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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO.2003 OF 2012  

RITESH SINHA      … APPELLANT(S)  

VERSUS  

STATE OF UTTAR PRADESH & ANR.      … RESPONDENT(S)  

WITH  

CRIMINAL APPEAL NO.1318 OF 2013  

CRIMINAL APPEAL NO.1187 OF 2019  

[Arising out of SLP (Criminal) No.9671 of 2017]  

CRIMINAL APPEAL NO.1188 OF 2019  

[Arising out of SLP (Criminal) No.1048 of 2018]  

CRIMINAL APPEAL NO.1189 OF 2019  

[Arising out of SLP (Criminal) No.2225 of 2018]  

CRIMINAL APPEAL NO.1190 OF 2019  

[Arising out of SLP (Criminal) No.3272 of 2018]  

J U D G M E N T  

RANJAN GOGOI, CJI.  

1. Leave granted in Special Leave Petition (Criminal) Nos.  

9671 of 2017, 1048 of 2018, 2225 of 2018 and 3272 of 2018.   

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2. Criminal Appeal No.2003 of 2012.  

 Facts:  

 On 7th December, 2009 the In-charge of the Electronics  

Cell of Sadar Bazar Police Station located in the district of   

Saharanpur of the State of Uttar Pradesh lodged a First  

Information Report (“FIR” for short) alleging that one Dhoom  

Singh in association with the appellant – Ritesh Sinha, was  

engaged in collection of monies from different people on the  

promise of jobs in the Police.  Dhoom Singh was arrested and  

one mobile phone was seized from him.  The Investigating  

Authority wanted to verify whether the recorded conversation  

in the mobile phone was between Dhoom Singh and the  

appellant – Ritesh Sinha.  They, therefore, needed the voice  

sample of the appellant and accordingly filed an application  

before the learned jurisdictional Chief Judicial Magistrate  

(“CJM” for short) praying for summoning the appellant to the  

Court for recording his voice sample.    

3. The learned CJM, Saharanpur by order dated 8th  

January, 2010 issued summons to the appellant to appear  

before the Investigating Officer and to give his voice sample.   

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This order of the learned CJM was challenged before the High  

Court of Allahabad under Section 482 of the Code of Criminal  

Procedure, 1973 (hereinafter referred to as “Cr.P.C.”). The High  

Court having negatived the challenge made by the appellant  

by its order dated 9th July, 2010, the present appeal has been  

filed.   

4.  The appeal was heard and disposed of by a split  

verdict of a two Judge Bench of this Court requiring the  

present reference.   

5. Two principal questions arose for determination of the  

appeal which have been set out in the order of Justice Ranjana  

Prakash Desai dated 7th December, 2012 in the following  

terms.   

“(1) 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?  

(2) 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?”

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6. While the first question was answered in the negative by  

both the learned Judges (Justice Ranjana Prakash Desai and  

Justice Aftab Alam) following the ratio of the law laid down in  

State of Bombay vs.Kathi Kalu Oghad1, difference of  

opinion has occurred insofar as second question is concerned.   

7. Justice Desai took the view that voice sample can be  

included in the phrase “such other tests” appearing in  

Explanation (a) to Section 53 Cr.P.C. by applying the doctrine  

of ejusdem generis and, therefore, the Magistrate would have  

an implied power under Section 53 Cr.P.C. to pass an order  

permitting taking of voice sample in the aid of criminal  

investigation.    

8. On the other hand, Justice Aftab Alam took the view  

that compulsion on an accused to give his/her voice sample  

must be authorized on the basis of a law passed by the  

Legislature instead of a process of judicial interpretation.  In  

this regard, the learned judge (Aftab Alam, J.) also took note  

of the amendments in Sections 53, 53A and 311-A of the  

Cr.P.C. by Act No.25 of 2005 introduced with effect from 23rd  

                                                           1 A.I.R. 1961 SC 1808

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June, 2006 which amendments did not bring, within the fold  

of the aforesaid provisions of the Cr.P.C., any power in the trial  

Court to compel an accused to give sample of his/her voice for  

the purpose of investigation of a criminal charge.   

