The Feasibility Of A Police Officer Independently Obtaining The Specimen Signatures And Handwritings Of An Accused Person During The Stage Of Investigation

C O N T E N T S

INTRODUCTION

In a case involving “forgery”, “financial fraud” etc., initially the investigating officer and later the Court, may have to take a decision as to whether the questioned signatures and writings purported to have been written by a person (accused in the case), are really his genuine signatures and writings.

Mode Of Proving Signature And Handwriting

2. The direct methods of proving his signatures and handwritings are –

a) by an admission by the person who wrote it.

b) by evidence of some witness who actually saw it being written by that person.

Other indirect methods of proving the signatures and handwritings are –

1. by the evidence of a handwriting expert after comparing the questioned writings with the admitted writings of the person. (Vide Section 45 of the Indian Evidence Act (“IEA” for short).
2. by the evidence of witnesses acquainted with the handwritings of the person who is alleged to have written the disputed writings. (Vide Section 47 of IEA).
3. by the opinion formed by the Court itself on a comparison of the disputed writings with the admitted writings. (Vide Section 73 of IEA).

(See para 18 of Sukhvinder Singh v. State of Punjab (1994) 5 SCC 152 = (1994) KHC 1229 – A.S. Anand, Faizan Uddin – JJ.)

If the questioned signatures and writings were allegedly made by the accused who disputes the said fact, there is no question of proving the same by the admission of the person (accused) who wrote it. In such a case the handwritings can be proved by resort to the other methods referred to above. If in any of those methods the specimen writings of the accused have to be obtained for the purpose of comparison, the investigating officer (“I.O.” for short) may have to secure the same from the accused himself for which, the general belief has been that the Cr.P.C did not confer any independent authority on a Police Officer.

Police Officer's Authority, if any, to take specimen writings under the old law

3. The further question which would arise is as to whether the I.O., during the stage of investigation, could take the specimen writings directly from the accused. There was no enabling provision either in the Code of Criminal Procedure, 1898 or in the Code of Criminal Procedure, 1973. The Identification of Prisoner's Act, 1920 (“The IP Act” for short) which came into force on 09-09-1920 is a statute which authorised a police officer to take “measurements” and “photographs” of “convicted persons” and “non-convicted persons”. Section 3 of the I.P. Act pertained to “convicted persons” and Sections 4 to 6 pertained to “non-convicted persons”. Section 4 of the I.P. Act is extracted hereinbelow –

“4. Taking of measurements, etc., of non-convicted persons.- Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner”.

Thus, the Police Officer could exercise his power under Section 4 only in respect of a person who had been arrested in the case.

Section 5 of the I.P. Act empowered a Magistrate, if satisfied that for the purpose of any investigation or proceeding under the Code of Criminal Procedure, 1898, to direct any person (who had at some time be arrested in the case) to allow his “measurements” or “photographs” to be taken by a Police Officer. Section 6 of the Act envisaged the consequence of resistance or refusal by the person to allow the taking of the above measures. Sections 5 and 6 of I.P. Act are reproduced hereinbelow –

5. Power of Magistrate to order a person to be measured or photographed.- If a Magistrate is satisfied that, for the purposes of any investigation or proceeding under the Code of Criminal Procedure, 18981 , 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 that no order shall be made directing any person to be photographed except by a Magistrate of the first class:

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 proceeding.

6. Resistance to the taking of measurements, etc.-

(1) If any person who under this Act is required to allow his measurements or photographs to be taken resists or refuses to allow the taking of the same, it shall be lawful to use all means necessary to secure the taking thereof.

(2) Resistance to or refusal to allow the taking of measurements or photograph under this Act shall be deemed to be an offence under section 186 of the Indian Penal Code 1860.”

But the word “measurements” as defined under Section 2 (a) of the I.P. Act included only “finger-impressions” and “foot-print impressions”. In other words, the I.P. Act did not enable a police officer during the investigation of a case to take the “specimen signatures and handwritings” of an accused person under Section 4. Likewise, Section 5 of the I.P. Act did not empower a Magistrate also to order an accused person to allow his specimen signatures and handwriting to be taken during investigation or during any proceeding before Court.

Power of the Court under Section 73 of IEA to take specimen signatures and handwriting

4. One provision in the Evidence Act enabling the Court to take the “specimen signatures and handwritings” of a person for the purpose of comparison was Section 73 IEA (S.72 of BSA). As per Section 73 IEA (S.72 BSA) a Court can give a direction to a person (including an accused) to give his signatures and writings “only for the purpose of enabling the Court” to compare the same with any disputed signatures or writing in any proceedings pending before the Court.

