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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION  

CRIMINAL     APPEAL     NO.     2003     OF     2012   [Arising out of Special Leave Petition (Crl.) No.7259 of 2010]

RITESH SINHA … APPELLANT

Vs.

THE STATE OF UTTAR PRADESH & ANR. …    RESPONDENTS

JUDGMENT

(SMT.)     RANJANA     PRAKASH     DESAI,     J.   

1. Leave granted.   

2. On 7/12/2009, one Prashant Kapil, In-charge,  

Electronics Cell, P.S. Sadar Bazar, District Saharanpur lodged  

a First Information Report alleging that one Dhoom Singh in  

connivance with the appellant was collecting money from  

people on the pretext that he would get them recruited in the  

police department.  After his arrest, one mobile phone was

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seized from Dhoom Singh.  As the police wanted to verify  

whether the recorded conversation, which is in their  

possession, is between accused Dhoom Singh and the  

appellant, they needed voice sample of the appellant.  The  

police, therefore, filed an application before learned Chief  

Judicial Magistrate, Janpad Saharanpur, praying that the  

appellant be summoned to the court for recording the sample  

of his voice.  On 8/1/2010, learned Chief Judicial Magistrate,  

Saharanpur issued summons to the appellant to appear before  

the investigating officer and give his voice sample.  The  

appellant approached the Allahabad High Court under Section  

482 of the Code of Criminal Procedure, 1973 (for short, “the  

Code”) for quashing of the said order.  The High Court by the  

impugned order dated 9/7/2010 rejected the said application,  

hence, this appeal by special leave.  

3. In my view, two important questions of law raised in this  

appeal, which we need to address, are as under:

“(i) Whether Article 20(3) of the Constitution of  India, which protects a person accused of an  offence from being compelled to be a witness  

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against himself, extends to protecting such an  accused from being compelled to give his voice  sample during the course of investigation into  an offence?

(ii) Assuming that there is no violation of Article  20(3) of the Constitution of India, whether in the  absence of any provision in the Code, can a  Magistrate authorize the investigating agency to  record the voice sample of the person accused  of an offence?”

4. We have heard, at considerable length, Mr. Siddhartha  

Dave, learned counsel for the appellant, Mr. Aman Ahluwalia,  

learned amicus curiae and Mr. R.K. Dash, learned counsel for  

the respondent –  State of Uttar Pradesh.  We have also  

perused the written submissions filed by them.  

5. Mr. Dave, learned counsel for the appellant, at the  

outset, made it clear that he was not pressing the challenge  

that the order passed by the Magistrate violates the appellant’s  

fundamental right of protection from self-incrimination as  

guaranteed under Article 20(3) of the Constitution.  Counsel  

submitted, however, that there is no provision in the Code or  

in any other law which authorizes the police to make an  

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application for an order directing the accused to permit  

recording of his voice for voice sample test.  Counsel  

submitted that a Magistrate has no inherent powers and,  

therefore, learned Magistrate could not have given such a  

direction (Adalat     Prasad      v.      Rooplal     Jindal  1  ).  Counsel  

submitted that because there is no other provision providing  

for a power, it ought not to be read in any other provision  

(State     of     U.P.       v.       Ram     Babu     Misra  2,   S.N.     Sharma       v.    

Bipen     Kumar     Tiwari  3).  Counsel pointed out that in Ram  

Babu     Misra,    this Court restricted the scope of Section 73 of  

the Indian Evidence Act and took-out from the purview of  

Section 5 of the Identification of Prisoners Act, 1920 (for short,  

“the Prisoners Act), handwritings and signatures.   As  

suggested by this Court, therefore, the Code was amended and  

Section 311A was inserted.   Counsel submitted that Section 5  

of the Prisoners Act is inapplicable to the present case because  

it is enacted only for the purpose of keeping a record of the  

prisoners and other convicts and not for collection of evidence  

1 (2004) 7 SCC 338 2 (1980) 2 SCC 242 3 (1970) 1 SCC 653

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(Balraj     Bhalla   v. Sri     Ramesh     Chandra     Nigam  4  ).  Counsel  

submitted that this is supported by Section 7 of the Prisoners  

Act, which provides for destruction of photographs and  

records of measurement on acquittal.  The term  

“measurement”  defined in Section 2(a) of the Prisoners Act  

covers only those things which could be physically measured.  

Counsel submitted that the Prisoners Act, being a penal  

statute, the term measurement appearing therein must be  

given a restricted meaning (Regional     Provident     Fund    

Commissioner v.  Hooghly     Mills     Co.     Ltd.     and     others  5).  

Counsel submitted that investigation has to be conducted  

within the parameters of the Code.  It is not uncontrolled and  

unfettered (State     of     West     Bengal    v.  Swapan     Guha  6).  

Counsel submitted that the High Court judgments, where  

unamended Section 53 of the Code is involved, are not  

relevant. Counsel submitted that Explanation (a) to Section 53  

of the Code was introduced in 2005 and, therefore, those  

judgments cannot be relied upon for interpreting the said  

4 AIR 1960 All 157 5 (2012) 2 SCC 489 6 (1982) 1 SCC 561

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Section as it stands today.  Counsel submitted that various  

examinations listed in the said Explanation are the ones for  

which the police can have the accused examined by a medical  

practitioner.  These tests are all of physical attributes present  

in the body of a person like blood, nail, hair etc., which once  

taken can be examined by modern and scientific techniques.  

Voice sample specifically has not been included as one of the  

tests in the said Explanation even though the amendment was  

made in 2005 when Parliament was well aware of such test  

being available and, has, therefore, been intentionally omitted.  

Counsel submitted that the words “such other tests”  

mentioned in the said Explanation are controlled by the words  

“which the registered medical practitioner thinks necessary”.  

Therefore, the discretion, as to the choice of the test, does not  

vest in the police but it vests in the medical practitioner.  This  

would clearly exclude voice test on the principle of ejusdem  

generis.  Counsel submitted that in Selvi     and     others    v.  

State     of     Karnataka  7 this Court has held that Section 53 of  

the Code has to be given a restrictive interpretation and not an  

7 (2010) 7 SCC 263

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expansive one.  Counsel submitted that the decision of this  

Court in Sakiri     Vasu    v.  State     of     Uttar     Pradesh  8 is  

inapplicable since to do an act under ancillary power the main  

power has to be conferred, which has not been conferred in  

this case.  Therefore, there is no question of resorting to  

ancillary power.  Counsel submitted that the High Court fell  

into a grave error in refusing to quash the order passed by  

learned Magistrate summoning the appellant for the purpose  

of giving sample of his voice to the investigating officer.  

6. Mr. Aman Ahluwalia, learned Amicus Curiae has  

submitted a very detailed and informative note on the issues  

involved in this case.  Gist of his submissions could be stated.  

Counsel submitted that voice sample is only a material for  

comparison with something that is already in possession of  

the investigating agency.  Relying on 11 Judges’  Bench  

decision of this court in State     of     Bombay      v.      Kathi     Kalu    

Oghad     &     Ors.,  9 counsel submitted that evidence for such  

identification purposes would not attract the privilege under  

8 (2009) 2 SCC 409 9 (1962) 3 SCR 10

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Article 20(3) of the Constitution. According to learned counsel,  

there is no specific provision enabling the Magistrate to direct  

an accused to give his voice sample.  There are certain  

provisions of the Code in which such power can be read into  

by the process of implication viz.  Section 2(h), Section 53,  

Section 311A and Section 54A.  So far as Section 311A of the  

Code is concerned, counsel however, fairly pointed out that in  

Rakesh     Bisht      v.      C.B.I.  10  the Delhi High Court has held that  

with the aid of Section 311A of the Code the accused cannot  

be compelled to give voice sample.  Counsel also relied on  

Section 5 of the Prisoners Act and submitted that it expressly  

confers power on the Magistrate to direct collection of  

demonstrative evidence during investigation. Counsel  

submitted that in Central     Bureau     of     Investigation,     New    

Delhi v. Abdul     Karim     Ladsab     Telgi     and     others  11 the  

Bombay High Court has interpreted the term “measurement”  

appearing in Section 5 of the Prisoners Act expansively and  

purposefully to include measurement of voice i.e. speech  

sound waves.  Counsel submitted that Section 53 of the Code  

10 2007 (1) JCC 482 and MANU/DE/0338/2007 11 2005 Crl. L.J. 2868

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could be construed expansively on the basis of presumption  

that an updating construction can be given to the statute  

(Bennion on Statutory Interpretation12).  Relying on Selvi,  

counsel submitted that for the purpose of Section 53 of the  

Code, persons on anticipatory bail would be deemed to be  

arrested persons.  It is, therefore, reasonable to assume that  

where the person is not actually in the physical custody of the  

police, the investigating agency could approach the Magistrate  

for an order directing the person to submit himself for  

examination under Section 53 of the Code.  Counsel also  

submitted that in Sakiri     Vasu,   this Court has referred to the  

incidental and implied powers of a Magistrate during  

investigation. Counsel submitted that in Selvi, Explanation to  

Section 53 has been given a restrictive meaning to include  

physical evidence.  Since voice is physical evidence, it would  

fall within the ambit of Section 53 of the Code.  The Magistrate  

has, therefore, ancillary or implied powers under Section 53 of  

the Code to direct a person to give voice sample in order to aid  

investigation. Counsel submitted that the most natural  

12 5th Edition at P. 516

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construction of the various statutes may lead to the  

conclusion that there is no power to compel a person to give  

voice sample.  However, the administration of justice and the  

need to control crime effectively require the strengthening of  

the investigative machinery.  While considering various  

provisions of law this angle may be kept in mind.  

7. Mr. Dash, learned counsel for the State of Uttar Pradesh  

submitted that the definition of the term ‘investigation’  

appearing in the Code is inclusive.  It means collection of  

evidence for proving a particular fact.  A conjoint reading of  

the definition of the term ‘investigation’ and Sections 156 and  

157 of the Code would show that while investigating a crime,  

the police have to take various steps (H.N.     Rishbud     &     Anr.      v.    

State     of     Delhi  13).  Counsel pointed out that in Selvi, meaning  

and scope of the term ‘investigation’ has been held to include  

measures that had not been enumerated in the statutory  

provisions.  In this connection, in Selvi, this Court took note  

of Rajasthan High Court judgment in Mahipal     Maderna     &    

13 AIR 1955 SC 196

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Anr.     v.      State     of     Rajasthan  14   and Allahabad High Court  

judgment in Jamshed      v.      State     of     U.P.  15  Relying on Kathi  

Kalu     Oghad     &     Ors.  , counsel submitted that taking of thumb  

impressions, impression of palm or foot or fingers or specimen  

writing or exposing a part of the body by an accused for the  

purpose of identification is not furnishing evidence in the  

larger sense because Constitution makers never intended to  

put obstacles in the way of effective investigation.  Counsel  

also relied on State     of     U.P.      v.      Boota     Singh  16 where the  

contention that taking specimen signatures of the respondents  

by police during investigation was hit by Section 162 of the  

Code was rejected.  Counsel submitted that the question of  

admissibility of tape recorded conversation is relevant for the  

present controversy.  In this connection, he relied on R.M.  

