CASE TITLE:
Abu Thahir Vs. State of Kerala and Anr.
DATE OF ORDER:
7th November 2022
BENCH:
Justice A. Badharudeen
PARTIES:
Petitioner : Abu Thahir
Respondent : The State of Kerala and Superintendent of Police
SUBJECT
On Monday, the Kerala High Court reaffirmed that taking an accused person's voice sample does not violate his or her right against self-incrimination protected by Article 20(3) of the Constitution. The court also ordered that any voice samples that are taken as part of an investigation are to be tested in a facility that has been authorised by the central government in accordance with Section 79A of the Information Technology Act.
IMPORTANT PROVISIONS
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Section 79(A) of the Information Technology Act
This Section of the act talks about expert opinion pertaining to electronic evidence.
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Article 20(3) of The Constitution of India
The right against self-incrimination is guaranteed to the defendant by Article 20(3) of the Constitution, but witnesses are not guaranteed the same protection.
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Section 20 (b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act
A violation of Section 20(b)(ii)(B) of the NDPS Act is punishable by rigorous imprisonment for a term that may extend to ten years and a fine that may extend to one lakh rupees if someone produces, manufactures, possesses, sells, purchases, transports, imports interstate, exports interstate, or uses cannabis in an amount that is less than commercial quantity but greater than small quantity.
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Section 65B of the Evidence Act
This Section specifies the procedures for producing electronic evidence. The standards for the admissibility of electronic records, such as eSignatures & digital documents, as evidence in legal proceedings are outlined in Section 65B of the Evidence Act.
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Article 142 of the Constitution of India
The Supreme Court has discretionary authority under Article 142, which stipulates that the court may, in the course of its duties, issue any decrees or orders that are required to ensure that every case or subject that is before it receives full and fair justice.
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Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act
To stop atrocities and hate crimes against scheduled castes and scheduled tribes, the Indian Parliament passed the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Popular names for the Act include the PoA, the SC/ST Act, and simply "Atrocities Act."
BRIEF FACTS
- An accused filed a criminal case in an effort to overturn a special court's directive stating that the accused was to appear before the director of All India Radio Station in Kozhikode on the day and time set by the investigating officer in order to provide a voice sample.
- 2.100 kg of marijuana were found in an autorickshaw that belonged to a man called Fajid, prompting the filing of a criminal complaint against him.
- The petitioner and two other people were accused of committing offences under Sections 193 and 201 read with Section 34 of the IPC and 20 (b)(ii)(B) of the NDPS Act after CCTV footage showed that the petitioner and the other accused had conspired to put marijuana in the autorickshaw on purpose.
- The petitioner and two other people were accused of committing offences under Sections 193 and 201 read with Section 34 of the IPC and 20 (b)(ii)(B) of the NDPS Act after CCTV footage showed that the petitioner and the other accused had conspired to put marijuana in the autorickshaw on purpose.
- The Investigating Officer then filed a request with the Special Judge asking for an order instructing the accused to appear so that a voice sample could be taken of him and compared to a phone call which was recorded and was reportedly between the accused and the Sub-Inspector.
- Even though the Special Judge twice rejected the Investigating Officer's application on the grounds that Section 65B of the Evidence Act had not been certified and the Sub Inspector's official phone had not been seized or produced.
- Even though the Special Judge twice rejected the Investigating Officer's application on the grounds that Section 65B of the Evidence Act had not been certified and the Sub Inspector's official phone had not been seized or produced.
- The Special Judge then approved the application following the seizure of the official phone.
ISSUES RAISED
- Can a Magistrate or Special Judge authorise the investigating agency to record the accused's voice sample for comparison with the disputed voice of the accused in the absence of clear restrictions in the procedure law?
- Would a court order requiring an accused person to record their voice qualify as testimonial coercion under Article 20(3) of the Indian Constitution?
ARGUMENTS ADVANCED BY THE APPELLANT
- The attorney representing the petitioner (accused) argued before the court that the petitioner cannot be forced to testify against himself since that would be considered testimonial coercion. Additionally, it was claimed that the Police frequently taped the petitioner's voice.
ARGUMENTS ADVANCED BY THE RESPONDENT
- The Additional Director General of Prosecution argued that the Special Judge was entirely within its authority and that the voice sample of the petitioner being compared in this case is a very relevant piece of evidence.
- To support his claims, he cited the cases Ritesh Sinha v. State of Uttar Pradesh and Another and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal and Others.
ANALYSIS BY THE COURT
- Regarding the first concern, the Court noted that the Apex Court had specifically addressed it in Ritesh Sinha v. State of Uttar Pradesh and Another, holding that a Judicial Magistrate must be granted the authority to order a person to provide a sample of his voice for the purpose of a crime investigation until explicit provisions are engrafted in the CrPC by the Parliament.
- A Magistrate must be granted this authority by judicial interpretation and the exercise of the jurisdiction granted to this Court by Article 142 of the Indian Constitution.
- Regarding the second question, the Court further cited the ruling in the matter of Ritesh Sinha and noted that, as of right now, recording an accused person's voice sample cannot be viewed as testimonial coercion under Article 20(3) of the Indian Constitution. This problem needs more examination.
- In addition, the Court noted that Section 79A of the IT Act gives the Central Government the authority to issue a notification on who is permitted to record the voice sample of the petitioner.
- The State Forensics Science Laboratory, Vellayambalam, is the lab that has been appointed, according to the ADGP.
- As a result, the Court noted that the aforementioned lab is capable of getting a voice sample.
CONCLUSION
- As a result, the Court modified the impugned order directing the petitioner to appear before the Cyber Forensic Division, State Forensics Science Laboratory, Vellayambalam, Thiruvananthapuram, for providing a voice sample.
- The Special Judge is then instructed to complete the remaining steps for comparison in accordance with the law once he or she has the voice sample.
- The Court further emphasised that it is made plain that the Investigating Officer might pursue the procedure of gathering voice samples, etc., as part of a fair investigation.
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