What Supreme Court ruled on Power of Police Officer to take Fingerprints of Arrested Persons [Read Judgment]

The Supreme Court today held that even in the absence of any Rules framed by the State, an Investigating Officer is empowered under Section 4 of the Identification of Prisoners Act, 1920 (Act) to take fingerprints of arrested persons. The Court also reiterated that such a power can be exercised by the police officer even without obtaining an order from Magistrate under Section 5 of the Act..The judgment, which was delivered by a Bench of Justices Ashok Bhushan and Indu Malhotra, also explained the import of the statutory provisions in this regard besides discussing various case laws on the subject..Relevant provisions.The two relevant provisions in this regard are Section 4 and 5..Section 4 deals with the taking of measurements of non-convicted persons which is to the following effect:.“Taking of measurements, etc., of non-convicted 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 deals with the power of Magistrate to order a person to be measured or photographed which is as follows:.“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 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.”.Section 8 empowers the State to frame Rules..Background.The question regarding the scope and interpretation of Sections 4 and 5 of the Act arose in a murder case in which the appellants were convicted by the trial court and the Delhi High Court. The Delhi High Court while dismissing the appeal against conviction discarded the evidence of palm impression of the appellant..The High Court had placed reliance on its Full Bench judgment in Sapan Haldar & Another vs. State which according to the High Court had held that only when by way of rules or executive instruction the manner is prescribed to take the measurements, then alone an IO under Section 4 of the Act can obtain the measurements..Further, the High Court also reasoned that it was eminently desirable as per the Supreme Court decision in Mohd. Aman and Anr. vs. State of Rajasthan [(1997) 10 SCC 44] to follow the procedure ordained under Section 5 of the Act..Judgment.The Court at the outset made it clear that the judgment in Sapan Halder’s case will not apply to the present case since the Sapan Halder’s case dealt with the admissibility of sample handwriting or signatures obtained from a person accused of having committed an offence..“We fail to see the necessity to lay down any law with regard to Sections 4 and 5 in Sapan Haldar’s case when reference was with regard to the admissibility of sample handwriting obtained from a person accused of having committed an offence during investigation of crime.”.Despite the same, the Court proceeded to examine the law in Sapan Halder. Sapan Halder had placed reliance on Mohd. Aman’s case to hold that under Section 4, a Police officer is empowered to take fingerprints only under the order of a Magistrate..The Court adverted to Mohd. Aman wherein it was held that under Section 4, a Police officer is competent to take fingerprints of the accused, but to dispel any suspicion as to its bona fides or to eliminate the fabrication of evidence it was eminently desirable that they were taken before or under the order of magistrate..This observation, the Court held, cannot be read to mean 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. 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..In this regard, the Court also placed reliance on the judgment in Shankaria vs. State of Rajasthan in which a three-judge Bench held that it was not necessary for the Police officer to obtain an order from a Magistrate for obtaining a specimen of fingerprints..“Law laid down by three-Judge Bench judgment is thus clearly applicable in the present case.”.The Court then proceeded to address the second reasoning adopted by the High Court – there being no rules or executive instructions under Section 8 prescribing a manner of taking of fingerprints, Police Officer cannot exercise the power under Section 4..The Court observed that power of the State given under Section 8 to frame rules is an enabling power. The word used under Section 8 is, the State Government “may”. The power given to the Police Officer to ask a person arrested to give his measurements is a substantive power. This power is hedged by the condition that such measurement has “to be taken in the prescribed manner” if there is any prescribed manner that cannot be breached by such Police Officer..Taking of the measurements in the prescribed manner is a procedural part of the Section which does not affect the substantive power of the Police Officer to ask an accused who is under arrest to give his measurement, the Court ruled..It then placed heavy reliance on the judgment in Surinder Singh Vs. Central Government & Ors. and held that non-framing of any rules under Section 8 by the State Government will not prohibit the exercise of powers given under Sections 3 and 4 of the Act..“Exercise of power under Sections 3 and 4 is hedged by conditions as prescribed but in a case where no rules have been framed, the authorities as empowered under Sections 3 and 4 are not denuded of their powers to act under Sections 3 and 4.”.In case, the interpretation that in absence of rules framed under Section 8, no power can be exercised under Sections 3 and 4 is accepted, the provisions of Sections 3 and 4 shall become a dead letter. This was never the intention of the legislature in enacting the 1920 Act, the Court held..The Court also dealt with the submission of the appellant that when there is no rule framed providing a prescribed manner for taking fingerprints, resort to Section 5 has to be taken by IO..The Court made it clear that Section 5 is a separate power given to Magistrate..“The power of the Magistrate is an additional and separate power to secure ends of justice for purpose of investigation and proceedings under Code of Criminal Procedure. It may be exercised even in a case where after arrest Police Officer has not taken fingerprints of an accused. But, it cannot be held that power under Section 4 can be exercised by the Police Officer only after obtaining an order under Section 5.”.Read the judgment below.