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

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Whether police can obtain specimen fingerprint of accused without order of magistrate?

  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. {Para 16}

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 958 OF 2017

SONVIR @ SOMVIR Vs THE STATE OF NCT OF DELHI ... 
ASHOK BHUSHAN, J.
Dated: JULY 02, 2018
Citation:(2018) 8 SCC 24

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Whether magistrate can direct accused to give his finger prints in course of investigation?

The Magistrate can direct a person to give his finger prints in the course of investigation by the police by virtue of Section 5 of the Identification of Prisoners Act but not under Section 73 of the Evidence Act though the finger prints are included therein for the purpose of comparison.”

11. The aforesaid view taken by the Division Bench of the Madras High Court, has found favour with the Supreme Court in the decision reported as AIR 1980 SC 791; State of U.P. v. Ram Babu Mishra. Ram Babu Mishra, as was T. Subbiah, accused of forgery and cheating, and as in the case of T. Subbiah, the Investigating Officer moved an application in the Court of the Chief Judicial Magistrate, Lucknow praying that Ram Babu Mishra be directed to give his specimen writing, stating that it was required for the purpose of comparison with certain disputed writings. The Investigating Officer sought to impress upon the Chief Judicial Magistrate that he had the power to do so under Section 5 of The Identification of Prisoners Act 1920. The learned Chief Judicial Magistrate declined, holding that he had no power and that it was only the power of the Court concerned where Ram Babu Mishra would be tried, to so direct. The appeal by the State before the High Court was dismissed. The matter reached the Supreme Court. With reference to the definition of the word ‘measurements’ as defined in clause (a) of Section 2 of The Identification of Prisoners Act 1920, in paragraph 6 of its opinion, the Supreme Court held:—

“There are two things to be noticed here. First, signature and writing are excluded from the range of S. 5 of The Identification of Prisoners Act and, second ‘finger impressions’ are included in both S. 73 of the Evidence Act and S. 5 of The Identification of Prisoners Act. A possible view is that it was thought that S. 73 of the Evidence Act would not take in the stage of investigation and so S. 5 of The Identification of Prisoners Act made special provision for that stage and even while making such provision, signature and writings were deliberately excluded as we said, this is a possible view but not one on which we desire to rest our conclusion. Our conclusion rests on the language of S. 73 of the Evidence Act.”

12. In the next paragraph, the Supreme Court held that with reference to specimen signatures and handwriting it is only the Court which would hold the trial as per the Criminal Procedure Code which would be the Court having jurisdiction to direct the accused to furnish his specimen signatures or handwriting as per Section 73 of the Evidence Act 1872

Delhi High Court

(Before Acting Chief Justice, S.P. Garg and Pradeep Nandrajog, JJ.)

Sapan Haldar & Anr. v. State .

Crl.A. 804/2001

Decided on May 25, 2012

Citation: 2012 SCC OnLine Del 3078 : (2012) 191 DLT 225 (FB)

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Precaution to be taken by police while taking specimen finger print

