read as a whole and take color from each other. Further, it held “public emergency” to include

·        The interest of public safety,

·        The sovereignty and integrity of India,

·        The security of the State,

·        Friendly relations with foreign states, public order,

·        The prevention of incitement to the commission of an offence.

 Further, The Supreme Court has also recognize that Economic Emergency does not qualify as “public emergency” and therefore, interception for economic offences, which do not meet the very highest threshold “public emergency” / “public safety”, are not permissible under the law.

The conclusion to my best knowledge is phone tapping is not allowed to target a particular person in economic offence crime. Now a question which arise is can a person be compelled to give voice sample before filing of the Charge Sheet. The Delhi High Court in Landmark Judgment Rakesh Bisht vs Central Bureau of Investigation .on 3 January, 2007

"The legislature has consciously referred to taking of specimens of signatures or handwriting for the purposes of any investigation or proceeding under this Code. It is for the first time that the Court has empowered the Magistrates to carve out an exception of passing an order directing a person to give specimen signatures of handwriting even in the course of investigation. It appears that this provision was introduced because of the recommendations suggested by the Supreme Court in Ram Babu Misra case. It is amply clear that de hors this provision, the court did not have any power to direct any accused in the course of an investigation to give specimens of his signatures or handwriting" . and now since The Supreme Court in its judgment had allowed the court to take voice sample during the investigation.

 The biggest question is, during the course of investigation and prior to filing of charge sheet an accused have no source to verify weather legal compliance being followed or not by investigating agency and once the voice sample is given and later the procedure is found not to be adhered, the voice sample may act as corroborated evidence as is being taken with the permission of the accused. To me what I feel is first an accused has to be assured that the phone was tapped following due compliance with the rules and guidelines made under section 5(2) of the IT Act, Than the Accused should be compelled to give voice sample.
In a recent case Mukul Roy vs The State of West Bengal on 12 December, 2019 the court refer the matter to larger bench to answer three questions which are as:
(a) Whether Section 311A read with Sections 53 and 53A of Cr.P.C. along with Section 5 of the Identification of Prisoners Act, 1920, empowers a Magistrate to compel a witness in course of investigation into an FIR, to give voice sample in the aid of such investigation?
(b) Can the principle laid down by the Hon'ble Supreme Court in the Ritesh Sinha vs. State of U.P be applied also to witnesses in course of investigation?
(c) Whether a witness even in course of an investigation can be compelled to give evidence, that could subsequently emerge as a ground for including him as an accused in the final investigation report. Let this matter be placed before the Hon'ble Chief Justice for reference to an appropriate bench?

To me what I feel is first an accused has to be assured that the phone was tapped following due compliance with the rules and guidelines made under section 5(2) of the IT Act, Charge sheet or a Preliminary charge sheet should be filed then u/s 173(8) A magistrate should compel an accused to give his voice sample.

Disclaimer:  The material and view is prepared by Adv Bishwa Kumar Jain and is the result of personal knowledge and have no legal value. The information and views are not intended to create, a legal relationship or advertisement. The reader should not rely or act upon this information without seeking professional counsel or legal advisor or an Advocate. The author shall not be responsible for any loss in any way what so ever and in any manner.

Advocate: Bishwa Kumar Jain

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B com (h). L.L.B. DIP Cyber Law. Member International Arbitration U.K.  Practice Advocate Supreme Court and High Court of Delhi.

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