Magistrate Has Statutory Duty To Pass Speaking Order U/S 311A CrPC For Collection Of Specimen Signature/ Handwriting: Kerala High Court

Bench of Justice P.V. Kunhikrishnan on examining the provision added that the Magistrate should be at least prima facie convinced that, such an action would not prejudice the interest of the accused in the facts and circumstances of that case. It observed,

“A speaking order is necessary from the Magistrate, if he decides to pass an order under Section 311-A Cr.P.C. That is clear from the wordings of the section itself. The first part of the section says that, “If a Magistrate of the First Class is satisfied that ......”. Second part says that “...... he may make an order to that effect....”. Therefore, the Magistrate while invoking the powers under Section 311-A Cr.P.C should pass a speaking order, after application of mind to the facts and circumstances of the case."

The court held that a speaking order is essential to ensure that no prejudice is caused to the accused. It also stated that the Magistrate has a statutory duty to pass a speaking order for ensuring that Article 20 (3) of the Constitution is not violated which states that no person can be compelled to be a witness against himself.

“The application of mind is necessary because, the Magistrate should be at least prima facie convinced that, such an action would not prejudice the interest of the accused in the facts and circumstances of that case. Article 20(3) of the Constitution says that, no person accused of any offence shall be compelled to be a witness against himself. Therefore, a Magistrate has a statutory duty to pass a speaking order after application of mind before invoking the powers under section 311 A of Cr.P.C.”

Section 311A of CrPC provides that the Magistrate has the power to order persons to give specimen signatures or handwriting for carrying any investigation or proceedings.

The petitioners were accused in offences punishable under Section 406 (punishment for criminal breach of trust), 420 (cheating and dishonestly inducing delivery of property), 465 (punishment for forgery), 471 (using as genuine a forged document), 477A (falsification of accounts), 120B (punishment for criminal conspiracy) read with Section 34 (common intention) of the IPC. The allegation was that the petitioners conspired to forge documents and misappropriated money of SNDP Union, Adimaly and thus cheated them. Investigation was completed and case was pending for trial and disposal. An application was filed by the prosecution under Section 311A of CrPC for taking the specimen of handwritings and signatures of accused persons. This application was allowed by the Court vide Annexure 2 and extended time was also granted by Annexure 4 for completing the taking of samples. These orders (Annexures 2 and 4) were challenged before the High Court.

The Court on examining Section 311A of CrPC stated that Magistrate can order a person to give specimen signatures or handwriting if the Magistrate was satisfied that it was essential for the purposes of investigation or proceedings. The Court stated that the Magistrate can issue a speaking order after application of mind if it was satisfied that specimen signatures or handwriting of the accused were to be taken. It noted that the Magistrate cannot pass a mechanical order without application of mind.

The Court stated that Annexures 2 and 4 was issued by the Magistrate against the provisions of Section 311A of CrPC. It thus set aside those orders and directed the Magistrate to reconsider the applications after hearing the petitioners and the prosecution.

“Annexure 2 and Annexure 4 are not speaking orders. Therefore, I am of the considered opinion that Annexure 2 and Annexure 4 orders are not orders passed in tune with Section 311-A Cr.P.C. Therefore, these orders are unsustainable and liable to be set aside.”

Counsel for the Petitioners: Advocate Nireesh Mathew

Counsel for the respondent: Public Prosecutor Sreeja V

Citation: 2023 LiveLaw (Ker) 579

Case title: K.T. Sukumaran v State of Kerala

Case number: CRL.MC NO. 7845 OF 2023

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