Section 311A CrPC vs Section 349 BNSS — Specimen Signatures, Finger Impressions and Voice Samples

In India, a Magistrate's power to order specimen signatures, handwriting, finger impressions and voice samples now sits in Section 349 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), replacing Section 311A of the Code of Criminal Procedure, 1973 (CrPC). It adds finger impressions and voice samples, and lets the Magistrate order a sample without arrest for recorded reasons.

Despite this page's web address, Section 349 is not an audio-video evidence provision. It says nothing about recording, video conferencing or electronic evidence. Holding trials, inquiries and proceedings in electronic mode, including by audio-video electronic means, is governed by a different section: see Section 530 BNSS: trials and proceedings in electronic mode.

At a glance

What changed

• Expanded — the items covered. "specimen signatures or handwriting" becomes "specimen signatures or finger impressions or handwriting or voice sample". The change is made twice: in the power to order, and in the duty to "give" the specimen.
• New — orders without arrest. A second proviso reads: "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."
• Minor edit — the arrest proviso. The words are unchanged: "no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding". Only the closing full stop becomes a colon, to introduce the new proviso.
• Minor edit — "this Code" becomes "this Sanhita", and the heading gains ", etc.".
• Identical — the threshold and the duty. The Magistrate must be "satisfied that, for the purposes of any investigation or proceeding … it is expedient to direct any person, including an accused person". The person "shall be produced or shall attend at the time and place specified in such order".
• Modified, outside s.349 — medical examination. The Explanation to s.51 BNSS keeps the CrPC s.53 list, including DNA profiling. Section 51(1) now allows the request to come from "any police officer" (CrPC: an officer "not below the rank of sub-inspector"), and a new s.51(3) requires the medical practitioner to forward the report to the investigating officer "without any delay".
• Minor edit, outside s.349 — the court's own power. Section 72 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA) repeats s.73 of the Indian Evidence Act, 1872 (IEA). The Court may direct "any person present in Court" to write words or figures for comparison, and the section applies to finger impressions (now numbered sub-section (3)).

Statutory text (relevant extract)

Extract — Section 311A, CrPC:

If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect … and shall give his specimen signatures or handwriting: Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding.

Extract — Section 349, BNSS:

If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Sanhita, it is expedient to direct any person, including an accused person, to give specimen signatures or finger impressions or handwriting or voice sample, he may make an order to that effect … and shall give his specimen signatures or finger impressions or handwriting or voice sample: Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding: 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.

How it works — the steps

1. An application or occasion. The power exists "for the purposes of any investigation or proceeding under this Sanhita". It is therefore available both while the police are investigating and once a proceeding is before a court.
2. The right Magistrate. Only "a Magistrate of the first class" can make the order.
3. Satisfaction of expediency. The Magistrate must be "satisfied" that it is "expedient" to direct the person to give the specimen. On a reading, the order should show why the specimen is needed for that investigation or proceeding.
4. The person. "Any person, including an accused person". A witness or other third party can be ordered, not only the accused.
5. The arrest condition, or recorded reasons. Either the person "has at some time been arrested in connection with such investigation or proceeding" (first proviso), or the Magistrate records in writing reasons for ordering the specimen without arrest (second proviso).
6. Compliance. The person "shall be produced or shall attend at the time and place specified in such order" and "shall give" the specimen or sample. The section does not say what follows a refusal.

Worked example 1 (from a decided case) — specimen writing during investigation. In State of U.P. v. Ram Babu Misra an officer investigating forgery and cheating offences asked the Chief Judicial Magistrate, Lucknow, to direct the accused to give his specimen writing. The Magistrate held he had no power to do so during investigation, and the Supreme Court agreed that s.73 IEA did not give it. Under s.349 BNSS, a first-class Magistrate satisfied that it is expedient can now make that order. The accused must have been arrested in connection with the case, or the Magistrate must record reasons for proceeding without arrest.

Worked example 2 (from a decided case) — voice sample. In Ritesh Sinha v. State of Uttar Pradesh the Chief Judicial Magistrate, Saharanpur, summoned the appellant on 8 January 2010 to appear before the investigating officer and give his voice sample (para 3). Section 311A did not mention voice samples, and the question went to a three-judge bench. Section 349 BNSS now names "voice sample" expressly.

