NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW

CASE ANALYSIS

CONSTITUTIONAL LAW – 1

“RITESH SINHA VS. STATE OF U.P & ANR.”

[AIR 2019 SC 3592]

SUBMITTED BY: SUBMITTED TO:

HARSHIT Dr. SYAMALA KANDADAI

CHOUDHARY ASSOCIATE PROFESSOR
SECTION: B
1530
 TABLE OF CONTENTS

RITESH SINHA VS. STATE OF U.P & ANR......................................................................3

INTRODUCTION....................................................................................................................4

FACTS OF THE CASE...........................................................................................................5

ISSUES......................................................................................................................................5

LAWS CONCERNED.............................................................................................................6

ARGUMENTS ADVANCED..................................................................................................8

JUDGEMENT........................................................................................................................10

RATIO DEDCIDENDI..........................................................................................................11

DISSENTING OPINION......................................................................................................11

ANALYSIS..............................................................................................................................12

CONCLUSION.......................................................................................................................13

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RITESH SINHA VS. STATE OF U.P & ANR

Citation: AIR 2019 SC 3592

Petitioner: RITESH SINHA

v.

Respondent: STATE OF U.P & ANR

Appeal: Criminal Appeals No. 2003 of 2012

Judges: Chief Justice Ranjan Gogoi, Justice Deepak Gupta, Justice Sanjiv Khanna

Date of Judgment: 2 August 2019

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INTRODUCTION

The appellant in this case of RITESH SINHA VS STATE OF UP1, made a First Information
Report (FIR) at the Uttar Pradesh police station. Dhoom Singh is allegedly involved in
money collection from multiple people while posing as a police officer, according to the
F.I.R. One cell phone was taken by the police when they were holding Dhoom Singh. The
investigating officer required Ritesh Sinha’s voice sample to verify whether the conversation
captured on the cell phone was indeed between Ritesh Sinha and Dhoom Singh, so the Chief
Judicial Magistrate issued an order for Sinha to appear before the investigating officer to
hand over his voice sample.

In an attempt to challenge the Chief Judicial Magistrate’s ruling, Ritesh Sinha filed an appeal
with the Allahabad High Court. But the Allahabad High Court rejected his case. He then filed
an appeal with the Indian Supreme Court.

The incident that occurred in England in 1967 was discussed in the 87th report of the Law
Commission of India at “the Winchester Magistrates Court in which the voice sample was
taken from the accused to identify the malicious telephonic calls made by him. So, with the
help of the voiceprint identification, it was confirmed that the calls were actually made by the
accused person and thus, he was found guilty by the court.

The taking of the appellant’s voice sample in this instance violates his or her right to privacy,
right to privacy is “the right not to have one’s personal matters disclosed or publicized, the
right to be left alone”.

Humans utilize their mouths to make sounds during speech or song, which is known as their
“voice.” Experts in the music business usually refer to a collection of an artist’s recorded
sounds utilized in song composition as “voice samples.” In legal parlance, “voice sample”
refers to a voice recording that is solely utilized in criminal investigations and legal or
constitutional challenges. In this instance, the Investigating Agency or Police are only able to
obtain the accused’s voice sample upon the Magistrate’s directive. But since getting the
accused’s voice sample could violate their right to privacy, there are a lot of issues that could
arise.

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1
AIR 2019 SC 3592

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FACTS OF THE CASE

 On December 7, 2009, the electronics cell in-charge of the Sadar Bazaar Police
Station in the district of Saharanpur, Uttar Pradesh, filed a First Information Report
(FIR) alleging that Dhoom Singh, a person connected to the appellant Ritesh Sinha,
was involved in obtaining money from different people by posing as a police
recruiter.

 The investigating authorities detained Dhoom Singh and confiscated one cell phone
from him.

 The investigating authorities sought to verify if the appellants, Ritesh Sinha and
Dhoom Singh, were the subjects of the phone conversation that was recorded.

 They applied to the Chief Judicial Magistrate (CJM), a learned jurisdictional official,
stating that they needed the appellant’s voice sample and asking to have him called
before the court so that it might be recorded.

 The appellant was asked by the learned CJM of Saharanpur to appear before the
investigating officer and provide a voice sample, as per an order dated January 8,
2010.

 This learned CJM’s order was challenged before the Allahabad High Court under
section 482 of the code of criminal procedure 1973. The High Court likewise
dismissed Ritesh Sinha’s appeal.

 Following that, a two-judge panel of the Supreme Court heard the matter; after
rendering a divided ruling, the panel sent the case to a three-judge panel.

ISSUES

1. Does Article 20(3) of the Indian Constitution, which protects someone accused of
committing a crime from being forced to testify against themselves, also prevent that
person from being forced to provide a voice sample as part of an investigation into the
crime?

2. Can a Magistrate authorise the investigating agency to record the voice sample of the

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person accused of an offence in the absence of any provisions in the Criminal
Procedure Code, 1973

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LAWS CONCERNED

 CONSTITUTION OF INDIA
 ARTICLE 142
(1) The Supreme Court in the exercise of its jurisdiction may pass such
decree or make such order as is necessary for doing complete justice in
any cause or matter pending before it, and any decree so passed or order so
made shall be enforceable throughout the territory of India in such manner as
may be prescribed by or under any law made by Parliament and, until
provision in that behalf is so made, in such manner as the President may by
order prescribe.

