Karnataka High Court
M.S. Syed Anwar And Etc. vs Commissioner Of Police, Bangalore City ... on 8 April, 1991
Equivalent citations: 1992CRILJ1606, 1991(2)KARLJ375
ORDER
1. Since common question of law is involved in these petitions, they are clubbed together and a common order is passed.
2. The points for consideration in both the petitions are :-
1. Whether Police can take steps of taking measurements or photographs of unconvicted persons in the absence of any sanction from the competent authority ?
2. Whether prescription mentioned in the Police Manual can be said has force of law or otherwise ?
3. Whether provisions of Identification of Prisoners Act of 1920 is subservient to the Karnataka Police Act and Police Manual or otherwise ?
3. The facts which are not in dispute are that the petitioner No. 1 in the first petition in an official employed in Government Bangalore Diary. Petitioner No. 2 is the owner of Lorry and running an Automobile Workshop. Petitioner No. 1 in the second writ petition is a Jr. Telecom Officer which is one of the departments of Union of India. Petitioner No. 2 in the second writ petition is the Silk Merchant of Bangalore City. The respondents, in the absence of any complaint by the Police as required under Ss. 54 and 55 of the Karnataka Police Act of 1963 and in the absence of any prior permission granted by the Magistrate took these 4 petitioners to the concerned Police Station and obtained their either finger foot prints or photographs or both. When petitioners protested, respondents informed them that they require the same for further investigation and also to maintain history sheet.
4. Aggrieved by the acts of respondents, the petitioners have preferred these writ petitions seeking for the following relief (Relief in first writ petition) :-
"Wherefore the petitioner prays that this Hon'ble Court may be pleased to direct the respondents by way of writ of mandamus to destroy the photos and finger and foot prints of the petitioner before this Hon'ble Court in the interest of justice."
(Relief in IInd Writ petition) "Wherefore, under the circumstances, the petitioners above named pray that this Hon'ble Court be pleased to issue a writ in the nature of Mandamus directing the 2nd respondent to remove the photos of the petitioners from the galary of photos were the photos of habitual offenders and convicts are displayed and grant such other relief or reliefs as this Hon'ble Court deems fit under the circumstances of the case including costs."
on the following grounds :-
(1) The acts of respondents in compelling the petitioners to put their thumb marks and obtaining their photos are not only acts of highhandedness on the part of respondents but they are a clear case of misusing the powers on the one hand and misconstruing the provisions of Criminal Procedure Code, Karnataka Police Act and instructions given in the Police Manual and also Identification of Prisoners Act of 1920; (2) The instructions that have been given in the Police Manual regarding maintaining history-sheet are not sanctioned by Identification of Prisoners Act of 1920; (3) Before taking such an action, the Police has to take prior sanction from the Magistrate as required under S. 5 of the Identification of Prisoners Act of 1920; (4) Lastly, learned counsel for the petitioners Smt. Karpagam Kamath and Smt. T. N. Manjula Devi submit that since the above requirements are not complied with, the relief as sought by the petitioners be granted.
5. As an answer to these contentions, Sri Satish D. Doddamani, learned H.C.G.P. submits that mere securing photos of the petitioners or procuring their signatures or finger or foot prints or thumb impression cannot be equated to that of putting them in a rowdy list. The said information or particulars are required just to maintain a history-sheet. Merely because a history-sheet is maintained in respect of person, that does not mean that such person is included in the rowdy list. According to him, to maintain an history-sheet of a person, one need not be a habitual offender. It is sufficient if the concerned officer entertains a mere suspicion about a particular individual.
Procuring and maintaining such measurements or photographs can't be said in any way affect the fundamental rights of the persons concerned. According to him, the same are not punitive in nature. He further submits that Police has got powers under the Police Manual particularly at paragraph 1058 of the Police Manual to maintain a rowdy list :-
"Suspects. 1058. (1) The following persons should be classed as suspects and history-sheets should be opened for them under orders of the Superintendent or the Sub-Divisional Police Officer, if so empowered by the Superintendent :
(a) Persons one convicted under any section of the Indian Penal Code who are considered likely to commit crime.
(b) Persons not convicted but believed to be addicted to crime.
