Amending s.311A, Code of Criminal Procedure, 1973 – A way to increase procedural efficiency

There are constant deliberations & conversations among the legal fraternity on how to increase procedural efficiency as far as the Code of Criminal Procedure, 1973 and criminal trials are concerned. Increasing procedural efficiency by finding and correcting loopholes in various statutes has always been an important subject in the legal field with many legal thinkers and jurists weighing upon the debate with their erudite opinions from time to time.

Procedural efficiency should be a matter of concern as it is no hidden fact that our judiciary is an overburdened institution with a considerable amount of pending cases piling up every day. This very backlog is the reason why one must look at various statutes critically and find the loopholes that may have the potential to hamper procedural efficiency. One such statute, in my opinion, is S.311A of the Code of Criminal Procedure, 1973. S.311A talks about the power of the magistrate to order a person to give their specimen signatures and handwriting samples. In my opinion, S.311A should be amended in two crucial ways. 

Firstly, there should be an inclusion of taking/recording voice samples of a person for the purposes of investigation. The present S.311A talks about the power of the magistrate to order a person to only give their specimen signatures or handwriting (excluding voice samples) for the purposes of an inquiry, investigation or trial[i] as construed by the words ‘proceeding under this code’. However, the provision leaves out taking voice samples of the accused for the purposes of a criminal investigation or inquiry. The legislature has long ignored the inclusion of taking voice samples of a person along with specimen signatures and handwriting in this provision.

The Hon’ble Supreme Court of India in a recent decision of Ritesh Sinha v. State of Uttar Pradesh[ii] settled this question of taking voice samples of a person for the purposes of an inquiry or investigation using its power of judicial interpretation and in the exercise of jurisdiction vested to the Hon’ble Supreme Court under Article 142 of the Constitution of India. This was done as the CrPC was and had remained silent on this issue regarding the collection of voice samples. The Apex Court gave the power to the Judicial Magistrate to order a person to give their voice sample until ‘explicit provisions were engrafted in CrPC by the parliament’ and thus it cleared and filled this significant gap in the statute.

In this very cleverly worded judgement, the apex court came down heavily upon the legislature in a very subtle but sharp way. For instance, in para 22 of the judgment, the Hon’ble Court observed that there was a ‘yawning gap in the statute’ which meant that this issue had been pending for a long time. The Hon’ble Court further observed that this called for a ‘temporary patchwork’ of filling up to make the statute effective and workable. Hence, as per the decision of the Apex Court and keeping in mind how the world has changed over the years technologically and with it the ways in which a person can commit a crime has also changed considerably, there must be a decision to amend the said provision and include the recording of voice samples for the purposes of any investigation. Taking a person’s voice sample would act as an aid to the investigation and also improve procedural efficiency as it may help the officials complete the investigation faster and more accurately.

However, an issue might also appear as to whether the taking of voice samples would be an invasion of the rights of the individual. The Hon’ble Apex Court has also taken this issue into consideration and dispelled it by following the precedent set in State of Bombay v. Kathi Kalu Oghad[iii]. The recording and investigating the voice sample of a person would be as necessary as taking their specimen signature and handwriting, and there is no reason why it should be excluded from the purview of S.311A.

Secondly, the proviso to this section should be omitted in its entirety. This should be done in order to improve procedural efficiency and to prevent the misuse of it. The proviso to this section prevented any order to be passed under this section if the person was not arrested in connection with the investigation or proceeding. The rationale behind the proviso, in my opinion, might be that it aims to limit the power that has been conferred on the Judicial Magistrate by putting this restriction.

However, the effect of this restriction means that an arrest of the accused in connection with the investigation or proceedings of the case would be ‘essential’ for invocation of power under S.311A, CrPC by the magistrate.[iv] Hence, this proviso has the possibility of being misused and is being misused as it empowers the police officials to threaten individuals with an arrest in some proceeding so that they are able to take their specimen signature and handwriting. The proviso can also be seen as putting the screws on the police officials to make unnecessary arrests even when they do not wish to so that they can show before the Hon’ble court that the person had been arrested in the concerned proceeding.

All of this is being done, and the proviso is being misused just to record specimen signatures or handwriting of a person. There is no doubt that if the only basis on which a person is arrested is to take and record specimen signatures or their handwriting, the magistrate would most likely grant an immediate bail. However, in that case, as Abhinav Sekhri correctly states ‘what is the need of this entire charade in the first place!’. To go through this tedious process serves no visible purpose. The proviso should be done away with, as it is detrimental to the ideals of justice and acts against the idea of procedural efficiency. Hence, the proviso in question should be omitted in its entirety.

[i] A.S. Subin v. State of Kerala, 2012 Cr LJ 2327 (Ker.)

[ii] 2019 SCC OnLine SC 956

[iii] AIR 1961 SC 1808: (1961) 2 Cri LJ 856

[iv] Sohoni’s, Code of Criminal Procedure, Vol.4, 21st Ed., LexisNexis, p.425


ABOUT THE AUTHOR

Aman Mehta

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Aman Mehta is a third-year BA.LLB (Hons.) student at Jindal Global Law School. His areas of interest include Constitutional Law, Intellectual Property Law, Criminal Law and Arbitration Law.

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