Without Him Being Arrested: What Section 349 Adds and the Second Proviso Removes

A power to compel a person's body to furnish material for comparison has to settle three things. Whose body it reaches. What may be taken from it. And on what footing the order may be made — because the person ordered is, by definition, not convicted of anything, and may not be accused of anything.

The Identification of Prisoners Act, 1920 settled all three, narrowly. Section 311A of the Code of Criminal Procedure, 1973 settled them again in 2005, for a different list of things, and borrowed the 1920 Act's answer to the third. Section 349 of the Bharatiya Nagarik Suraksha Sanhita, 2023 settles the first two more widely than either, and unsettles the third.

What section 311A provided

Section 311A was inserted into the Code of Criminal Procedure by section 27 of the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005), which received assent on 23 June 2005; the Supreme Court has recorded its commencement as 23 June 2006. It read:

311A. Power of Magistrate to order person to give specimen signatures or handwriting.—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.

Two things in that drafting are worth separating, because the Sanhita keeps one and qualifies the other.

The operative part reaches "any person, including an accused person". The words are deliberate: the section was not confined to the accused, and the parenthesis makes clear that the accused is an instance of the class rather than its boundary.

The proviso then supplies the only condition on the class. It is drafted as a prohibition on the Court — "no order shall be made under this section unless" — and what it requires is a past fact about the person, not a finding about the investigation. Arrest at some time, in connection with that investigation or proceeding, is the ticket.

That condition was not invented in 2005. Section 5 of the Identification of Prisoners Act, 1920 empowered a Magistrate, satisfied that it was expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 1898, to "direct any person to allow his measurements or photograph to be taken", subject to two provisos: that "no order shall be made directing any person to be photographed except by a Magistrate of the first class", and 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". Section 311A carried the second of those over in the same words, and changed only what could be ordered.

Why section 311A existed

It existed because the Supreme Court had held that nothing else would do.

In State of U.P. v. Ram Babu Misra, AIR 1980 SC 791, decided on 19 February 1980, the question was whether a Magistrate could direct an accused to give his specimen writing while the case was still under investigation. The only candidate power was section 73 of the Indian Evidence Act, 1872, whose second paragraph permitted the Court to "direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare" them with writings alleged to be his.

Chinnappa Reddy and Sarkaria JJ. read the purpose clause as a limit. The direction is for the purpose of enabling the Court to compare, "and not for the purpose of enabling the investigating or other agency 'to compare'", and if the case is still under investigation "there is no present proceeding before the Court in which or as a consequence of which it might be necessary to compare the writings". Section 73 drew no distinction between civil and criminal courts, and the Court declined to read it as a general facility for anticipated comparison. The appeal was dismissed, and the judgment suggested that suitable legislation be made on the analogy of section 5 of the Identification of Prisoners Act, 1920.

The judgment also noticed how the two provisions divided the ground between them. Section 2(a) of the 1920 Act defined "measurements" as including "finger impressions and foot print impressions"; signature and writing were outside section 5 altogether, while finger impressions were inside both section 5 and section 73. A possible view, the Court said, was that section 73 was thought not to reach the investigation stage, that section 5 made special provision for that stage, and that signatures and writings were deliberately left out of it.

Section 311A, twenty-five years later, was the legislation the Court had asked for. The suggestion had been to amend the 1920 Act; the response amended the Code instead, and added to the Code the very thing the 1920 Act had omitted.

Section 73 of the Evidence Act is now section 72 of the Bharatiya Sakshya Adhiniyam, 2023, re-enacted in substance with its paragraphs numbered as sub-sections. Sub-section (2) retains the words on which Ram Babu Misra turned — "for the purpose of enabling the Court to compare" — and sub-section (3) retains the extension to finger impressions. The reasoning that made a separate investigative power necessary is therefore undisturbed.

What section 349 provides

349. Power of Magistrate to order person to give specimen signatures or handwriting, etc.—If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Sanhita, it is expedient to direct any person, including an accused person, to give specimen signatures or finger impressions or handwriting or voice sample, 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 finger impressions or handwriting or voice sample:

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:

Provided further that the Magistrate may, for the reasons to be recorded in writing, order any person to give such specimen or sample without him being arrested.

The satisfaction, the class of persons, the mechanics of production and attendance, and the first proviso are section 311A unaltered but for "Sanhita" in place of "Code". Two changes are additions: the list in the operative part now includes finger impressions and voice sample, and the marginal heading has acquired "etc." The second proviso does something different in kind.

The voice sample

The addition of voice sample closes a gap identified in 1980, left open in 2005, and filled by the Supreme Court in 2019 on terms that invited exactly this amendment.

