Chance Fingerprints Tallying With Theft Accused Not Reliable When Spot & Manner Of Lifting Fingerprint Not Disclosed

In the instant case also, as observed above, neither

PW-5 - Investigating Officer nor PW-6 - Fingerprint expert,

has, anywhere, stated as to from which spot or from which

article the 'Chance Fingerprint' was lifted, and by whom and in

what manner. The person who is said to have lifted the

Fingerprint was not examined by the prosecution for the

reasons best known to it. The alleged 'Chance Fingerprint'

and also the article from which it might have been lifted also

have not been produced before the Court. In such a

circumstance, it is not safe to rely upon the mere report of the

Fingerprint expert that the 'Chance Fingerprint' given to him

for examination was corresponding to the fingerprint of the

accused and proceeding to convict the accused. {Para 26}

27. In such a circumstance, when there are several

gaps in the case of the prosecution as to the description of the

place and the article from which the fingerprint was lifted, as

to who lifted the Fingerprint, as to the manner adopted in

lifting the fingerprints and also in the absence of seizing and

producing the article from which the Fingerprint was said to

have been lifted, the same would make it unsafe to rely upon the

report given upon the examination of such an alleged Fingerprint by the Fingerprint expert.

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

CRIMINAL REVISION PETITION No.911 OF 2012

BETWEEN:

Thippeswamy @ Kunta  Vs State by Challakere Police,

BEFORE

 Dr. JUSTICE H.B. PRABHAKARA SASTRY

DATED:  6TH DAY OF JULY, 2022

Print Page

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  V Makrand Singh and Ors.

Print Page

Whether it is necessary for police to obtain order from Magistrate for obtaining specimen of fingerprints of accused?

33. 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 magistrate.

34. The observation cannot be read to mean that this Court held that under Section 4 Police Officer 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. Especially, the suspicions which were caused in the above case which is clear from the facts noticed in para Nos. 7 and 8. Observations of this Court in Mohd. Aman's case was in the facts of that case and cannot be read to mean that Police Officer cannot obtain fingerprints without obtaining an order from Magistrate under Section 5.

35. In this context, it is useful to note another judgment of this Court in Prakash v. State of Karnataka, (2014) 12 SCC 133 where two-Judge Bench of this Court relying on Mohd. Aman (supra) has given following observations in para 28:

“28. Assuming Prakash's fingerprint was in fact obtained by D'Souza, it was clearly not given voluntarily, but perhaps unwittingly and in what seems to be a deceitful manner. To avoid any suspicion regarding the genuineness of the fingerprint so taken or resort to any subterfuge, the appropriate course of action for the investigating officer was to approach the Magistrate for necessary orders in accordance with Section 5 of the Identification of Prisoners Act, 1920. In Mohd. Aman v. State of Rajasthan this Court referred to the possibility of the police fabricating evidence and to avoid an allegation of such a nature, it would be eminently desirable that fingerprints were taken under the orders of a Magistrate. We may add that this would equally apply to the creating evidence against a suspect. This is what this Court had to say: (SCC p. 49, para 8)

“8. … 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.””

36. This Court in above case repeated and reiterated the observations of the Mohd. Aman case, which we have already discussed above.

37. It is necessary to refer to a Three Judge Bench judgment of this Court in Shankariav. State of Rajasthan (supra). This Court in the above case had occasion to notice Section 4 and Section 5 of the 1920 Act where submission was raised before this Court that specimen of thumb impression of the appellant having not been obtained before the magistrate they cannot be relied. The argument was repelled by this court and following was laid down in paras 83 and 84:

“83. Mr. Gambhir next contends that in view of Section 5 of the Identification of Prisoners Act, it was incumbent on the police to obtain the specimn thumb-impressions of the appellant before a Magistrate, and since this was not done, the opinion rendered by the Finger Print Expert, Mr. Tankha, by using those illegally obtained specimen finger-impressions, must be ruled out of evidence.

84. The contention appears to be misconceived because in the State of Rajasthan, the Police were competent under Section 4 of the Identification of Prisoners Act, to take the specimen fingerprints of the accused, and this they did, in the instant case, before the Superintendent of Police, Shri K.P. Srivastava. It was not necessary for them to obtain an order from the Magistrate for obtaining such specimen fingerprints.”

38. The three Judge Bench clearly held that it was not necessary for the Police officer to obtain an order from a Magistrate for obtaining specimen of fingerprints. Law laid down by three-Judge Bench judgment is thus clearly applicable in the present case.

In the Supreme Court of India

(Before Ashok Bhushan and Indu Malhotra, JJ.)

Sonvir  v. State of NCT of Delhi 

Criminal Appeal No. 958 of 2017

Decided on July 2, 2018

Citation:2018 SCC OnLine SC 650

Print Page

Police officers can take Finger prints of accused for the purposes of investigation.

 What emerges from the above discussion is that section 73 of the Indian Evidence Act 1872 enables the Court to direct the taking of specimen handwritings, in matters pending before it. The direction is therefore, given by the Court for the purpose of enabling the Court to compare and not for the purpose of enabling the investigating or a prosecuting agency to obtain and produce as evidence in the case, the finger prints for their ultimate comparison with the chance prints. Thus it certainly does not bar the police officials to take finger prints for the purposes of investigation. As noted by the Constitution Bench of Supreme Court in Kathi Kalu Oghad (supra) such evidence does not stand barred by Article 20(3) of the Indian Constitution, as it is not deemed as being "a witness against oneself", and it does not amount to testimonial compulsion. Rambabu Mishra (supra) also clearly lays down that specimen handwritings and signatures, do not come within the purview of the Identification of Prisoners Act.1920. Thus under the said Act, obtaining sample handwriting or signatures is not barred  under any provisions of the said act and any sample handwriting or signatures taken by the police or investigating agency, unless specifically barred under any other legislation, cannot be excluded being not contrary to any provision of the said Act. It was held categorically that police officials are undoubtedly empowered to take measurements, etc under S. 4 of the Identification of Prisoners Act, and S.4 of the Act is independent of Sec. 5, in its application.

Delhi High Court

Bhupender Singh vs The State (Govt. Of Nct Of Delhi) on 6 April, 2011

Print Page