Malkani      v.      State     of     Maharashtra  17.  Counsel submitted  

that under Section 5 of the Prisoners Act, a person can be  

directed to give voice sample.  In this connection, he relied on  

the Bombay High Court’s judgment in Telgi.  Counsel  

14 1971 Cr.L.J. 1405 15 1976 Cri.L.J. 1680 16 (1979) 1 SCC 31 17 (1973) 1 SCC 471  

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submitted that a purposive interpretation needs to be put on  

the relevant sections to strengthen the hands of the  

investigating agency to deal with the modern crimes where  

tape recorded conversations are often very crucial.  

8. Though, Mr. Dave, learned counsel for the appellant has  

not pressed the submission relating to infringement of  

guarantee enshrined in Article 20(3) of the Constitution, since  

extensive arguments have been advanced on Article 20(3) and  

since the right against self-incrimination enshrined therein is  

of great importance to criminal justice system, I deem it  

appropriate to deal with the said question also to make the  

legal position clear.   

9. Article 20(3) of the Constitution reads thus:

“Article 20: Protection in respect of conviction for  offences.  

(1) … … …

(2) … … …

(3) No person accused of any offence shall be  compelled to be a witness against himself.”

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10. In M.P.     Sharma      v.      Satish     Chandra     &     Ors.  18, a seven  

Judges Bench of this court did not accept the contention that  

the guarantee against testimonial compulsion is to be confined  

to oral testimony while facing trial in the court. The guarantee  

was held to include not only oral testimony given in the court  

or out of court, but also the statements in writing which  

incriminated the maker when figuring as an accused person.  

11. In Kathi     Kalu     Oghad  , this court agreed with the above  

conclusion drawn in M.P.     Sharma  .  This court, however, did  

not agree with the observation made therein that “to be a  

witness”  may be equivalent to “furnishing evidence”  in larger  

sense of the expression so as to include giving of thumb  

impression or impression of palm or foot or fingers or  

specimen writing or exposing a part of the body by an accused  

person for the purpose of identification.  This court expressed  

that the observations in M.P.     Sharma   that Section 139 of the  

Evidence Act which says that a person producing a document  

on summons is not a witness, has no bearing on the  

18 1954 SCR 1077

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connotation of the word “witness” is not entirely well-founded  

in law. It is necessary to have a look at Kathi     Kalu     Oghad.   

12. In Kathi     Kalu     Oghad,   the prosecution adduced in  

evidence a chit stated to be in the handwriting of the accused.  

In order to prove that the chit was in the handwriting of the  

accused, the police had taken specimen signatures of the  

accused while he was in police custody.  Handwriting expert  

opined that the chit was in the handwriting of the accused.  

Question was raised as to the admissibility of the specimen  

writings in view of Article 20(3) of the Constitution. The High  

Court had acquitted the accused after excluding the specimen  

writings from consideration.  The questions of constitutional  

importance which this court considered and which have  

relevance to the case on hand are as under:

(a) Whether by production of the specimen  

handwriting, the accused could be said to have  

been a witness against himself within the  

meaning of Article 20(3) of the Constitution?

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(b) Whether the mere fact that when those specimen  

handwritings had been given, the accused was in  

police custody, could by itself amount to  

compulsion, apart from any other circumstances  

which could be urged as vitiating the consent of  

the accused in giving these specimen  

handwritings?  

(c) Whether a direction given by a court to an  

accused present in court to give his specimen  

writing and signature for the purpose of  

comparison under Section 73 of the Indian  

Evidence Act infringes the fundamental right  

enshrined in Article 20(3) of the Constitution?

13. While departing from the view taken in M.P.     Sharma    

that “to be witness is nothing more than to furnish evidence”  

and such evidence can be furnished through lips or by  

production of a thing or of a document or in other modes, in  

Kathi     Kalu     Oghad   this Court was alive to the fact that the  

investigating agencies cannot be denied their legitimate power  

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to investigate a case properly and on a proper analysis of  

relevant legal provisions it gave a restricted meaning to the  

term “to be witness”.  The relevant observations may be  

quoted.  

“‘To be a witness’  may be equivalent to  ‘furnishing evidence’  in the sense of making oral or  written statements, but not in the larger sense of the  expression so as to include giving of thumb  impression or impression of palm or foot or fingers or  specimen writing or exposing a part of the body.  ‘Furnishing evidence’  in the latter sense could not  have been within the contemplation of the  Constitution-makers for the simple reason that –  thought they may have intended to protect an  accused person from the hazards of self- incrimination, in the light of the English Law on the  subject –  they could not have intended to put  obstacles in the way of efficient and effective  investigation into crime and of bringing criminals to  justice.  The taking of impressions or parts of the  body of an accused person very often becomes  necessary to help the investigation of a crime.  It is  as much necessary to protect an accused person  against being compelled to incriminate himself, as to  arm the agents of law and the law courts with  legitimate powers to bring offenders to justice.”  

14. In support of the above assertion, this court referred to  

Section 5 of the Prisoners Act which allows measurements and  

photographs of an accused to be taken and Section 6 thereof  

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which states that if anyone resists taking of measurements  

and photographs, all necessary means to secure the taking of  

the same could be used.  This court also referred to Section 73  

of the Indian Evidence Act which authorizes the court to  

permit the taking of finger impression or specimen  

handwriting or signature of a person present in the court, if  

necessary for the purpose of comparison.  This court observed  

that self-incrimination must mean conveying information  

based upon the personal knowledge of the person giving the  

information and cannot include merely the mechanical  

process of producing documents in court which may throw a  

light on any of the points in controversy, but which do not  

contain any statement of the accused based on his personal  

knowledge.  Example was cited of an accused who may be in  

possession of a document which is in his writing or which  

contains his signature or his thumb impression. It was  

observed that production of such document with a view to  

comparison of the writing or the signature or the impression of  

the accused is not the statement of an accused person, which  

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can be said to be of the nature of a personal testimony.  I may  

quote another relevant observation of this court:

“When an accused person is called upon by the  Court or any other authority holding an investigation  to give his finger impression or signature or a  specimen of his handwriting, he is not giving any  testimony of the nature of a ‘personal testimony’.  The giving of a ‘personal testimony’  must depend  upon his volition.  He can make any kind of  statement or may refuse to make any statement.  But  his finger impressions or his handwriting, in spite of  efforts at concealing the true nature of it by  dissimulation cannot change their intrinsic character.  Thus, the giving of finger impressions or of specimen  writing or of signatures by an accused person,  though it may amount to furnishing evidence in the  larger sense, is not included within the expression ‘to  be a witness.”

15. Four of the conclusions drawn by this court, which are  

relevant for our purpose, could be quoted:

“(3) ‘To be a witness’ is not equivalent to ‘furnishing  evidence’ in its widest significance; that is to say, as  including not merely making of oral or written  statements but also production of documents or  giving materials which may be relevant at a trial to  determine the guilt or innocence of the accused.

(4) Giving thumb impressions or impressions of foot  or palm or fingers or specimen writings or showing  parts of the body by way of identification are not  included in the expression ‘to be a witness’.

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(5) ‘To be a witness’  means imparting knowledge  in respect of relevant facts by an oral statement or a  statement in writing, made or given in court or  otherwise.

(6) ‘To be a witness’  in its ordinary grammatical  sense means giving oral testimony in court.  Case  law has gone beyond this strict literal interpretation  of the expression which may now bear a wider  meaning, namely, bearing testimony in court or out of  court by a person accused of an offence, orally or in  writing.”

16. Before I proceed further, it is necessary to state that our  

attention was drawn to the judgment of this Court in  

Shyamlal     Mohanlal      v.      State     of     Gujarat  19.  It was pointed  

out that, there is some conflict between observations of this  

Court in M.P.     Sharma   as reconsidered in Kathi     Kalu     Oghad    

and, Shyamlal     Mohanlal   and this is noted by this Court in  

V.S.     Kuttan     Pillai      v.      Ramakrishnan     &     Anr.  20. I, however,  

find that in V.S.     Kuttan     Pillai  , this Court has not specifically  

given the nature of the conflict.  Having gone through  

Shyamlal     Mohanlal      v.    State     of      Gujarat  21  ,    I find that in  

that case, the Constitution Bench was considering the  

19 1965 2 SCR 457 20 (1980) 1 SCC 264 21 (1965) 2 SCR457

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question whether Section 94 of the Code of Criminal Procedure  

(Act 5 of 1898)  (Section 91(1) of the Code) applies to accused  

persons.  The Constitution Bench observed that in Kathi  

Kalu     Oghad   it has been held that an accused person cannot  

be compelled to disclose documents which are incriminatory  

and based on his own knowledge.  Section 94 of the Code of  

Criminal Procedure (Act 5 of 1898) permits the production of  

all documents including the documents which are  

incriminatory and based on the personal knowledge of the  

accused person.  The Constitution Bench observed that if  

Section 94 is construed to include an accused person, some  

unfortunate consequences follow.  If the police officer directs  

an accused to attend and produce a document, the court may  

have to hear arguments to determine whether the document is  

prohibited under Article 20 (3). The order of the trial court will  

be final under the Code for no appeal or revision would lie  

against that order. Therefore, if Section 94 is construed to  

include an accused person, it would lead to grave hardship to  

the accused and make investigation unfair to him.  The  

Constitution Bench concluded that Section 94 does not apply  

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to an accused person.  Though there is reference to M.P.  

Sharma as a judgment stating that calling an accused to  

produce a document does amount to compelling him to give  

evidence against himself, the observations cannot be read as  

taking  a view contrary to Kathi     Kalu     Oghad  , because they  

were made in different context.  As I have already noted, the  

conclusion drawn in Kathi     Kalu     Oghad   that the accused  

cannot be compelled to produce documents which are  

incriminatory and based on his own knowledge has been  

restated.  I, therefore, feel that it is not necessary to go into  

the question of alleged conflict.  

17. In Selvi a three Judge Bench of this Court was  

considering whether involuntary administration of certain  

scientific techniques like narco-analysis, polygraph  

examination and the Brain Electrical Activation Profile (BEAP)  

tests and the results thereof are of a ‘testimonial character’  

attracting the bar of Article 20(3) of the Constitution.  This  

Court  considered  the  protective  scope of right against self-

incrimination, that is whether it extends to the investigation  

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stage and came to the conclusion that even the investigation  

at the police level is embraced by Article 20(3).    After quoting  

extensively from Kathi     Kalu     Oghad,   it was observed that the  

scope of ‘testimonial compulsion’ is made clear by two  

premises.    The first is that ordinarily it is the oral or written  

statements which convey the personal knowledge of a person  

in respect of relevant facts that amount to ‘personal testimony’  

thereby coming within the prohibition contemplated by Article  

20(3).  In most cases, such ‘personal testimony’ can be readily  

distinguished from material evidence such as bodily  

substances and other physical objects.  The second premise is  

that in some cases, oral or written statements can be relied  

upon but only for the purpose of identification or comparison  

with facts and materials that are already in the possession of  

the investigators.  The bar of Article 20(3) can be invoked  

when the statements are likely to lead to incrimination by  

themselves or furnish a link in the chain of evidence.  It was  

held that all the three techniques involve testimonial  

responses.  They impede the subject’s right to remain silent.  

