Section 349 BNSS: Power of Magistrate to Order Specimen Signatures, Handwriting, Finger Impressions or Voice Sample
Section 349 of the Bharatiya Nagarik Suraksha Sanhita, 2023 gives a Magistrate of the first class power, for the purposes of an investigation or proceeding under the BNSS, to direct a person - including an accused person - to provide specified identifying or comparison samples.
Text of Section 349 BNSS
349. Power of Magistrate to order person to give specimen signatures or handwriting, etc.
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.
The official text of the BNSS is available through India Code and the Ministry of Home Affairs - New Criminal Laws.
What Section 349 Means
The provision enables a first-class Magistrate to order the collection of specified samples when the Magistrate is satisfied that doing so is expedient for an investigation or proceeding under the BNSS. The order can apply to any person, expressly including an accused person.
Samples expressly covered by Section 349 include:
- specimen signatures;
- finger impressions;
- handwriting; and
- voice sample.
Conditions for an Order under Section 349
- Competent Magistrate: the power is given to a Magistrate of the first class.
- Purpose: the direction must be for an investigation or proceeding under the BNSS.
- Judicial satisfaction: the Magistrate must be satisfied that requiring the specimen or sample is expedient for that purpose.
- Attendance or production: once ordered, the person must be produced or attend at the time and place specified in the order.
- Ordinary arrest condition: the first proviso states that an order is ordinarily not to be made unless the person has at some time been arrested in connection with the investigation or proceeding.
- Exception without arrest: the second proviso permits the Magistrate to order the specimen or sample even without prior arrest, but the reasons must be recorded in writing.
Power to Order a Sample Without Prior Arrest
The second proviso is important. It creates an express exception to the arrest-related condition in the first proviso. A Magistrate may direct a person who has not been arrested to give the specified specimen or sample, provided the Magistrate records reasons in writing.
Practical point: where the person has never been arrested in connection with the investigation or proceeding, the order should disclose the recorded reasons supporting use of the statutory exception.
Section 349 BNSS and Former Section 311A CrPC
Section 349 broadly corresponds to former Section 311A of the Code of Criminal Procedure, 1973, which dealt with specimen signatures and handwriting. Section 349 is wider in express wording because it also refers to finger impressions and voice samples. It also contains the additional written-reasons proviso permitting an order even when the person has not been arrested.
| Point | Former CrPC Section 311A | BNSS Section 349 |
|---|---|---|
| Specimen signatures | Expressly covered | Expressly covered |
| Handwriting | Expressly covered | Expressly covered |
| Finger impressions | Not expressly stated in Section 311A | Expressly covered |
| Voice sample | Not expressly stated in Section 311A | Expressly covered |
| Order without prior arrest | No equivalent second proviso in Section 311A | Permitted for reasons recorded in writing |
When Section 349 May Be Used
Depending on the facts of the investigation or proceeding, the provision may be used where a comparison of handwriting, signatures, fingerprints or a voice sample is considered necessary. The section itself does not decide the evidentiary value of the resulting comparison; it provides the procedural authority for the Magistrate's direction to furnish the specimen or sample.
Key Takeaways
- Section 349 is a procedural power exercisable by a Magistrate of the first class.
- The person directed to provide the sample may be an accused person or another person.
- The Magistrate must consider the direction expedient for an investigation or proceeding under the BNSS.
- The section expressly covers signatures, finger impressions, handwriting and voice samples.
- Prior arrest is the ordinary statutory condition, but the Magistrate may dispense with it by recording reasons in writing.
Related BNSS Provisions
For nearby provisions concerning evidence and trial procedure, see Section 347 - Local inspection, Section 348 - Power to summon material witness or examine person present, and Section 350 - Expenses of complainants and witnesses.
Legal information: This page is a general explanation of the statutory provision. Application of Section 349 depends on the facts, the order passed by the competent court and other applicable law.