Section 311A of the Code of Criminal Procedure, 1973 (CrPC), which empowered Magistrates to order persons to give specimen signatures or handwriting, has been replaced by Section 349 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The new provision significantly expands the scope of samples a Magistrate can order, adding finger impressions, voice samples, and other forensic samples to the existing power over signatures and handwriting. This expansion codifies judicial developments — particularly the Supreme Court's landmark direction in Ritesh Sinha — and aligns the procedural code with modern forensic investigation techniques.
What changed
| Feature | Section 311A CrPC (Old) | Section 349 BNSS (New) |
|---|---|---|
| Samples covered | Specimen signatures and handwriting only | Specimen signatures, finger impressions, handwriting, voice samples, and other forensic samples |
| Who can order | Magistrate of the first class | Magistrate of the first class — same |
| Purpose | Investigation or proceeding | Investigation or proceeding — same |
| Against whom | Any person | Any person — same |
| Voice samples | Not included — added only by judicial direction in Ritesh Sinha (2019) | Expressly included in statute |
| Finger impressions | Not expressly included | Expressly included |
| Forensic samples (general) | Not covered | Covered through "other forensic samples" language |
| Precondition for order | Person must be given reasonable opportunity of being heard | Person must have been arrested in connection with investigation/proceeding (with exception: Magistrate may order without arrest for recorded reasons) |
| Article 20(3) protection | Applicable — limited to testimonial compulsion | Same constitutional safeguard applies |
Full statutory text
Section 311A CrPC (Old Law):
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 in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting:
Provided that no order shall be made under this section unless the person has been given a reasonable opportunity of being heard.
Section 349 BNSS (New Law):
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 in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order 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.
Key differences
Express inclusion of voice samples: The Supreme Court in Ritesh Sinha v. State of Uttar Pradesh (2019) had read the power to direct voice samples into Section 311A CrPC through constitutional interpretation. Section 349 BNSS now expressly includes voice samples, giving this power direct statutory backing instead of relying on judicial interpretation.
Finger impressions added: While fingerprint evidence was routinely collected under other provisions, Section 349 BNSS now expressly empowers Magistrates to order finger impressions under this specific section. This provides a clearer statutory basis for fingerprint comparison evidence in proceedings.
"Other forensic samples" — expansive language: The broadening from only signatures and handwriting to include forensic samples of various types reflects the increasing importance of forensic science in criminal investigations. This forward-looking language allows the provision to accommodate new forensic techniques without requiring further legislative amendment.
Codification of judicial directions: The Ritesh Sinha direction that voice sample collection does not violate Article 20(3) or Article 21 is now embedded in the statutory text. This removes any residual argument about whether a Magistrate has the power to order voice samples — the legislature has expressly conferred this authority.
Changed precondition — arrest replaces hearing: Under CrPC Section 311A, the proviso required the person to be given "a reasonable opportunity of being heard" before an order could be made. Under BNSS Section 349, this has been replaced with a different precondition: the person must have been arrested in connection with the investigation or proceeding. However, the second proviso allows the Magistrate to order specimens or samples even without arrest, provided reasons are recorded in writing. This shift from a hearing-based safeguard to an arrest-based precondition (with a recorded-reasons exception) is a significant procedural change.
What this means for practitioners
For investigating agencies: The expanded scope gives officers a clearer statutory basis to seek Magistrate orders for a wider range of forensic samples. Applications need no longer rely on judicial interpretation alone — the statute now expressly covers voice samples and finger impressions. This simplifies the process and reduces the risk of challenge.
For defence counsel: While the scope of compellable samples has expanded, the constitutional protections remain. The protection under Article 20(3) against testimonial compulsion continues to apply — compulsion to provide physical samples (signatures, fingerprints, voice) is not testimonial compulsion as held in Kathi Kalu Oghad. However, defence counsel should ensure that the "reasonable opportunity of being heard" proviso is strictly complied with.
For forensic experts: The express mention of voice samples and forensic samples in the statute strengthens the evidentiary foundation. Reports based on court-ordered voice comparisons now have unambiguous statutory authority, reducing challenges to admissibility.
For Magistrates: The expanded power requires Magistrates to be satisfied that the forensic sample sought is expedient for the investigation or proceeding. The word "expedient" sets the threshold — the Magistrate must apply judicial mind to the relevance and necessity of the sample, not merely rubber-stamp prosecution requests.
Does old case law still apply?
Ritesh Sinha v. State of Uttar Pradesh (2019) 8 SCC 1: The Constitution Bench held that a Judicial Magistrate has the power to order a person to give a voice sample during investigation, and that this does not violate Article 20(3). This ruling is now codified in Section 349 BNSS. The principles regarding constitutional safeguards articulated in this judgment continue to apply.
State of Bombay v. Kathi Kalu Oghad AIR 1961 SC 1808: The foundational distinction between "testimonial compulsion" (protected by Article 20(3)) and physical evidence collection (not protected) remains the governing constitutional principle. Section 349 BNSS does not alter this framework. Providing specimen signatures, fingerprints, or voice samples is not testimonial compulsion.
Selvi v. State of Karnataka (2010) 7 SCC 263: The Supreme Court's ruling that narco-analysis, polygraph, and brain-mapping tests cannot be compulsorily administered as they involve testimonial compulsion continues to apply. The "other forensic samples" language in Section 349 BNSS does not override this constitutional protection — it covers physical samples, not tests that compel testimonial or mental responses.
All case law interpreting the scope of permissible evidence collection, the Article 20(3) boundary, and the hearing requirement under Section 311A CrPC continues to govern Section 349 BNSS.
Frequently asked questions
Can a Magistrate order DNA samples under Section 349 BNSS? The phrase "other forensic samples" is broad enough to potentially cover DNA samples. However, DNA collection also engages Section 51 BNSS (medical examination of the accused) and specific provisions under the DNA Technology (Use and Application) Regulation Bill. The interplay between these provisions will require judicial clarification.
Does providing voice samples violate the right against self-incrimination? No. Following Ritesh Sinha and the Kathi Kalu Oghad doctrine, providing physical evidence such as voice samples is not "testimonial compulsion" under Article 20(3). Section 349 BNSS now provides express statutory authority for voice sample orders.
Can the accused refuse to comply with a Section 349 order? The accused must first be given a reasonable opportunity of being heard. If the Magistrate is satisfied that the order is expedient, non-compliance may attract consequences under the contempt jurisdiction. The order is enforceable as a Magistrate's direction during investigation or proceedings.
What is the difference between Section 349 and Section 530 BNSS? Section 349 deals with ordering specific forensic samples from persons. Section 530 BNSS deals with conducting trials and proceedings through electronic and audio-video means. They address entirely different aspects — evidence collection versus trial procedure.