The deadlock directed to be cleared

5. The net result of the operation of the I.P. Act and Section 73 of IEA was that neither the I.P. Act nor Section 73 of IEA allowed a Police Officer to take the “specimen signatures and writings” of an accused person during the stage of investigation, nor did those provisions allow a Magistrate (or Court) also to direct an accused persons to give his “specimen signatures and writings” during the stage of investigation. Taking note of this inadequacy in law, the Supreme Court of India in State of U.P. v. Ram Babu Misra AIR 1980 SC 791 = (1980) 2 SCC 343 – Sarkaria, Chinnappa Reddy – JJ, suggested suitable legislations to be made on the analogy of Section 5 of I.P. Act to provide for a direction to any person including an accused to give specimen signatures and writings during the course of investigation. That is how Section 311 A came to be incorporated in the Cr.P.C. by Section 27 of Act 25 of 2005 with effect from 23-06-2006. But, this new provision empowered a Magistrate to order a person to give “specimen signatures and handwritings” for the purpose of any investigation or proceedings under the Code, provided such person had, at some time, been arrested in connection with such investigation or proceeding. Section 311 A of Cr.P.C. and the corresponding Section 349 of BNSS are reproduced hereinbelow by means of a comparative table –

NOTES BY THE AUTHOR: Section 311 A Cr.P.C. was held to be prospective and not retrospective. (Vide Sukh Ram v. State of H.P. AIR 2016 SC 3548.) As observed by the Madras High Court in para 16 of Babitha Surendran v. State (to be adverted to later), Section 311A of Cr.P.C is an enabling provision which comes to the aid of the Investigating Agency when a suspect or an accused refuses to give his specimen signatures and handwriting.

Voice sample incorporated in Section 349 of BNSS is a welcome change. Similarly, the second proviso in Section 349 of BNSS is also another welcome change enabling a Magistrate to order any person to give his specimen writings without such person being arrested. Finger impressions inserted in Section 349 BNSS was unnecessary since it is already covered under the definition of “measurements” in Section 2 (b) of the Criminal Procedure (Identification) Act, 2022 which has replaced the I.P. Act and which will be discussed hereafter.

I.P. Act repealed and new law enacted

6. Subsequently, the Parliament enacted the Criminal Procedure (Identification) Act, 2022 (“Cr.P.I. Act” for short) replacing the I.P. Act and enlarging the scope of the expression “measurements” in the I.P. Act. Cr.P.I. Act came into force on 04-08-2022. Section 2 (b) defines the expression “measurements” as follows –

“(b) “measurements” includes finger impressions, palm-print impressions, foot-print impressions, photographs, Iris and retina scan, physical, biological samples and their analysis, behavioral attributes including signatures, handwriting or any other examination referred to in Section 53 or Section 53 A of the Code of Criminal Procedure, 1973.”

(It is presumed that by the words “biological samples” in the above definition, what is meant is biological materials such as blood, serum, semen, urine, tissue samples like skin, muscle, organ tissue, cell culture and DNA samples).

Section 3 of the Cr.P.I. Act reads as follows –

“3. Taking of measurement - Any person, who has been,—

(a) convicted of an offence punishable under any law for the time being in force; or

(b) ordered to give security for his good behaviour or maintaining peace under section 117 of the Code of Criminal Procedure, 1973 for a proceeding under section 107 or section 108 or section 109 or section 110 of the said Code; or

(c) arrested in connection with an offence punishable under any law for the time being in force or detained under any preventive detention law,

shall, if so required, allow his measurement to be taken by a police officer or a prison officer in such manner as may be prescribed by the Central Government or the State Government:

Provided that any person arrested for an offence committed under any law for the time being in force (except for an offence committed against a woman or a child or for any offence punishable with imprisonment for a period not less than seven years) may not be obliged to allow taking of his biological samples under the provisions of this section.”

Here also, under Clause (c) above a person arrested alone has the application to allow the “measurements” being taken.

As can be seen from the proviso to Section 3, it is only in the case of a person arrested for an offence committed against a woman or a child or for an offence punishable with imprisonment for a period of not less than seven years, that there is an obligation to allow a Police Officer or a Prison Officer the taking of “biological samples” from him and for no other offence.

Sections 5 and 6 of the Cr.P.I. Act are on similar lines as Section 5 and 6 of the I.P. Act. Section 5 of the Cr.P.I. Act reads as follows –

“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 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.”

