Self incrimation and Voice Samples.

Can an accused be directed to give voice samples for evidentiary

purposes…read on

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

Whether directing an accused to give voice samples (voice spectography test) amounts to compelling
him to be a witness against himself and consequently is violative of Article 20(3) of the Constitution ?; if
not

Whether the procedural law as it stands today (CrPC/IEA/Identification of Prisoners Act) provides for
such a direction to the accused, and if not, whether such a direction can be passed in the absence of a
specific statutory power in that regard.

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

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

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

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

The Court framed the first question as :

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

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

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

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

(2) Whether in the absence of any provision in the Crimin