Criminal Procedure (Identification) Act: Kerala High Court says Magistrate can order accused to give handwriting sample even if no arrest

As per Section 5 of The Criminal Procedure (Identification) Act, a Magistrate can order an accused person to furnish a handwriting sample even if he is not arrested, the Court said.

The Kerala High Court recently clarified that under Section 5 of the Criminal Procedure (Identification) Act, 2022, a magistrate can direct a person accused in a criminal case to give samples of signatures and handwriting, even if such person has not been arrested. [Faizal KV v State of Kerala & Anr.].

Justice Raja Vijayaraghanav V made the observation while upholding a magistrate court order by which an accused, who was out on anticipatory bail, was ordered to furnish his handwriting sample in connection with a forgery case.

The accused person (petitioner) had contended that since he has not been formally arrested, the magistrate was not competent to pass such an order.

The High Court, however, pointed out that the magistrate was well within powers, under Section 5 of the Criminal Procedure (Identification) Act, to pass such an order.

“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 punishable under any law for the time being in force,” the High Court held.

The petitioner before the High Court had been charged with various offences of the Indian Penal Code (IPC) concerning cheating, forgery of documents and allied offences.

The prosecution claimed that he had secured employment as a teacher in a school on the strength of forged certificates.

As part of the investigation, the authorities sought to compare the handwriting of the petitioner with certain entries noted in a service book. The investigating authority is stated to have noticed that these service book entries did not appear to be that of the petitioner.

In order to compare the suspected handwriting with the petitioner’s genuine handwriting, an application was filed by the investigation authority with the concerned court.

The authority urged the court to call for a handwriting sample from the accused man, which could be recorded in the court’s presence and then forwarded to a handwriting expert.

This application was allowed by the magistrate court, prompting the accused petitioner to challenge the same before the High Court.

Advocate Shameem Ahamed, appearing for the petitioner, submitted that the petitioner was out on anticipatory bail.

Therefore, he contended that the magistrate could not have directed him to furnish his handwriting under Section 311A of the Code of Criminal Procedure (CrPC) or Section 3 of the Identification Act, 2022.

In both these provisions, the accused person must be arrested in connection with the investigation before such an order can be passed, Ahamed submitted.

The Public Prosecutor, on the other hand, countered that it was wrong to say that the accused was not placed under arrest.

In this regard, it was pointed out that the petitioner had earlier surrendered before the jurisdictional court and that he had executed a bail bond before his release.

The High Court eventually ruled in the State’s favour after examining the text of Section 5 of the 2022 Act, as well as related case laws.

The judge held that a magistrate can issue directions to an accused person, to give specimen signatures and writings, even if he has not been arrested.

The Court also rejected the petitioner’s contention that it may amount to testimonial compulsion if he is made to furnish his handwriting sample.

In this regard, the judge relied on the Supreme Court’s ruling in Pravinsinh Nrupatsinh Chauhan v. State of Gujarat, where the top court reiterated that the fundamental right to privacy is not absolute but must give way to the compelling public interest.

“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, The above principles would apply to the facts of the instant case as well,” the High Court said.

Therefore, the Court dismissed the petition.


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