Here, when the Magistrate exercises his power, the pre-condition of arrest which was there in Section 5 of I.P. Act has been taken away. Section 6 of Cr.P.I. Act reads as follows –

“6. Resistance to allow taking of measurements- (1) If any person who is required to allow the measurements to be taken under this Act 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.

(2) Resistance to or refusal to allow the taking of measurements under this Act shall be deemed to be an offence under section 186 of the Indian Penal Code.”

The resultant position after the enactment of Section 311 A Cr.P.C. (S.349 BNSS) and Section 5 of Cr.P.I. Act is that there is duplication of these provisions with regard to “specimen signatures” and “handwriting”. The main distinction between Section 311 A Cr.P.C., the corresponding Section 349 BNSS and Section 5 of the Cr.P.I. Act is that while under Sections 349 BNSS and Section 5 of Cr.P.I. Act it is not necessary that the accused should have been arrested, under Section 311 A Cr.P.C. arrest of the accused is a must (although Judicially interpreted to be only directory and not mandatory).

J U D I C I A L V E R D I C T S

7. Now a few of the Judicial verdicts interpreting the relevant provisions, can be considered –

Article 20 (3) of the Constitution of India

1. State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808 – 11 Judges – B.P. Sinha – CJI.

“(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.

(2). The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not compulsion.

(3). To be a witness is not equivalent to furnishing evidence in its widest significance; that is to say, an including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.

(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression to be a witness.

(5) To be a witness means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.

(6) To be a witness in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.

(7) To bring the statement in question within the prohibition of Art.20 (3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.”

(Vide para 16)

2. State (NCT of Delhi) v. Navjot Sandhu @ Afsan Guru AIR 2005 SC 3820 = (2005) 11 SCC 600 (Parliament attack case) – P. Venkatarama Reddy, P.P. Naolekar – JJ.

Article 20 (3) of the Constitution of India is not infringed by taking the specimen handwriting of signature or thumb impression of a person in custody. (Vide para 222 – This verdict was overruled on another point i.e. regarding electronic evidence in Anwar P. V. v. P. K. Bhasheer AIR 2015 SC 180 = (2014) 10 SCC 473 – 3 Judges – Kurian Joseph – J.)

Section 73 of IEA

3. Aloysious John v. State of Kerala 1965 KLT 1129 = 1965 KHC 301 (Kerala – DB) – Anna Chandy, P. Govinda Menon – JJ – Para 11.

A Magistrate has no power at the stage of investigation of a case to issue a direction to the accused under Section 73 of the Evidence Act to appear in Court for the purpose of giving his handwriting and signature on the request of the Police.

4. T. Subbiah v. S.K.D. Ramaswamy Nadar AIR 1970 Madras. 85 = 1970 Cri.L.J. 254 - Krishna Swamy Reddy - J – Para 19.

A Magistrate has no power under Section 73 of the Evidence Act to direct the accused to give his specimen handwriting or signature “in the course of investigation by the Police and at their instance”. (Follows, inter alia, Aloysious John (Supra – 1965 KLT 1129).

5. State of U.P. v. Ram Babu Misra AIR 1980 SC 791 = (1980) 2 SCC 343 – Sarkaria, Chinnappa Reddy - JJ.

The direction under Section 73 of the Evidence Act is to be given for the purpose of “enabling the Court to compare” and not for the purpose of enabling the investigating or other agency to compare. The language of Section 73 does not permit a Court to give a direction to the accused to give specimen writing for the anticipated necessity of comparison in a proceeding which may later be instituted in the Court. (Vide para 4)

Signatures and writings are excluded from the range of Section 5 of Identification of Prisoner's Act, 1920 which has application during the stage of investigation. But Section 73 of the Evidence Act which takes in signature and writings has no application during the stage of investigation. (Vide paras 5 and 6 – Upholds the interpretation given in T.Subbayya (Supra – AIR 1970 Mad. 85) and other decisions.)

6. Sukhvinder Singh v State of Punjab (1994) 5 SCC 152 = 1994 KHC 1229 – A. S. Anand, Faizan Uddin – JJ.

What was considered in this verdict was the scope of Section 73 of IEA corresponding to Section 72 of BSA. At a time when no proceedings were pending in any Court, the specimen writings of Sukhdev Singh were taken for comparison on the directions of Tehsildar Executive Magistrate during the stage of investigation. The Apex Court held that Section 73 of IEA could not be relied on at all at that stage for the purpose of comparison of signature and writings.