The Law Commission of India, in its 87th Report dated 29 August 1980, examined the working of the Identification of Prisoners Act, 1920 and recorded that "there is no specific statutory provision in India which expressly gives power to a police officer or a court to require an accused person to furnish a specimen of his voice", and that if the accused refuses, "there is no legal sanction for compelling him to do so, and the use of force for that purpose would be illegal". It recommended expanding section 5 of the 1920 Act.

The 2005 amendments did not do so. They widened the Explanation to section 53 of the Code, inserted section 53A for the examination of a person accused of rape, and inserted section 311A — and none of the three mentioned voice.

In Ritesh Sinha v. State of Uttar Pradesh, (2019) 8 SCC 1, decided on 2 August 2019, a Bench of Gogoi C.J., Deepak Gupta and Sanjiv Khanna JJ. answered a reference arising from a split verdict on two questions: whether Article 20(3) protected an accused from being compelled to give a voice sample, and whether, in the absence of any provision in the Code, a Magistrate could authorise the recording of one.

The first question had been answered in the negative by both judges on the referring Bench, following State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808. The 2019 Bench set out the passages it relied on. B.P. Sinha C.J. had held that for a testimony to be self-incriminatory within the constitutional prohibition "it must be of such a character that by itself it should have the tendency of incriminating the accused", and that "a specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous, because they are unchangeable", being "only materials for comparison". Das Gupta J. had put the point textually: Article 20(3) "does not say that an accused person shall not be compelled to be a witness. It says that such a person shall not be compelled to be a witness against himself."

On the second question the Court held that the power existed, and was explicit about where it came from:

In the light of the above discussions, we unhesitatingly take the view that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India.

Two features of that holding matter now. It was expressly interim — "until explicit provisions are engrafted ... by Parliament" — and it rested on Article 142 rather than on the construction of any section. Section 349 supplies the explicit provision. The power to order a voice sample now has a statutory source, and the Article 142 foundation for it is spent.

Where the 2019 judgment did not decide something, it said so. On whether compelling a voice sample would violate the right to privacy, the Court recorded that "the issue is interesting and debatable but not having been argued before us" it would suffice to note that the right to privacy "cannot be construed as absolute and but must bow down to compelling public interest", and expressly refrained from any further observation "on an issue not specifically raised before us". Section 349 does not answer that question either. It confers the power and says nothing about the custody, use, retention or destruction of what the power produces.

The second proviso

The first proviso bars the order unless the person has at some time been arrested. The second permits the Magistrate, for reasons to be recorded in writing, to order any person to give the specimen or sample without him being arrested.

Read together, the structure is a prohibition followed by a power to disapply the prohibition. That is not how section 311A worked, and not how section 5 of the 1920 Act worked. In both, the arrest condition was absolute: a Magistrate satisfied that an order was expedient still could not make one against a person who had never been arrested in connection with the matter. Under section 349 he can, if he records why.

Three features of the second proviso repay attention.

It names no criterion. "For the reasons to be recorded in writing" prescribes a form, not a threshold. The section does not say that the Magistrate must find the sample necessary, or unobtainable otherwise, or that the person is reasonably suspected of anything. Where the Sanhita wants a substantive finding it says so — clause (i) of section 480(1), for instance, bars release on bail in a non-bailable offence where "there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life". In the second proviso to section 349 the only stated requirement is that reasons exist on the file.

Its subject is "any person", not "such person". The first proviso speaks of "the person", carrying forward the person described in the operative part. The second proviso begins again with "any person", which on its face is the whole class the section opens with — any person, including an accused person — now released from the only condition that narrowed it. A witness, a relative of a complainant, a person whose voice happens to appear on a recording — each is within the words.

And it attaches no procedure. The section does not require notice to the person, or that he be heard, or that the application be made by anyone in particular, or that the order record what the specimen is wanted for. The operative part requires only that the person "shall be produced or shall attend at the time and place specified in such order" — language written for a person already in the system, now available against one who may never enter it.

The distinction the first proviso drew was not a formality. Arrest is itself a reviewable act with its own statutory conditions, and requiring it as a precondition meant that compulsion to supply a specimen was available only against a person whose detention had already been justified on some other footing. The second proviso detaches the one from the other and substitutes a recorded reason.

What happens if the person refuses

Section 349 does not say. Nor did section 311A. The obligation is expressed in the indicative — the person "shall be produced or shall attend ... and shall give his specimen signatures or finger impressions or handwriting or voice sample" — and the Sanhita attaches no consequence to a failure to comply.

