Friday, August 26, 2016

Section 311-A, Handwriting Samples, and Arrests

I was reading up the law on Section 311-A Cr.P.C. (inserted by way of an amendment in 2006) which empowers Magistrates to compel individuals to give handwriting samples. The provision is pretty straightforward and requires a Magistrate to decide whether it will be expedient for any investigation or proceeding to direct ay person (including an accused) to give a handwriting/signature specimen. What struck me was the proviso. It says 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." What relationship, I ask, does the fact of arrest have with a requirement of taking that person's handwriting/signature specimens?

The answer takes us through the unnecessarily long history of Section 311-A, which also serves as an advertisement for how lackadaisical statutory reforms in India can be. The Supreme Court in State of U.P. v. Ram Babu Misra [AIR 1980 SC 791] upheld the view that there was, at the time, no provision allowing Magistrates to compel persons to give handwriting/signature specimens. The Court noted that the only statutory authority for compelling specimens was present under Section 5 of the Identification of Prisoners Act, 1920 - and this was limited to measurements and photographs of persons. While dismissing the petitions filed by the State, the Court noted that "suitable legislation may be made on the analogy of Section 5 of the Identification of Prisoners Act, to provide for the investiture of magistrates with the power to issue directions to any person, including an accused person, to give specimen signatures and writings."  

I couldn't find any Bill appear in the immediate aftermath of this discussion (well, it was 1980 and other more important things were happening). The next landmark was the 154th Report of the Law Commission of India in 1996. Section 311-A was mentioned as part of a Code of Criminal Procedure (Amendment) Bill 1994 and the desirability of this provision was put up for discussion. Again, the provision was labelled as analogous to Section 5 of the Identification of Prisoners Act, 1920. Unfortunately, the form in which Section 311-A was present at that time is not uploaded, nor does any one of the responses in the Report's annexures discuss it. Ten years later, though, we had Section 311-A on the statute through the Code of Criminal Procedure (Amendment) Act, 2005. Its provisions are similar to the proposed changes discussed by the Law Commission in 1996, leading one to assume there were little changes to the final Section 311-A from the draft provision of ten years ago.

It seems the Legislature took the words of the Supreme Court too strongly when it suggested that Section 5 may be used as an analogy. A comparison of Section 311-A Cr.P.C. with Section 5 of the Identification of Prisoners Act, 1920 shows they are identical - barring the words "measurements or photograph" being replaced with "signature or handwriting". Section 5 reads:

"If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898, it is expedient to direct any person to allow his measurements or photograph to be taken, he may make an order to the 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 the order and shall allow his measurements or photograph to be taken, as the case may be, by a police officer:
...
Provided further, that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or such proceeding." 

The odd proviso concerning arrest in Section 311-A Cr.P.C. is clearly there just because it is also there in Section 5 of the Identification of Prisoners Act, 1920. Ten years have passed since Section 311-A came into force but no decision has yet discussed the rationale behind the proviso, if there is any. I argue there isn't any rationale. The proviso can either be seen as compelling unnecessary arrests even where the police does not want to arrest or it can be seen as empowering the police to threaten individuals with arrest. Of course, if the only grounds for arrest is taking of signatures the Magistrate is likely to grant bail immediately. But why on earth is that entire charade required in the first place! Incidentally, this also leads to one of my recurring themes of work. Would the fact of a person having been arrested only for taking his handwriting sample make her "accused of any offence" for the purposes of Article 20(3)?

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