The subject is compelled to convey personal knowledge  

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irrespective of his/her own volition. The results of these tests  

cannot be likened to physical evidence so as to exclude them  

from the protective scope of Article 20(3).  This Court  

concluded that compulsory administration of the impugned  

techniques violates the right against self-incrimination.  Article  

20(3) aims to prevent the forcible conveyance of personal  

knowledge that is relevant to the facts in issue.  The results  

obtained from each of the impugned tests bear a testimonial  

character and they cannot be categorized as material evidence  

such as bodily substances and other physical objects.  

18.   Applying the test laid down by this court in Kathi     Kalu    

Oghad which is relied upon in Selvi,      I have no hesitation in  

coming to a conclusion that if an accused person is directed to  

give his voice sample during the course of investigation of an  

offence, there is no violation of his right under Article 20(3) of  

the Constitution.  Voice sample is like finger print impression,  

signature or specimen handwriting of an accused.  Like giving  

of a finger print impression or specimen writing by the  

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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.  When an  

accused is asked to give voice sample, he is not giving any  

testimony of the nature of a personal testimony.   When  

compared with the recorded conversation with the help of  

mechanical process, it may throw light on the points in  

controversy.  It cannot be said, by any stretch of imagination  

that by giving voice sample, the accused conveyed any  

information based upon his personal knowledge and became a  

witness against himself.  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.  

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19. The next question which needs to be answered is whether  

there is any provision in the Code, or in any other law under  

which a Magistrate can authorize the investigating agency to  

record voice sample of a person accused of an offence. Counsel  

are ad idem on the point that there is no specific provision  

either in the Code or in any other law in that behalf.  In its  

87th Report, the Law Commission suggested that the Prisoners  

Act should be amended inter alia to include voice sample  

within the ambit of Section 5 thereof.  Parliament however has  

not amended the Prisoners Act in pursuance to the  

recommendation of the Law Commission nor is the Code  

amended to add any such provision therein. Resultantly, there  

is no specific legal provision under which such a direction can  

be given. It is therefore, necessary to see whether such power  

can be read into in any of the available provisions of law.  

20. A careful study of the relevant provisions of the Code and  

other relevant statutes discloses a scheme which aims at  

strengthening the hands of the investigator.  Section 53,  

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Section 54A, Section 311A of the Code, Section 73 of the  

Evidence Act and the Prisoners Act to which I shall soon refer  

reflect Parliament’s efforts in that behalf. I have already noted  

that in Kathi     Kalu     Oghad,   while considering the expressions  

“to be a witness” and “furnishing evidence”, this Court clarified  

that “to be a witness” is not equivalent to “furnishing evidence”  

in the larger sense of the expression so as to include giving of  

thumb impression or impression of palm or foot or fingers or  

specimen writing or exposing a part of the body by an accused  

for the purpose of identification because such interpretation  

would not have been within the contemplation of the  

Constitution makers for the simple reason that though they  

may have intended to protect an accused person from the  

hazards of self-incrimination, they could not have intended  to  

put obstacles in the way of efficient and effective investigation  

into crime and bringing criminal to justice.  Such steps often  

become necessary to help the investigation of crime.  This  

Court expressed that it is as much necessary to protect an  

accused person against being compelled to incriminate  

himself, as to arm the agents of law and law courts with  

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legitimate powers to bring offenders to justice.  This, in my  

opinion, is the basic theme and, the controversy regarding  

taking of voice sample involved in this case will have to be  

dealt with keeping this theme in mind and by striking a  

balance between Article 20(3) and societal interest in having a  

legal framework in place which brings to book criminals.  

21. Since we are concerned with the stage of investigation, it  

is necessary to see how the Code defines ‘investigation’.  

Section 2 (h) of the Code is material.  It reads thus:

“Investigation”  includes all the proceedings  under this Code for the collection of evidence  conducted by a police officer or by any person  (other than a Magistrate) who is authorized by  a Magistrate in this behalf.”

22. It is the duty of a Police Officer or any person (other than  

a Magistrate) authorized by a Magistrate to collect evidence  

and proceedings under the Code for the collection of evidence  

are included in ‘Investigation’.  Collection of voice sample of an  

accused is a step in investigation.  It was argued by learned  

counsel for the State that various steps which the police take  

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during investigation are not specifically provided in the Code,  

yet they fall within the wider definition of the term  

‘investigation’  and investigation has been held to include  

measures that had not been enumerated in statutory  

provisions and the decisions to that effect of the Rajasthan  

High Court  in Mahipal     Maderna   and Allahabad High Court  

in Jamshed have been noticed by this Court in Selvi and,  

therefore, no legal provision need be located under which voice  

sample can be taken.  I find it difficult to accept this  

submission.  In the course of investigation, the police do use  

force.  In a country governed by rule of law police actions  

which are likely to affect the bodily integrity of a person or  

likely to affect his personal dignity must have legal sanction.  

That prevents possible abuse of the power by the police.   It is  

trite that every investigation has to be conducted within the  

parameters of the Code. The power to investigate into a  

cognizable offence must be exercised strictly on the condition  

on which it is granted.  (State of West Bengal v. Swapan  

Guha).  The accused has to be dealt with strictly in  

accordance with law. Even though, taking of physical evidence  

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which does not amount to communicating information based  

on personal knowledge to the investigating officer by the  

accused which may incriminate him, is held to be not violative  

of protection guaranteed by Article 20(3), the investigating  

officer cannot take physical evidence from an accused unless  

he is authorized by a Magistrate to do so.  He cannot assume  

powers which he does not possess. He can only act on the  

strength of a direction given to him by a Magistrate and the  

Magistrate must have power to issue such a direction.  In  

Bindeshwari     Prasad     Singh      v.      Kali     Singh  22  , this Court has  

clarified that subordinate criminal courts have no inherent  

powers.  Similar view has been taken by this court in Adalat  

Prasad.  Our attention was drawn to Sakiri     Vasu   in support  

of the submission that the Magistrate has implied or  

incidental powers.  In that case, this Court was dealing with  

the Magistrate’s powers under Section 156(3) of the Code.  It is  

observed that Section 156(3) includes all such powers as are  

necessary for ensuring a proper investigation.  It is further  

observed that when a power is given to an authority to do  

22 (1977) 1 SCC 57

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something, it includes such incidental or implied powers  

which would ensure proper doing of that thing.  It is further  

added that where an Act confers jurisdiction, it impliedly also  

grants power of doing all such acts or employ such means as  

are essentially necessary for execution.  If we read  

Bindeshwar     Prasad,   Adalat     Prasad   and Sakiri     Vasu    

together, it becomes clear that the subordinate criminal courts  

do not have inherent powers.  They can exercise such  

incidental powers as are necessary to ensure proper  

investigation.  Against this background, it is necessary to find  

out whether power of a Magistrate to issue direction to a police  

officer to take voice sample of the accused during investigation  

can be read into in any provisions of the Code or any other  

law.  It is necessary to find out whether a Magistrate has  

implied or ancillary power under any provisions of the Code to  

pass such order for the purpose of proper investigation of the  

case.  

23. In search for such a power, I shall first deal with the  

Prisoners Act.  As its short title and preamble suggests it is  

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aimed at securing identification of the accused.   It is an Act to  

authorize the taking of measurements and photographs of  

convicts and others. Section 2(a) defines the term  

‘measurements’  to include finger-impressions and foot-print  

impressions.  Section 3 provides for taking of measurements,  

etc., of convicted persons and Section 4 provides for taking of  

measurements, etc., of non-convicted persons.  Section 5  

provides for power of a Magistrate to order a person to be  

measured or photographed.   Section 6 permits the police  

officer to use all means necessary to secure measurements  

etc. if such person puts up resistance.  Section 7 states that  

all measurements and photographs taken of a person who has  

not been previously convicted shall be destroyed unless the  

court directs otherwise, if such person is acquitted or  

discharged.  In Kathi     Kalu     Oghad  , this Court referred to the  

Prisoners Act as a statute empowering the law courts with  

legitimate powers to bring offenders to justice.  

 24. In Amrit     Singh      v.      State     of     Punjab  23  the appellant was  

charged for offences under Sections 376 and 302 of the Indian  23 (2006) 12 SCC 79

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Penal Code (for short “the IPC”) and an application was filed  

by the investigating officer for obtaining the appellant’s hair  

sample.  He refused to give hair sample. It was argued that  

hair sample can be taken under the provisions of the Prisoners  

Act.  This Court held that the Prisoners Act may not be ultra  

vires the Constitution, but it will have no application to the  

case before it because it cannot be said to be an area  

contemplated under it.    

25. In Telgi, the Bombay High Court was dealing with a  

challenge to the order passed by the Special Judge, Pune,  

rejecting application filed by the investigating agency praying  

that it may be permitted to record the voice samples of the  

accused.  The High Court relying on Kathi     Kalu     Oghad    

rejected the contention that requiring the accused to lend their  

voice sample to the investigating officer amounts to testimonial  

compulsion and results in infringement of the accused’s right  

under Article 20(3) of the Constitution.  The High Court held  

that measuring frequency or intensity of the speech sound  

waves falls within the ambit of the scope of the term  

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“measurement” as defined in Section 2(a) of the Prisoners Act.  

The High Court also relied on Sections 5 and 6 of the  

Prisoners Act as provisions enabling the court to pass such  

orders.  

26. In Rakesh     Bisht  , the Delhi High Court disagreed with  

the view taken by the Bombay High Court in Telgi.  The Delhi  

High Court  held that if after investigation, charges are framed  

and in the proceedings before the court, the court feels that  

voice sample ought to be taken for the purposes of  

establishing identity, then such a direction may be given  

provided the voice sample is taken only for the purposes of  

identification and it does not contain inculpatory statement so  

as to be hit by Article 20(3) of the Constitution.  

27. Having carefully perused the provisions of the Prisoners  

Act, I am inclined to accept the view taken by the Bombay  

High Court in Telgi as against the view taken by the Delhi  

High Court in Rakesh     Bisht  . Voice sample stands on a  

different footing from hair sample with which this Court was  

concerned in Amrit     Singh   because there is no provision  

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express or implied in the Prisoners Act under which such a  

hair sample can be taken. That is not so with voice sample.   

28. The purpose of taking voice sample which is non-

testimonial physical evidence is to compare it with tape  

recorded conversation.  It is a physical characteristic of the  

accused.  It is identificatory evidence.  In R.M.     Malkani  , this  

Court has taken a view that tape recorded conversation is  

admissible provided the conversation is relevant to the matters  

in issue; there is identification of the voice and the tape  

recorded conversation is proved by eliminating the possibility  

of erasing the tape recorded conversation.  It is a relevant fact  

and is admissible under Section 7 of the Evidence Act.  In view  

of this legal position, to make the tape recorded conversation  

admissible in evidence, there must be provision under which  

the police can get it identified.  For that purpose, the police  

must get the voice sample of the accused.  

29. The dictionary meaning of the term ‘measurement’  is the  

act or process of measuring.  The voice sample is analysed or  

measured on the basis of time, frequency and intensity of the  

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speech-sound waves. A voice print is a visual recording of  

voice.  Spectrographic Voice Identification is described in  

Chapter 12 of the Book “Scientific Evidence in Criminal  

Cases”  written by Andre A. Moenssens, Ray Edward Moses  

and Fred E. Inbau.  The relevant extracts of this chapter could  

be advantageously quoted.  