(2) Care should be taken to see that history-sheets are opened under this order only of persons who are likely to turn out to be habitual criminals and, therefore, required to be closely watched.
(3) The fact that a history-sheet has been opened for a suspect other than an ordinary criminal should be kept confidential."
According to him, the words 'suspect' or persons who are found in suspicious manner is explained under S. 96 of the Karnataka Police Act of 1963.
"96. Being found under suspicious circumstances between sunset and sunrise :- Whoever is found between sunset and sunrise :-
(a) armed with any dangerous instrument with intent to commit an offence, or
(b) having his face covered or otherwise disguised with intent to commit an offence, or
(c) in any dwelling house or other building, or boat, without being able satisfactorily to account for his presence there, or
(d) lying or loitering on any street, yard or other place being a reputed thief and without being able to give satisfactory account of himself, or
(e) having in his possession without lawful excuse (the burden of proving which excuse shall be on such person) any implement of house breaking, shall, on conviction, be punished with imprisonment for a term which may extend to three months."
6. He also submits that in such matters obtaining permission of concerned Magistrate is not warranted. According to him that it is sufficient if the Police Officers are authorised by the Superintendent as required under Ss. 54 and 55 of Karnataka Police Act of 1973 or under certain circumstances if the concerned police officer is satisfied that obtaining and procuring of such measurement or finger, foot prints of such person or individual is quite necessary.
7. He lastly submits that in case of petitioners 1 and 2 in first petition, they had involved in a criminal case earlier in S.C. 100/84 on the file of the learned City Civil Judge, C.H. 4 Bangalore City which ended in acquittal. But the police apprehended that they may continue of similar offences. In case of both the petitioners in second writ petition reasons are given by the respondent to compel the petitioners to give their photos and signatures and thumb impression. The said persons committed an offence punishable under S. 80 of Karnataka Police Act of 1963, in that both were caught when they were playing, 'andhar, bahar' game which is forbidden. According to him not merely photos of the petitioners are obtained but also their thumb impression and signatures are procured. They need not have any fear that their names will be shown in the rowdy list that too when the concerned police are not at all desirous to display their photos or the signatures or thumb impression of anyone of the petitioners. To him, the above is purely a precautionary measure which in no way interferes in the personal liberty of anyone of the petitioner or tends to bring down their reputation in the eyes of the general public.
8. For these reasons Shri. Satish Doddamani submits that apprehension of the petitioners in both the petitions are quite imaginary and unfounded as such both the petitions be dismissed.
9. After hearing both sides and going through the averments made by both the parties, including relevant Acts relied upon I am of the view that action of the respondents in both the petition is quite unwarranted as such it has to be said as illegal for the following reasons :
1) In the instant case we are concerned with taking measurements and photographs of unconvicted persons. Nowhere in the Police Act of 1963 it is mentioned that a person's measurement or photograph be obtained. When that is so then anything that is mentioned contrary in Police Manual at para 1058 has to be said as without sanction or authority particularly in case of unconvicted persons.
2) Classification of suspects in explained in S. 96 of the Police Act, 1963, whereas the reasons given by the Police as per these four petitioners cannot be brought within anyone of the grounds as explained in S. 96 of the said Act.
3) Further the word suspect has been explained in the Police Manual at para 1058, to the effect that
i) a person once convicted and who is likely to commit a crime
ii) those were not convicted but believed to be addicted to crime
iii) subject to para 2 of 1058 the concerned police also have been cautioned in maintaining their history-sheets of suspects mentioning history-sheet of suspect will be maintained only for those persons "who are likely to turn out to be habitual criminals and their movement required to be closely watched". From the above it is clear to say a person belongs to a suspected class,
a) first he must have been convicted and likelihood of further committing a crime
b) person who is addicted to crime or must be a habitual criminal. None of these requirements be made applicable to the case of the petitioners.
