Introduction:
In a significant pronouncement reinforcing the judicial scope of investigation, the Supreme Court in Rahul Agarwal versus The State of West Bengal & Anr., 2025 LiveLaw (SC) 1002, held that a Magistrate possesses the authority to direct the collection of voice samples not only from accused persons but also from witnesses. The Bench comprising Chief Justice B.R. Gavai and Justice K. Vinod Chandran clarified that voice samples, akin to fingerprints, handwriting, or DNA, are material evidence and not testimonial evidence, thus their collection does not violate the constitutional protection against self-incrimination guaranteed under Article 20(3) of the Constitution of India. The judgment, authored by Justice K. Vinod Chandran, reaffirms the position established in Ritesh Sinha v. State of Uttar Pradesh & Anr. (2019) wherein the Court recognized a Magistrate’s power to order any “person” to furnish a voice sample during investigation even in the absence of a specific statutory provision.
The case arose from a 2021 incident concerning the death of a young woman, which led to serious allegations and counter-allegations between her family and her in-laws. In the course of investigation, the police alleged that a key witness, who was the second respondent in the appeal, had acted as an intermediary for the deceased’s father and had purportedly threatened another witness involved in the case. To verify these allegations, the Investigating Officer sought permission from the Magistrate to obtain the witness’s voice sample to compare with recorded telephonic conversations that were material to the case. The Magistrate, upon due consideration, granted the request. Aggrieved by this direction, the witness challenged the Magistrate’s order before the Calcutta High Court, arguing that the power to direct a witness to provide a voice sample was not explicitly provided for under the Code of Criminal Procedure (Cr.P.C.) and that the issue of its permissibility was pending before a larger bench of the Supreme Court. The High Court accepted this contention and consequently set aside the Magistrate’s order. This prompted the petitioner, Rahul Agarwal, to approach the Supreme Court challenging the High Court’s decision.
Arguments on Behalf of the Petitioner:
The petitioner’s counsel, led by Senior Advocate Mr. Dama Sheshadri Naidu assisted by Mr. Sunil Kumar Sharma, submitted that the High Court had erred in setting aside the Magistrate’s order on the ground of pendency before a larger bench. It was argued that the binding precedent laid down in Ritesh Sinha v. State of Uttar Pradesh (2019) clearly empowers a Magistrate to direct any person to give a voice sample during an investigation, notwithstanding the absence of an express statutory provision in the Cr.P.C. The counsel emphasized that the Supreme Court in Ritesh Sinha consciously used the term “person” and not “accused,” thereby making the provision applicable not only to those accused of an offence but also to witnesses when necessary for fair and complete investigation. The petitioner contended that the High Court’s reasoning undermined the binding nature of Supreme Court precedents under Article 141 of the Constitution, which mandates that the law declared by the Supreme Court shall be binding on all courts within India.
Furthermore, it was argued that the taking of voice samples does not amount to testimonial compulsion under Article 20(3) of the Constitution, which prohibits compelling an accused person to be a witness against himself. The counsel relied on the Supreme Court’s authoritative decision in State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808, wherein it was held that furnishing fingerprints, handwriting samples, or similar physical evidence does not constitute a testimonial act since it does not involve the communication of personal knowledge or information. Instead, these are merely means of identification or comparison and therefore cannot be equated with testimonial compulsion. The petitioner’s counsel also referred to the newly enacted Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), particularly Section 349, which expressly incorporates the provision empowering Magistrates to direct the collection of voice samples, thereby codifying what was already judicially recognized in Ritesh Sinha. This, according to the petitioner, reaffirmed the legislative intent that voice samples are to be treated as material evidence and not testimonial evidence.
Arguments on Behalf of the Respondent:
The respondent, represented by Advocates Mr. Ranjan Mukherjee, Mr. Anindo Mukherjee, and Mr. Rameshwar Prasad Goyal, AOR for Respondent No. 2, and Mr. Kunal Mimani, AOR for the State of West Bengal, contended that the direction to provide a voice sample in the absence of an explicit provision under the Cr.P.C. was illegal and violated the individual’s right to privacy and protection against self-incrimination. They argued that Ritesh Sinha should be interpreted narrowly, confining the power to seek voice samples to accused persons alone, and that extending it to witnesses would create an unwarranted and excessive intrusion into personal liberty. The respondents further submitted that since the issue of whether a Magistrate could compel voice samples was referred to a larger bench for authoritative adjudication, the High Court was justified in exercising caution and refraining from enforcing a potentially unsettled principle of law.