“Voiceprint identification requires (1) a recording  of the questioned voice, (2) a recording of known  origin for comparison, and (3) a sound spectrograph  machine adapted for ‘voiceprint’ studies.”

12.02 Sound and Speech

In order to properly understand the voiceprint  technique, it is necessary to briefly review some  elementary concepts of sound and speech.  

Sound, like heat, can be defined as a vibration  of air molecules or described as energy in the form of  waves or pulses, caused by vibrations.  In the  speech process, the initial wave producing vibrations  originate in the vocal cords.  Each vibration causes a  compression and corresponding rarefications of the  air, which in turn form the aforementioned wave or  pulse.  The time interval between each pulse is called  the frequency of sound; it is expressed generally in  hertz, abbreviated as hz., or sometimes also in  cycles-per-second, abbreviated as cps.  It is this  frequency which determines the pitch of the sound.  The higher the frequency, the higher the pitch, and  vice versa.  

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Intensity is another characteristic of sound.  In  speech, intensity is the characteristic of loudness.  Intensity is a function of the amount of energy in the  sound wave or pulse.  To perceive the difference  between frequency and intensity, two activities of air  molecules in an atmosphere must be considered.  The speed at which an individual vibrating molecule  bounces back and forth between the other air  molecules surrounding it is the frequency.  Intensity,  on the other hand, may be measured by the number  of air molecules that are being caused to vibrate at a  given frequency.”

“12.03 The Sound Spectrograph

The sound spectrograph is an electromagnetic  instrument which produces a graphic display of  speech in the parameters of time, frequency and  intensity.  The display is called a sound  spectrogram.”  

30. Thus, it is clear that voiceprint identification of voice  

involves measurement of frequency and intensity of sound  

waves.  In my opinion, therefore, measuring frequency or  

intensity of the speech-sound waves falls within the ambit of  

inclusive definition of the term ‘measurement’ appearing in the  

Prisoners Act.   

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31. There is another angle of looking at this issue.  Voice  

prints are like finger prints.  Each person has a distinctive  

voice with characteristic features.  Voice print experts have to  

compare spectrographic prints to arrive at an identification.  

In this connection, it would be useful to read following  

paragraphs from the book “Law Enforcement and Criminal  

Justice –  an introduction”  by Bennett-Sandler, Frazier,  

Torres, Waldron.  

“Voiceprints.  The voiceprint method of speaker  identification involves the aural and visual  comparison of one or more identified voice patterns  with a questioned or unknown voice.  Factors such  as pitch, rate of speech, accent, articulation, and  other items are evaluated and identified, even  though a speaker may attempt to disguise his or her  voice.  Through means of a sound spectrograph,  voice signals can be recorded magnetically to  produce a permanent image on electrically sensitive  paper.  This visual recording is called a voiceprint.  

A voiceprint indicates resonance bars of a person’s  voice (called formants), along with the spoken word  and how it is articulated.  Figure 9.7 is an actual  voiceprint sample.  The loudness of a voice is  indicated by the density of lines; the darker the lines  on the print, the greater the volume of the sound.  When voiceprints are being identified, the frequency  and pitch of the voice are indicated on the vertical  axis; the time factor is indicated on the horizontal  

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axis.  At least ten matching sounds are needed to  make a positive identification, while fewer factors  lead to a probable or highly probable conclusion.  

Voiceprints     are     like     fingerprints     in     that     each     person    has     a     distinctive     voice     with     characteristic     features    dictated     by     vocal     cavities     and     articulators  .  Oral and  nasal cavities act as resonators for energy expended  by the vocal cords.  Articulators are generated by the  lips, teeth, tongue, soft palate, and jaw muscles.  Voiceprint experts must compare spectrographic  prints or phonetic elements to arrive at an  identification.  These expert laboratory technicians  are trained to make subjective conclusions, much as  fingerprint or criminalistic experts must make  determinations on the basis of evidence.”  (emphasis  supplied.)  

Thus, my conclusion that voice sample can be included  

in the inclusive definition of the term “measurements”  

appearing in Section 2(a) of the Prisoners Act is supported by  

the above-quoted observation that voice prints are like finger  

prints.  Section 2(a) states that measurements include finger  

impressions and foot impressions.  If voice prints are like  

finger prints, they would be covered by the term  

‘measurements’.  I must note that the Law Commission of  

India in its 87th Report referred to the book “Law Enforcement  

and Criminal Justice –  an introduction”.  The Law  

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commission observed that voice prints resemble finger prints  

and made a recommendation that the Prisoners Act needs to  

be amended.  I am, therefore, of the opinion that a Magistrate  

acting under Section 5 of the Prisoners Act can give a direction  

to any person to give his voice sample for the purposes of any  

investigation or proceeding under the Code.    

32. I shall now turn to Section 73 of the Indian Evidence Act  

to see whether it empowers the court to give such a direction.  

It reads thus:  

“Section 73 - Comparison of signature, writing  or seal with others admitted or proved.  

In order to ascertain whether a signature,  writing, or seal is that of the person by whom  it purports to have been written or made, any  signature, writing, or seal admitted or proved  to the satisfaction of the Court to have been  written or made by that person may be  compared with the one which is to be proved,  although that signature, writing, or seal has  not been produced or proved for any other  purpose.

The Court may direct any person present in  court to write any words or figures for the  purpose of enabling the Court to compare the  

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words or figures so written with any words or  figures alleged to have been written by such  person.”

[This section applies also, with any necessary  modifications, to finger-impressions.]

33. In Ram     Babu     Misra,    the investigating officer made an  

application to the Chief Judicial Magistrate, Lucknow seeking  

a direction to the accused to give his specimen writing for the  

purpose of comparison with certain disputed writings.  

Learned Magistrate held that he had no power to do so when  

the case was still under investigation.  His view was upheld by  

the High Court.  This Court held that the second paragraph of  

Section 73 enables the court to direct any person present in  

court to give specimen writings “for the purpose of enabling  

the court to compare”  such writings with writings alleged to  

have been written by such person.  The clear implication of the  

words “for the purpose of enabling the court to compare”  is  

that there is some proceeding before the court in which or as a  

consequence of which it might be necessary for the court to  

compare such writings.  This Court further observed that the  

direction is to be given “for the purpose of enabling the court  

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to compare”  and not for the purpose of enabling the  

investigating or other agency to compare. While dismissing the  

appeal, this Court expressed that a suitable legislation may be  

made on the analogy of Section 5 of the Prisoners Act to  

provide for the investiture of Magistrates with the power to  

issue directions to any person including an accused person to  

give specimen signatures and writings.  Thus Section 73 of the  

Evidence Act does not empower the court to direct the accused  

to give his specimen writings during the course of  

investigation.   Obviously, Section 73 applies to proceedings  

pending before the court. They could be civil or criminal.  In  

view of the suggestion made by this Court by Act 25 of 2005  

with effect from 23.6.2006, Section 311A was added in the  

Code empowering the Magistrate to order a person to give  

specimen signature or handwriting during the course of  

investigation or proceeding under the Code.  

34. Section 311A of the Code reads thus:  

“311A. Power of Magistrate to order person to  give specimen signatures or handwriting:

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If a Magistrate of the first class is satisfied that,  for the purposes of any investigation or  proceeding under this Code, it is expedient to  direct any person, including an accused person,  to give specimen signatures or handwriting, he  may make an order to that effect and in that  case the person to whom the order relates shall  be produced or shall attend at the time and  place specified in such order and shall give his  specimen signatures or handwriting:  

Provided that no order shall be made under this  section unless the person has at some time  been arrested in connection with such  investigation or proceeding.”

A bare reading of this Section makes it clear that Section  

311A cannot be used for obtaining a direction from a  

Magistrate for taking voice sample.   

35. Section 53 of the Code pertains to examination of the  

accused by medical practitioner at the request of a police  

officer.  Section 53A refers to examination of person accused of  

rape by medical practitioner and section 54 refers to  

examination of arrested person by a medical officer.  Section  

53 is material.  It reads as under:

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“Section 53 - Examination of accused by  medical practitioner at the request of police  officer  

(1) When a person is arrested on a charge of  committing an offence of such a nature and  alleged to have been committed under such  circumstances that there are reasonable grounds  for believing that an examination of his person  will afford evidence as to the commission of an  offence, it shall be lawful for a registered medical  practitioner, acting at the request of a police  officer not below the rank of sub-inspector, and for  any person acting in good faith in his aid and  under his direction, to make such an examination  of the person arrested as is reasonable necessary  in order to ascertain the facts which may afford  such evidence, and to use such force as is  reasonably necessary for that purpose.

(2) Whenever the person of a female is to be  examined under this section, the examination  shall be made only by, or under the supervision  of, a female registered medical practitioner.

Explanation:-

In this section and in sections 53A and 54,

(a) "examination" shall include the examination of  blood, blood stains, semen, swabs in case of  sexual offences, sputum and sweat, hair samples  and finger nail clippings by the use of modern  and scientific techniques including DNA profiling  and such other tests which the registered  medical practitioner thinks necessary in a  particular case;

(b) "registered medical practitioner" means a  medical practitioner who possess any medical  qualification as defined in clause (h) of section 2  

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of the Indian Medical Council Act, 1956(102 of  1956) and whose name has been entered in a  State Medical Register.

1. Substituted by The Code of Criminal Procedure  (Amendment) Act, 2005. Earlier the text was as  under:

Explanation.-In this section and in section 54,  "registered medical practitioner" means a medical  practitioner who possesses any recognized  medical qualification as defined in clause (h) of  section 2 of the Indian Medical Council Act, 1956  (102 of 1956), and whose name has been entered  in a State Medical Register.”

36. In short, this section states that if a police officer feels  

that there are reasonable grounds for believing that an  

examination of the person of the accused will afford evidence  

as to commission of the offence, he may request a registered  

medical practitioner to make such examination of his person  

as is reasonably necessary.  For such examination, it is  

permissible to use such force as may be reasonably necessary.  

Explanation (a) to Section 53 states what is ‘examination’.  It  

is an inclusive definition.  It states that the examination shall  

include the examination of blood, blood stains, semen, swabs  

in case of sexual offences, sputum and sweat, hair samples  

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and finger nail clippings by the use of modern and scientific  

techniques including DNA profiling and such other tests which  

the registered medical practitioner thinks necessary in a  

particular case.  This explanation was substituted by the Code  

of Criminal Procedure (Amendment) Act, 2005.   The question  

is whether with the aid of the doctrine ‘ejusdem generis’  voice  

sample test could be included  within the scope of the term  

‘examination’.  

37. I am not impressed by the submission that the term  

“such other tests”  mentioned in Explanation (a) is controlled  

by the words “which the registered medical practitioner thinks  

necessary”.  It is not possible to hold that Explanation (a) vests  

the discretion to conduct examination of the accused in the  

registered medical practitioner and not in the investigating  

officer and therefore the doctrine of ‘ejusdem generis’  cannot  

be pressed into service.  Under Section 53(1) the registered  

medical practitioner can act only at the request of a police  

officer.  Obviously, he can have no say in the process of  

investigation.  The decision to get the accused examined is to  

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be taken by the investigating officer and not by the medical  

practitioner.  It is the expertise of the medical practitioner  

which the investigator uses to decide the method of the test.  It  

would be wrong, therefore, to state that the discretion to get  

the accused examined vests in the medical practitioner.  This  

submission must, therefore, be rejected.  

