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Ridiculous Drafting of Section 311A of CrPc 1973

Provisio of Sec 311A CRPC: A ridiculous drafting

I was reading up the law on Section 311-A Cr.P.C. (inserted by way of an amendment in 2006 in code criminal procedure  1973) which empowers Magistrates to compel individuals to give handwriting samples.

The provision is  apparent and talks about requirements by 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. 

It is pertinent to note here is the What  proviso, which is capable enough to attract the attention of even the first year law student. 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 connection, surprisingly, does the fact of arrest have with a requirement of taking that person's handwriting/signature specimens?

The provisio of sec 311A forced me to go in legislative history of this section. I was shocked and appalled to after reading the legislative history of this section which shows that how casual approach is there in drafting the statue in India.

The Supreme Court in State of U.P. v. Ram Babu Misra [AIR 1980 SC 791] upheld the view that there was, at that 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 that too was limited to measurements and photographs of persons in prison.

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.  

There could no other Act or bill be   traced by me regarding the history of sec 311A , other than the Section 5 of Prisoner Identification Act and Supreme Court Judgment of 1980 as referred above.

But a cue can be taken from  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. 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 extra meticulously and  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 - except the words measurements or photograph being replaced with signature or handwriting.

Section 5 of Identification of Prisoner Act 1920 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.  The reason of this provisio being present in 311A is only because of the fact that it was present in Sec 5 of Prisoner Identification Act and Supreme Court had said legislation may insert a section analogous to section 5.

About 15 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.  We can see it as that it becomes mandatory for the police to arrest a person unnecessarily only because they need the specimen signature of that person.

This is against the all cannon of fair and due procedures as envisaged in article 21 of constitution. The necessity of any person to be in custody at any point of time for taking the specimen signature or handwriting is beyond any logic, arbitrary and the against the due procedures of law and hence unconstitutional. The drafting committee of legislation should not leave such vacuum in drafting of which any party can take unjust benefit.

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