9. Despite unanimity amongst the learned Judges hearing  

the appeal on the first question on which the learned counsel  

for the appellant has also not laid much stress it would be  

appropriate to make the discussions complete to answer the  

question on the strength of the test laid down by this Court in  

State of Bombay vs.Kathi Kalu Oghad (supra). Speaking on  

behalf of the majority the then learned Chief Justice B.P.  

Sinha was of the view that the prohibition contemplated by the  

constitutional provision contained in Article 20(3) would come  

in only in cases of testimony of an accused which are self-

incriminatory or of a character which has the tendency of  

incriminating the accused himself.  The issue in the case was  

with regard to specimen writings taken from the accused for  

comparison with other writings in order to determine the  

culpability of the accused and whether such a course of action  

was prohibited under Article 20(3) of the Constitution.   The

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following observations of the then Chief Justice B.P. Sinha  

would be apt for recollection as the same conclusively  

determines the first question arising.  The same, therefore, is  

extracted below:  

“(11)……….It is well-established that cl. (3) of  Art. 20 is directed against self-incrimination by  an accused person. 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……….  

(12) In order that a testimony by an accused  person may be said to have been self- incriminatory, the compulsion of which  comes within the prohibition of the  constitutional provision, it must be of such  a character that by itself it should have the  tendency of incriminating the accused, if not  also of actually doing so. In other words, it  should be a statement which makes the case  against the accused person at least probable,  considered by itself. A specimen handwriting or  signature or finger impressions by themselves  are no testimony at all, being wholly innocuous,  because they are unchangeable; except, in rare  cases where the ridges of the fingers or the style  of writing have been tampered with. They are  only materials for comparison in order to  lend assurance to the Court that its  inference based on other pieces of evidence

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is reliable. They are neither oral nor  documentary evidence but belong to the third  category of material evidence which is outside  the limit of ‘testimony’.  

[emphasis supplied]”  

10. We may now proceed to answer the second question,  

namely, whether in the absence of any specific provision in the  

Cr.P.C. would a Court be competent to authorize the  

Investigating Agency to record the voice sample of a person  

accused of an offence.  We are told that no authoritative  

pronouncement of this Court has been rendered by this Court.   

11. Medical examination of an accused for the purposes of  

effective investigation of a criminal charge has received a wider  

meaning by the amendment to the Explanation to Section 53  

Cr.P.C. made by Act No.25 of 2005 with effect from 23rd June,  

2006.  Similarly, Section 53A has been inserted by the same  

Amending Act (No.25 of 2005) to provide for examination of a  

person accused of rape.  Likewise, by insertion of Section 311-

A by the same Amending Act (No.25 of 2005) a Magistrate has  

been empowered to order any person, including an accused

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person, to give specimen signatures or handwriting for the  

purposes of any investigation or proceeding under the Cr.P.C.  

12. None of the said amendments specifically authorize or  

empower a Magistrate to direct an accused person or any other  

person to give his/her voice sample for the purposes of an  

inquiry or investigation under the Code.   “Omission” of the  

Legislature to specifically so provide has led the learned judge  

(Justice Aftab Alam) on the two judge Bench to doubt as to  

whether legislative wisdom was in favour of a specific  

exclusion or omission so as to make a judicial exercise through  

a process of interpretation impermissible.  

13. The Law Commission of India, in its 87th report dated  

29th August, 1980, also had an occasion to deal with the  

question presently confronting the Court.  The Law  

Commission examined the matter (almost four decades earlier)  

in the context of the working of the provisions of the  

Identification of Prisoners Act, 1920. The view taken was that  

a suitable legislation which could be in the form of an  

amendment to Section 5 of the Identification of Prisoners Act,  

1920 would be appropriate so as to specifically empower a

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Judicial Magistrate to compel an accused person to give a  

sample of his voice.  The following extract from the 87th Report  

of the Law Commission dated 29th August, 1980 would be  

relevant.   