What this means in practice

• For the investigating officer. Apply to a Magistrate of the first class and explain why the specimen is expedient for the investigation. If the person has never been arrested in the case, ask the Magistrate to record reasons under the second proviso; without arrest or recorded reasons, s.349 does not allow the order. For blood, semen, hair, swabs or DNA, s.349 is the wrong route. Those fall under s.51 BNSS, which covers a person already arrested and examined by a registered medical practitioner at police request.
• For the person ordered. Check four things on the face of the order: a first-class Magistrate made it; it relates to an investigation or proceeding under the BNSS; you were arrested in that case or reasons were recorded for ordering you without arrest; and the specimen is one of the four the section names. The section itself does not mention legal representation at the time of giving the specimen, or any penalty for refusal.
• For defence counsel. The constitutional objection under Article 20(3) is answered for specimens by Kathi Kalu Oghad. Challenges are more likely to turn on the statutory conditions: the arrest proviso, the absence of recorded reasons under the second proviso, or a Magistrate other than one of the first class. Ritesh Sinha (para 24) noted that the privacy question had not been argued and left it there.
• At trial. Separately from s.349, BSA s.72(2) lets the trial court direct "any person present in Court" to write words or figures for comparison, and s.72(3) extends the section to finger impressions. Ram Babu Misra held that the IEA version of that power exists for the Court's own comparison in a proceeding before it, not for an investigating agency.

Judgments that still matter

Section 349 repeats the operative words of s.311A for signatures and handwriting and adds new items and a proviso. On a reading of the text, the judgments below remain relevant. None of them construes s.349 itself, and no judgment applying s.349 was read for this page.

The State of Bombay v. Kathi Kalu Oghad, [1962] 3 S.C.R. 10 (1961 INSC 229), decided 4 August 1961. An eleven-judge bench considered whether taking specimen writings and thumb impressions from an accused offends Article 20(3). The majority opinion was delivered by B.P. Sinha C.J. for eight judges. Its fourth conclusion reads: "Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness'". K.C. Das Gupta J., for himself, S.K. Das and A.K. Sarkar JJ., reasoned differently: such a person may be "a witness" but is not compelled to be a witness "against himself". That group agreed there is no infringement of Article 20(3). The reported text has no paragraph numbers. Why it matters now: it is the constitutional footing for every specimen order under s.349.

State of U.P. v. Ram Babu Misra, [1980] 2 S.C.R. 1067 (1980 INSC 29), decided 19 February 1980. O. Chinnappa Reddy J., for a bench with R.S. Sarkaria J., held that s.73 IEA does not enable a Magistrate to direct an accused to give specimen writing while the case is still under investigation. "The direction is to be given for the purpose of 'enabling the Court to compare' and not for the purpose of enabling the investigating or other agency to compare" (p.1069). The Court suggested legislation on the analogy of s.5 of the Identification of Prisoners Act, and quoted that section in full. Section 311A, inserted by Act 25 of 2005 with effect from 23 June 2006, follows the quoted s.5 closely in wording, including the arrest proviso. Why it matters now: it explains why a separate investigation-stage power exists at all, and BSA s.72(2) repeats the words the Court construed.

Ritesh Sinha v. State of Uttar Pradesh, [2019] 10 S.C.R. 1006 (2019 INSC 855), decided 2 August 2019. A three-judge bench (Ranjan Gogoi C.J.I., Deepak Gupta and Sanjiv Khanna JJ.; opinion by the Chief Justice) resolved a split two-judge decision of 2012 (paras 4–8). On Article 20(3), it applied the Kathi Kalu Oghad test (para 9). It noted that the 2005 amendments, including s.311A, did not authorise a Magistrate to direct a voice sample (paras 11–12). It held that "until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime" (para 25). That power was conferred "in exercise of jurisdiction vested in this Court under Article 142". On privacy, the Court said the right "cannot be construed as absolute" but refrained from deciding an issue not raised (para 24). Why it matters now: on a reading, s.349 BNSS is the explicit provision the Court was waiting for, so for BNSS investigations the power to order a voice sample now rests on the statute.