38. It is argued that voice sample test cannot be included in  

the definition of ‘examination’  because in Selvi,  this Court  

has held that Section 53 needs to be given a restrictive  

interpretation.  I must, therefore, revisit Selvi.      

39. In Selvi,  it was contended that the phrase “modern and  

scientific techniques including DNA profiling and such other  

tests”  should be liberally construed to include narco-analysis  

test, polygraph examination and the BEAP test.  These tests  

could be read in with the help of the words “and such other  

tests”, because the list of “modern and scientific techniques”  

contemplated was illustrative and not exhaustive.  This Court  

observed that it was inclined to take the view that the results  

of the impugned tests should be treated as testimonial acts for  

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the purpose of invoking the right against self-incrimination  

and, therefore, it would be prudent to state that the phrase  

“and such other tests” appearing in Explanation (a) to Section  

53 of the Code should be read so as to confine its meaning to  

include only those tests which involve the examination of  

physical evidence.  This Court accepted the submission that  

while bodily substances such as blood, semen, sputum, sweat,  

hair and finger nail clippings can be characterized as physical  

evidence, the same cannot be said about the techniques in  

question. This Court reiterated the distinction between  

physical evidence and testimonial acts and accepted the  

submission that the doctrine of ‘ejusdem generis’  entails that  

the meaning of general words which follow specific words in  a  

statutory provision should be construed in light of  

commonality between those specific words.  This Court  

acknowledged that the substances mentioned in Explanation  

(a) to Section 53 are examples of physical evidence and, hence,  

the words “and such other tests” mentioned therein should be  

construed to include the examination of physical evidence but  

not that of testimonial acts. This Court made it clear that it  

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was not examining what was the legislative intent in not  

including the tests impugned before it in the Explanation.   

40.  Our attention was drawn to the observation of this Court  

in Selvi that the dynamic interpretation of the amended  

Explanation to Section 53 is obstructed because the general  

words “and such other tests”  should ordinarily be read to  

include tests which are of the same genus as the other forms  

of medical examination which are examinations of bodily  

substances.  It is argued that voice sample is not a bodily  

substance like blood, sputum, finger nail clippings etc.  

41. Voice emanates from the human body.  The human body  

determines its volume and distinctiveness.  Though it cannot  

be touched or seen like a bodily substance, being a bodily  

emanation, it could be treated as a part of human body and  

thus could be called a bodily substance.  But, I feel that there  

is no need to stretch the meaning of the term ‘bodily  

substance’ in this case.  I have already expressed my opinion  

that voice sample is physical non-testimonial evidence.  It does  

not communicate to the investigator any information based on  

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personal knowledge of the accused which can incriminate him.  

Voice sample cannot be held to be conceptually different from  

physical non-testimonial evidence like blood, semen, sputum,  

hair etc.  Taking of voice sample does not involve any  

testimonial responses.  The observation of this Court in Selvi  

that it would not be prudent to read Explanation (a) to Section  

53 of the Code in an expansive manner is qualified by the  

words “so as to include the impugned techniques”.  What  

must be borne in mind is that the impugned techniques were  

held to be testimonial and hit by Article 20(3) of the  

Constitution.  This Court emphasized that Explanation (a) to  

Section 53 does not enumerate certain other kinds of medical  

examination that involve testimonial acts, such as psychiatric  

examination among others and this demonstrates that the  

amendment made to this provision was informed by a rational  

distinction between the examination of physical substances  

and testimonial acts.  If this Court wanted to interpret  

Explanation (a) as referring only to bodily substances there  

was no reason for it to draw such distinction.  Pertinently, this  

distinction was employed while applying the doctrine of  

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‘ejusdem generis’  to Section 53.  The tenor of this judgment  

makes it clear that tests pertaining to physical non-testimonial  

evidence can be included in the purview of the words “and  

such other tests”  with the aid of the doctrine of ‘ejusdem  

generis’. In my opinion, Selvi primarily rests on the distinction  

between physical evidence of non-testimonial character as  

against evidence involving testimonial compulsions. The tests  

mentioned in Explanation (a) are of bodily substances, which  

are examples of physical evidence.  Even if voice sample is not  

treated as a bodily substance, it is still physical evidence  

involving no transmission of personal knowledge.  On the  

reasoning of Selvi which is based on Kathi     Kalu     Oghad,    I  

find no difficulty in including voice sample test in the phrase  

“such other tests”  appearing in Explanation (a) to Section 53  

by applying the doctrine of ‘ejusdem generis’  as it is  a test  

pertaining to physical non-testimonial evidence like blood,  

sputum etc. In my opinion, such interpretation of Selvi would  

be in tune with the general scheme of the Code which contains  

provisions for collection of evidence for comparison or  

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identification at the investigation stage in order to strengthen  

the hands of the investigating agency.  

42. It was argued that Section 53 of the Code only  

contemplates medical examination and taking of voice sample  

is not a medical examination.  Section 53 talks of examination  

by registered medical practitioner of the person of the accused  

but, does not use the words “medical examination”.  Similarly,  

Explanation (a) to Section 53 does not use the words “medical  

examination”.  In my opinion, Section 53 need not be confined  

to medical examination.  It is pertinent to note that in Selvi,  

this court was considering whether narco-analysis, polygraph  

examination and the BEAP tests violate Article 20(3) of the  

Constitution.  While examining this question, this Court  

analyzed Section 53 and stated that because those tests are  

testimonial in nature, they do not fall within the ambit of  

Section 53 of the Code but this Court did not restrict  

examination of person contemplated in Section 53 to medical  

examination by a medical practitioner even though the tests  

impugned therein were tests that were clearly not to be  

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conducted by the medical practitioner.  It must be  

remembered that Section 53 is primarily meant to serve as aid  

in the investigation.  Examination of the accused is to be  

conducted by a medical practitioner at the instance of the  

police officer, who is in charge of the investigation.  On a fair  

reading of Section 53 of the Code, I am of the opinion that  

under that Section, the medical practitioner can conduct the  

examination or suggest the method of examination.   

43. I must also deal with the submission of learned counsel  

for the appellant that non-inclusion of voice sample in  

Explanation (a) displays legislative intent not to include it  

though legislature was aware of such test.  In Selvi, this court  

has made it clear that it was not examining the question  

regarding legislative intent in not including the test impugned  

before it in Explanation (a).  Therefore, Selvi does not help the  

appellant on this point. On the contrary, in my opinion, by  

adding the words ‘and such other tests’  in the definition of  

term contained in Explanation (a) to Section 53 of the Code,  

the legislature took care of including within the scope of the  

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term ‘examination’ similar tests which may become necessary  

in the facts of a particular case.  Legislature exercised  

necessary caution and made the said definition inclusive, not  

exhaustive and capable of expanding to legally permissible  

limits with the aid of the doctrine of ‘ejusdem generis’.  I,  

therefore, reject this submission.   

44. Section 54A of the Code makes provision for  

identification of arrested persons.  It states that where a  

person is arrested on a charge of committing an offence and  

his identification by any other person or persons is considered  

necessary for the purpose of investigation of such offence, the  

court having jurisdiction, may on the request of the officer in  

charge of a police station, direct the person so arrested to  

subject himself to identification by any person or persons in  

such manner as the court may deem fit.  Identification of the  

voice is precondition for admission of tape recorded  

conversation in evidence (R.M.     Malkani  ).  Since Section 54A  

of the Code uses the words “the Court, …. may …… direct the  

person so arrested to subject himself to identification by any  

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person or persons in such manner as the court may deem fit”,  

voice sample can be identified by means of voice identification  

parade under Section 54A or by some other person familiar  

with the voice.  

45. I may usefully refer to the judgment of this Court in  

Nilesh     Paradkar      v.      State     of     Maharashtra  24 where the  

voice test identification was conducted by playing cassette in  

the presence of panchas, police officers and prosecution  

witnesses.  This Court rejected the voice identification  

evidence because precautions similar to the precautions which  

are normally taken in visual identification of suspects by  

witnesses were not taken.  But this court did not reject the  

evidence on the ground that voice identification parade is not  

contemplated under Section 54A of the Code.  It is important  

to note that in Mohan     Singh      v.      State     of     Bihar  25, after  

noticing Nilesh     Paradkar  , this Court held that where the  

witnesses identifying the voice had previous acquaintance with  

the caller i.e. the accused, such identification of voice can be  

24 (2011) 4 SCC 143 25 (2011) 9 SCC 272

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relied upon; but identification by voice has to be considered  

carefully by the court.  This, however, is no answer to the  

question of availability of a legal provision to pass an order  

directing the accused to give voice sample during  

investigation.  The legal provision, in my opinion, can be  

traced to the Prisoners Act and Section 53 of the Code.  

46. I am mindful of the fact that foreign decisions are not  

binding on our courts.  But, I must refer to the judgment of  

the Supreme Court of Appeal of South Africa in Levack,  

Hamilton     Caesar     &     Ors.      v.      Regional     Magistrate,    

Wynberg     &     Anr.  26 because it throws some light on the issue  

involved in the case.   In that case, the Magistrate had granted  

an order under Section 37(3) of the Criminal Procedure Act 51  

of 1977 (for short, “South African Act”) directing the accused  

to give voice samples as specified by a named ‘voice expert’ in  

the presence of the legal representatives of the accused.  The  

object was to compare the samples with tape recordings of  

telephone conversations in the State’s possession, for possible  

26 [2003] 1 All SA 22 (SCA) (28th November 2002)

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later use during the trial.  The accused were unsuccessful in  

the High Court in their challenge to the said order of the lower  

court.  Hence, they appealed to the Supreme Court of South  

Africa.   Under Section 37(1) of the South African Act, any  

police officer may take the fingerprints, palm-prints and foot-

prints or may cause any such prints to be taken, inter alia, of  

any person arrested upon any charge.  Sections 37(1)(a)(i) and  

(ii) and Section 37(1)(c) of the South African Act read thus:

“37. Powers in respect of prints and bodily  appearance of accused.—(1) Any police official  may—

(a) take the finger-prints, palm-prints or foot- prints or may cause any such prints to be  taken—

(i) of any person arrested upon any  charge;

(ii) of any such person released on bail  or on warning under section 72;

(iii) xxx xxx xxx

(iv) xxx xxx xxx

(v) xxx xxx xxx  

(b) xxx xxx xxx

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(c) take such steps as he may deem  necessary in order to ascertain whether  the body of any person referred to in  paragraph (a) (i) or (ii) has any mark,  characteristic or distinguishing feature or  shows any condition or appearance:  Provided that no police official shall take  any blood sample of the person concerned  nor shall a police official make any  examination of the body of the person  concerned where that person is a female  and the police official concerned is not a  female;”

The first question which fell for consideration was  

whether voice of a person is a characteristic or distinguishing  

feature of the body.  The Supreme Court of South Africa  

considered the Oxford Dictionary meaning of ‘voice’  as ‘1.  

Sound formed in larynx etc. and uttered by mouth, especially  

human utterance in speaking, shouting, singing, etc. 2. Use of  

voice, utterance.  3. (Phonetic) Sound uttered with resonance  

of vocal chords, not with mere breath’.   It observed that voice  

is thus a sound formed in the larynx and uttered by the  

mouth and emanates from and is formed by the body.  

