Sunday, 3 March 2019

Whether it is mandatory for police to take permission of magistrate for taking fingerprints of accused?

Another incriminating factor as argued by the counsel for
the complainant is that the fingerprints of Accused No. 1 were
found upon the tea tumblers found at the scene of the crime. We
do not agree with the conclusion of the High Court that the
fingerprint samples of the accused (used for comparison with the
fingerprints on the tumblers) were illegally obtained, being in
contravention of the Identification of Prisoners Act, 1920,
inasmuch as they were obtained without a magisterial order.
Importantly, Section 4 refers to the power of a police officer to
direct taking of measurements, including fingerprints:
“4. Taking of measurements, etc., of nonconvicted
persons.—Any person who has been arrested in
connection with an offence punishable with rigorous
imprisonment for a term of one year or upwards shall,
if so required by a police officer, allow his
measurements to be taken in the prescribed manner.”
Section 5 of this Act provides for the taking of such samples upon
an order of a Magistrate, if the Magistrate is satisfied as to its
expediency:
“5. Power of Magistrate to order a person to be
measured or photographed.—If a Magistrate is
satisfied that, for the purposes of any investigation or
proceeding under the Code of Criminal Procedure,
1898 (5 of 1898)† it is expedient to direct any person to
allow his measurements or photograph to be taken, 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 the
order and shall allow his measurements or photograph
to be taken, as the case may be, by a police officer:
Provided that no order shall be made directing
any person to be photographed except by a Magistrate
of the First Class:
Provided further, 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.”
However, as affirmed recently by this Court in Sonvir v. State
(NCT) of Delhi, (2018) 8 SCC 24, Section 5 is not mandatory but is
directory, and affirms the bona fides of the sampletaking
and
eliminates the possibility of fabrication of evidence. The Court
also relied on various judgments on the point, including
Shankaria v. State of Rajasthan, (1978) 3 SCC 435, a threeJudge
Bench decision of this Court to reach this conclusion. While

discussing the decision of this Court in Mohd. Aman v. State of
Rajasthan, (1997) 10 SCC 44, the Court observed at paragraphs
6062
as follows:
“60. This Court observed that the prosecution has
failed to establish that the seized articles were not or
could not be tampered with before it reached the
Bureau for examination. Further the following was
stated in para 8: (Mohd. Aman case [Mohd.
Aman v. State of Rajasthan, (1997) 10 SCC 44 : 1997
SCC (Cri) 777] , SCC p. 49)
“8. … Apart from the above missing link and the
suspicious circumstances surrounding the same, there
is another circumstance which also casts a serious
mistrust as to genuineness of the evidence. Even
though the specimen fingerprints of Mohd. Aman had
to be taken on a number of occasions at the behest of
the Bureau, they were never taken before or under the
order of a Magistrate in accordance with Section 5 of
the Identification of Prisoners Act. It is true that under
Section 4 thereof police is competent to take fingerprints
of the accused but to dispel any suspicion as to its
bona fides or to eliminate the possibility of fabrication
of evidence it was eminently desirable that they were
taken before or under the order of a Magistrate.”
(emphasis supplied)
61. The above observation although clearly
mentions that under Section 4 police officer is
competent to take fingerprints of the accused but
to dispel as to its bona fide or to eliminate the
fabrication of evidence it was eminently desirable
that they were taken before or under the order of
the Magistrate.
62. The observation cannot be read to mean that this
Court held that under Section 4 police officers are not
entitled to take fingerprints until the order is taken
from the Magistrate. The observations were made that
it is desirable to take the fingerprints before or under
the order of the Magistrate to dispel any suspicion…”
(emphasis supplied)
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1980 OF 2008

Ashish Jain  Makrand Singh and Ors.


Mohan M. Shantanagoudar, J.
Dated:January 14, 2019.

Citation: AIR 2019 SC 546.
Read full judgment here:Click here
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