“A voice print is a visual recording of voice. It  mainly depends on the position of “formants”.  These are concentrates of sound energy at a  given frequency. It is stated that their position  in the “frequency domain” is unique to each  speaker. Voice prints resemble finger prints, in  that each person has a distinctive voice with  characteristic features dictated by vocal cavities  and articulates.   

Voice-print Identification seems to have a  number of practical uses. In England, in  November 1967, at the Winchester Magistrate’s  Court, a man was accused of making malicious  telephone calls. Voice-print Identification  (spectrograph) was used and the accused was  found guilty.”2  

*** *** ***  

“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. A  comparison may even be desired between the  voice of an accused person and the recorded  voice of a criminal which has been obtained by,  say, telephone tapping. To facilitate proof of the  crime the police may like that the accused  should be compelled to speak,- and even that  

                                                           2 Paragraph 5.27, 87th Report of the Law Commission of India

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his voice as recorded may be converted into a  “voice print”  

……………………………………………………………  

……………………………………………………………  

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.”3  

*** *** ***  

“The scope of Section 5 needs to be expanded in  another aspect. 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 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.”4   

14. Section 5 of the Identification of Prisoners Act, 1920  

coincidentally empowers the Magistrate to order/direct any  

                                                           3 Paragraph 3.16, 87th Report of the Law Commission of India  

4 Paragraph 5.26, 87th Report of the Law Commission of India

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person to allow his measurements or photographs to be taken  

for the purposes of any investigation or proceeding.  It may be  

significant to note that the amendments in the Cr.P.C., noticed  

above, could very well have been a sequel to the  

recommendation of the Law Commission in its Report dated  

29th August, 1980 though the said recommendation was in  

slightly narrower terms i.e. in the context of Section 5 of the  

Identification of Prisoners Act, 1920.  In this regard, it may  

also be usefully noticed that though this Court in State of  

Uttar Pradesh vs. Ram Babu Misra5 after holding that a  

Judicial Magistrate has no power to direct an accused to give  

his specimen writing for the purposes of investigation had  

suggested to Parliament that a suitable legislation be made on  

the analogy of Section 5 of the Identification of Prisoners Act,  

1920 so as to invest a Magistrate with the power to issue  

directions to any person including an accused person to give  

specimen signatures and writings.  The consequential  

amendment, instead, came by way of insertion of Section 311-

A in the Cr.P.C by the Code of Criminal Procedure  

                                                           5 A.I.R. 1980 S.C. 791

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(Amendment) Act, 2005 (Act No.25 of 2005) with effect from  

23rd June, 2006.    

15. The legislative response in remaining silent or acting at  

a “slow” pace can always be explained by legislative concerns  

and considerations of care and caution.  It is in the aforesaid  

context and in the admitted absence of any clear statutory  

provision that the question arising has to be answered which  

is primarily one of the extent to which by a process of judicial  

interpretation a clear gap in the statute should be filled up  

pending a formal legislative exercise.  It is the aforesaid  

question that we shall now turn to.   

16. “Procedure is the handmaid, not the mistress, of  

justice and cannot be permitted to thwart the fact-finding  

course in litigation”6.   We would like to proceed in the matter  

keeping the above view of this Court in the backdrop.   

                                                           6 A.I.R. 1975 SC 349 [Vatal Nagaraj vs. R. Dayanand Sagar)

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17. A detailed reference to the facts of a case decided by this  

Court in “Sushil Kumar Sen vs. State of Bihar”7 is deemed  

appropriate.  