10. No doubt when a complaint is lodged alleging certain offences against a person and matter is under investigation, the Police would hold an identification parade of persons involved in such an offence. In order to see persons of such persons in future is assured and there shall not be any scope of impersonation or fabrication etc., a law has been enacted to take measurements and photographs of such persons and the said law is The Identification of Persons Act of 1920. As per S. 2 of Sub-section (a) of the said Act measurement includes finger impressions and when impressions as per S. 2 of sub-section (c) word prescribed defined to mean as rules made under this Act. S. 4 of the Act deals with taking of measurements or photographs of un-convicted persons. As far as Karnataka is concerned it reads as follows :
KARNATAKA :
"In its application to the State of Karnataka for Section 4 substitute the following :-
"4. Taking of measurements or photographs of unconvicted persons :-
Any person -
(a) who has been arrested in connection with an offence punishable under S. 96 of the Karnataka Police Act, 1963, or in connection with an offence punishable with rigorous imprisonment for a term of one year or upward or in connection with an offence for the commission of which on a second or subsequent occasion enhanced penalties have been provided for under any law for the time being in force; or
(b) in respect of whom direction or order under Section 54 or Section 55 of the Karnataka Police Act, 1963, has been made, shall if so required by a police officer allow his measurements or photographs to be taken in the prescribed manner.
The reading of Section 4 in its order makes it clear that taking of measurements or photographs of unconvicted persons will arise only when
i) a person shall have been arrest, offence must be one punishable under Section 96 of Karnataka Police Act of 1963.
ii) or any other offence could be punishable with rigorous imprisonment for a term of one year or upward.
iii) repeating of earlier offence, and likelihood of penalty being enhanced.
iv) apart from these, to procure the measurement of photographs of such unconvicted persons it shall be preceded by an order passed by the concerned competent Police Officer by way of a Circular under Section 54 and 55 of the Police Act, 1963 namely in certain cases of District Magistrate and in some cases the Commissioner of Police, or also by Police Officer if so required.
11. A measurement or photograph can also be taken by the concerned authorities in case of habitual offenders as envisaged in the provisions of Karnataka Habitual Offenders Act of 1961. Likewise, in case of others such an action can be taken as required under Section 11 of Karnataka Prohition of Beggary Act of 1975, apart from 1920 Act.
12. With a view to say that neither the personal liberty of an individual is infringed nor the powers conferred on the authorities misused it shall be seen that it is wise to allow the said officers to take such measurement or photograph only after obtaining necessary permission of the Magistrate under Section 5 of the said Act which reads as follows :
"5. "Power of Magistrate to order a person to be measure 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 to 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 the 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.
KARNATAKA :
In its application to the State of Karnataka, in S. 5, substitute the following for first proviso :-
Provided that no order shall be made directing any person to be photographed except by a District Magistrate, a Sub-Divisional Magistrate or a Magistrate of the First Class." -
Karnataka Act, 29 of 1975, S. 4(3) (12-8-75)."
Here on the application presented by the concerned Police, it cannot be treated for an order to measurement or photograph of an unconvicted person as a habitual offender or a beggar automatically. From the above it is clear that
a) material placed before the Magistrate shall satisfy on the request made by the concerned authorities for such measurement and procurement of photographs. When it is used in the Section, the word if the Magistrate is "satisfied" then it is proper that there shall be sufficient material before him, to arrive at a conclusion. Such satisfaction of the Magistrate shall be a subjective satisfaction. Further Section contemplates that obtaining of such measurement or photograph is for the purpose of investigation or proceeding under the Criminal Procedure Code, 1898.
b) Secondly obtaining of measurement of photograph of a person shall be so urgent and imperative.
c) Thirdly there should have been a prior arrest in connection with an investigation of proceedings.
13. Other Sections of the Act are not so relevant for the purpose. Thus reading of Section 5 makes it clear that permission of the Magistrate is mandatory. Any attempt on the part of the concerned Police to take measurement or photograph of a person without prior permission of the Magistrate is unwarranted and without an authority in law.
14. Keeping the principles mentioned above as indicated in Section 96 of the Act of 1963, 54, 55 and 56 of the same Act read with Act 5 Karnataka Habitual Offenders Act of 1961, Karnataka Prohibition Beggary Act of 1971 and Identification of Prisoners Act of 20 including para 1058 of Karnataka Police Manual it is clear that for the purpose of getting any measurements or photograph of a person by a Police it shall be
a) preceded by a prior sanction of the police officers or such an act by the police officer only under exceptional circumstances.
b) secondly in case of any investigation or proceedings initiated under the provisions of the Criminal Procedure Code, the prior sanction given by the Magistrate which sanction or permission can be obtained or granted only when it underwent the subjective satisfaction of the concerned Magistrate.