(2) Subject to the provisions of any law made in this behalf by Parliament, the
Supreme Court shall, as respects the whole of the territory of India, have all
and every power to make any order for the purpose of securing the
attendance of any person, the discovery or production of any documents,
or the investigation or punishment of any contempt of itself.2

 ARTICLE 20

(1) No person shall be convicted of any offence except for violation of a law
in force at the time of the commission of the Act charged as an offence, nor be
subjected to a penalty greater than that which might have been inflicted under
the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more
than once.

(3) No person accused of any offence shall be compelled to be a witness

against himself.3

 ARTICLE 21

No person shall be deprived of his life or personal liberty except according

to procedure established by law

2
INDIA CONST. art. 142.
3
INDIA CONST. art. 20.
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9|Page
 [21A. The State shall provide free and compulsory education to all children of
the age of six to fourteen years in such manner as the State may, by law,
determine.]4

 CRIMINAL PROCEDURE CODE, 1973

 SEC. 53 5
 SEC. 53-A6
 SEC. 311-A 7
 SEC. 4828

 INDIAN EVIDENCE ACT, 1872

 SEC. 1329

 IDENTIFICATION OF PRISONERS ACT, 1920

 SEC. 510

4
INDIA CONST. art. 21.
5
Code of Criminal Procedure, 1973, §53, No. 2, Acts of Parliament, 1973(India).
6
Code of Criminal Procedure, 1973, §53, cl. a, No. 2, Acts of Parliament, 1973(India)
7
Code of Criminal Procedure, 1973, §311, cl. a, No. 2, Acts of Parliament, 1973(India).
8
Code of Criminal Procedure, 1973, §482, No. 2, Acts of Parliament, 1973(India)
9
Indian Evidence Act, 1872, §132
10
Identification of Prisoners Act, 1920, §5.

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ARGUMENTS ADVANCED

PETETIONER

 Firstly, Sinha argued that the directive to furnish a voice sample infringed upon
his fundamental right to privacy, which is protected under Article 21 of the Indian
Constitution. He contended that the privacy of an individual's voice falls within
the ambit of personal liberty and autonomy, making the compelled provision of a
voice sample an unconstitutional intrusion.

 Secondly, Sinha invoked Article 20(3) of the Indian Constitution, which protects
individuals from being compelled to be a witness against themselves. He
maintained that providing a voice sample would effectively amount to self-
incrimination, as it would directly link him to the recorded conversations being
investigated. This, according to Sinha, was a clear violation of the constitutional
safeguard against self-incrimination.

 Furthermore, Sinha highlighted the absence of explicit legal provisions

authorizing the taking of voice samples under the Code of Criminal Procedure,
1973. He argued that the law did not provide clear guidelines or authority for such
an action, rendering the Chief Judicial Magistrate's order procedurally and legally
flawed.

 Lastly, Sinha raised concerns about procedural irregularities in the manner in

which the order to provide a voice sample was issued. He contended that the
process lacked proper legal basis and transparency, further undermining the
validity of the directive. These arguments were central to his challenge,
emphasizing the need for protecting individual rights within the framework of
criminal investigations.

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RESPONDENT

 The State argued that obtaining a voice sample was crucial for verifying the
recorded conversations found on Dhoom Singh's mobile phone. This verification
was necessary to establish the involvement of Ritesh Sinha in the alleged
fraudulent scheme.

 The State contended that the Chief Judicial Magistrate had the authority to order
the voice sample under Article 142 of the Indian Constitution, which empowers
the Supreme Court to pass any decree or order necessary for doing complete
justice in any cause or matter pending before it.

 The State emphasized that providing a voice sample was a non-intrusive and
mechanical process which did not violate the right to privacy. It argued that the
voice sample was merely a means of identification and did not involve any self-
incrimination.

 The State acknowledged the absence of specific legal provisions under the Code
of Criminal Procedure, 1973, for taking voice samples. However, it argued that
this gap should be filled through judicial interpretation until the Legislature enacts
specific provisions.

 The State highlighted the importance of effective criminal investigations in

maintaining law and order. It argued that the order to provide a voice sample was
in the public interest and necessary for ensuring justice in the case.

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JUDGEMENT

The Hon’ble Court observed that the two-judge bench had reached a consensus when
addressing the first question and had referred to the rule laid down in State of Bombay vs.
Kathi Kalu Oghad11. In Kathi Kalu, the question of evaluating the accused’s guilt by
comparing the accused’s writing sample with other writings in light of the restriction under
Article 20(3) was addressed, and held 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 ” and “does not say that an Accused person shall not be compelled to be a
witness.”

The court also pointed out that requiring an accused person to provide a sample of their
handwriting or finger impression did not implicate the person being accused as they “belong
to the third degree of material evidence which is outside the limit of ‘testimony’” and “are
only materials for comparison in order to lend assurance to the Court that its inference based
on other pieces of evidence is reliable”. The Court concluded that Article 20(3) did not
forbid compelling the accused to record a voice sample in light of this ruling.

