S.5 Criminal Procedure (Identification) Act | Magistrate Can Order Accused To Give Handwriting Sample Even In Absence Of Arrest: Kerala HC

The Kerala High Court recently held that until specific provisions are enacted in CrPC, Magistrates are empowered to order the collection of handwriting samples of accused for investigation purposes and that such orders do not inherently violate Article 20(3) of the Constitution (right against self-incrimination).

Justice Raja Vijayaraghavan added that Magistrates have the jurisdiction to pass orders for the collection of measurements and specimen handwriting under Section 5 of the Criminal Procedure (Identification) Act, 2022, even in the absence of the accused's formal arrest, which was further supported by the incorporation of Section 311A into CrPC.

"If a Magistrate believes it is necessary for any investigation or legal proceeding under the Code of Criminal Procedure or any other law, the Magistrate can issue an order directing a person to provide measurements under this Act. The person must comply with the order and allow the measurements to be taken according to the specified directions."

"When an accused person is called upon by the court or any other authority holding an investigation to give a specimen of his handwriting, he is not giving any testimony of the nature of a ‘personal testimony’. The giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression ‘to be a witness giving ...specimen writings by way of identification are not included in the expression ‘to be a witness’. It would be pertinent to note that the above observations were made prior to the incorporation of Section 311A and Section 5 of the Act 2022 in the Statute Book."

The petitioner had approached the Court challenging an order of a Magistrate, which required him to provide his handwriting sample under the Identification Act.

The petitioner was accused of allegedly securing a teaching job at a school using forged certificates. The investigation involved comparing the handwriting on the petitioner's service book with the suspected forged documents. The petitioner argued that since he was granted anticipatory bail and never formally arrested, Section 311A of CrPC or Section 3 of the Identification Act should not apply.

Advocates M.P Shameem Ahamed and Akhil Philip Manithoottiyil appearing for the petitioner contended that the Magistrate lacks jurisdiction to issue the impugned order as the petitioner was not formally arrested. They also argued that providing handwriting samples could be incriminating and therefore protected under Article 20(3) of the Constitution. It was further contended that the investigation pertains only to the fabrication of qualification certificates and that obtaining handwriting samples is unrelated.

Senior Public Prosecutor Vipin Narayan countered that the petitioner's arrest is not required to apply Section 311A or the Identification Act. Referring to State of Haryana v. Dinesh Kumar and State of Uttar Pradesh v. Deomen, the Prosecutor asserted that custody can be established through actions or words, without formal arrest. The respondents also highlighted the petitioner's bail execution, indicating submission to the court's jurisdiction, which negates the claim of non-arrest.

The issue before the Court was whether the Magistrate had the jurisdiction to pass the impugned order directing the petitioner to give his measurements/ specimen handwriting. 

The Single Judge initially examined the relevant sections of the Indian Evidence Act, CrPC and the Identification Act on the power of the Magistrate to issue directions for the collection of measurements and specimen handwriting for investigative purposes.

It was found that the power to direct a person to provide measurements or samples under the Identification Act was incorporated after judicial recommendations. The Court referred to previous judgments, such as State of U.P. v. Ram Babu Misra, to establish the legal foundation for the Magistrate's authority to order the collection of measurements and specimen handwriting. It was noted that the Supreme Court had previously suggested the need for legislation that grants magistrates the power to issue directions for the collection of such samples, and subsequently, Section 311A was incorporated into CrPC.

The High Court further analysed the concept of "testimony" and "compulsion," clarifying that giving measurements or specimen handwriting does not constitute testimonial compulsion in the context of self-incrimination. Reliance was placed on several legal precedents to assert that the act of providing such samples is not equivalent to giving oral or written testimony in court and falls under the category of material evidence rather than personal testimony.

The Court also observed that being in custody is not strictly tied to formal arrest, as established in previous decisions. It further observed,

"Section 5 of the Act enables the learned Magistrate to issue directions to any person and the said provision does not stipulate that directions can be issued only to a person arrested in connection with an offence."

Justice Vijayaraghavan then addressed the petitioner's argument regarding the violation of privacy rights. The Court drew from the precedent of Selvi v. State of Karnataka, which stated that obtaining specimen signatures and handwriting samples, though testimonial in nature, is not incriminating if used for identification or corroboration purposes.

Referring to Ritesh Sinha v. State of U.P. and Pravinsinh Nrupatsinh Chauhan v. State of Gujarat, where the Apex Court ruled that the fundamental right to privacy is not absolute and must yield to the compelling public interest, it was emphasised that until explicit provisions are enacted in CrPC by the Parliament, a Judicial Magistrate has the power to order the collection of voice samples for investigation, as per judicial interpretation and Article 142 of the Constitution.

Thus, it was observed that judicial orders compelling samples, like voice samples, do not inherently violate privacy rights under Article 20(3) of the Constitution.

"The (Supreme) Court also held that the power to collect voice samples from accused persons can be conferred on magistrates through judicial interpretation and the exercise of the Supreme Court's jurisdiction under Article 142 of the Constitution of India. The Court rejected the contention that the collection of voice samples would violate the right to privacy of accused persons unless rules are framed and an appropriate standard operating system is notified under the provisions of the Criminal Procedure (Identification) Act, 2022."

Drawing from recent precedents, the Court concluded that until specific provisions are enacted, Magistrates have the power to order the collection of voice samples for investigation purposes. In this context, the Court observed that the Magistrate's order didn't infringe on the petitioner's privacy rights.

As such, the Magistrate's order was upheld and the petition was dismissed. 

Case Title: Faizal K V v. State of Kerala & Anr

Citation: 2023 LiveLaw (Ker) 389

Click Here To Read/Download The Order