The Supreme Court has held that a trial judge has the power to direct an accused person to provide his voice samples for investigation, without seeking his consent. A three-judge bench led by the CJI settled the question on reference from a conflicted judgment of a two-judge bench in 2012.
The Apex Court has unequivocally declared that a Magistrate can direct an accused to give his voice sample, even though the 2006 amendment to Cr.P.C. does not empower the trial court to do so. The court quoted Lord Justice Dennings from Seaford Court Estates Ltd Vs. Asher [(1949) 2 All ER 155, 164], “When a defect appears in the statute, 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 the legislature”. In the absence of specific powers in the Cr.P.C., the court invoked the power under Article 142 of the Constitution to confer such power on the Magistrate.
In 2012, a two-judge bench of Justice RP Desai and Justice Aftab Alam had differed on the point whether the Magistrate had the power to direct the accused to give his voice sample, in the absence of an empowering provision in the Cr.P.C., though the Judges were in agreement that compelling the accused to give voice sample will not be violative of his rights under Article 20(3) of the Constitution.
Article 142 of the Indian Constitution states that the Supreme Court may pass such order as is necessary for doing complete justice in any cause or matter pending before it and that orders so passed shall be enforceable throughout the territory of India until provision in that behalf is made. Section 53 of the Cr.P.C. deals with the power to order a medical examination of an accused by a registered medical practitioner, which includes an examination of bodily fluids, hair samples, nail clippings etc.
The Apex Court has also held that compelling a person to give a sample of his voice does not violate the fundamental right to privacy of the accused and that fundamental right to privacy cannot be construed as absolute and must certainly bow down to the compelling public interest.