That silence is conspicuous because Parliament did not keep it in the parallel statute.

The Criminal Procedure (Identification) Act, 2022 (Act 11 of 2022) received assent on 18 April 2022 and came into force on 4 August 2022 by notification S.O. 3653(E) dated 3 August 2022. Section 10(1) repealed the Identification of Prisoners Act, 1920. Section 5 carries forward the Magistrate's power:

5. Power of Magistrate to direct a person to give measurements.—Where the Magistrate is satisfied that, for the purpose of any investigation or proceeding under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force, it is expedient to direct any person to give measurements under this Act, the Magistrate may make an order to that effect and in that case, the person to whom the order relates shall allow the measurements to be taken in conformity with such directions.

The 1920 Act's arrest proviso is not qualified here, as it is in section 349. It is gone. And the 2022 Act supplies what neither the old Code nor the new one does. Section 6(1) provides that if a person required to allow measurements to be taken "resists or refuses to allow taking of such measurements, it shall be lawful for the police officer or prison officer to take such measurements in such manner as may be prescribed". Section 6(2) provides that resistance or refusal "shall be deemed to be an offence under section 186 of the Indian Penal Code".

Both of the 2022 Act's references to repealed Codes now operate through the General Clauses Act. Section 186 of the Penal Code punished voluntary obstruction of a public servant in the discharge of his public functions with imprisonment up to three months, or fine up to five hundred rupees, or both; the Penal Code was repealed by section 358(1) of the Bharatiya Nyaya Sanhita, 2023, which re-enacts the offence as section 221 in the same terms with the fine raised to two thousand five hundred rupees. The definition of "measurements" in section 2(1)(b) of the 2022 Act incorporates "any other examination referred to in section 53 or section 53A of the Code of Criminal Procedure, 1973", and that Code was repealed by section 531(1) of the Sanhita, which re-enacts those two sections as sections 51 and 52. Section 8(1) of the General Clauses Act, 1897 bridges both: where a Central Act repeals and re-enacts, with or without modification, any provision of a former enactment, "then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted".

The two routes, compared

A Magistrate asked to order a person to supply material for comparison is therefore working with two statutes at once, and they do not match.

What may be taken differs in both directions. Voice sample is in section 349 and appears nowhere in the 2022 Act, whose definition of "measurements" covers "finger-impressions, palm-print impressions, foot-print impressions, photographs, iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examination referred to in section 53 or section 53A of the Code of Criminal Procedure, 1973". Through the incorporated sections that list reaches the examinations now described in the Explanation to section 51 of the Sanhita, which include "the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case". Palm prints, foot prints, iris and retina scans and all of that material are outside section 349. Voice is outside the 2022 Act and outside the Explanation to section 51; in the whole of the Sanhita the words "voice sample" appear only in section 349.

What follows refusal differs. Under the 2022 Act, force is authorised and refusal is deemed an offence. Under section 349, neither.

What becomes of the material differs most of all. Section 4(2) of the 2022 Act requires the record of measurements to be retained in digital or electronic form for seventy-five years from collection, with a proviso that where a person not previously convicted of an offence punishable with imprisonment for any term has had his measurements taken and "is released without trial or discharged or acquitted by the court, after exhausting all legal remedies", all records so taken shall be destroyed unless the court or Magistrate, for reasons to be recorded in writing, otherwise directs. Section 349 contains no retention period, no destruction rule and no provision for the person who is never charged. The section drafted in 2023, which may now be used against a person who has never been arrested, says less about the fate of what it collects than the Act drafted in 2022 for persons who have been convicted, arrested or bound over.

Where that leaves the power

The arrest condition entered Indian law in 1920, was carried into the Code word for word in 2005, was dropped from one statute in 2022 and was made dispensable in another in 2023. Its function throughout was to tie compulsion of the body to a prior deprivation of liberty, so that the Magistrate's order was the second step and not the first.

Section 349 is in one respect an improvement on what preceded it. It replaces an Article 142 holding with enacted words, and the Supreme Court in Ritesh Sinha asked for precisely that. A power that rests on a statute can be read, pleaded against and construed; a power conceded "until explicit provisions are engrafted" cannot.

What the section adds to the list, it takes away from the conditions. The first proviso states the limit in the same words it has carried for a century. The second proviso states that the limit may be set aside for reasons the section does not specify, against a person it does not describe, on an application it does not regulate, in respect of material whose retention it does not address. The question before the Magistrate is no longer whether the order is permitted but what his reasons should say — and the section, having asked for reasons, says nothing about what would make them good.

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Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.