7. State of Haryana v. Jagbir Singh AIR 2003 SC 4377 = (2003) 11 SCC 261 – Doraiswamy Raju, Arijit Pasayat – JJ.

Here also the specimen signatures of the accused were taken in the prisons of Additional CJM during the stage of investigation and at a time when no proceedings were pending in any Court. The signatures were taken under Section 73 of the IEA. The Supreme Court held that Section 73 of IEA does not permit a Magistrate to issue a direction to the accused to give his specimen writings for the anticipated necessity of comparison in a proceeding which might later on be instituted in Court. (Vide para 17)

IP Act, 1920 & Section 311 A Cr.P.C.

8. Sapan Haldar v. State - Indian Kanoon – http/Indiankanoon.org/doc/33787996 = (2012) VIII AD (Delhi) 533 - Delhi High Court – Full Bench – Pradeep Nandrajog – Ag. CJ. – Dated 25-05-2012.

The case arose on a reference to Full Bench. The reference was answered as below –

“(i) Handwriting and signature are not measurements as defined under clause (a) of Section 2 of The Identification of Prisoners Act, 1920. Therefore, Section 4 and Section 5 of The Identification of Prisoners Act, 1920 will not apply to a handwriting sample or a sample signature. Thus, an investigating officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence.

(ii) Prior to June 23, 2006, when Act No.25 of 2005 was notified, inter-alia, inserting Section 311A in the Code of Criminal Procedure, 1973, even a Magistrate could not direct a person accused to give specimen signatures or handwriting samples. In cases where Magistrates have directed so, the evidence was held to be inadmissible as per the decision of the Supreme Court in Ram Babu Mishra€s case (supra). According to Section 73 of the Indian Evidence Act, 1872, only the Court concerned can direct a person appearing before it to submit samples of his handwriting and/or signature for purposes of comparison.” (Vide para 31)

NOTES BY THE AUTHOR : This verdict of the Delhi High Court was not followed by the Madras High Court in Babitha Surendran's Case which will be adverted to later.

Section 311 A Cr.P.C.

9. Raj Kumar v. State – Indian Kanoon – http/indiankanoon.org/doc/55192625 – Delhi High Court – DB – Sanjiv Khanna, S.P. Garg – JJ – Dated 18-10-2012.

In this case, specimen signatures and handwriting of the accused were taken by the Investigating Officer during investigation and before the incorporation of Section 311 A in the Cr.P.C. and without a Court Order. The I.O. had obtained an FSL report also. Held that the specimen signatures and FSL report should be ignored.

Since the charge-sheet had already been filed when the matter was taken up, the High Court issued a direction under Section 311 A Cr.P.C. to the accused to appear before the Trial Court which was directed to ask the accused to submit his specimen signatures and writing for comparison under Section 73 of IEA.

10. Radhakrishan B. C. v. Saju Thuruthikunnel 2014 Cri.L.J. 425 = 2013 (4) KLT 859 – A. Hariprasad – J.

The complainant in a private complaint on which cognizance of the offence was taken by the Magistrate, the complainant submitted an application under Section 311 A Cr.P.C. under Section 73 of the Evidence Act requesting the assitance of the Court for obtaining the handwriting of the accused for the purpose of comparison. The Magistrate allowed the prayer so far as it relates to Section 73 of IEA but dismissed the prayer so far as it relates to Section 114 A for the reason that the accused was not at some time been arrested in connection with the case. The order of the Magistrate was affirmed.

11. Prathap A. K. v. CBI 2017 (3) KLT 458 = 2017 (3) KHC 875 – P. Ubaid – J.

Held that the directions to the accused to provide for the purpose of investigation his voice sample. To identify the voice contained in an electronic device, does not amount to testimonial compulsion tabooed under Article 20 (3) of the Constitution of India.

NOTES BY THE AUTHOR: Even though voice sample was for the first time included only in Section 349 BNSS which came into force on 01-07-2024, the Kerala High Court had in the above decision given judicial recognition for voice sample.

12. Sukumaran K. T. v. State of Kerala 2023 (6) KHC 518 – P. V. Kunhikrishnan – J.

Simply because an application is filed under Section 311 A Cr.P.C., the Magistrate cannot pass a mechanical order without application of mind. (Vide para 6.)

13. Faizal K. V. v. State of Kerala 2023 KHC 526 – Raja Vijayaraghavan – J.

When the accused is called upon by the Court or any investigating agency to give his finger impressions or signatures or specimen handwriting, even though it may amount to furnishing evidence in the larger sence of the word, it is not included in the expression “to be a witness against himself” within the meaning of Article 20 (3) of the Constitution of India.

14. Court on its own motion v. State – Indian Kanoon - http/indiankanoon.org/doc/105333510 – Delhi High Court (DB) – Prathiba M. Singh, Amit Sharma – JJ – Dated 23-12-2024.

