Judicial Mandate: Voice Samples as Material Evidence

The Supreme Court of India, in the recent non-reportable judgment of Rahul Agarwal v. The State of West Bengal & Anr. (2025 INSC 1223), decisively settled a recurring controversy regarding the collection of voice samples during criminal investigations. The judgment not only reaffirms the Magistrate’s inherent power under the existing law but also validates the explicit provision incorporated in the new Bharatiya Nagarik Suraksha Sanhita (BNSS).

This ruling is a significant step in clarifying the admissibility of modern forensic evidence and defining the precise scope of the right against self-incrimination.

1. Detailed Judgment Summary for Legal Professionals and Students

The appeal arose from a case involving a dowry death allegation countered by a cross-complaint of extortion. During the investigation, the Investigating Officer (I.O.) sought a voice sample from the second respondent, who was a witness (a relative of the accused husband) alleged to have threatened another witness on behalf of the deceased's father.

The Magistrate granted the I.O.'s request, but the High Court set aside the order, erroneously citing a pending reference to a Larger Bench on the matter of the Magistrate’s power under the Cr.P.C.

The Supreme Court’s Key Holdings:

Binding Precedent Reaffirmed: The Court condemned the High Court’s refusal to follow the binding three-Judge Bench precedent of Ritesh Sinha v. State of Uttar Pradesh (2019), noting that the referred matter had, in fact, been closed.

Scope of 'A Person': The SC clarified that the Ritesh Sinha judgment, which conceded the power to a Judicial Magistrate to compel a voice sample, used the conscious phrasing 'a person', meaning this power is not limited only to a formal 'accused' but extends to a 'witness' as well.

Order Restored: The Supreme Court set aside the High Court’s order, restoring the Magistrate’s direction for the collection of the voice sample, thereby reinforcing the Magistrate's essential role in assisting investigation.

2. Implications of Voice Sample Evidence under Indian Criminal Law

The core legal question was whether compelling a person to give a voice sample violates Article 20(3) of the Constitution, which protects against testimonial compulsion (being a witness against oneself).

Voice Sample is not Testimony:

The Supreme Court definitively reiterated the foundational principle established in State of Bombay v. Kathi Kalu Oghad (1961). Following this precedent, the Court held that a specimen voice sample is akin to providing a specimen signature, handwriting, or fingerprint.

Material Evidence: These are deemed material evidence, not "testimony." They are "wholly innocuous" samples provided merely for comparison.

No Self-Incrimination: Since the sample itself does not incriminate the person—it only becomes evidence when compared with other material discovered during investigation—it does not attract the bar of Article 20(3). Compulsion to provide a non-testimonial physical or biological sample is therefore constitutionally valid.

This ruling solidifies the legal basis for using voice evidence, such as samples collected from intercepted calls, as reliable material evidence in Indian trials.

3. Commentary on Criminal Procedure (Cr.P.C. and BNSS)

The judgment provides critical clarity regarding the transition from the Criminal Procedure Code (Cr.P.C.) to the newly enacted Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

Cr.P.C. (Pre-BNSS Scenario): The Court confirmed that even when the Cr.P.C. was in force (which lacked an explicit provision for voice samples), the Magistrate's power was implied and valid through judicial interpretation (Ritesh Sinha). The judgment confirms that the inherent authority of the Magistrate allows them to adapt to advancing technology to aid criminal investigation.

BNSS (New Law): The SC noted that this issue is now explicitly settled by Section 349 of the BNSS, 2023, which specifically empowers the Magistrate to direct a person to provide a voice sample. This decision essentially provides a judicial endorsement of the legislative intent behind the BNSS provision, affirming that the new procedural code merely formalized an existing judicial necessity.

In effect, whether the case is governed by the older Cr.P.C. (via judicial precedent) or the newer BNSS (via statutory provision), the legal position remains the same: the Magistrate holds the authority to order the collection of a voice sample from any person relevant to the investigation, even if they are not yet formally arrayed as an accused.