Therefore, there can be no doubt that it is a ‘characteristic’ (in  

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the sense of a distinctive trait or quality) of the human body.  

Though voice sample was not specifically mentioned in Section  

37, it was held that it fell within the scope of Section 37.  It  

was observed that Section 37 does not expressly mention the  

voice because it is one of the ‘innumerable’ bodily features that  

the wording expressly contemplates.  Section 37 merely  

contemplates bodily appearance of the accused.   It was  

further observed that it is true that the voice, unlike palm or  

other prints, is not itself part of the body.  It is a sound.  But,  

the sound is a bodily emanation.  And the body from which it  

emanates determines its timbre, volume and distinctive  

modulations.  It was further observed that nothing in the  

provision suggests that the ‘distinguishing features’  it  

envisages should be limited to those capable of apprehension  

through the senses of touch and sight (or even taste or smell).  

Relevant observation of the Supreme Court of South Africa  

could be quoted.  

“14. Hearing is as much a mode of physical  apprehension as feeling or seeing.  For the sight- impaired it is indeed the most important means of  

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distinguishing between people.  It would therefore be  counter-literal to interpret the section as though the  ways of ‘ascertaining’ bodily features it contemplates  extend only to what is visible or tangible.”  

The Supreme Court of South Africa then considered the  

question of self-incrimination.  It observed that it is wrong to  

suppose that requiring the accused to submit voice samples  

infringes their right either to remain silent in the court  

proceedings against them or not to give self-incriminating  

evidence.  It was further observed that voice falls within the  

same category as complexion, stature, mutilations, marks and  

prints i.e. ‘autoptic evidence’  –  evidence derived from the  

accused’s own bodily features.  It was held that there is no  

difference in principle between the visibly discernible physical  

traits and features of an accused and those that under law  

can be extracted from him through syringe and vial or through  

the compelled provision of a voice sample.   In neither case is  

the accused required to provide evidence of a testimonial or  

communicative nature, and in neither case is any  

constitutional right violated.  The Supreme Court of South  

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Africa then examined as to under which provision a Magistrate  

could issue a direction to the accused to supply his voice  

samples.   It observed that Section 37(1)(a)(i) and (ii) permit  

any police officer to take the finger-prints, palm-prints or foot-

prints or may cause any such prints to be taken of any person  

arrested upon any charge.  Section 37(1)(c) states that any  

police officer may take such steps as he may deem necessary  

in order to ascertain whether the body of any person referred  

to in paragraph (a) (i) or (ii) has any mark, characteristic or  

distinguishing feature or shows any condition or appearance.  

Though ‘voice sample’  was not specifically mentioned  

anywhere, on a conjoint reading of the two provisions, the  

Supreme Court of South Africa held that the police retained  

the power under Section 37(1)(c) to take steps as they might  

deem necessary to ascertain the characteristic or  

distinguishing features of the accused’s voice.  That included  

the power to request the accused to supply voice samples.  

The court further observed that this power, in turn, could  

properly be supplemented by a court order requiring the  

accused to do so.    

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47. In the ultimate analysis, therefore, I am of the opinion  

that the Magistrate’s power to authorize 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.  The Magistrate has an ancillary or  

implied power under Section 53 of the Code to pass an order  

permitting taking of voice sample to aid investigation.  This  

conclusion of mine is based on the interpretation of relevant  

sections of the Prisoners Act and Section 53 of the Code and  

also is in tune with the concern expressed by this court in  

Kathi     Kalu     Oghad   that it is as much necessary to protect an  

accused person against being compelled to incriminate  

himself, as to arm the agents of law and the law courts with  

legitimate powers to bring offenders to justice.  

48. The principle that a penal statute should be strictly  

construed is not of universal application.  In Murlidhar  

Meghraj     Loya      v.      State     of     Maharashtra  27, this court was  

27 AIR 1976 SC 1929

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dealing with the Prevention of Food Adulteration Act, 1954.  

Speaking for this court, Krishna Iyer, J. held that any narrow  

and pedantic, literal and lexical construction of Food Laws is  

likely to leave loopholes for the offender to sneak out of the  

meshes of law and should be discouraged and criminal  

jurisprudence must depart from old canons defeating criminal  

statutes calculated to protect the public health and the  

nation’s wealth.  Similar view was taken in Kisan     Trimbak    

Kothula     &     Ors.      v.      State     of     Maharashtra  28.  In State     of    

Maharashtra      v.      Natwarlal     Damodardas     Soni  29, while  

dealing with Section 135 of the Customs Act and Rule 126-

H(2)(d) of the Defence of India Rules, a narrow construction  

given by the High Court was rejected on the ground that that  

will emasculate these provisions and render them ineffective  

as a weapon for combating gold smuggling.  It was further  

held that the provisions have to be specially construed in a  

manner which will suppress the mischief and advance the  

object which the legislature had in view.  Therefore, whether  

the penal statute should be given strict interpretation or not  

28 AIR 1977 SC 435 29 AIR 1980 SC 593

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will depend on facts of each case.  Considerations of public  

health, preservation of nation’s wealth, public safety may  

weigh with the court in a given case and persuade it not to  

give a narrow construction to a penal statute.  In the facts of  

this case, I am not inclined to give a narrow construction to  

the provisions of the Prisoners Act and Section 53 of the Code.  

Judicial note can be taken of the fact that there is a great deal  

of technological advance in means of communication.  

Criminals are using new methodology in committing crimes.  

Use of landlines, mobile phones and voice over internet  

protocol (VoIP) in the commission of crimes like kidnapping for  

ransom, extortion, blackmail and for terrorist activities is  

rampant.  Therefore, in order to strengthen the hands of  

investigating agencies, I am inclined to give purposive  

interpretation to the provisions of the Prisoners Act and  

Section 53 of the Code instead of giving a narrow  

interpretation to them. I, however, feel that Parliament needs  

to bring in more clarity and precision by amending the  

Prisoners Act.  The Code also needs to be suitably amended.  

Crime has changed its face.  There are new challenges faced  

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by the investigating agency.  It is necessary to note that many  

local amendments have been made in the Prisoners Act by  

several States.  Technological and scientific advance in the  

investigative process could be more effectively used if required  

amendments are introduced by Parliament.  This is necessary  

to strike a balance between the need to preserve the right  

against self incrimination guaranteed under Article 20(3) of  

the Constitution and the need to strengthen the hands of the  

investigating agency to bring criminals to book.   

49. In the view that I have taken, I find no infirmity in the  

impugned order passed by the High Court confirming the  

order passed by learned Chief Judicial Magistrate, Saharanpur  

summoning the appellant to the court for recording the  

sample of his voice.  The appeal is dismissed.

50. Before I part with this judgment, I must express my  

sincere thanks to learned counsel Mr. Siddhartha Dave, Mr.  

Aman Ahluwalia and Mr. R.K. Dash, who have very ably  

assisted the court.

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……………………………………………..J. (RANJANA PRAKASH DESAI)

NEW DELHI, DECEMBER 7, 2012.

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2003 OF 2012 [ARISING OUT OF SLP (CRIMINAL) NO.7259 OF 2010]

RITESH SINHA … APPELLANT

VERSUS

THE STATE OF UTTAR PRADESH  & ANR. … RESPONDENTS

J U D G M E N T

Aftab Alam, J.

Leave granted.

1. In  to-day’s  world  when  terrorism  is  a  hard  reality  and  terrorist  

violence is a common phenomenon, the police needs all the forensic aids  

from science and technology. The technology is in position to-day to say  

whether two voice-recordings are of  the same person or  of  two different  

people and, thus, to provide valuable aid in investigation. But, the question  

is whether the law has any provision under which a person, suspected of  

having committed an offence, may be compelled to give his voice sample to  

aid the police in investigation of the case. The next and the more important  

question is, in case there is no express or evidently applicable provision in  

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law  in  that  regard,  should  the  court  invent  one  by  the  process  of  

interpretation. My sister Desai J. seems to think that the gap in the law is so  

vital that the court must step in to bridge the gap. I hesitate to do so.

2. There are,  indeed,  precedents  where the court  by the interpretative  

process  has  evolved  old  laws  to  meet  cotemporary  challenges  and  has  

planted into them contents to deal with the demands and the needs of the  

present that could not be envisaged at the time of the making of the law. But,  

on the question of compelling the accused to give voice sample,  the law  

must  come from the legislature  and not  through the court  process.  First,  

because the compulsion to give voice sample does in some way involve an  

invasion of the rights of the individual and to bring it within the ambit of the  

existing law would require more than reasonable bending and stretching of  

the  principles  of  interpretation.  Secondly,  if  the  legislature  even  while  

making  amendments  in  the  Criminal  Procedure  Code,  aimed  at  

strengthening the investigation, as late as in 2005, is oblivious to something  

as  obvious  as  this  and  despite  express  reminders  chooses  not  to  include  

voice sample either in the newly introduced explanation to section 53 or in  

sections 53A, and 311A, then it may even be contended that in the larger  

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schemes of things the legislature is able to see something which perhaps the  

Court is missing.

3. Coming now to the specifics, I would briefly record my reasons for  

not being able to share the view taken by Desai J.

4. At the beginning of her judgment Desai J. has framed two questions  

that the Court is called upon to answer in this case. These are:

“(i) Whether Article 20(3) of the Constitution of India, which  protects a person accused of an offence from being compelled  to be a witness against himself, extends to protecting such an  accused from being compelled to give his voice sample during  the course of investigation into an offence?

(ii) Assuming that there is no violation of Article 20(3) of the  Constitution of India, whether in the absence of any provision  in  the  Code,  can  a  Magistrate  authorize  the  investigating  agency to record the voice sample of the person accused of an  offence?”

(emphasis added)

5. As  regards  the  first  question,  relying primarily  on the  eleven  (11)  

Judges’  Bench decision of  this Court  in  State of  Bombay v. Kathi Kalu  

Oghad & Others30 which was followed in the more recent decision in Selvi   

and others v. State of Karnataka31 she held that “taking voice sample of an  

30 [1962] 3 SCR 10 31 (2010) 7 SCC 263

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accused by the police during investigation is not hit by Article 20 (3) of the  

Constitution.”  

6. I am broadly in agreement with the view taken by her on Article 20  

(3) but, since I differ with her on the second question, I think the issue of  

constitutional  validity  in  compelling  the  accused  to  give  his/her  voice  

sample does not really arise in this case.      

7. Coming to the second question, as may be seen, it has the recognition  

that  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.

8. Desai J., however, answers the question in the affirmative by means of  

a learned and elaborate discourse. She has navigated the arduous course to  

the conclusion at which she arrived very painstakingly and skillfully.