This was a reference to the High Court under Section 395 Cr.P.C. Answering the reference the Delhi High Court held that –

• The proviso to Section 311 A Cr.P.C. is only directory and not mandatory, and
• When a person voluntarily appears before Court or Magistrate pursuant to an application filed by the I.O. for giving specimen signature and handwriting, it is essential to arrest him. (Vide para 25)

15. Rabindra Kumar Pal @ Dara Singh v. Republic of India AIR 2011 SC 1436 = (2011) 2 SCC 490 – P. Sathasivam, Dr. B.S. Chauhan – JJ.

One Graham Stuarat Stanes, a Christian Missionary from Australia was working among the tribal people especially lepers in the State of Orissa. He and his two minor sons who were sleeping in their vehicle were burnt to death along with the vehicle in the midnight of 22-01-1999 by a mob of about 60 to 70 people. Since the local police and the crime branch police could not satisfactorily investigate the case, the investigation was transferred to CBI which took over the investigation on 03-05-1999. On 22-06-1999 the CBI filed the charge sheet before the Court putting 14 accused persons to trial. The trial Judge convicted all the 14 accused and awarded death penalty to the first accused, Dhara Singh and life sentence to the second accused, Mahendra Hembram. In the course of the judgment, the trial Judge also held that the taking of the specimen signatures and handwriting of A3 by the police for the purpose of comparison, even before the incorporation of 311A in the Cr.P.C, was not illegal. The High Court converted the death sentence of Dhara Singh to life imprisonment and confirmed the life sentence of Mahendra Hembram, but acquitted the rest of the accused persons except A3. The High Court also approved the taking of the specimen signatures and handwriting of the Investigating Officer during t he course of investigation which was prior to the insertion of Section 311A in the Cr.P.C.

On further appeal to the Supreme Court, the Bench observed as follows –

“Another question which we have to consider is whether the Police (CBI) had the power under the CrPC to take specimen signature and writing of A3 for examination by the expert. It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen signature on the asking of the police and only in the amendment of the CrPC in 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signature for the purpose of investigation. Hence, it was pointed out that taking of his signature / writings being per se illegal, the report of the expert cannot be used as evidence against him. To meet the above claim, learned Addl. Solicitor General heavily relied on a 11 - Judge Bench decision of this Court in The State of Bombay v. Kathi Kalu Oghad and Others AIR 1961 SC 1808 : 1962 (3) SCR 10: 1961 (2) Cri.L.J 856.”

After elaborately discussing the verdict in Kathi Kalu Oghad, the Supreme Court concluded as follows –

“In view of the above principles, the procedure adopted by the investigating agency, analyzed and approved by the Trial Court and confirmed by the High Court, cannot be faulted with.” (Vide para 35)

16. Babitha Surendran v. State - 2015 Cri.L.J. 5016 = 2015 KHC 5364 = Indian Kanoon – http/indiankanoon.org/doc/21080125 – Madras High Court – Dated 03-06-2015 - Justice P. N. Prakash -J.

Disagreeing with the Full Bench decision of the Delhi High Court in Sapan Haldar v. State (2012) VIII AD (Delhi) 533, the learned Judge observed as follows –

“5. The last argument advanced by Mr.V.Raghavachari relying upon the Full Bench judgment of the Delhi High Court requires to be dealt with exhaustively. It may be relevant to state here that the said judgment of the Delhi High Court is now under appeal before the Supreme Court and is pending adjudication. According to the Full Bench of Delhi High Court, the Police Officer does not have the power to obtain specimen signatures and writings from an accused de hors 311 A Cr.P.C. To support this argument, the Full Bench has cited various judgments beginning from Kathi Kalu Oghad [AIR 1961 SC 1808] and the Bench has also analysed the provisions of the Identification of Prisoners Act, before coming to the said conclusion.

6. What was the situation that was obtaining prior to the coming into force of Section 311- A Cr.P.C. i.e. before 23.06.2006? The offence of forgery, Sections 463 and 464, has been in the statute book from 01.01.1862, the date on which IPC came into force. Police in this Country have been investigating this offence and prosecuting the offenders since then. Initially we had the Code of Criminal Procedure 1861, followed by 1872, 1882, 1898 and now we have the 1973 Code.

