Delhi High Court
Bhupinder Singh vs State on 30 September, 2011
Author: Dipak Misra
Bench: Chief Justice, Anil Kumar, Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 12th August, 2011
% Judgment pronounced on: 30th September, 2011
+ CRIMINAL APPEAL NO. 1005/2008
BHUPINDER SINGH ..... APPELLANT
Through: Mr. Ajay Verma, Mr. Gaurav
Bhattacharya, Advs.
versus
STATE ..... RESPONDENT
Through: Mr. Pawan Sharma, Standing Counsel along
with Mr.Kushagra Arora, Mr.Harsh
Prabhakar, Advocates
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether reporters of the local papers be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
DIPAK MISRA, CJ
Expressing doubt with regard to the correctness of the decisions in Harpal
Singh v. State (Criminal Appeal No.362/2008 decided on 25th May, 2010) and
Satyawan v. State (Criminal Appeal No.34/2001 decided on 9th July, 2009)
wherein the two Division Benches had ignored the part of the report of the
Crl.A. No.1005/2008 Page 1 of 15
handwriting expert on the ground that the investigating officer had taken specimen
handwriting in violation of the provisions of the Identification of Prisoners Act,
1920 (for brevity „the 1920 Act‟), the Division Bench that was hearing the
Criminal Appeals No.1005/2008 [Bhupender Singh v. The State (Govt. of NCT of
Delhi)] and No. 408/2007 [Drojan Singh v. The State (Govt. of NCT of Delhi)],
referred the following question to be adjudicated by a larger Bench:
"Whether the sample finger prints given by the accused during
investigation under section 4 of the Identification of Prisoners
Act, 1920 without prior permission of the Magistrate under
Section 5 of the Act will be admissible or not?"
Under these circumstances, the matter has been placed before us.
2. As the question, that has been referred, totally rests on the interpretation of
the provisions of the 1920 Act, the facts need not be adumbrated in detail except
stating that at the time of hearing the appeals, the Division Bench, while adverting
to the concept of circumstantial issue, was required to deal with the reliance placed
by the prosecution on sample finger prints as a part of circumstantial evidence.
3. At the very outset, we may refer with profit to the Statement of Objects and
Reasons of the 1920 Act. It reads as follows:
"The object of this bill is to provide legal authority for taking of
measurements, finger impressions, foot-prints and photographs
of persons convicted of, or arrested in connection with, certain
offences. The value of the scientific use of finger impressions
Crl.A. No.1005/2008 Page 2 of 15
and photographs as agents in the detection of crime and the
identification of criminals is well known, and modern
development in England and other European countries render it
unnecessary to enlarge upon the need for the proposed
legislation.
The existing system by which the police in India take finger
impressions, photographs, etc., of criminals and suspected
criminals is void of legal sanction, except as regards registered
members of criminal tribes, in whose case provision exists for
the taking of finger impressions in Section 9 of the Criminal
Tribes Act, 1911 (III of 1911). The need for legalising the
practice has long been recognized, but it was not thought
expedient to take the matter up so long as no practical
difficulties arose. Instances have recently been reported to the
Government of India where prisoners have refused to allow
their finger prints or photographs to be taken. With a view to
prevent such refusals in future it is considered necessary
without further delay to place the taking of measurements, etc.,
which is a normal incident of police work in India as elsewhere,
on a regular footing. No measurement, etc., of any person will
be taken compulsorily unless that person has been arrested."
4. Section 2(a) defines "measurements" as follows:
"(a) "measurements" include finger impressions and foot-print
impressions."
5. Section 3 provides taking of measurements, etc., of convicted persons. It
reads as follows:
"3. Taking of measurements, etc., of convicted persons. --
Every person who has been, --
Crl.A. No.1005/2008 Page 3 of 15
(a) convicted of any offence punishable with rigorous
imprisonment for a term of one year or upwards, or of any
offence which would render him liable to enhanced punishment
on a subsequent conviction; or
(b) ordered to give security for his good behaviour under
section 118 of the Code of Criminal Procedure, 1898,
shall, if so required, allow his measurements and photograph to
be taken by a police officer in the prescribed manner."
6. Section 4 stipulates taking of measurements, etc., of non-convicted persons.
It is as follows:
"4. Taking of measurement, 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."
7. Section 5 deals with the power of magistrate to order a person to be
measured or photographed. The said provision is as under:
"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:
Crl.A. No.1005/2008 Page 4 of 15
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."
