Magistrate empowered to direct voice sample from a person; Supreme Court restores Magistrate's order

A bench of Chief Justice B.R. Gavai and Justice K. Vinod Chandran heard an appeal against a Calcutta High Court order that set aside a Magistrate’s direction to obtain a voice sample. The petition raised the narrow question whether a Judicial Magistrate could order a person — including a witness — to provide a voice sample for investigation, and whether such an order offended the protection against self‑incrimination under Article 20(3).

The Court allowed the appeal, set aside the High Court order and restored the Magistrate’s direction that the second respondent provide a voice sample. The bench held that the question was already answered by binding precedent in Ritesh Sinha v. State of Uttar Pradesh and by the principles in State of Bombay v. Kathi Kalu Oghad, and noted that the High Court erred in treating the matter as a live reference to a Larger Bench. The Court, in its reasoning, observed: “(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 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'.” The Court also noted that Ritesh Sinha had consciously used the word “a person” and that the BNSS, 2023 (Section 349) expressly empowered Magistrates to direct voice sampling.

Background The dispute arose after the death of a 25‑year‑old married woman on 16 February 2021. The husband’s family alleged harassment by the deceased; the deceased’s family faced counter‑allegations of misappropriation of cash and jewellery. A relative of the husband lodged a complaint in which the deceased’s parents were implicated. During investigation the Investigating Officer reported that the second respondent had acted as an agent of the deceased’s father and had threatened a witness who claimed to have knowledge of an extortion demand. The IO therefore sought an order from the Magistrate for a voice sample; Annexure P11 was filed and the Magistrate allowed the petition by Annexure P13.

The second respondent challenged that order before the High Court, which set aside the Magistrate’s direction on the ground that an identical question was pending reference to a Larger Bench. The Supreme Court found that the reference relied upon had been closed and that the High Court had wrongly refused to follow the binding three‑Judge decision in Ritesh Sinha. The respondent argued that the Criminal Procedure Code did not expressly permit compulsion for voice samples and that compelling a witness could infringe Article 20(3). The Court answered that specimen samples (handwriting, fingerprints, voice) were akin to non‑testimonial material and did not amount to compelled testimony; further, the BNSS contained an explicit provision empowering such sampling. The bench observed that mere comparison of a sample with material discovered in investigation, which alone could incriminate, did not transform the sample into testimonial compulsion. The Supreme Court set aside the High Court order and directed that the second respondent “shall act in accordance with the order passed by the Magistrate.” The appeal was allowed and the Magistrate’s order was restored; pending applications stood disposed of.

Case Details: Case No.: Criminal Appeal @ SLP(Crl.) No. 5518 of 2025 (2025 INSC 1223) Case Title: Rahul Agarwal v. The State of West Bengal & Anr. Appearances: For the Petitioner(s): Mr. Dama Sheshadri Naidu, Senior Counsel For the Respondent(s): Mr. Ranjan Mukherjee, Counsel