7. Before adverting to precedents, I am inclined to address this issue on first principles with an illustration.

"X", an high ranking official, receives a handwritten letter in the letter head of "Y", containing serious insinuations and also handing out death threat to him. "X" hands over the letter with a complaint to the police, based on which an FIR is registered against "Y" and investigation is taken up. During the course of investigation, police summon "Y", who accepts that the letter-head belongs to him, but denies the authorship of the contents. So, the next step for the police should be, to ask "Y" to give his specimen signatures and handwritings. When asked by the Police, "Y" voluntarily gives his specimen signatures and handwritings. Police do not arrest "Y" and they allow him to leave. During investigation, Police suspect one "Z" and they examine him and in the course of examination they ask "Z" to give his specimen handwritings and signatures, which he gives. Specimen handwritings and signatures that were obtained from "Y" and "Z" are sent to the Handwriting Expert along with the subject letter received by "X", for opinion. The Handwriting Expert opines that, the subject letter has been written by "Z" and not by "Y". Police consciously take a decision not to arrest "Z", but after completing the investigation, they file a Final Report before the Court against "Z" for the offence of criminal intimidation etc.

8. Can we say that the police have committed an illegality by obtaining the specimen handwritings and signatures of "Y" and "Z" and therefore, the prosecution should fail? The answer is an emphatic "No". The power of the police to obtain handwriting and signatures during the course of investigation from witnesses, suspects and accused has never been questioned, because it was considered as concomitant power of investigation that inheres in the police.

9. The word "investigation as defined in the 1898 Code and 1973 Code is as follows:

Section 4(l) of 1898 Code:

4(l) "investigation" includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf."

Section 2 (h) of 1973 Code:

2(h) "investigation" includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf."

10. From the aforesaid texts itself it is abundantly clear that it is an inclusive definition and not an exhaustive definition. As long as there is no constitutional or statutory prohibition inhibiting the Police from obtaining specimen handwritings and signatures from an accused, it cannot be stated that the police is denuded of this power. The mere obtaining of specimen signatures or handwritings from the accused cannot by itself fasten any criminal liability on him, because the same has to be compared by an Expert with the disputed one for fastening criminal liability, unlike a statement to a Police Officer which proprio vigore may mulct the suspect with criminal liability if it is in the nature of a confession. The handwriting or signatures obtained from an accused cannot by itself fasten any criminal liability, unless it is sent to an expert to be compared with the disputed one and opinion obtained.

11. In Kathi Kalu Oghad case [cited supra] neither the eminent counsels who argued, nor the erudite Judges who decided, ever questioned the power of the police to obtain signatures and handwriting from the accused. Of the 4 appeals that were referred to the Constitution Bench, the facts in one of the appeals is worth quoting. "2. ..... We shall, therefore, state only so much of the facts as have occasioned calling in aid of the provisions of cl. (3) of Art. 20 of the Constitution. In the first case, namely, Criminal Appeal 146 of 1958, the State of Bombay is the appellant. The respondent was charged, along with another person, under S.302, read with S.34 of the I.P. C., as also under S.19(e) of the Indian Arms Act (XI of 1878). The Trial Court found him guilty of those charges and sentenced him to imprisonment for life under S.302, read with S.34 of the I.P.C. and to a term of two years rigorous imprisonment for the offence under the Arms Act. At the trial the identification of the respondent, as one of the two alleged culprits, was the most important question to be decided by the Court. Besides other evidence, the prosecution adduced in evidence a chit- Ex.5- alleged to be in his handwriting and said to have been given by him. In order to prove that Ex.5 was in the handwriting of the respondent, the police had obtained from him, during the investigation, three specimen handwritings of his on three separate sheets of paper which were marked as Exs. 27, 28 and 29. The disputed document, namely, Ex.5 was compared with the admitted handwritings on Exs. 27, 28 and 29 by the Handwriting Expert whose evidence was to the effect that they are all writings by the same person. At the trial and in the High Court, the question was raised as to the admissibility of the specimen writings contained in Exs. 27, 28 and 29, in view of the provisions of Art. 20(3) of the Constitution. It is an admitted fact that those specimen writings of the accused had been taken by the police while he was in police custody, but it was disputed whether the accused had been compelled to give those writings within the meaning of cl. (3) of Art. 20." In the majority view expressed by B.P.Sinha, CJ., it is stated thus:

"11........When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a 'personal testimony.

“Even in the minority judgment rendered by K.C.Das Gupta, J., it is stated thus:

"But the evidence of specimen handwriting or the impressions of the accused person's fingers, palm or foot, will incriminate him, only if on comparison of these with certain other handwritings or certain other impressions, identity between the two sets is established. By themselves, these impressions or the handwritings do not incriminate the accused person, or even tend to do so. That is why it must be held that by giving these impressions or specimen handwriting, the accused person does not furnish evidence against himself."