8. On an x-ray of Section 4 of the Act, it is perceptible that if it is required by a
police officer, a person who has been arrested in connection with an offence
punishable with rigorous imprisonment for a term of one year or upwards, allow
his measurement to be taken in the prescribed manner. The term "prescribed"
means prescribed by the rules made under the Act. Section 5 authorises a
Magistrate to direct any person to allow his measurements or photographs to be
taken if he is satisfied that it is expedient for the purpose of an investigation or
proceeding under the Code of Criminal Procedure. In Harpal Singh (supra), the
Division Bench has held as follows:
"18. Unfortunately, for the prosecution, the charge against
Neeraj has to fail for the simple reason Neeraj's specimen
handwriting was obtained by the police when he was in their
custody. No permission was taken from the Court concerned to
obtain his specimen handwriting."
9. In Satyawan (supra), another Division Bench has held thus:
"27. We ignore the part of the report of the handwriting expert
wherein he has opined that the specimen writings S-1 to S-8 of
Satish matched the writing on the ransom note Ex.PW-3/A, for
Crl.A. No.1005/2008 Page 5 of 15
the reason, the investigating officer took the specimen writings
in violation of the provisions of the Identification of Prisoners
Act 1920 and also contrary to the law that specimen writing for
purposes of expert opinion can be directed to be taken under
orders of the Court where the trial is pending as held
authoritatively in various judicial pronouncements being: AIR
1980 SC 791 State of U.P. vs. Rambabu Mishra and 1994 (5)
SCC 152 Sukhwinder Singh & Ors. vs. State of Punjab."
10. It is worth noting that a Single Judge of this Court in Sunil Kumar @ Sonu
Vs State of NCT of Delhi, Crl.A. No. 446 of 2005 decided on 25.3.2010, without
taking note of the Division Bench decisions, has held thus:
"26. It is true that the specimen finger print impressions of the
appellants were taken by the IO directly and not through the
Magistrate as provided in Section 5 of Identification of
Prisoners Act. But, that, to my mind was not necessary because
Section 4 of Identification Prisoners Act specifically provides
that 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 measurement to be taken in the prescribed manner. In
view of the independent powers conferred upon a police officer
under Section 4 of the Act, it was not obligatory for him to
approach the Magistrate under Section 5 of the Act. He would
have approached the Magistrate, had the appellants refused to
give Specimen Finger Print Impressions to him. Therefore, no
illegality attaches to the specimen finger print impressions
taken by the Investigating Officer. The court needs to
appreciate that the very nature and characteristic of material
such as finger prints renders it intrinsically and inherently
impossible for anyone to fabricate them. If there is an attempt to
fabricate finger prints, that can certainly be exposed by the
accused by offering to allow his finger prints to be taken so that
the same could be compared through the process of the court.
Crl.A. No.1005/2008 Page 6 of 15
None of the appellants has come forward to the court with a
request to take his finger print impressions in the court and get
them compared with the chance finger prints lifted by PW-1
from Car No. DL 2C A 4116 on 21st December, 2000."
11. To appreciate the question raised, we shall refer to certain authorities in the
field in the context of the 1920 Act.
12. In Shankaria v. State of Rajasthan, (1978) 3 SCC 435, a three-Judge
Bench of the Apex Court was dealing with Sections 4 and 5 of the 1920 Act. In
that context, their Lordships have held as follows:
"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 specimen 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
finger-prints 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."
13. In Mohd. Aman v. State of Rajasthan, (1997) 10 SCC 44, it has been held
thus:
Crl.A. No.1005/2008 Page 7 of 15
"8. ....It is true that under Section 4 thereof police is
competent to take finger prints of the accused but to dispel any
suspicion as to its bonafides 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. The other
related infirmity from which the prosecution case suffers is that
the brass jug, production of which would have been the best
evidence in proof of the claim of its seizure and subsequent
examination by the Bureau, was not produced and exhibited
during trial - for reasons best known to the prosecution and
unknown to the court. For the foregoing discussion we are
unable to sustain the convictions of Mohd. Aman."
On a perusal of the aforesaid paragraph, it is clear as crystal that under
Section 4 of the 1920 Act, the police is competent to take finger prints of the
accused and such evidence would not be inadmissible.
14. In State of Madhya Pradesh v. Devendra, (2009) 14 SCC 80, a three-Judge
Bench of the Apex Court, analysing the anatomy of Sections 3, 4 and 5 of the 1920
Act, has held thus:
"10. Section 3 deals with taking of measurements of the
convicted persons. The photographs and measurements and
photographs can be taken by the police officer in the manner
prescribed. Section 4 deals with taking of measurement, etc. of
non-convicted persons. It is taken if the police officer so
requires it and it has to be done in the prescribed manner.
