Safiya Malik

The Calcutta High Court, Single Bench of Justice Suvra Ghosh, has addressed the issue of whether a Magistrate has the authority to order the collection of a witness’s voice sample in an ongoing investigation. The court quashed an order requiring compliance with Section 349 of the Bhartiya Nagarik Suraksha Sanhita (BNSS), stating that the provision could not be applied due to Section 531(2)(a) of the BNSS, which mandates that pending cases be governed by the Code of Criminal Procedure (Cr.P.C.). The matter is awaiting the determination of a larger bench in a previously referred case

The case involved a challenge to an order issued on November 4, 2024, by the Chief Judicial Magistrate, Alipore, in CGR 2040 of 2021. The petitioner contended that the directive to comply with Section 349 of the BNSS was not legally sustainable, as the proceeding had been initiated prior to the enactment of the BNSS. Relying on Section 531(2)(a) of the BNSS, the petitioner argued that pending matters should continue under the provisions of the Cr.P.C., which does not contain an explicit provision authorizing the collection of voice samples from witnesses.

The petitioner’s counsel submitted that there is no statutory provision in the Cr.P.C. that allows for the recording of voice samples of any person during an investigation. The judgment states that "there is no provision under the Code of Criminal Procedure which enables recording of voice sample of any person in course of investigation of a case." Citing legal precedents, including Mukul Roy v. State of West Bengal, Sudhir Chaudhary v. State (NCT of Delhi), and Ritesh Sinha v. State of Uttar Pradesh, the counsel argued that only the Supreme Court, under Article 142 of the Constitution, has exercised such authority in certain cases, and that no subordinate court could assume such powers without explicit legislative sanction.

The opposing counsel representing the complainant argued that the trial court had previously noted deficiencies in the investigation due to the absence of the petitioner’s voice sample. The complainant’s counsel referred to Pravinsinh Nrupatsinh Chauhan v. State of Gujarat and Tarak Nath Gupta v. State of Delhi, where the Supreme Court exercised its powers to allow the collection of voice samples. The counsel contended that such collection does not prejudice the individual concerned.

The State’s counsel cited State of Bombay v. Kathi Kalu Oghad, arguing that compelling an individual to provide a voice sample does not violate Article 20(3) of the Constitution, which protects against self-incrimination. The State further referred to Ritesh Sinha v. State of Uttar Pradesh, where the Supreme Court observed that "until explicit provision is engrafted in the Code of Criminal Procedure by the Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of the crime." Since the petitioner had been served with a notice under Section 160 of the Cr.P.C. and categorized as a witness, the State contended that the investigating agency had correctly sought his voice sample as a crucial piece of evidence.

The court examined Section 531(2)(a) of the BNSS, which states: "If, immediately before the date on which this Sanhita comes into force, there is any appeal, application, trial, inquiry or investigation pending, then such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1973, as in force immediately before such commencement." Based on this, the court held that Section 349 of the BNSS could not be applied to proceedings that had commenced under the Cr.P.C.

The court also examined the absence of an explicit provision in the Cr.P.C. authorizing voice sample collection, referencing Ritesh Sinha v. State of U.P., where the Supreme Court stated: "The compulsion to give voice sample does in some way involve an invasion of the rights of the individual and to bring it within the ambit of the existing law would require more than reasonable bending and stretching of the principles of interpretation." The judgment further noted that "if the legislature, even while making amendments in the Criminal Procedure Code (Act 25 of 2005), is oblivious and despite express reminders chooses not to include voice sample either in the newly introduced Explanation to Section 53 or in Sections 53-A and 311-A CrPC, then it may even be contended that in the larger scheme of things the legislature is able to see something which perhaps the court is missing."

The court referred to Mukul Roy v. State of West Bengal, where a coordinate bench had referred similar questions regarding the power of a Magistrate to compel a witness to provide a voice sample to a larger bench, and that reference was still pending. The questions formulated in that case included:

• Whether Sections 311A, 53, and 53A of the Cr.P.C., along with the Identification of Prisoners Act, 1920, empower a Magistrate to compel a witness to provide a voice sample during an investigation;

• Whether the principle laid down in Ritesh Sinha could be extended to witnesses in an investigation;

• Whether a witness could be compelled to provide evidence that might later result in his inclusion as an accused in the final investigation report.

Since the reference remains undecided, the court held that any directive for voice sample collection should await the larger bench’s decision. The judgment states: "Since the issue which has fallen for consideration before this Court has been referred to a larger Bench and is still pending, judicial propriety demands that the prayer of the petitioner herein should abide by the decision of the appropriate Bench."

The court set aside the Chief Judicial Magistrate’s order directing compliance with Section 349 of the BNSS, stating: "As the order impugned dated 4th November, 2024, directing the investigating officer to act in terms of Section 349 of the BNSS is bad in law, the said order is quashed/set aside."

The judgment also stated that "the prayer for recording the voice sample of the petitioner shall abide by the decision of the appropriate larger Bench."

Case Title: Subhash Chandra Balasaria v. The State of West Bengal

Case Number: C.R.R. 105 of 2025

Bench: Justice Suvra Ghosh

[Read/Download order]