12. In my view, Kathi Kalu Oghad case is a complete answer to this issue and it requires no further deliberation. The Supreme Court has very clearly held that giving of specimen signatures and handwritings to the police will not amount to testimonial compulsion prohibited by Article 20(3) of the Constitution of India. Thus, there is no Constitutional bar for the police to obtain specimen handwritings and signatures from an accused.

13. The next question is, is there any statutory prohibition? Is obtaining specimen handwritings and signatures would amount to giving a statement, so as to be hit by Section 162 Cr.P.C.? This issue has been settled by the Supreme Court in State of U.P. vs. Boota Singh [AIR 1978 SC 1770], wherein it is held:

"Merely taking a specimen handwriting does not amount to giving a statement so as to be hit by S.162 Cr.P.C."

I am unable to lay my hands on any other provision in the Code or in any other law prohibiting the Police from obtaining specimen signatures and handwritings from an accused.

14. This issue can also be looked at from two other perspectives, namely

(a) what is not prohibited is permitted and

(b) when a power is given to an authority to do something, it includes such incident or implied powers, which would ensure proper doing of that thing.

I am conscious of the fact that the aforesaid principles cannot be extended to protect all actions of the police, for, that may lead to disastrous consequences. The above principle can be applied on a case to case basis. In the present context, the aforesaid principles can be safely applied because, specimen signatures and handwritings by themselves cannot fasten criminal liability on an individual. The damage to the administration of criminal justice system will be more if the said power is not conceded to the police.

15. To say that Section 311-A is the only repository of the power to obtain signatures and handwriting from the accused during investigation, would amount to denuding a power which always existed with the police. Section 311-A was introduced in the Statute nearly 25 years, after the Supreme Court made a suggestion in State of Uttar Pradesh vs. Ram Babu Misra [(1980) 2 SCC 341].

16. In my considered opinion Section 311A Cr.P.C. is an enabling provision which comes to the aid of the Investigating Agency, when a suspect or accused refuses to give his specimen signatures or handwriting. Section 311A Cr.P.C. reads as under:

"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.]"

If the opinion of the Full Bench of the Delhi High Court is to be accepted, then in every case, the police will have to necessarily arrest the accused before making an application under Section 311A Cr.P.C. as set out in the proviso to Section 311A Cr.P.C. It is trite law that arrest is not compulsory in every case as held in Joginder Kumar vs. State of U.P. [AIR 1994 SC 1349]. If a Police Officer, as pointed out by me in the illustration given above, consciously decides to follow the Supreme Court dictum in Joginder Kumar's case and does not effect arrest, then will he be precluded from obtaining specimen handwritings and signatures from the accused? If the Delhi Full Bench judgment is to be followed, then it would lead to anomalous results. The Police will have to willy nilly arrest a person if they have to obtain specimen handwritings and signatures under Section 311A. The effect of the proviso to Section 311A has not been discussed by the Delhi Full Bench.

17. Yet another argument that may be raised is that, if the power to obtain specimen signatures and handwritings is conceded to the police, there is likelihood of abuse. This argument militates against the presumption in Section 114(e) of the Evidence Act that, judicial and official acts have been regularly performed. It also goes against the following dictum of the Supreme Court in Aher Raja Khima vs The State Of Saurashtra [AIR 1956 SC 217], reiterated in Jameel Ahmed vs. State of Rajasthan [2003 AIR SCW 6078].

"The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration."

18. One cannot start of with a presumption that the police would abuse the power and build the criminal justice system on such a premise, for, that would only ruin the system. In our system of investigation, we have accepted several practices, though they do not have statutory sanction. For example, conducting Test Identification parade at the request of the police by the Magistrate was hitherto never questioned, as it did not violate either the provisions of the Constitution of India or any other statutory provision. Only from 23.06.2006, we have Section 54A Cr.P.C., which provides for conduct of Test Identification.

19. In Rabindra Kumar Pal @ Dara Singh vs. Republic of India [(2011) 2 SCC 490], this question was specially raised before the Supreme Court and was dealt with in paragraph nos.75 and 76:

"75. Another question which we have to consider is whether the Police (CBI) had the power under the Cr.P.C. to take specimen signature and writing of A3 for examination by the expert. It was pointed out that during investigation, even the Magistrate cannot direct the accused to give his specimen signature on the asking of the police and only in the amendment of the Cr.P.C. in 2005, power has been given to the Magistrate to direct any person including the accused to give his specimen signature for the purpose of investigation. Hence, it was pointed out that taking of his signature/writings being per se illegal, the report of the expert cannot be used as evidence against him.”

