Rahul Agarwal vs The State Of West Bengal

Non-Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No. of 2025 [@Special Leave Petition (Crl.) No. 5518 of 2025]

Rahul Agarwal …Appellant Versus

The State of West Bengal & Anr. …Respondents JUDGMENT

K. VINOD CHANDRAN, J.

Leave granted.

2. A purely academic question covered by a binding

precedent of this Court, is agitated unnecessarily by the

respondent herein and entertained egregiously by the High

Court. The High Court has also refused to follow the binding

precedent of this Court on the ground that there is a reference

made to a Larger Bench. The reference, as pointed out by the Signature Not Verified Digitally signed by DEEPAK SINGH Date: 2025.10.13 14:16:02 IST Reason:

appellant, has been closed unceremoniously, on default.

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3. The records of the appeal reveal that a young married

woman of 25 years of age died on 16.02.2021, which led to an

allegation of harassment and torture at the matrimonial home

and counter allegation that the deceased together with her

parents misappropriated cash and jewellery belonging to the

family of the husband. A cousin of the husband of the deceased

filed a complaint before the police in which the deceased’s

father and mother were arrayed as accused. Upon investigation

the Investigating Officer (I.O) was informed that the 2nd

respondent acted as the agent of the father of the deceased and

threatened a witness who alleged that he was privy to the

extortion demand made by the father through the 2nd

respondent. The I.O hence required the 2nd respondent to be

subjected to a voice sample test for which collection of the

voice sample was sought before the jurisdictional Magistrate’s

Court. To this end, a petition, Annexure P11 was filed before

the jurisdictional Magistrate which was allowed by Annexure

P13 order.

4. The second respondent challenged the same before the

High Court and the High Court by the impugned order set aside Page 2 of 7 Crl. A. @ SLP(Crl.) No. 5518 of 2025 the order of the Magistrate finding that a similar question was

referred to a Larger Bench. As has been rightly pointed out by

the learned Senior Counsel for the appellant that the said

reference has been closed as per Appendix B.

5. We have heard Mr. Dama Sheshadri Naidu, learned

Senior Counsel appearing for the appellants-complainant and

Mr. Ranjan Mukherjee, learned Counsel appearing for the 2nd

respondent, whose voice sample is to be taken. The learned

counsel for the respondent vehemently argued that the order

was passed when the Criminal Procedure Code (Cr.P.C.) was

in force and though Section 349 of the Bhartiya Nagarik

Suraksha Sanhita (BNSS), 2023 empowered the Magistrate to

pass an order inter alia directing a person to provide a voice

sample, the Cr.P.C. does not have any such provision. It is this

issue which has been referred for consideration before the

Larger Bench.

6. The reference, as we see from the questions extracted in

the impugned order, was whether the direction of this Court

enabling the Magistrate to pass an order directing the accused

Page 3 of 7 Crl. A. @ SLP(Crl.) No. 5518 of 2025 to provide a voice sample would apply in the case of a witness.

In the present case, the question is raised especially on the

ground that it would lead to infringement of the right of the

witness under Article 20(3), which on comparison of the voice

sample could result in arraigning the witness as an accused.

7. The question squarely arose in Ritesh Sinha v. State of

Uttar Pradesh & Anr. (Crl. Appeal No.2003 of 2012)1 dated

02.08.2019 based on which the reference was made. This Court

was concerned with a conversation between two accused who

were alleged to have collected money from different people on

the promise of jobs, which did not materialise. The specific

question raised was with respect to the Magistrate not being

empowered to pass an order directing furnishing of a voice

sample. This Court referred to the judgment in State of Bombay

v. Kathi Kalu Oghad2, wherein an identical plea of self-

incrimination in providing specimen handwriting, signature or

finger impression was considered in the following manner:

“(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 1 (2019) 8 SCC 1 2 AIR 1961 SC 1808 Page 4 of 7 Crl. A. @ SLP(Crl.) No. 5518 of 2025 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'.” xxx xxx xxx "(32)......... It has to be noticed that Article 20(3) of our Constitution does not say that an accused person shall not be compelled to be a witness. It says that such a person shall not be compelled to be a witness against himself. The question that arises therefore is: Is an accused person furnishing evidence against himself, when he gives his specimen handwriting, or impressions of his fingers, palm or foot? The answer to this must, in our opinion, be in the negative.”

8. Following the aforesaid precedent, it was held in Ritesh

Sinha1 that despite absence of explicit provisions in Cr.P.C., a

Judicial Magistrate must be conceded the power to order a

person, to give a sample of his voice for the purpose of

investigation for a crime. We specifically note that this Court

had not spoken only of the accused and specifically employed Page 5 of 7 Crl. A. @ SLP(Crl.) No. 5518 of 2025 the words ‘a person’, consciously because the Rule against self-

incrimination applies equally to any person whether he be an

accused or a witness. It was also directed that till explicit

provisions are incorporated in the Cr.P.C., the Judicial

Magistrate will be so empowered by virtue of the said

judgment. The issue was also pending with the Government

and with the advent of the BNSS, it has been specifically

incorporated under Section 349.

9. We need not hence consider the question as to whether it

is the Cr.P.C. or the BNSS which would be applicable to the

present case. If it is the Cr.P.C., the three Judge Bench decision

in Ritesh Sinha1 permits the same on the identical principle

adopted by this Court in Kathi Kalu Oghad2 to permit

furnishing of handwriting, signature and finger impressions.

The said sampling is similar to voice sampling, as now possible

by reason of the advancing technology. If it is the BNSS that is

applicable, then there is a specific provision enabling such

sampling. The reasoning was also that mere furnishing of a

sample of the fingerprint, signature or handwriting would not

incriminate the person as such. It would have to be compared Page 6 of 7 Crl. A. @ SLP(Crl.) No. 5518 of 2025 with the material discovered on investigation, which alone

could incriminate the person giving the sample, which would

not fall under a testimonial compulsion, thus not falling foul of

the rule against self-incrimination.

10. We hence do not find any reason to uphold the impugned

order and set it aside. The 2nd respondent shall act in

accordance with the order passed by the Magistrate.

11. The appeal is hence allowed reversing the order of the

High Court and restoring that of the Magistrate.

12. Pending application(s), if any, shall stand disposed of.

………….………………… CJI.

(B. R. GAVAI)

………….……………………. J.

(K. VINOD CHANDRAN)

New Delhi;

October 13 , 2025.

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