Which law applies to your case

Section 531(2)(a) BNSS provides that any investigation, inquiry or trial pending immediately before 1 July 2024 is continued "in accordance with the provisions of the Code of Criminal Procedure, 1973 … as if this Sanhita had not come into force". On a reading of that text, a specimen order in an investigation pending on that date falls under s.311A CrPC. That section covers only signatures and handwriting, has no without-arrest proviso, and makes no mention of voice samples. For a voice sample in such a case, the Article 142 power recognised in Ritesh Sinha would be relevant. For investigations begun on or after 1 July 2024, s.349 BNSS applies. For the full analysis see which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 311A CrPC? Section 349 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaced Section 311A of the Code of Criminal Procedure, 1973 from 1 July 2024. A Magistrate of the first class may still order any person, including an accused, to give specimens for an investigation or proceeding. The list now covers specimen signatures, finger impressions, handwriting and voice sample, and a new proviso allows an order without arrest for reasons recorded in writing.

Is Section 349 BNSS about audio-video evidence? No. Section 349 BNSS deals only with ordering a person to give specimen signatures, finger impressions, handwriting or a voice sample. Holding trials, inquiries and proceedings in electronic mode, including by audio-video electronic means, is governed by Section 530 BNSS, a separate provision.

Can a Magistrate order a voice sample under the BNSS? Yes. Section 349 BNSS expressly lists voice sample. Section 311A CrPC did not, and in Ritesh Sinha v. State of Uttar Pradesh (2019 INSC 855, para 25) the Supreme Court held that until Parliament made an explicit provision, a Judicial Magistrate must be conceded that power, conferring it under Article 142 of the Constitution.

Can a person who has not been arrested be ordered to give a specimen or sample? Under the first proviso to Section 349 BNSS, no order may be made unless the person has at some time been arrested in connection with the investigation or proceeding, which is the same condition as in Section 311A CrPC. The new second proviso lets the Magistrate, for reasons to be recorded in writing, order any person to give the specimen or sample without being arrested.

Can a Magistrate order DNA or blood samples under Section 349 BNSS? Not under Section 349. It names only specimen signatures, finger impressions, handwriting and voice sample. Examination of blood, blood stains, semen, swabs, sputum, sweat, hair samples and finger-nail clippings, including DNA profiling, falls under the Explanation to Section 51 BNSS, which applies to a person arrested and examined by a registered medical practitioner at the request of a police officer.

Does being made to give a specimen breach the right against self-incrimination? In State of Bombay v. Kathi Kalu Oghad (1961 INSC 229) the Supreme Court held that giving thumb, palm, foot or finger impressions or specimen writings is not being a witness within Article 20(3). In Ritesh Sinha v. State of Uttar Pradesh (2019 INSC 855, para 9) a three-judge bench restated that test when upholding the power to order a voice sample.

Which law applies to an investigation that was pending on 1 July 2024? Section 531(2)(a) BNSS provides that an investigation pending immediately before 1 July 2024 continues under the CrPC as if the BNSS had not come into force. On a reading of that text, a specimen order in such an investigation is made under Section 311A CrPC, which does not list voice samples or finger impressions; for voice samples the power recognised in Ritesh Sinha would then be relevant.

Related

• Section 530 BNSS: trials and proceedings in electronic mode
• Forensic evidence and videography under the new criminal laws
• Section 45 Evidence Act vs BSA: expert opinion
• Section 41 CrPC vs Section 35 BNSS: arrest without warrant
• Witness and accused by video conferencing: BNSS vs CrPC
• Offence before 1 July 2024: which law applies
• Section 53 CrPC vs Section 51 BNSS — Medical Examination of the Accused (CrPC 53, 53A, 54)
• Section 165 IEA vs Section 168 BSA — Judge's Power to Put Questions or Order Production
• Sections 67–73A IEA vs Sections 65–73 BSA — Proof of Signature, Handwriting, Execution and Attestation

Sources

• Acts and sections read: BNSS 2023 ss.51, 348, 349, 530, 531 (Gazette CG-DL-E-25122023-250884); BSA 2023 s.72 (Gazette CG-DL-E-25122023-250882); CrPC 1973 ss.53, 311, 311A (original India Code text); Indian Evidence Act 1872 s.73 (original India Code text).
• Judgments read (Veritect judgment corpus, full text): The State of Bombay v. Kathi Kalu Oghad (1962_3_10_48_EN.md); State of U.P. v. Ram Babu Misra (1980_2_1067_1071_EN.md); Ritesh Sinha v. State of Uttar Pradesh (2019_10_1006_1022_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.