Ridiculous Drafting of Section 311A of CrPc 1973
Provisio of Sec 311A CRPC: A ridiculous draftingI 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
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
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
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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