11. So far as Section 5 is concerned, it deals with the power
of the Magistrate to direct any person for measurements or
photographs to be taken if he is satisfied that for the purpose of
any investigation or proceedings under the court the same is
necessary.
xxx xxx xxx
Crl.A. No.1005/2008 Page 8 of 15
14. Needless to say, the directions are subject to provisions
of the Act, the Regulations and the Code. In case of conflict
statute itself prevails. In case of complainant as well as
witnesses, where the prosecution wants to protect the identity,
the reasons, therefor, must be recorded. In case of rape victims,
photographs should not be taken."
The aforesaid pronouncement clearly lays down that Sections 4 and 5 deal
with different spheres. Section 4 of the 1920 Act deals with taking of
measurements, etc., of non-convicted persons and that is taken if the police officer
so requires it and it has to be done in the prescribed manner. As far as Section 5 is
concerned, it deals with the power of Magistrate to direct any person to be
measured or photographed if he is satisfied that for the purpose of an investigation
or proceeding under the Court, the same is necessary. Thus, their Lordships have
carved out two different compartments.
15. In Manikram v. State, (2009) 5 CTC 316, it has been held that there is no
law which prohibits the investigating officer from lifting the finger prints of the
accused for comparison during the course of investigation of the case. Section 5 of
the 1920 Act and Section 311-A of the Code of Criminal Procedure, as inserted by
Act 25 of 2005 with effect from 23.6.2006, speak only about the powers of the
Judicial Magistrate when he is approached by the investigating officer for the
purpose of issuance of a suitable direction to the accused to cooperate by giving his
Crl.A. No.1005/2008 Page 9 of 15
finger prints or signature or sample handwriting, as the case may be. Needless to
empahsise, neither Section 5 nor Section 311-A put any embargo on the
investigating officer for acting on his own for taking the finger prints, signature or
handwriting of the accused during the course of investigation. It has been held in
the said case that there is no mandatory provision under the 1920 Act to obtain the
permission of the Magistrate.
16. In State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808 : (1962) 3
SCR 10, the contentions that were raised before the Apex Court, inter alia, were
that Section 27 of the Indian Evidence Act, 1872 is violative of Article 14 of the
Constitution and the impressions of the palms and finger prints taken from the
appellant therein after his arrest which were compared with the impression on the
glass panes and phials were not admissible evidence in view of the provisions
contained in Article 20(3) of the Constitution. Be it noted, in the said case, though
the provisions of Sections 5 and 6 of the 1920 Act were not attacked on the ground
of being ultra vires of Article 20(3) of the Constitution, yet it was urged in the
context of the said Article that the measurements collected would be inadmissible.
Their Lordships, dealing with the issues, held thus:
"16. In view of these considerations, we have come to the
following conclusions :-
Crl.A. No.1005/2008 Page 10 of 15
(1) An accused person cannot be said to have been compelled to
be a witness against himself simply because he made a
statement while in police custody, without anything more. In
other words, the mere fact of being in police custody at the time
when the statement in question was made would not, by itself,
as a proposition of law, lend itself to the inference that the
accused was compelled to make the statement, though that fact,
in conjunction with other circumstances disclosed in evidence
in a particular case, would be a relevant consideration in an
enquiry whether or not the accused person had been compelled
to make the impugned statement.
(2) The mere questioning of an accused person by a police
officer, resulting in a voluntary statement, which may
ultimately turn out to be incriminatory, is not 'compulsion'.
(3) 'To be a witness' is not equivalent to 'furnishing evidence' in
its widest significance; that is to say, as including not merely
making of oral or written statements but also production of
documents or giving materials which may be relevant at a trial
to determine the guilt or innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or
fingers or specimen writings or showing parts of the body by
way of identification are not included in the expression 'to be a
witness'.
(5) 'To be a witness' means imparting knowledge in respect of
relevant facts by an oral statement or a statement in writing,
made or given in court or otherwise.
(6) 'To be a witness' in its ordinary grammatical sense means
giving oral testimony in court. Case law has gone beyond this
strict literal interpretation of the expression which may now
bear a wider meaning, namely, bearing testimony in court or
out of court by a person accused of an offence, orally or in
writing.
(7) To bring the statement in question within the prohibition of
Article 20(3), the person accused must have stood in the
character of an accused person at the time he made the
Crl.A. No.1005/2008 Page 11 of 15
statement. It is not enough that he should become an accused,
any time after the statement has been made."
