Not essential to arrest person ordered by court to give specimen signature: Delhi High Court

The Delhi High Court recently upheld the constitutional validity of the proviso to Section 311A of the Code of Criminal Procedure (CrPC), which empowers magistrates to order persons to give specimen signatures for the purpose of aiding investigations [Court On Its Own Motion v. State]..The proviso to this Section states that such order cannot be passed unless the person is arrested. While deciding on a reference by a magistrate, a Bench of Justices Prathiba M Singh and Amit Sharma observed that the proviso to Section 311A of the CrPC is directory in nature and not mandatory. "The word ‘shall’ used in the aforesaid proviso, if is in interpreted to be a mandatory provision, then the consequences...is that the concerned accused person has to be mandatorily arrested before he can give his specimen signatures or handwriting in aid of the investigation. It is well settled principle of law that arrest of an accused, even in a case involving non-bailable offences, is not mandatory. The need to arrest an accused person in such cases is left to the discretion of the concerned Investigating Officer or his superiors."It thus concluded,“When a person voluntarily appears before the Court or Magistrate, pursuant to the application filed by the Investigating Officer, for giving specimen signature or handwriting, it is not essential to arrest him.".The Court noted that this interpretation has been fortified in the corresponding provision under the new law - the proviso to Section 349 of the Bharatiya Nagarika Suraksha Sanhita (BNSS) - which clarifies that arrest for such purpose is not mandatory.It reads as, “provided further that the Magistrate may, for the reasons to be recorded in writing, order any person to give such specimen or sample without him being arrested.”.The magistrate had sought the High Court’s opinion on whether a person appearing before court for giving specimen signatures under Section 311A of the CrPC is to be arrested at that stage or must be in custody at any stage prior under Section 311A of the CrPC. The magistrate also posed the question of whether the provision imposed excessive restrictions on fundamental rights of the person ordered to give such signatures..Senior Advocate Puneet Mittal (Amicus Curiae) with Advocates Rupendra Pratap Singh, Sakshi Mendiratta and Sameer Vats assisted the Court.Assistant Standing Counsel (Criminal) Nandita Rao with Advocates Amit Peswani, Anurag Ahluwalia and Tarveen Singh Nanda appeared for the State. .[Read order]