 The appellant in the above case was the owner of a plot  

of land measuring about 3.30 acres located in the district of  

Purnea in Bihar. The said parcel of land was acquired under  

the provisions of the Land Acquisition Act, 1894.  The Land  

Acquisition Officer by order/Award dated 12th October, 1957  

awarded compensation to the appellant(s) therein at the rate  

of Rs.14 per katha. The learned Additional District Judge,  

Purnea while hearing the reference under Section 18 of the  

Land Acquisition Act, 1894 enhanced the compensation to  

Rs.200  per katha.  This was by order dated 18th August, 1961.   

The State of Bihar sought a review of the aforesaid order dated  

18th August, 1961 which was allowed on 26th September, 1961  

scaling down the compensation to Rs.75 per katha.  Not  

satisfied, the State of Bihar preferred an appeal before the High  

Court against the order dated 26th September, 1961 passed in  

the review application granting compensation at the rate of  

                                                           7 (1975) 1 SCC 774

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Rs.75 per katha.  No appeal was, however, filed by the State of  

Bihar against the original order dated 18th August, 1961  

awarding compensation at the rate of Rs.200 per katha. Cross  

appeal(s) before the High Court against the order dated 26th  

September, 1961 passed in the review application was filed by  

the appellant  –  landowner.    The High Court by its order  

dated 16th February, 1968 held the review application of the  

State of Bihar, in which the order dated 26th September, 1961  

was passed, to be not maintainable.  However, the High Court  

adjudicated the case on merits and awarded compensation to  

the landowner(s) at the rate of Rs.75 per katha.  Aggrieved, the  

landowner – Sushil Kumar Sen approached this Court.    

 Justice K.K. Mathew who delivered the lead judgment in  

the case took the view that the original decree/award of the  

Reference Court dated 18th August, 1961 stood superseded by  

the decree/award dated 26th September, 1961 passed in the  

review application.  However, once the said decree/award  

dated 26th September, 1961 was set aside in the cross appeal  

filed by the landowner(s) the earlier decree/award dated 18th  

August, 1961 stood revived.  As there was no appeal against

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the said decree/award dated 18th August, 1961 the  

landowner(s) would be entitled to compensation in terms of the  

said original decree/award dated 18th August, 1961.   

 Justice Krishna Iyer delivered a concurring opinion  

agreeing with the aforesaid conclusions but expressing a  

thought process which would be of significant relevance to the  

issue in hand.  The position can be best explained by  

extracting the following observations from the opinion  

rendered by Justice Krishna Iyer in  Sushil Kumar Sen vs.  

State of Bihar (supra)  

“I concur regretfully with the result reached by  the infallible logic of the law set out by my  learned Brother Mathew, J. The mortality of  justice at the hands of law troubles a Judge’s  conscience and points an angry  interrogation at the law reformer.  

6. The processual law so dominates in  certain systems as to overpower substantive  rights and substantial justice. The humanist  rule that procedure should be the handmaid,  not the mistress, of legal justice compels  consideration of vesting a residuary power in  Judges to act ex debito justiciae where the  tragic sequel otherwise would be wholly  inequitable. In the present case, almost every  step a reasonable litigant could take was taken  by the State to challenge the extraordinary  increase in the rate of compensation awarded by  the civil court. And, by hindsight, one finds that  the very success, in the review application, and

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at the appellate stage has proved a disaster to  the party. Maybe, Government might have  successfully attacked the increase awarded in  appeal, producing the additional evidence there.  But maybes have no place in the merciless  consequence of vital procedural flaws.  Parliament, I hope, will consider the wisdom of  making the Judge the ultimate guardian of  justice by a comprehensive, though guardedly  worded, provision where the hindrance to  rightful relief relates to infirmities, even serious,  sounding in procedural law. Justice is the goal  of jurisprudence — processual, as much as  substantive. While this appeal has to be  allowed, for reasons set out impeccably by  my learned brother, I must sound a  pessimistic note that it is too puritanical for  a legal system to sacrifice the end product of  equity and good conscience at the altar of  processual punctiliousness and it is not too  radical to avert a breakdown of obvious  justice by bending sharply, if need be, the  prescriptions of procedure. The wages of  procedural sin should never be the death of  rights.”  