Thus perusal of above evidence does not conclusively establish that it is appellant/accused whose thumb impression is appearing in the purchase register at sr. No. 162, which has been proved as Exh. 53 by the prosecution. For reasons already recorded above seizure of register itself becomes doubtful. It is attempt of prosecution to bring on record through finger print expert P.W16, that the said thumb impression in purchase register is of the present appellant/accused who disclosed his name to P.W. 13 and 14 as Kaluram son of Hiraman Baraskar, resident of Kundi. Even if it is presumed that finding reached by this expert is correct, still it only may prove that impression in purchase register matches with specimen impression. But there is absolutely no evidence to connect said specimen impression with present appellant. PW15 police inspector Ajabrao Gawande has nowhere spoken about the mode and manner in which he proceeded to procure specimen or undisputed finger print impressions of appellant. These documents of purchase and pledge with evidence of P.W. 13 and 14 read with evidence of P.W. 15 police inspector and P.W. 16 finger print expert, therefore does not substantiate the story of the prosecution that the accused initially pledged the silver necklace Article 12 with P.W. 13 and then sold it to him on 11.1.2001. In his Section 313 statement appellant has denied that any thumb impression was made by him in purchase register. He has denied all memorandum of admissions allegedly made by him under Section 27 and even alleged recoveries in pursuance thereof. He denied that he pledged or sold any necklace to PW-13. This evidence in relation to finger print needs to be appreciated in this background. The evidence of expert also does not mention any reasons for the conclusions reached and hence, defence could not effectively cross-examine him. This Court also can not judicially evaluate relevance or otherwise of those reasons and find out points or number of similarities noticed by him or his office. Apart from this, his evidence is inherently week because he has tried to borrow by pointing out the alleged similar opinion of others working under him. There is one more reason which prompts us to discard the evidence of this witness. This expert PW-16 has stated that he tallied left hand thumb impression of Kishorilal shown by letter "S.L." in Ex. B-2 with the disputed thumb impression of Ex. A-1in the purchase register. These exhibit numbers are given by PW-15 while forwarding these impressions and disputed impression to Superintendent of police for obtaining opinion of department of PW-16 vide Ex. 67. Perusal of records reveal that there are Page 2381 3 separate papers marked as Ex. B-1, Ex. B-2 & Ex. B-3 by PW-15 & placed on record by prosecution as containing specimen impressions of appellant. It shows that PW-15 Shri Gawande has on 18/1/2001 obtained the same and all 3 sheets appear to be signed by him & by Milind Tulaskar (PW-11) and one Bhansali as pancha. On each sheet, the impressions appear in 3 rows. However as already found above neither PW-15 nor PW-11 have uttered a word about the mode, manner and process in which this was accomplished though in forwarding letter it is mentioned that impressions were obtained in presence of panchas. PW-11 has turned hostile while other pancha Bhansali has not been examined by prosecution at all. On each sheet the name of police constable Ajaykumar, B.C. No. 1420 is mentioned in front while on reverse his sign appears as finger print operator. From each sheet it appears that Ajaykumar was at the relevant time attached to Achalpur Police Station. Seal or stamp on reverse of sheet mentions that it is "finger search slip". In 12 heads below it, information like name of finger print bureau, name of police station, name of accused, name of his father, age of accused, caste of accused, his residential address and concerned police station, name of state of his residence, crime number and sections in which he was arrested, date & time of arrest and lastly the date of obtaining the finger impression have been filled in. Below it appear the words " signature of finger print operator" and illegible signature above it may be of Ajaykumar. Below this signature appear official seal with name & designation of "A.C. Gawande" i.e. PW-15. Prosecution has neither examined this Ajaykumar nor proved these details or contents. If Ajaykumar acted as finger print operator, it is perhaps he who obtained all specimen impressions and it was obligatory for prosecution to tender him in evidence to explain all relevant facts. It needs to be stated that in last or third row on each sheet of paper there appear impressions of upper portion of both palms, particularly all 10 fingers i.e. entire or complete portion of every finger. Impression on left of each sheet appears to be of fingers of left hand palm and that on right side appears to be of right palm fingers from placement of thumbs therein though any sheet does not expressly state it to be so. Above this row there are two rows of impressions, each consisting of 5 impressions. There is no mention on any of the sheets whether said impressions are only of thumb or thumbs &/or of tips of finger/fingers. Similarly it is not mentioned whether these impressions are of only one hand or of both hands. The expert witness PW-16 Pralhad has stated that he has put remarks as "S.R." & "S.L." by putting a border around it on first print in first & second row respectively in Ex. B-2. First impression at top has been put in a square by him with words "S.R." in it. Again first impression in second row has been put in a square by him with words "S.L." in it. Perusal of Ex. B-2 does not reveal any basis for putting such labels. Thus specimen impressions obtained by PW 15 ought to have been independently proved by prosecution by pointing out which impression is of which hand or finger. Prosecution has only proved fact of forwarding alleged specimen impression sheets but has failed to establish that said specimen are of appellant before us. In absence of this evidence connecting the specimen with accused/appellant, we find that the report of finger print expert does not assist the respondent prosecution in any way.

Bombay High Court

Mr. Kishorilal S/O Fulchand ... vs State Of Maharashtra Through ... on 22 October, 2007

Equivalent citations: 2007 (109) Bom L R 2363

Bench: D Sinha, B Dharmadhikari

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Why it is necessary to take specimen fingerprints of accused before or under order of Magistrate?

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 Rajasthan22 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:
“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.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1682 OF 2005
Prakash V State of Karnataka

Madan B. Lokur, J.
Citation;2014(2)crimes 207 SC

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