Right to privacy uninfringeable when a judicial order to collect a voice sample for investigation purpose: Punjab and Haryana High Court

In the judgment of Kamal Pal vs. State of Punjab, the Punjab and Haryana High Court ruled that a judicial order authorising the acquisition of voice samples for police inquiry does not violate the right to privacy or immunity from self-incrimination under Article 20 (3) of the Constitution.

According to solitary Justice Avneesh Jhingan, the right to privacy is not universal and cannot be used to derail an investigation, but must contribute to the public interest.

The Court stated that the invasion of the fundamental right to privacy cannot be used to create a bubble to torpedo the investigation and negate the evidence amassed by simply denying that the voice on the monitored phone calls is not that of the petitioners and there are no comparables.

The Court also highlighted that, as technology advances and channels of communication change, new technologies must be employed to collect and compare evidence in order to keep up.

The facts of the case are that the Punjab Vigilance Bureau received information that money was being extorted from the local population in Tehsil Banga in order to have the sale documents recorded.

According to the information, the petitioners (both typists at Tehsil Banga Complex) were collecting money from the Tehsildar and other revenue officials of the revenue department in order to have the sale deeds registered.

Following consent, the petitioners’ cellphones were tapped, and the FIR was filed based on transcripts from several dates that provided adequate evidence.

During the hearings, the Vigilance Bureau filed an application for permission to take voice samples from the petitioners, which was granted, prompting the filing of the current petition.

The petitioners’ attorney stated that the impugned order violated Article 20 (3) of the Indian Constitution and impacted on their right to privacy. It was also argued that there was no power to mandate the taking of voice samples under Section 53 of the Code of Criminal Procedure, 1973.

The High Court considered the petitioners’ arguments unpersuasive and relied on the Supreme Court’s decision in Ritesh Sinha vs. the State of Uttar Pradesh, which stated that orders to take voice samples do not violate Article 20 (3) of the Constitution.

“The fundamental right to privacy cannot be interpreted as absolute; it must yield to the compelling public interest.”

The Court also cited the Supreme Court’s decision in State of Bombay vs. Kathi Kalu Oghad, which stated that “the prohibition contemplated by the constitutional provision contained in Article 20 (3) would come into play only in cases of self-incriminatory testimony of an accused or of a character that has the tendency to incriminate the accused himself.” As a result, the petition was dismissed by the court.

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