[Emphasis is ours]  

18. In the present case, the view that the law on the point  

should emanate from the Legislature and not from the Court,  

as expressed in the judgment of this Court from which the  

reference has emanated is founded on two main reasons, viz.,  

(i) 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

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reasonable bending and stretching of the principles of  

interpretation and (ii) if the legislature, even while making  

amendments in the Criminal Procedure Code (Act No.25 of  

2005), is oblivious 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 of  

CR.P.C., then it may even be contended that in the larger  

scheme of things the legislature is able to see something which  

perhaps the Court is missing.  

19. Insofar as the first reservation is concerned, the same  

would stand dispelled by one of the earlier pronouncements of  

this Court on the subject in State of Bombay vs.Kathi Kalu  

Oghad (supra), relevant extracts of which judgment has  

already been set out.  The following views in the concurring  

opinion of Justice K.C. Das Gupta in State of Bombay  

vs.Kathi Kalu Oghad (supra) would further strengthen the  

view of this Court to the contrary.   

“(32) ………It has to be noticed that Article  20(3) of our Constitution does not say that  an accused person shall not be compelled to  be a witness. It says that such a person shall  not be compelled to be a witness against  himself. The question that arises therefore

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is: Is an accused person furnishing evidence  against himself, when he gives his specimen  handwriting, or impressions of his fingers,  palm or foot? The answer to this must, in our  opinion, be in the negative.   

(33) …….the evidence of specimen handwriting  or the impressions of the accused person’s  fingers, palm or foot, will incriminate him, only  if on comparison of these with certain other  handwritings or certain other impressions,  identity between the two sets is established. By  themselves, these impressions or the  handwritings do not incriminate the accused  person, or even tend to do so. That is why it  must be held that by giving these impressions  or specimen handwriting, the accused person  does not furnish evidence against himself. So,  when an accused person is compelled to give a  specimen handwriting or impressions of his  finger, palm or foot, it may be said that he has  been compelled to be a witness; it cannot  however be said that he has been compelled to  be a witness against himself.”  

 [Emphasis is ours]  

20. So far as the second basis for the view taken is  

concerned, we have already expressed an opinion that what  

may appear to be legislative inaction to fill in the gaps in the  

Statute could be on account of justified legislative concern and  

exercise of care and caution.  However, when a yawning gap in  

the Statute, in the considered view of the Court, calls for

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temporary patchwork of filling up to make the Statute effective  

and workable and to sub-serve societal interests a process of  

judicial interpretation would become inevitable.   

21.  The exercise of jurisdiction by Constitutional  

Courts must be guided by contemporaneous realities/existing  

realities on the ground.  Judicial power should not be allowed  

to be entrapped within inflexible parameters or guided by rigid  

principles. True, the judicial function is not to legislate but in  

a situation where the call of justice and that too of a large  

number who are not parties to the lis before the Court,  

demands expression of an opinion on a silent aspect of the  

Statute, such void must be filled up not only on the principle  

of ejusdem generis but on the principle of imminent necessity  

with a call to the Legislature to act promptly in the matter.   

22.  Illustratively, we may take the decision of this  

Court in Bangalore Water Supply & Sewerage Board vs. A  

Rajappa and others8 .  A lone voice of dissent against  

expansion of the frontiers of judicial interpretation to fill in  

gaps in the Statute enunciated by Lord Denning, L.J, in  

                                                           8 (1978) 2 SCC 213

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Seaford Court Estates Ltd. vs.Asher9 though did not find  

immediate favour of the learned Judge’s contemporaries  was  

acknowledged to have carried within itself the vision and the  

perception of the future.  Coincidentally, the view enunciated  

by Lord Justice Denning in Seaford Court Estates Ltd.  

vs.Asher (supra) of ironing of the creases in the legislation has  

been approved by the Indian Supreme Court in the following  

words of the then Chief Justice M.H. Beg:   