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9. First,  she  firmly  rejects  the  submission  advanced  on behalf  of  the  

State  that  in  the  absence  of  any express  provision in  that  regard,  it  was  

within  the  inherent  and  implied  powers  of  the  Magistrate  to  direct  the  

accused to give his/her voice sample to ensure a proper investigation.  In this  

regard, she observes as follows:-

“In the course of investigation, the police do use force.  In a  country governed by rule of law police actions which are likely  to affect the bodily integrity of a person or likely to affect his  personal  dignity  must  have  legal  sanction.   That  prevents  possible abuse of the power by the police.  It is trite that every  investigation has to be conducted within the parameters of the  Code.  The power to investigate into a cognizable offence must  be exercised strictly on the condition on which it  is  granted.  (State of West Bengal v. Swapan Guha).  The accused has to  be dealt  with strictly  in  accordance with law.   Even though,  taking  of  physical  evidence  which  does  not  amount  to  communicating  information  based  on  personal  knowledge  to  the investigating officer by the accused which may incriminate  him,  is  held  to  be  not  violative  of  protection  guaranteed  by  Article  20(3),  the  investigating  officer  cannot  take  physical  evidence  from  an  accused  unless  he  is  authorized  by  a  Magistrate to do so. He cannot assume powers which he does  not possess. He can only act on the strength of a direction given  to him by a Magistrate and the Magistrate must have power to  issue such a direction.”

10. I am fully in agreement with what is said above.  

11. However, having rejected the submission based on the inherent and  

implied powers of the Magistrate she makes a “search” for the power of the  

Magistrate to ask the accused to give his/her voice sample. She shortlists for  

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that purpose (i) the provisions of the Identification of Prisoners Act, 1920,  

(ii) Section 73 of the Evidence Act and (iii) Sections 311A and 53 of the  

Code of Criminal Procedure.  

12. She finds and holds that Section 73 of the Evidence Act and Section  

311A of  the  Code  of  Criminal  Procedure  are  of  no  help  and those  two  

provisions cannot be used for obtaining a direction from the Magistrate for  

taking voice sample and finally rests her conclusion on the provisions of The  

Identification of Prisoners Act, 1920 and Section 53 of the Code of Criminal  

Procedure.    

13. Section  53  of  the  Code  of  Criminal  Procedure  originally  read  as  

under:-

“53. Examination of accused by medical practitioner at the  request of police officer. – (1) When a person is arrested on a  charge of committing an offence of such a nature and alleged to  have been committed under such circumstances that there are  reasonable  grounds  for  believing  that  an  examination  of  his  person will afford evidence as to the commission of an offence,  it shall be lawful for a registered medical practitioner, acting at  the  request  of  a  police  officer  not  below  the  rank  of  sub- inspector, and for any person acting in good faith in his aid and  under his direction, to make such an examination of the person  arrested  as  is  reasonably  necessary  in  order  to  ascertain  the  facts which may afford such evidence, and to use such force as  is reasonably necessary for that purpose.  

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(2) Whenever the person of a female is to be examined under  this section, the examination shall be made only by, or under  the supervision of, a female registered medical practitioner.”

14. In the year 2005, a number of amendments were made in the Criminal  

Procedure  Code  by  Act  25  of  2005.  Those  amendments  included  the  

addition of an explanation to Section 53 and insertion of Sections 53-A and  

311-A. The explanation added to Section 53 reads as under:-

“[Explanation. – In this section and in sections 53A and 54, -  

(a) “examination” shall include the examination of blood, blood  stains, semen, swabs in case of sexual offences, sputum and  sweat,  hair  samples and finger nail  clippings by the use of  modern  and  scientific  techniques  including  DNA  profiling  and  such  other  tests  which  the  registered  medical   practitioner thinks necessary in a particular case;

(emphasis added)

(b) “registered medical practitioner” means a medical practitioner  who possess any medical qualification as defined in clause (h)  of section 2 of the Indian Medical Council Act, 1956 (102 of  1956) and whose name has been entered in a State Medical  Register.]”

15. Desai J. rejects the submission made on behalf of the appellant that  

“the term ‘such other tests’ mentioned in Explanation (a) is controlled by the  

words  ‘which  the  registered  medical  practitioner  thinks  necessary’”  and  

relying heavily upon the decision of this Court in Selvi holds:

“…by adding the words ‘and such other tests’ in the definition  of term contained in Explanation (a) to Section 53 of the Code,  the legislature took care of including within the scope of the  

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term ‘examination’ similar tests which may become necessary  in the facts of a particular case. Legislature exercised necessary  caution and made the said definition inclusive, not exhaustive  and capable of expanding to legally permissible limits with the  aid of the doctrine of ‘ejusdem generis’.”

16. I am completely unable to see how Explanation (a) to Section 53 can  

be said to include voice sample and to my mind the ratio of the decision in  

Selvi does not enlarge but restricts the ambit of the expressions ‘such other  

tests’ occurring in the Explanation.

17. In my opinion the Explanation in question deals with material and  

tangible things related to the human body and not to something disembodied  

as voice.

18. Section 53 applies to a situation where the examination of the person  

of  the accused is  likely to  provide evidence  as to  the commission of  an  

offence. Whether or not the examination of the person of the accused would  

afford evidence as to the commission of the offence undoubtedly rests on the  

satisfaction of the police officer not below the rank of sub-inspector. But,  

once the police officer makes a request to the registered medical practitioner  

for the examination of the person of the accused, what other tests (apart from  

those expressly enumerated) might be necessary in a particular case can only  

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be decided by the medical practitioner and not the police officer referring the  

accused to him. In my view, therefore, Mr. Dave, learned counsel for the  

appellant, is right in his submission that any tests other than those expressly  

mentioned in the Explanation can only be those which the registered medical  

practitioner would think necessary in a particular case. And further that in  

any event a registered medical practitioner cannot take a voice sample.

19. Apart from Section 53 of the Code of Criminal Procedure, Desai J.  

finds another source for  the power of  the Magistrate  in Section 5 of  the  

Identification of Prisoners Act, 1920. Referring to some technical literature  

on voice print identification, she holds:

“Thus, it is clear that voiceprint identification of voice involves  measurement of frequency and intensity of sound waves. In my  opinion,  therefore,  measuring  frequency  or  intensity  of  the  speech-sound  waves  falls  within  the  ambit  of  inclusive  definition of the term ‘measurement’ appearing in the Prisoners  Act”

And further:

“Thus, my conclusion that voice sample can be included in the  inclusive definition of the term “measurements” appearing in  Section 2(a)  of  the Prisoners Act is supported by the above- quoted  observation  that  voice  prints  are  like  finger  prints.  Section  2(a)  states  that  measurements  include  finger  impressions and foot impressions. If voice prints are like finger  prints, they would be covered by the term ‘measurements’.”  

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She finally concludes:

“I am, therefore, of the opinion that a Magistrate acting under  Section  5  of  the  Prisoners  Act  can  give  a  direction  to  any  person  to  give  his  voice  sample  for  the  purposes  of  any  investigation or proceeding under the Code.”

20. I am unable to agree.

21. In  order  to  clearly  state  my  views  on  the  provisions  of  the  

Identification of Prisoners Act, I may refer to the object and the scheme of  

the  Act.  The  principal  object  of  the  Act  is  to  sanction  certain  coercive  

measures  (which would otherwise invite  criminal  or  tortuous liability)  in  

order to facilitate the identification of (i) convicts, (ii) persons arrested in  

connection with certain offences, and (iii) persons ordered to give security in  

certain cases. The scheme of the Act is as follows. The first section relates to  

the short title and the extent of the Act. The second section has the definition  

clauses and defines ‘measurements’ and ‘prescribed’ in clauses (a) and (c)  

respectively which are as under:

“2. Definitions. – (1) In this Act, unless there is anything repugnant in  the subject or context, -  

(iii) “measurements”  include  finger  impressions  and  foot-print  impressions;

(iv) xxx xxx xxx

(c) “prescribed” means prescribed by rules made under this Act.”   

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22. Then there are the three substantive provisions of the Act. Section 3  

deals with taking of measurements, etc of convicted persons. It is as under:

“3. Taking of measurements,  etc.,  of  convicted persons.  –  Every person who has been –  

(a) convicted  of  any  offence  punishable  with  rigorous  imprisonment for a term of one year or upwards, or of any  offence  which  would  render  him  liable  to  enhanced  punishment on a subsequent conviction; or  

(b)ordered to give security for his good behaviour under section  118 of the Code of Criminal Procedure, 1898 (5 of 1898),  

shall, if so required, allow his measurements and photograph to  be taken by a police officer in the prescribed manner.”

23. Section 4 deals with taking of measurement, etc.  of  non-convicted  

persons. It is as under:

“4. Taking of measurements, etc., of non-convicted persons.  – Any  person  who has  been  arrested  in  connection  with  an  offence punishable with rigorous imprisonment for  a term of  one year or upwards shall,  if  so required by a police officer,  allow his measurements to be taken in the prescribed manner.”

24. Section 5 deals with the power of Magistrate to order a person to be  

measured or photographed. It is as under:

“5. Power of Magistrate to order a person to be measured  or photographed.  – If  a  Magistrate  is  satisfied  that,  for  the  purposes of any investigation or proceeding under the Code of  Criminal Procedure, 1898 (5 of 1898), it is expedient to direct  

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any  person  to  allow  his  measurements  or  photograph  to  be  taken, he may make an order to that effect, and in that case the  person to  whom the order  relates  shall  be produced or  shall  attend at  the time and place specified in the order  and shall  allow his measurements or photograph to be taken, as the case  may be, by a police officer:

Provided that no order shall be made directing any person to be  photographed except by a Magistrate of the First Class:

Provided further, that no order shall be made under this section  unless the person has at some time been arrested in connection  with such investigation or proceeding.”

25. The  rest  of  the  provisions  from Section  6  to  Section  9  deal  with  

incidental or consequential matters.  Section 6 deals with resistance to the  

taking of measurements, etc. and it is as under:

“6. Resistance to the taking of measurements, etc. – (1) If  any  person  who  under  this  Act  is  required  to  allow  his  measurements or photograph to be taken resists or refuses to  allow the taking of the same, it shall be lawful to use all means  necessary to secure the taking thereof.

(2) Resistance  to  or  refusal  to  allow  the  taking  of  measurements or photograph under this Act shall be deemed to  be an offence under section 186 of the Indian Penal Code (45 of  1860).”

26. Section  7  deals  with  destruction  of  photographs  and  records  of  

measurements, etc., on acquittal and it is as under:

“Destruction of photographs and records of measurements,  etc., on acquittal. – Where any person who, not having been  previously  convicted  of  an  offence  punishable  with  rigorous  imprisonment for a term of one year or upwards, has had his  

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measurements taken or  has been photographed in accordance  with  the  provisions  of  this  Act  is  released  without  trial  or  discharged or acquitted by any court, all measurements and all  photographs (both negatives and copies) so taken shall, unless  the court or (in a case where such person is released without  trial)  the  District  Magistrate  or  Sub-Divisional  Officer  for  reasons  to  be  recorded  in  writing  otherwise  directs,  be  destroyed or made over to him.”  

27. Section 8 gives the State Governments the power to make rules and it  

is as under:

“8. Power to make rules. – (1) The State Government may,  [by  notification  in  the  Official  Gazette,]  make  rules  for  the  purpose of carrying into effect the provisions of this Act.   (2)  In particular and without prejudice to the generality of the  foregoing provision, such rules may provide for –

(a) restrictions  on  the  taking  of  photographs  of  persons  under  section 5;

(b) the places at which measurements and photographs may be  taken;  

(c) the nature of the measurements that may be taken;

(d) the method in which any class  or  classes  of  measurements  shall be taken;

(e) the dress to be worn by a person when being photographed  under section 3; and  

(f) the  preservation,  safe  custody,  destruction  and  disposal  of  records of measurements and photographs.  

