Criminal Procedure Code, 1973 — S. 311A — Collection of Voice Sample — Power of Magistrate — Applicability of Ritesh Sinha v. State of U.P. (2019) 8 SCC 1
The Magistrate is empowered to direct any person (whether accused or witness) to provide a voice sample for the purpose of investigation. The absence of an explicit statutory provision in the Cr.P.C., 1973 does not bar such direction in view of the law laid down in Ritesh Sinha v. State of U.P., (2019) 8 SCC 1, which holds the Magistrate competent to issue such direction till statutory incorporation.
The principle applies equally to witnesses and accused alike, since the prohibition under Article 20(3) of the Constitution extends to testimonial compulsion, not to neutral physical evidence such as handwriting, signature, fingerprint, or voice samples.
Bhartiya Nagarik Suraksha Sanhita, 2023 — S. 349 — Express Provision for Voice Sample
Even assuming the Bhartiya Nagarik Suraksha Sanhita, 2023 applies, the position is now beyond doubt by virtue of Section 349 BNSS, which specifically empowers the Magistrate to direct a person to give a voice sample. Hence, irrespective of whether the case is governed by Cr.P.C. or BNSS, the Magistrate’s order was valid.
Constitution of India — Article 20(3) — Self-Incrimination — Voice Sample — Not Testimonial Evidence
Taking of a voice sample, like handwriting or fingerprint specimen, does not amount to self-incrimination under Article 20(3) since it does not, by itself, incriminate the person. It merely constitutes material or physical evidence used for comparison with other evidence discovered during investigation.
Followed: State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808.
Applied: Ritesh Sinha v. State of U.P., (2019) 8 SCC 1.
Distinguished: None.
Practice and Procedure — Reference to Larger Bench — Effect of Closure of Reference
The High Court erred in refusing to follow Ritesh Sinha merely on the ground that a reference was pending before a Larger Bench. The said reference stood closed on default, and the binding precedent of this Court continued to govern the field. High Courts are bound to follow binding precedent unless overruled by a larger bench of the Supreme Court.
held that
High Court’s order set aside. Order of Magistrate directing voice sample restored.
Appeal allowed.
2025 INSC 1223
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Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. of 2025
[@Special Leave Petition (Crl.) No. 5518 of 2025]
Rahul Agarwal
…Appellant
Versus
The State of West Bengal & Anr.
…Respondents
J U D G M E N T
K. VINOD CHANDRAN, J.
Leave granted.
2. A purely academic question covered by a binding
precedent of this Court, is agitated unnecessarily by the
respondent herein and entertained egregiously by the High
Court. The High Court has also refused to follow the binding
precedent of this Court on the ground that there is a reference
made to a Larger Bench. The reference, as pointed out by the
appellant, has been closed unceremoniously, on default.
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3. The records of the appeal reveal that a young married
woman of 25 years of age died on 16.02.2021, which led to an
allegation of harassment and torture at the matrimonial home
and counter allegation that the deceased together with her
parents misappropriated cash and jewellery belonging to the
family of the husband. A cousin of the husband of the deceased
filed a complaint before the police in which the deceased’s
father and mother were arrayed as accused. Upon investigation
the Investigating Officer (I.O) was informed that the 2
nd
respondent acted as the agent of the father of the deceased and
threatened a witness who alleged that he was privy to the
extortion demand made by the father through the 2nd
respondent. The I.O hence required the 2nd respondent to be
subjected to a voice sample test for which collection of the
voice sample was sought before the jurisdictional Magistrate’s
Court. To this end, a petition, Annexure P11 was filed before
the jurisdictional Magistrate which was allowed by Annexure
P13 order.
4. The second respondent challenged the same before the
High Court and the High Court by the impugned order set aside
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the order of the Magistrate finding that a similar question was
referred to a Larger Bench. As has been rightly pointed out by
the learned Senior Counsel for the appellant that the said
reference has been closed as per Appendix B.
5. We have heard Mr. Dama Sheshadri Naidu, learned
Senior Counsel appearing for the appellants-complainant and
Mr. Ranjan Mukherjee, learned Counsel appearing for the 2
nd
respondent, whose voice sample is to be taken. The learned
counsel for the respondent vehemently argued that the order
was passed when the Criminal Procedure Code (Cr.P.C.) was
in force and though Section 349 of the Bhartiya Nagarik
Suraksha Sanhita (BNSS), 2023 empowered the Magistrate to
pass an order inter alia directing a person to provide a voice
sample, the Cr.P.C. does not have any such provision. It is this
issue which has been referred for consideration before the
Larger Bench.
6. The reference, as we see from the questions extracted in
the impugned order, was whether the direction of this Court
enabling the Magistrate to pass an order directing the accused
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to provide a voice sample would apply in the case of a witness.
In the present case, the question is raised especially on the
ground that it would lead to infringement of the right of the
witness under Article 20(3), which on comparison of the voice
sample could result in arraigning the witness as an accused.
7. The question squarely arose in Ritesh Sinha v. State of
Uttar Pradesh & Anr. (Crl. Appeal No.2003 of 2012)1 dated
02.08.2019 based on which the reference was made. This Court
was concerned with a conversation between two accused who
were alleged to have collected money from different people on
the promise of jobs, which did not materialise. The specific
question raised was with respect to the Magistrate not being
empowered to pass an order directing furnishing of a voice
sample. This Court referred to the judgment in State of Bombay
v. Kathi Kalu Oghad2, wherein an identical plea of selfincrimination in providing specimen handwriting, signature or
finger impression was considered in the following manner:
“(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
1
(2019) 8 SCC 1
2 AIR 1961 SC 1808
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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 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'.”
xxx xxx xxx
"(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 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.”
8. Following the aforesaid precedent, it was held in Ritesh
Sinha1 that despite absence of explicit provisions in Cr.P.C., a
Judicial Magistrate must be conceded the power to order a
person, to give a sample of his voice for the purpose of
investigation for a crime. We specifically note that this Court
had not spoken only of the accused and specifically employed
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the words ‘a person’, consciously because the Rule against selfincrimination applies equally to any person whether he be an
accused or a witness. It was also directed that till explicit
provisions are incorporated in the Cr.P.C., the Judicial
Magistrate will be so empowered by virtue of the said
judgment. The issue was also pending with the Government
and with the advent of the BNSS, it has been specifically
incorporated under Section 349.
9. We need not hence consider the question as to whether it
is the Cr.P.C. or the BNSS which would be applicable to the
present case. If it is the Cr.P.C., the three Judge Bench decision
in Ritesh Sinha1 permits the same on the identical principle
adopted by this Court in Kathi Kalu Oghad2 to permit
furnishing of handwriting, signature and finger impressions.
The said sampling is similar to voice sampling, as now possible
by reason of the advancing technology. If it is the BNSS that is
applicable, then there is a specific provision enabling such
sampling. The reasoning was also that mere furnishing of a
sample of the fingerprint, signature or handwriting would not
incriminate the person as such. It would have to be compared
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with the material discovered on investigation, which alone
could incriminate the person giving the sample, which would
not fall under a testimonial compulsion, thus not falling foul of
the rule against self-incrimination.
10. We hence do not find any reason to uphold the impugned
order and set it aside. The 2nd respondent shall act in
accordance with the order passed by the Magistrate.
11. The appeal is hence allowed reversing the order of the
High Court and restoring that of the Magistrate.
12. Pending application(s), if any, shall stand disposed of.
………….………………… CJI.
(B. R. GAVAI)
………….……………………. J.
(K. VINOD CHANDRAN)
New Delhi;
October 13 , 2025.
