IN THE judgement of the case – Moin Akhtar Qureshi v. Central Bureau of Investigation (CBI), delivered on December 24, 2025, at the Delhi High Court, Justice Neena Bansal Krishna has made it clear that the Magistrate’s power to order sampling is necessary for the purpose of investigation. The investigating agency has the prerogative to scientifically verify if the voice in the material available with them, matches with that of the petitioner. This petition was filed under section 482 of the Code of Criminal Procedure (CrPC), 1973 for quashing and setting aside of the impugned order dated October 26,2021, passed by the Special Judge, (PC Act) (CBI), whereby the petitioner was provided to direct his voice samples for verification and comparison with certain intercepted telephonic conversations.

 

It was alleged that between the period from December 23, 2012 and October 6, 2014, the Income Tax Department intercepted telephonic conversations of two Mobile numbers, allegedly belonging to the petitioner. On February 15, 2014, the Income Tax Department conducted searches at the premises of the petitioner. Subsequently, the Directorate of Enforcement (ED) filed a complaint with the CBI on August 31, 2016, requesting the registration of a FIR based on the said intercepted telephone recordings and Blackberry Messenger (BBM) Messages alleging that the petitioner was acting as a middleman for certain public servants. Consequently, the CBI registered this FIR on February16, 2017 under section 120-B IPC read with sections 8,9 and 13(2) read with13(1) (d) of the Prevention of Corruption Act, 1988. The petitioner joined the investigation and appeared before the CBI on multiple occasions in 2018. In March, 2021, the CBI filed an application before the Special Judge seeking direction for the petitioner to give voice samples for comparison by the Central Forensic Science Laboratory (CFSL) with the intercepted calls obtained from the Income Tax Department.

 

The Special Judge passed the impugned order on October 26,2021 and allowed the application relying primarily on the judgement of the case –Ritesh Sinha v. State of Uttar Pradesh (2019) 8 SCC 1. At the outset, it is pertinent to observe that procedure is the handmaid and not the mistress of justice and cannot be permitted to thwart the facts finding force in litigation, as was observed in the case of Vatal Nagraj v. R Dayanand Sagar-AIR 1975 SC 349. Justice V R Krishna Iyer in the case of Sushi Kumar Sen v. State of Bihar1975 (1) SCC 774 succinctly noted that the morality of justice at the hand of law, troubles the Judge’s conscience and points an angry interrogation at the law reformer. The procedural law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress of legal justice compels consideration of vesting a residuary power in judges to act ex-debito justiciae, where the tragic sequel otherwise would be wholly inequitable. Justice Iyer has stated further that “I must sound a pessimistic note that it is too puritanical for a legal system to sacrifice the end-product of equity and good conscience at the altar of processual punctiliousness and it is not too radical to avert a breakdown of obvious justice, by bending sharply, if need be the prescriptions of procedure.

 

The wages of procedural sin should never be the death of rights.” Therefore, it needs no reiteration that procedural laws cannot be over-emphasised to defeat the substantive justice, as they are intended only as a path to reach the justice and not the result itself. Justice K C Dass Gupta in a concurring opinion in the case of Kathi Kalu Oghd observed that Article 20(3) of the Constitution of India says that a person shall not be compelled to be a witness against himself. The question,which arises is: Is an accused person furnishing evidence against himself, when he gives specimen handwriting or impressions of his fingers, palm or foot?”

 

The answer to this must be in the negative. Self-incrimination means conveying information based upon the personal knowledge of the person, giving the information and cannot include merely the mechanical process in Court, of producing documents in Court, which may throw a light on any of the points in controversy and do not contain any statement of the accused based on his personal knowledge. It has been concluded that specimen though mechanical process, cannot be termed as a self-incriminatory attracting the prohibition of Article 20(3) of the Constitution of India. The contention raised on behalf of the petitioner of the directions of the Trial Court being self-incriminatory, is not tenable.

 

The second aspect for consideration is whether in the absence of any provision in CrPC, the Court was competent to authorise Investigating Agency to record the voice samples of a person accused of an offence. Through its 87th Report the Law Commission of India had recommended on August 29, 1980, that a suitable legislation, which could be in the form of amendment to section 5 of the Identification of Prisoners Act, 1920, would be appropriate so as to specifically empower a Judicial Magistrate to compel an accused person to give the sample of his voice. When an accused is directed to furnish his handwriting specimen or impression of his fingers, palm or foot, he has been held to be not furnishing evidence against himself. The Apex Court in Ritesh Sinha’s case has observed that until explicit provisions are engrafted in the CrPC by 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 a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in the Supreme Court under Article 142 of the Constitution of India. This position of law has been reaffirmed and expanded in the recent judgement of the Supreme Court in its decision of the case-Rahul Agarwal v. The State of West Bengal- 2025 Live Law (SC) 1002. The Delhi High Court has found no illegality, perversity or abuse of process in the impugned order of October 26, 2021 of the Special Judge and as the petition is devoid of merit, the High Court has dismissed it.