[(3) Every rule made under this section shall be laid, as soon as  may be after it is made, before State Legislature.]”

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28. Section 9 finally lays down the bar of suits.

29. A careful reading of Sections 3, 4 and 5 would make it clear that the  

three provisions relate to three categories of persons. Section 3 relates to a  

convicted person.  Section 4 relates to a person who has been arrested in  

connection with an offence punishable with rigorous imprisonment for term  

of 1 year or upwards. Section 5 is far wider in amplitude than Sections 3 and  

4  and  it  relates  to  any  person,  the  taking  of  whose  measurements  or  

photographs might  be expedient  for  the purposes  of  any investigation  or  

proceeding under the Code of Criminal Procedure. In the case of the first  

two categories of  persons,  the authority  to take measurements vests  in a  

police officer but in the case of Section 5, having regard to its much wider  

amplitude, the power vests in a Magistrate and not in any police officer.

30. It is to be noted that the expression “measurements” occurs not only in  

Section 5 but also in Sections 3 and 4. Thus, if the term “measurements” is  

to  be  read to  include  voice  sample  then on arresting  a  person in  a  case  

relating to an offence punishable with rigorous imprisonment for a term of 1  

year or upwards (and voice sample would normally be required only in cases  

in which the punishment is one year or upward!) it would be open to the  

police officer  (of any rank) to require the arrested person to give his/her  

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voice  sample  on  his  own  and  without  seeking  any  direction  from  the  

Magistrate under Section 5. Further, applying the same parameters, not only  

voice sample but many other medical tests, for instance, blood tests such as  

lipid profile, kidney function test, liver function test, thyroid function test  

etc., brain scanning etc. would equally qualify as “measurements” within the  

meaning of the Identification of Prisoners Act. In other words on arresting a  

person  in  a  case  relating  to  an  offence  punishable  with  rigorous  

imprisonment for a term of 1 year or upwards it would be possible for the  

police officer (of any rank) to obtain not only the voice sample but the full  

medical profile of the arrested person without seeking any direction from the  

magistrate under Section 5 of the Identification of Prisoners Act or taking  

recourse to the provisions of Section 53 or 53A of the Code of Criminal  

Procedure.

31. I find it impossible to extend the provisions of the Identification of  

Prisoners Act to that extent.  

32. It may not be inappropriate here to point out that in exercise of the  

rule-making powers under Section 8 of the Identification of Prisoners Act  

some of the State Governments have framed rules.   I have examined the  

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rules  framed  by  the  States  of  Maharashtra,  Madhya  Pradesh,  Orissa,  

Pondicherry and Jammu & Kashmir. From a perusal of those rules it would  

appear that all the State Governments understood “measurements” to mean  

the physical measurements of the body or parts of the body.  The framing of  

the rules by the State Government would not be binding on this Court in  

interpreting a provision in the rules.  But it needs to be borne in mind that  

unless the provision are incorporated in the Act in regard to the manner of  

taking voice sample and the person competent to take voice sample etc. there  

may be difficulty in carrying out the direction of the Court.  

33. For arriving at her conclusion regarding the scope of Section 5 of the  

Identification  of  Prisoners  Act,  Desai  J.  has  considered  two High  Court  

judgments.  One  is  of  the  Bombay  High  Court  in  Central  Bureau  of   

Investigation, New Delhi v. Abdul Karim Ladsab Telgi and others32 and the  

other  by  the  Delhi  High  Court  in  Rakesh  Bisht v. Central  Bureau  of   

Investigation 33 she  has  approved  the  Bombay  High  Court  decision  in  

Telgi’s case and disapproved the Delhi High Court decision in Bisht’s case.  

The Bombay decision is based on exactly the same reasoning as adopted by  

Desai J that the definition of “measurements” in Section 2(a) is wide enough  

32 2005 Crl.L.J. 2868 33 2007 Cri. L.J. 1530 = MANU/DE/0338/2007

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to  include voice  sample  and hence a  Magistrate  is  competent  to  order  a  

person to give his voice sample. The relevant passage in the decision is as  

under:-  

“Be  that  as  it  may,  the  expression  “measurements”  occurring in Section 5 has been defined in Section 2(a), which  reads thus:

2. Definitions. -  In that Act ………..

(a) “measurements include finger-impressions and foot-print  impressions”.

The said expression is an inclusive term, which also includes  finger-impressions  and  foot-print  impressions.  Besides,  the  term measurement, as per the dictionary meaning is the act or  an instance of measuring; an amount determined by measuring;  detailed  dimensions.  With  the  development  of  Science  and  Technology, the voice sample can be analysed or measured on  the basis of time, frequency, and intensity of the speech-sound  waves so as to compare and identify the voice of the person  who must have spoken or participated in recorded telephonic  conversation.   The  expression  “measurements”  occurring  in  Section 5, to my mind, can be construed to encompass even the  act undertaken for the purpose of identification of the voice in  the  tape-recorded  conversation.   Such  construction  will  be  purposive  one  without  causing  any  violence  to  the  said  enactment, the purpose of which was to record or make note of  the identity of specified persons.”

34. For  the  reasons  discussed  above,  I  am unable  to  accept  the  views  

taken in the Bombay decision and to my mind the decision in Telgi is not the  

correct enunciation of law.  

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35. The Delhi  High Court decision in the case of  Bisht pertains to the  

period prior to June 23, 2006, when the amendments made in the Code of  

Criminal Procedure by Act 25 of 2005 came into effect.  It, therefore, did not  

advert  to  Sections  53 or  311A and considered the  issue  of  taking voice  

sample of the accused compulsorily, primarily in light of Section 73 of the  

Indian  Evidence  Act,  1872.   Though  the  decision  does  not  refer  to  the  

provisions of the Criminal Procedure Code that came into force on June 23,  

2006, in my view, it arrives at the correct conclusions.   

36. At this stage, I may also refer to the decision of this Court in State of   

Uttar Pradesh v. Ram Babu Misra34 where the Court considered the issue  

whether the Magistrate had the authority to direct the accused to give his  

specimen writing during the course of investigation. The first thing to note  

in regard to this decision is that it was rendered long before the introduction  

of Section 311A in the Code of Criminal Procedure which now expressly  

empowers the Magistrate to order a person to give specimen signature or  

handwriting for the purposes of any investigation or any proceeding under  

the Code.  In  Ram Babu Misra the Court noted that signature and writing  

are excluded from the range of Section 5 of the Identification of Prisoners  

Act,  though finger  impression  was  included  therein.  In  that  decision  the  34 (1980) 2 SCC 343

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Court made a suggestion to make a suitable law to provide for the investiture  

of Magistrates with the power to issue directions to any person, including an  

accused person, to give specimen signatures and writings.  The suggestions  

made  by  the  Court  materialized  25  years  later  when  Section  311A was  

introduced in the Code of Criminal Procedure.  

37. The decision  in  Ram Babu Misra was  rendered by  this  Court  on  

February 19, 1980 and on August 27, the same year, the Law Commission of  

India submitted its 87th Report which was aimed at a complete revamp of the  

Identification  of  Prisoners  Act,  1920  and  to  update  it  by  including  the  

scientific  advances  in  the  aid  of  investigation.  In  Paragraph  3.16  of  the  

Report it was observed as under:

“3.16 Often, it  becomes desirable to have an accused person  speak for the purposes of giving to the police an opportunity to  hear  his  voice  and  try  to  identify  it  as  that  of  the  criminal  offender … However, if the accused refuses to furnish such  voice, there is no legal sanction for compelling him to do so,  and the use of force for that purpose would be illegal.”

(emphasis added)

38. Further, in Paragraph 5.26 it was stated as under:

“5.26 The scope of section 5 needs to be expanded in another  respect. The general power of investigation given to the police  under the Criminal Procedure Code may not imply the power to  require the accused to furnish a specimen of his voice. Cases in  which the voice of the accused was obtained for comparison  with  the  voice  of  the  criminal  offender  are  known  but  the  

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question whether the accused can be  compelled to do so does  not seem to have been debated so far in India.

There  is  no  specific  statutory  provision  in  India  which  expressly  gives  power  to  a  police  officer  or  a  court  to  require  an  accused  person  to  furnish  a  specimen  of  his  voice.”

(emphasis added)

39. I am not suggesting for a moment that the above extracts are in any  

way binding upon the Court but they do indicate the response of a judicial  

mind while  reading the  provisions  of  the Indian Prisoners  Act  normally,  

without  any  urge  to  give  the  expression  ‘measurements’  any  stretched  

meaning.

40. The Report then discussed where a provision for taking voice sample  

can be appropriately included; whether in the Identification of Prisoners Act  

or in the Evidence Act or in the Code of Criminal Procedure. It concluded  

that  it  would  be  appropriate  to  incorporate  the  provision  by  amending  

Section 5 of the Identification of Prisoners Act as follows:

“(1)  If  a  Magistrate  is  satisfied  that,  for  the  purpose  of  any  investigation  or  proceeding  under  the  Code  of  Criminal  Procedure, 1973, it is expedient to direct any person –  

(a) to allow his measurements or photograph to be taken, or

(b) to furnish a specimen of his signature or writing, or

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(c) to furnish a specimen of his voice by uttering the specified   words or making the specified sounds.

the Magistrate may make an order to that effect, recording his  reasons for such an order.

(2) The person to whom the order relates –

(a) shall  be  produced  or  shall  attend  at  the  time  and  place  specified in the order, and

(b) shall allow his measurements or photograph to be taken by  a  police  officer,  or  furnish  the  specimen  signature  or   writing or furnish a specimen of his voice, as the case may   be in conformity with the orders of the Magistrate before a   police officer.

(3) No order directing any person to be photographed  shall be  made except by a metropolitan Magistrate or a Magistrate of  the first class.

(4)No order shall be made under this section unless the person  has  at  some  time  been  arrested  in  connection  with  such  investigation or proceeding.

(5) Where  a  court  has  taken  cognizance  of  an  offence  a   Magistrate shall not under this section, give to the person   accused  of  the  offence  any  direction  which  could,  under   section 73 of the Indian Evidence Act 1872, be given by such  Magistrate.”

41. The Report as noted was submitted in 1980. The Code of Criminal  

Procedure was amended in 2005 when the Explanation was added to Section  

53 and Sections 53A and 311A were inserted into the Code. Voice sample  

was not included either in the Explanation to Section 53 or Section 311A.

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42. Should  the  Court  still  insist  that  voice  sample  is  included  in  the  

definition of “measurements” under the Identification of Prisoners Act and  

in the Explanation to Section 53 of the Code of Criminal Procedure? I would  

answer in the negative.

43. In  light  of  the  above  discussion,  I  respectfully  differ  from  the  

judgment proposed by my sister Desai J. I would allow the appeal and set  

aside the order passed by the Magistrate and affirmed by the High Court.

44. Let copies of this judgment be sent to the Union Law Minister and the  

Attorney General and their attention be drawn to the issue involved in the  

case.

45. In view of the difference of opinion between us, let this case be listed  

for  hearing before a  bench of  three  Judges  after  obtaining the  necessary  

direction from the Honourable the Chief Justice of India.  

..………………………J. (Aftab Alam)

New Delhi; December 7, 2012

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