76. To meet the above claim, learned Addl. Solicitor General heavily relied on a 11-Judge Bench decision of this Court in The State of Bombay vs. Kathi Kalu Oghad and Ors., (1962) 3 SCR 10 = AIR 1961 SC 1808. This larger Bench was constituted in order to re-examine some of the propositions of law laid down by this Court in the case of M.P. Sharma and Ors. vs. Satish Chandra, District Magistrate, Delhi and Ors., (1954) SCR 1077." 20. The Supreme Court ultimately relied upon Kathi Kalu Oghad's case and held that the procedure is not illegal.

"78. In view of the above principles, the procedure adopted by the investigating agency, analyzed and approved by the trial Court and confirmed by the High Court, cannot be faulted with."

21. Finally in Vinay Tyagi vs. Irshad Ali [(2013) 5 SC 762], the Supreme Court has held that matters which are understood and implemented as legal practice, which are not opposed to the basic rule of law, would be good practice. When a Police Officer obtains the specimen signatures and handwritings from a witness, suspect or accused, he does not violate any statutory provision or provisions of the Constitution of India. For the aforesaid reasons, I am unable to persuade myself to agree with the dictum of the Full Bench of the Delhi High Court.” (Vide paras 5 to 21)

17. Baljor Singh v. State of U.P. 2018 AIR OnLine All. 711 = 2018 Cri.L.J. 4055 = 2018 KHC 4670 – Allahabad High Court - J.J. Munir – J – Dated 09-04-2018.

“9. In the present case, the specimen signatures when asked for by the Investigating Officer were furnished by the accused revisionist. In the opinion of the Court, the provisions of Section 311A of the Code of Criminal Procedure are enabling in nature and confer power upon the Magistrate to direct an accused or any other person to give specimen signatures or that of his/her handwriting, but the same are not restrictive of the right of any person to give his specimen signatures, if he does so voluntarily, which precisely is the case here. The absence of an order under Section 311A of the Code of Criminal Procedure, in case of specimen signatures being given by any person including the accused will not vitiate the analysis, where those specimen signatures have been given voluntarily.

11. Even otherwise, if it could be remotely argued that analysis of signatures forwarded to the expert taken or given voluntarily by the accused as in the present case without an order of the Magistrate concerned is not in accordance with law, the same in the opinion of the Court would only be a curable irregularity and not an illegality that goes to the root of the matter. No prejudice has been caused or even alleged to have been caused to the revisionist on account of an order by the Magistrate not being secured by the investigating agency under Section 311-A of the Code of Criminal Procedure. Such an irregularity, if at all, is one that would be curable in accordance with the provisions of Section 460 of the Code of Criminal Procedure or on the analogy of it.”

My conclusion

8. The investigating Police Officer is entitled to take the specimen signatures and handwriting of the accused even without arresting him or taking the orders of a Magistrate, provided the accused is willing to voluntarily furnish the same in compliance of a request by the said Police Officer. The primary role of an investigating officer is “collection of evidence”. (Vide the definition of the word “investigation” in Section 2(h) of Cr.P.C (Section 2 (1) (l) of Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS” for short). Taking specimen signatures and handwritings etc. from the accused, is undoubtedly an act of collecting evidence. That apart, in the light of the verdict of the Madras High Court in Babitha Surendran v. State 2015 Cri.L.J. 5016 = 2015 KHC 5364 and that of the Allahabad High Court in Baljor Singh v. State of U.P. 2018 AIR OnLine All. 711 = 2018 Cri.L.J. 4055 = 2018 KHC 4670 – Dated 09-04-2018, read along with the verdict of the 11 Judges Constitution Bench of the Supreme Court of India in State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808, I am of the considered opinion that where the accused person, during the stage of the investigation, voluntarily and without any direction by a Magistrate, furnishes his specimen signature and handwritings on the request of the investigating officer, there is no illegality involved in the act of furnishing such specimen signature and handwriting. The act of the Police Officer in taking the specimen signature and handwriting is an act of collection of evidence for which there is no need for any enabling power. It does not make any difference, if at that time, the accused is in custody or not as long as he does not refuse or object to the request of the investigating officer. It is only if the accused refuses or objects to the request of the Investigating Officer for giving his specimen signature and handwritings, will it be necessary for the said officer to obtain the orders of the Magistrate by invoking Section 311A Cr.P.C. (S. 349 BNSS) or Section 5 of the Criminal Procedure (Identification) Act, 2022.

Justice V. Ramkumar

Kochi, Former Judge,

01-04-2025 High Court of Kerala.