17. In State of Uttar Pradesh v. Ram Babu Misra, (1980) 2 SCC 343, on which
certain Division Benches have placed reliance, the investigating officer moved the
learned Chief Judicial Magistrate to direct the accused to give a specimen writing
for the purpose of comparison with certain disputed writings. Their Lordships
referred to Section 73 of the Indian Evidence Act, 1872 and Section 5 of the 1920
Act and held thus:
"6. There are two things to be noticed here. First, signature
and writing are excluded from the range of Section 5 of the
Identification of Prisoners Act and, second, 'finger impressions'
are included in both Section 73 of the Evidence Act and Section
5 of the Identification of Prisoners Act. A possible view is that
it was thought that Section 73 of the Evidence Act would not
take in the stage of investigation and so Section 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 Section 73
of the Evidence Act."
18. If the aforesaid decision is appositely understood, it would mean that Section
73 of the Evidence Act does not enable the Magistrate to give directions to the
accused to give a specimen signature when the case is still under investigation. It
is because Section 73 of the Evidence Act, 1872 fundamentally contemplates
Crl.A. No.1005/2008 Page 12 of 15
pendency of some proceedings before the Court. That apart, as has been held by
their Lordships, signatures and writings are excluded from the range of Section 5
of the 1920 Act. Thus, it is clear as crystal that the decision rendered in Ram Babu
Misra (supra) is not a precedent on Section 5 of the 1920 Act. More so, their
Lordships have rested the conclusion by interpreting Section 73 of the Finance Act.
In State v. M. Krishna Mohan & Anr., (2007) 14 SCC 667, the Apex Court has
opined that the specimen fingerprints and handwritings can be taken from an
accused.
19. In this context, we may also refer to the concept of investigation as defined
in Section 2(h) of the Cr.P.C. which clearly stipulates that investigation includes all
the proceedings under the Code for collection of evidence conducted by a police
officer or by any person other than a Magistrate who is authorized by the
Magistrate in this behalf. In Directorate of Enforcement v. Deepak Mahajan &
Anr., AIR 1994 SC 1775, it has been opined that the term „investigation‟ as
defined in Cr.P.C. has an inclusive definition. In fact, investigation includes all
efforts of a police officer for collection of evidence, namely, proceeding to the
spot, ascertaining facts and circumstances, discovery and arrest of the suspected
offender, collection of evidence relating to commission of offence which may
consist of examination of various persons including the accused and taking of their
Crl.A. No.1005/2008 Page 13 of 15
statements in writing and the search of places or seizure of things which are
considered essential for investigation and to be produced at the trial. It is worth
noting that in Pooran Mal v. The Director of Inspection (Investigation), New
Delhi, (1974) 1 SCC 345, it has been held that evidence obtained on an illegal
search cannot be excluded. In State of Karnataka v. Yarappa Reddy, AIR 2000
SC 185, it has also been held that criminal justice should not be allowed to become
casualty for the wrongs committed by the investigating officers.
20. In Inspector of Police & Ors. v. N.M.T. Joy Immaculate, (2004) 5 SCC
729, it has been clearly laid down that the admissibility of evidence or a piece of
evidence has to be judged having regard to the provisions of the Evidence Act. In
State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, their Lordships
opined that even if evidence is illegally obtained, it is admissible.
21. We may hasten to add that we have referred to the aforesaid authorities only
for the purpose that the concept of investigation has a different connotation and
how the material collected during investigation is to be appreciated remains within
the domain of the trial Court. In the case at hand, on the basis of the authorities
we have referred to hereinabove, it is clearly discernible that there is a difference in
the language employed in Sections 4 and 5 of the 1920 Act. That has been
Crl.A. No.1005/2008 Page 14 of 15
explained by their Lordships in Shankaria (supra), Mohd. Aman (supra),
Devendra (supra) and M. Krishna Mohan (supra).
22. Thus understood, in our considered opinion, the view expressed in the
decisions in Harpal Singh (supra) and Satyawan (supra) is not the correct view.
Therefore, the decisions rendered therein are hereby overruled. The view
expressed in the case of Sunil Kumar (supra) by the learned Single Judge lays
down the law in correct perspective.
23. The reference is answered accordingly. Matter be placed before the
appropriate Division Bench for hearing of the appeal.
CHIEF JUSTICE
ANIL KUMAR, J.
SANJIV KHANNA, J. SEPTEMBER 30, 2011 pk Crl.A. No.1005/2008 Page 15 of 15