Explain the power of the Magistrate to order any person to give a specimen signature or handwriting.

Question: Explain the power of the Magistrate to order any person to give a specimen signature or handwriting.

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Answer

The Supreme Court in the State of UP v. Ram Babu Mishra, AIR 1980 SC 791 suggested that suitable legislation be made on the analogy of section 5 of the Identification of Prisoners Act, 1980, to provide for the investiture of Magistrates with powers to issue directions to any person including an accused person to give specimen signatures and handwriting. Section 311A has accordingly been inserted in the Code of Criminal Procedure.

Section 311A in CrPC deals with the Power of the Magistrate to order the person to give specimen signatures or handwriting. It states that:

“If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case, the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting: Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.”

The full bench of the Delhi High Court in Bhupinder Singh v. State (2011) dealt with an interesting question in a reference made to it “Whether the sample fingerprints given by the accused during investigation under section 4 of the Identification of Prisoners Act, 1920 without prior permission of the Magistrate 5 of the Act will be admissible or not?”—

It was held that if fingerprints are taken by the investigating officer directly and not through the Magistrate, it is correct in law as section 4 of Identification of Prisoners Act, 1920, provides that any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurement to be taken in the prescribed manner.

In view of the independent powers conferred upon a police officer under section 4 of the Act, it was not obligatory for him to approach the Magistrate under section 5 of the Act. He would have approached the Magistrate, had the appellants refused to give Specimen Finger Print Impressions to him. Therefore, no illegality attaches to the specimen fingerprint impressions taken by the investigating officer.

The Court needs to appreciate that the very nature and characteristics of materials such as fingerprints render it intrinsically and inherently impossible for anyone to fabricate them. If there is an attempt to fabricate fingerprints, that can certainly be exposed by the accused by offering to allow his fingerprints to be taken so that the same could be compared through the process of the Court.

The present Section 311A talks about the power of the magistrate to order a person to only give their specimen signatures or handwriting (excluding voice samples) for the purposes of an inquiry, investigation, or trial as construed by the words ‘proceeding under this code’. However, the provision leaves out taking voice samples of the accused of the purposes of a criminal investigation or inquiry.

The Hon’ble Supreme Court of India in a recent 2019 decision of Ritesh Sinha v. State of Uttar Pradesh settled this question of taking voice samples of a person for the purposes of an inquiry or investigation using its power of judicial interpretation and in the exercise of jurisdiction vested to the Hon’ble Supreme Court under Article 142 of the Constitution of India. This was done as the CrPC was and had remained silent on this issue regarding the collection of voice samples.

The Apex Court gave the power to the Judicial Magistrate to order a person to give their voice sample until ‘explicit provisions were engrafted in CrPC by the parliament’ and thus it cleared and filled this significant gap in the statute.

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