“147. My learned Brother has relied on what  was considered in England a somewhat  unorthodox method of construction in Seaford  Court Estates Ltd. v. Asher [(1949) 2 ALL ER 155,  164] where Lord Denning, L.J., said:  

“When a defect appears a Judge cannot  simply fold his hands and blame the  draftsman. He must set to work on the  constructive task of finding the intention  of Parliament — and then he must  supplement the written words so as to give  ‘force and life’ to the intention of  legislature. A Judge should ask himself  the question how, if the makers of the Act  had themselves come across this ruck in  the texture of it, they would have  straightened it out? He must then do as  they would have done. A Judge must not  alter the material of which the Act is  woven, but he can and should iron out the  creases.”  

When this case went up to the House of Lords it  appears that the Law Lords disapproved of the  

                                                           9 (1949) 2 All. E.R. 155 (at 164)

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bold effort of Lord Denning to make ambiguous  legislation more comprehensible. Lord Simonds  found it to be “a naked usurpation of the  legislative function under the thin disguise of  interpretation”. Lord Morton (with whom Lord  Goddard entirely agreed) observed: “These  heroics are out of place” and Lord Tucker said  “Your Lordships would be acting in a legislative  rather than a judicial capacity if the view put  forward by Denning, L.J., were to prevail.”  

148. Perhaps, with the passage of time,  what may be described as the extension of a  method resembling the “arm-chair rule” in  the construction of wills. Judges can more  frankly step into the shoes of the legislature  where an enactment leaves its own  intentions in much too nebulous or  uncertain a state. In M. Pentiah v. Muddala  Veeramallappa [AIR 1961 SC 1107, 1115]  Sarkar, J., approved of the reasoning, set out  above, adopted by Lord Denning. And, I must  say that, in a case where the definition of  “industry” is left in the state in which we find it,  the situation perhaps calls for some judicial  heroics to cope with the difficulties raised.”  

[Emphasis is ours]  

23.  A similar view of Lord Justice Denning in Magor  

& St. Mellons Rural District Council vs. Newport  

Corporation10 would be equally apt to notice.  

“we sit here to find out the intention of  Parliament and of ministers and carry it  

                                                           10 (1951) 2 All.E.R. 1226

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out, and we do this better by filling in the  gaps and making sense of the enactment  than by opening it up to destructive  analysis.”  

24.  Would a judicial order compelling a person to give  

a sample of his voice violate the fundamental right to privacy  

under Article 20(3) of the Constitution, is the next question.   

The issue is interesting and debatable but not having been  

argued before us it will suffice to note that in view of the  

opinion rendered by this Court in Modern Dental College and  

Research Centre and others vs.State of Madhya Pradesh  

and others11, Gobind vs. State of Madhya Pradesh and  

another12  and the Nine Judge’s Bench of this Court in K.S.  

Puttaswamy and another vs. Union of India and others13  

the fundamental right to privacy cannot be construed as  

absolute and but must bow down to compelling public  

interest.   We refrain from any further discussion and consider  

it appropriate not to record any further observation on an  

issue not specifically raised before us.   

                                                           11 (2016) 7 SCC 353  12 (1975) 2 SCC 148  13 (2017) 10 SCC 1

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25.  In the light of the above discussions, we  

unhesitatingly take the view that until explicit provisions are  

engrafted in the Code of Criminal Procedure by Parliament, a  

Judicial Magistrate must be conceded the power to order a  

person to give a sample of his voice for the purpose of  

investigation of a crime.  Such power has to be conferred on a  

Magistrate by a process of judicial interpretation and in  

exercise of jurisdiction vested in this Court under Article 142  

of the Constitution of India.    We order accordingly and  

consequently dispose the appeals in terms of the above.   

………………………..…..,CJI   [RANJAN GOGOI]    

...……………………..…….,J.  [DEEPAK GUPTA]    

………………………..…….,J.  [SANJIV KHANNA]   

  New Delhi;  August 02, 2019.