15. Such measurement obtained in the photograph under The Identification of Prisoners Act of 1920 or as mentioned in para 1058 of Police Manual cannot be made use of against an innocent individual. But it can be made use of against those who are classified as suspects. Who are the suspects have been defined in para 1058 of para 2. Merely because a person was earlier prosecuted for an offence the same not a ground to cannot the said person to an habitual offender or addicted to crime. To say a person is of suspicious character moving in a suspicious manner, a habitual offender, addicted to crime may repeat crime shall be based on convincing material.
16. The purpose behind obtaining measurement and photograph is to see that
i) habitual offender, persons involved in crimes shall not leave the headquarters or in case of attempt of crime in future it shall not be a problem to the police to identify such persons.
ii) in case of measurements it is seen that the signatures and thumb impressions found on certain documents or certain instruments shall not be tampered with.
But the same cannot be used against innocent persons in the guise of maintaining history sheet. Because history sheet has to be maintained only in case of those who are habitual offenders. If acts of police attempt to take measurements or photographs in the absence of any sanction obtained from competent authority, definitely it results in misusing the powers. In such circumstances there will be no guarantee in some cases the said powers may be used against innocent persons which in turn means to interfere any such persons personal liberty and also bringing down his respect and reputation in the eyes of the public. Hence, it has to be said that opening of history sheet of individual on mere suspicion by making use of para 1058 of the Police Manual is without an authority of law. At best it can be said just a guideline to guide the police officers under certain circumstances. This view of mine is supported by the law laid down by this Court in the case of Venkatachalapathy v. State of Karnataka, reported in ILR 1988 Kant 1261 at page 1265 : (1989 Cri LJ 519 at p. 521), para 10 as follows :
10. On page 36 of the Mysore Police Manual Volume II (1965 Edition), Chapter XXI is Order No. 1059 issued by the Inspector-General of Police purported to be issued under the Mysore Police Act, 1963 and it bears the heading, "Rowdies". The said order runs as follows :
"1059. The following persons may be classified as rowdies and rowdy sheets (Form No. 100) may be opened for them under the orders of the Superintendent or the Sub-Division Police Officer :-
(a) Persons who habitually commit, attempt to commit or abet the Commission of offences involving a breach of (peace).
(b) Persons bound over under Sections 106 and 107, Criminal Procedure Code.
(c) Persons who have been convicted under Sections 31(1)(u) or twice in two consecutive years under clauses m, o or p of sub-section (1) Section 92 of the Mysore Police Act, 1963.
(d) Any person who, in the opinion of the Station House Officer, is desirable to be considered as a 'Rowdy'."
From the Manual, it is apparent that it is a compendium of Departmental orders issued by the Inspector-General of Police for the administrative guidance of police officers. Though they are stated to have been issued under Mysore Police Act, 1963, they have no statutory basis and consequently no statutory force and merely acquire the attribute of executive or departmental instructions intended for the guidance of the police officers. Order No. 1059 containing Cls. (a) to (d) is no exception. In no sense, the said order could be construed as "a law" which the State is empowered to make under the appropriate clauses (2) to (6) of Article 19 in order to regulate the fundamental right guaranteed by the sub-clauses of Article 19(1) and obviously not a procedure established by law within the ambit of Article 21."
17. From the averments of both the parties in both the petitions it is clear that none of the petitioners were earlier convicted, or against them now there are any complaints for offences punishable for imprisonment exceeding one year. Also nothing to show that petitioners come within the definition of suspected class of habitual offenders and or addicted to crimes. As such any action taken by concerned police against these petitioners to get their measurement or the photograph to be declared as illegal and without the authority of law.
18. Hence, action of the respondents in both the petitions held as illegal. Writ petitions are allowed. Respondents are directed to return the measurements and photographs of the petitioners obtained and kept with them including the negatives of the photographs forthwith. No costs.
19. Petitions allowed.