~ By Khushi Neb
On the suggestion of the court in the case of Ram Babu Mishra v. State of Uttar Pradesh, where the court extensively examined the need for enacting legislation along the lines of Section 5 of the Identification of Prisoners Act, Section 311A, CrPC, that focuses on the magisterial power of ordering specimen signatures from the accused and ‘any other person’, was introduced to the CrPC. Although Section 73 of the Indian Evidence Act had a provision that was comparable, the Apex Court has ruled that when a case is still being investigated and there isn’t a court proceeding, the accused cannot be ordered to provide his sample handwriting. Therefore, the court in Ram Babu urged the creation of appropriate legislation because the Evidence Act’s section gave the court authority rather than the investigating agency, which was also reiterated by the 87th Law Commission Report, after which the said section was finally added to the code through the Criminal Procedure (Amendment) Act, 2005.
Mandatory Requirement of Arrest
Section 311A CrPC mandates the requirement of arrest to be made of the person at any point of time for them to be asked to submit their handwriting and specimen signatures. It is clearly stated under the section with the caveat that “no order under this provision may be imposed unless the individual has already been arrested in connection with the investigation or action in question”. Although, as per the 87th Law Commission Report, it is plausible that the legislative intent behind formulating the said section was to ensure that no one other than the accused is wrongly infringed on their privacy unless the person is somewhere a suspect in the case which is to say that the person has at some point been arrested in the course of the investigation or trial, the very same provision can be read from another perspective. The mandatory requirement of arresting a person before getting the opportunity to scrutinise their handwriting or specimen signatures leaves a big room for pre-trail detention or unnecessary arrests which in turn vitiates the entire objective of increasing the procedural efficiency behind incorporating this section on the advice of the Honourable Apex Court.
The question of this requirement being mandatory was considered by the court in the case B.C Radhakrishnan & ORS where the court upheld that a thorough reading of the proviso reveals that the arrest of the accused in connection with the investigation or litigation of the case is necessary for the magistrate to exercise his or her authority under Section 311A CrPC. The proviso places restrictions on the power granted to the magistrate by the Section, allowing it to be used only in situations where the accused individual has been arrested in connection with such an inquiry or procedure.
Scope of ‘Arrest’ Under Section 311A CrPC
Primarily, the meaning of ‘arrest’ for the purpose of this section was discussed extensively by the Himachal Pradesh High Court in the case of Naginder, where the court, citing the judgement of the Apex Court in the case of Deepak Mahajan (1994), reiterated, “An arrest, when used legally in the process surrounding criminal offences, is the taking of a person into custody by a legal authority with the intention of holding or detaining him to answer to a charge of a crime or to stop the committing of one”. The court went on to clarify the custodial requirements (police and judicial custody) of arrest, which need not be substantiated here. With this background, the aforementioned issues were considered by the Madras High Court in the case of Babitha, where the court expressed its dissatisfaction with the judgement of the Delhi High Court in the Sapan Haldar vs State, where it was held that the police is not to be interpreted to obtain the handwriting samples or specimen signatures and that this power was solely restricted to the magistrate and that arrest was mandatory for the purpose of this section. However, the Madras High Court held that if this section is interpreted in such a strict sense, it would devoid the entire spirit of the section which was to achieve procedural efficiency. The court while making a critical observation stated, “But, as stated in Joginder Kumar v. State of U.P., it is common knowledge that an arrest is not always required. If the Police need to get sample handwriting and signatures pursuant to Section 311A, they will be forced to arbitrarily arrest the subject”.
Following the rules and directives issued in the cases of Joginder Kumar and Arnesh Kumar clearly shows that the process of arrest in cases of criminal offences is necessarily fraught with legal requirements. If Section 311A is interpreted to require an arrest, it will not only make it more difficult for the judiciary to accomplish the section’s objectives but will also open doors to unnecessary arrests by the police. The court in the landmark case of Kathi Kalu Oghad made an imperative observation in this regard: “the specimen handwriting and the impressions of the accused person’s fingers, palm, or foot will only implicate him if the identification of the two sets can be proven through comparison with other handwritings or impressions. These handwritings or impressions by themselves neither tend nor serve to implicate the accused.”, the question that has to be considered is whether it should be really ‘necessary’ for the police to ‘arrest’ a person for the purposes of this clause when it is conspicuous that the ultimate aim of the section can be achieved without mandating this requirement too.
Pre-trial Detention and Right to liberty
Another aspect of this discussion pertains to the issue of pre-trial detention, which poses serious threats to the sacrosanct right to life and liberty of the accused or suspect under Article 21 of the Indian Constitution. It has also been observed that the formal procedure of arrest is tedious, and if this strict interpretation of the code is to be accepted, then it would inevitably lead to police making unnecessary and unwarranted arrests and violating the liberty of people entirely based on the requirement of obtaining handwriting samples or specimen signatures. This very concern of the courts has led them to grant anticipatory bails to the accused, who face the impending threat of arrest, even after submitting to the court their willingness to give specimen signatures and handwriting samples. The courts, in all the above cited cases, have now interpreted the mandatory requirement of arrest liberally in order to protect the rights of the people in question.
The Calcutta High Court in the case of Dr. Ajit Kumar Maity v. Unknown , while granting anticipatory bail to the aggrieved held that “We are incapable of hold that the petitioner inter alia should be detained in connection with the ongoing investigation solely for the purpose of providing a specimen signature; if the petitioner’s signature specimen is still needed, it can be obtained later in the presence of a qualified judicial magistrate.”. Similarly, the Telangana High Court in the case of Bagathi Vijaya Lakshmi v. Hanumanthu Venkata Sathya held that if the accused is arrested solely for the purpose of obtaining the specimen signatures even when they themselves are cooperating to furnish the same, it would lead to “the procedural code shall sub-serve the ultimate end of the justice”. Again, the Calcutta High Court in the case of Biswajyoti Chatterjee v. The State of West Bengal & Anr , while bringing in the inevitable angle of anticipatory bail, made a critical observation: “no accused who has been granted anticipatory bail would cooperate with the inquiry and allow the investigating agency to come to its natural conclusion if the requirements of Section 311A of the Code of Criminal Procedure are given such an interpretation.”
The word “arrest” has been used in relation to the provisions of Section 311A of the Code of Criminal Procedure to benefit the investigating agency rather than the accused so that the learned Magistrate can issue an order requiring an accused who is in custody to provide the specimen signature or handwriting without violating their (the accused’s) rights under either Article 20(3) of the Constitution of India or the provisions of the Code of Criminal Procedure.
Conclusion:
To conclude, this provision was added to the code to give the magistrate the authority to order specimen signatures and handwriting samples with the ultimate goal of improving procedural efficiency. However, the analysis of the aforementioned judgements testifies that the court itself has been inclined to give a liberal interpretation to the requirement of arrest under the section, as they are agreeing to the susceptibility of the clause to infringe the person’s right to liberty and its inherent vulnerability to lead to unnecessary arrests. Moreover, the entire rationale of procedural efficiency is defeated, as the mandatory requirement of arrest can be interpreted to practically disable the magistrate rather than enable them.
The blog has been authored by Khushi Neb. The author is a third year student at National Law University, Delhi.
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