The respondents also stressed that compelling a witness, who is not accused of any offence, to furnish a voice sample amounted to a breach of personal liberty under Article 21 of the Constitution, as it forces the individual to contribute to the investigation in a manner that might indirectly implicate him or others. They warned that such judicial empowerment, if extended indiscriminately, could be misused to harass witnesses or individuals tangentially connected to an investigation. According to the respondent’s counsel, the principle of proportionality must be applied, balancing the interests of investigation with the fundamental rights of individuals. Moreover, it was argued that until the Cr.P.C. was amended or replaced with a statute containing an explicit provision—like the subsequently introduced Section 349 of the BNSS—the Magistrate lacked statutory competence to direct the collection of voice samples. Therefore, the order of the Calcutta High Court, which protected the respondent’s fundamental rights while awaiting legislative clarity, was both prudent and legally sound.
Court’s Analysis and Judgment:
The Supreme Court, after a comprehensive analysis of the rival submissions, allowed the appeal and set aside the Calcutta High Court’s decision. Justice K. Vinod Chandran, writing for the Bench, observed that the High Court had erred in disregarding the authoritative precedent laid down in Ritesh Sinha. The Court emphasized that the pendency of a reference to a larger bench cannot render an existing binding precedent inoperative. Unless and until the larger bench overrules the precedent, the law declared by the Supreme Court continues to hold the field and binds all subordinate courts. Therefore, the High Court’s decision to strike down the Magistrate’s order merely on the ground of pendency was unsustainable.
The Supreme Court reaffirmed that in Ritesh Sinha, the Bench had consciously used the term “a person” while recognizing the Magistrate’s power to order the giving of a voice sample for investigation. This deliberate choice of language was meant to ensure that the power extends not only to accused persons but also to witnesses or any individual whose voice sample may be relevant for investigation. The Court clarified that the rule against self-incrimination enshrined in Article 20(3) of the Constitution applies equally to any person, whether accused or witness. However, the act of providing a voice sample is not testimonial in nature because it does not involve the communication of any personal knowledge or information; rather, it constitutes physical or material evidence.
In reinforcing this distinction, the Court extensively relied on State of Bombay v. Kathi Kalu Oghad (1961), where an eleven-judge bench of the Supreme Court had held that giving fingerprints, handwriting samples, or similar material does not amount to giving testimony and therefore does not violate Article 20(3). Following the same reasoning, the Court held that providing a voice sample merely enables comparison with other recorded material obtained during investigation and, by itself, does not incriminate the person furnishing it. The incriminating element, if any, arises only after comparison and corroboration, not from the act of providing the sample.
The Bench further observed that even if one were to assume that the BNSS had come into force, Section 349 explicitly authorizes Magistrates to direct individuals to provide voice samples for investigation. This statutory provision reflects legislative recognition of what had already been judicially affirmed in Ritesh Sinha. Hence, whether under the Cr.P.C. as interpreted in Ritesh Sinha, or under the BNSS by express statutory mandate, the Magistrate’s power to order collection of voice samples remains valid and enforceable. The Court also noted that such power is essential for the effective administration of criminal justice, as it ensures that investigations are comprehensive and evidence-based rather than conjectural.
The judgment underscored that investigation is the foundation of criminal jurisprudence and that the police, in order to perform their duty of discovering the truth, must be equipped with adequate procedural tools. The Magistrate’s power to direct the collection of voice samples from witnesses or accused persons is one such tool that ensures investigative completeness. The Court noted that the distinction between material evidence and testimonial evidence is vital; while testimonial evidence involves communication of personal knowledge, material evidence pertains to physical attributes used for identification or comparison. Consequently, compelling a person to provide a voice sample does not impinge upon the constitutional safeguard against self-incrimination.
Justice Chandran’s opinion also reflected on the evolving nature of investigative techniques in light of technological advancements. The Court recognized that modern crimes often involve digital and electronic communication, where voice recordings play a crucial role in establishing links, threats, or conspiracies. In such cases, restricting the collection of voice samples only to accused persons would handicap the investigative process and obstruct the pursuit of justice. The Court’s interpretation ensures that the law remains adaptable to contemporary needs while maintaining fidelity to constitutional guarantees.
The Court, therefore, held that the Magistrate’s order directing the collection of the witness’s voice sample was lawful, justified, and consistent with the Supreme Court’s prior decisions. It declared that the High Court’s interference with the order was unsustainable and contrary to established precedent. The appeal was consequently allowed, and the Magistrate’s order was restored.