In deciding the second question, the Court noted that there was no particular statutory
provision in India that allowed a police official or a court the authority to force an accused to
provide a specimen of his voice. Instead, the Court cited revisions to Sections 53, 53A, and
311-A of the Code of Criminal Procedure, 1973 made by Act No. 25 of 2005 and the 87th
Report of the Law Commission of India, which considered a related issue in the context of
the Identification of Prisoners Act, 1920.

The Court noted that notwithstanding explicit requests to close this gap in the Act, the
Legislature may have legitimate grounds for silence, but “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

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AIR 1961 SC 1808.
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the Legislature to act promptly in the matter”. The Court adopted the view enunciated by
Lord Denning in Seaford Court Estates Ltd. vs. Asher12, that “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”, and held that “until
explicit provisions are engrafted in the CrPC by the 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”, while exercising its power under Article 142.

RATIO DEDCIDENDI

The ratio decidendi of the case is cantered on the interpretation of Article 142 of the Indian
Constitution and the authority of the judiciary to fill legislative gaps in criminal
investigations. The Supreme Court held that until specific provisions are enacted by the
Legislature, a Judicial Magistrate has the power to order a voice sample for the purpose of a
criminal investigation. The Court emphasized that providing a voice sample is a non-
intrusive, mechanical process and does not amount to self-incrimination under Article
20(3).

DISSENTING OPINION

In the case of Ritesh Sinha vs. State of Uttar Pradesh, there was no formal dissenting opinion
as the judgment was delivered by a unanimous bench comprising Justices Ranjan Gogoi,
Deepak Gupta, and Sanjiv Khanna. However, Justice Aftab Alam, in a previous related case,
expressed a differing view on the matter. He opined that compelling an accused to provide a
voice sample should be authorized by legislation rather than judicial interpretation.

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12
1949 2 ALL ER 155, 164.

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ANALYSIS

The Supreme Court's judgment in Ritesh Sinha vs. State of Uttar Pradesh is a significant
ruling that addresses the balance between individual rights and the needs of law enforcement
in criminal investigations. The court's decision to allow the collection of voice samples under
Article 142 of the Indian Constitution highlights the judiciary's role in filling legislative gaps
to ensure justice

Article 20 (3) of The Constitution of India deals with the right of an individual against self-
incrimination, ‘nemo tenetur seipsum accusare’ i.e. ‘No person accused of any offence shall
be compelled to be a witness against himself’. The objective of article 20 (3) is to ensure the
reliability of the statements made by an accused and that such statements are made
voluntarily by the accused and not due to external factors such as coercion. This is an
important safeguard against compelled testimony, third degree methods and factors in
protection of human rights. Further, it is observed in such cases the compulsion which is
prohibited by the constitution should by itself have the character to incriminate the accused.

The judgement was also upheld in the case of R.K. Akhande vs. Special Police
13
Establishment R.K. Akhande was accused of being involved in a fraudulent scheme.
During the investigation, the Special Police Establishment sought a voice sample from
Akhande to verify if his voice matched the recordings obtained during the investigation.

This case reaffirmed the Supreme Court's earlier ruling in Ritesh Sinha vs. State of Uttar
Pradesh, emphasizing that providing a voice sample does not violate the right against self-
incrimination. It clarified the scope of Article 20(3) and its application in criminal
investigations and later in the case of Kamal Pal vs. State of Punjab14, The Punjab and
Haryana High Court upheld the order to take voice samples, citing the Supreme Court's
decision in Ritesh Sinha case. The High Court ruled that providing a voice sample is a
mechanical process and does not amount to self-incrimination

The supreme court judgement on Ritesh Sinha case had declared that the fundamental right
to privacy should not rise above the public interest and thus it’s not absolute and has set a
landmark precedent for the future cases.

13
2021 SCC MP 5928
14
2021 SCC P&H 1541

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CONCLUSION

The judgment in Ritesh Sinha vs. State of Uttar Pradesh represents a landmark decision in the
realm of constitutional law and criminal investigations in India. The Supreme Court's ruling
emphasized the necessity for effective investigative techniques while balancing the protection
of individual rights. By invoking Article 142, the Court underscored the judiciary's pivotal
role in addressing legislative gaps and ensuring justice. The decision clarified that providing a
voice sample is a non-intrusive process that does not violate the right to privacy or the
protection against self-incrimination under Article 20(3) of the Indian Constitution. This
ruling sets a significant precedent and guiding for future cases

In my opinion the legislation needs to amend the law to make provisions for the request of an
individual to give voice sample to some experts at the central forensic science laboratory
centre, which deals in an audio quantifiable section, are able to investigate voice ID.

The voice sample and CrPc receipt inspecting provisions need to be more precise and obvious
to the lawmakers. The legislature makes the laws for this, to ensure uniformity and
coherence, the use of voice analysis in criminal investigations by law enforcement agencies
needs to be governed by legislation.

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