“While the Right to Privacy is a fundamental right, it is not absolute and must yield to legitimate State interests, such as the prevention and investigation of crime,” said the court on December 24.
Background
The case originates from telephone conversations that were intercepted by the income tax department between October 2013 and March 2014, which were allegedly linked to Qureshi.
In 2016, the Enforcement Directorate filed a complaint with the Central Bureau of Investigation, following which an FIR was registered in 2017 alleging that Qureshi had acted as a middleman for certain public servants in corruption dealings.
During the investigation, the CBI sought Qureshi’s voice samples so that they could be scientifically compared with the intercepted calls.
A special CBI court allowed this request in October 2021.
Following this, Qureshi approached the high court seeking to quash that order.
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Arguments
The counsel appearing for Qureshi argued that forcing him to give voice samples would violate his right against self-incrimination and his right to privacy.
He claimed that the intercepted calls were old, illegally obtained, and possibly manipulated.
The counsel submitted since no “questioned voice” had been seized during the current investigation, directing him to give a sample amounted to a “fishing expedition” by the agency.
It was further contended that the telephone intercepts did not comply with mandatory legal safeguards and were unsupported by proper certification under the Evidence Act, making them inadmissible.
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He further said that comparing his voice with such material was unfair and unlawful.
Observations
Dismissing Qureshi’s petition, the court ruled that compelling an accused to give voice samples for investigation does not violate the Constitution making it clear that although privacy is a fundamental right under Article 21, it must sometimes give way to legitimate state interests such as the investigation and prevention of crime.
Rejecting his submissions, the court relied on settled Supreme Court law to hold that giving voice samples is not “testimonial compulsion”.
It reiterated that such samples are only material for comparison and, by themselves, do not incriminate an accused.
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Emphasising that procedural law should not defeat substantive justice, the court, quoting Supreme Court verdicts observed that the procedure should not be allowed to obstruct fact-finding in criminal cases.
It noted that adequate safeguards had been built into the trial court’s order, including a direction that Qureshi would only be asked to read neutral words necessary for scientific comparison, and not any incriminating content from the intercepted conversations.
Concluding that there was no illegality or abuse of process in the trial court’s order, the high court dismissed Qureshi’s plea and directed him to comply with the order for giving voice samples. The interim protection granted earlier was also vacated.
The bench also refused to examine the admissibility or legality of the intercepted calls at the investigation stage stating that doing so would amount to conducting a “mini-trial” even before the probe was complete.
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The court clarified that issues relating to legality, authenticity and evidentiary value of the recordings could be raised at the stage of trial.
