Identification Of Prisoners Act,1920

[Cites 73, Cited by 0]

Law Commission Report

Identification Of Prisoners Act,1920

LAW COMMISSION OF INDIA

EIGHTY - SEVENTH REPORT

ON
IDENTIFICATION OF PRISONERS ACT,1920

1980

Iustice P.V. DDKIT, Cf-iAI"RMAN'

LAW COMMISSION
GOVERNMENT OF INDIA

New Delhi, August 29, 1980.

My dear Minister,

I am herewith sending the Eighty-seventh Report of the Law Commission on 'Identiﬁcation
of Prisoners Act, 1920'.

2. The object of the Act is to provide legal authority for the taking of measurements of
ﬁnger impression, foot-prints and photographs of persons convicted of or arrested in connec-
tion with certain offences. Since the enactment of the Act some sixty years back, there has been
much advancement in the scientiﬁc use of ﬁnger impressions, measurements of foot-prints and
other limbs of the body, photographs in detection of crimes. It is, therefore necessary to revise
the Act so as to make it correspond with modern trend in criminal investigation. In its Report,
the Law Commission has suggested several amendments of the Act in that direction.

3. Our chief debt is owed to Shri P.M. Bakshi, Member-Secretary, who prepared the Report.
The assistance given by Shri V.V. Vaze must also be acknowledged with thanks.

With regards,

Yours sincerely,
Sd/---
(P.V. DIXIT)

Shri P. Shiv Shanker,
Minister of Law, Justice &
Company Affairs,
Government of India,
New Delhi.

CHAPTER 1
CHAPTER 2

CHAPTER 3

CHAPTER 4

CHAPTER 5

CHAPTER 6

CHAPTER 7

APPENDICES

Appendix 1
Appendix 2
Appendix 3

Appendix 4

CONTENTS

Introductory
Historical

Si gniﬁcance of the Act : Its general scheme and analogous
laws . . . .

Preliminary matters : Sections 1 and 2

Taking of measurements, ﬁngerprints and photographs :
Sections 3 to 5 . . .. . . . . .

Incidental provisions : Sections 6 to 9

Summary of recommendations

English law as to ﬁngerprints and photographs
American law as to ﬁngerprints and measurements
Select cases on article 21

Analysis of operative provisions

PAGE

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33
35

CHAPTER 1

INTRODUCTORY

1. In view of the importancein the ﬁeld of criminal investigation of the Identiﬁcation of Genesis of the Prisoners Act, 1920, it has become necessary to have a fresh look at the Act, enacted some 60 ReP°"' ""3 '°°P°- years back, and to revise it so as to make it correspond with modern trends in criminal investi- gation. That apart, a suggestion has been made by the Supreme Court in a recent judgementl for amending the law relating to identiﬁcation in regard to the particular point which was before the Court".

On an examination of the Act, it was found that the entire Act needed to be reviewed. Accordingly, this Report deals with the whole of the Identiﬁcation of Prisoners Act, 1920.

1.2. The Act of 1920 was drafted to meet certain difficulties that had been felt in the imme- comprehensive diate past before its enactment. As often happens with legislation drafted to meet an immediate examination not need3, a comprehensive examination of the area to which the Act of 1920 related was not undertake"

undertaken at the time of its enactment. This is amply borne out by the many local a.mend- p"w'°"sl"' ments made in the Act by several_States. Revision of the Act on an All India basis has not been undertaken so far. Such a review appears to be called for on account of many reasons, one of them being the practical difficulty pointed out in the judgement of the Supreme Court'.

1.3. Legal discussions in India during the past 20 years or so concerning various measures S9°Pe 91" 16831 of identiﬁcation adopted by the police have centred mainly on the constitutional prohibition d'S""55'°"S 5° far"

against self-incrimination laid down in Article 20(3) of .the Constitution,--or some-times on the value of a particular species of identiﬁcatory evidence. The effect of the constitutional prohibition is now, as a result of a series of judgements of the Supreme Court, fairly clear.

So far as is relevant to the present discussion, it can be stated that compulsion to procure "non-communicative" evidence is not prohibited by the Constitution.

_ As regards the value of particular species of identiﬁcatory evidence, again, the position is now fairly clear as a result of decisions of various courts.

1.4. But the very fact that constitutional issues have, in the past, loomed large in the case Need .t° f°°'5 law on the subject has obscured one important aspect of the general law, namely, that the sli- :;°':';:'°" °" 1'33"! ghtest interference with the body or use of force to compel the furnishing of even non-commu- P ' nicative material requires a statutory authority, in the absence of which such action would prima facie attract tortious liability. Once this aspect is borne in mind, the need for clear and speciﬁc statutory provisions on every step that the police or any other investigating agency proposes to take in this area cannot be disputed. It is on this aspect, therefore, that a pretty large part of the discussion to be found in some of the succeeding chapters of this Report will necessarily concentrate.

1.5. The process of investigation of offences is essentially one of the collection of factual C3°'°i':1° . "'.°""f.' material needed for the ascertainment of past events. In modern times the process by its very gafigze 'D "N" "

nature must enlist the services of several scientiﬁc disciplines. Information relevant to the ' process comes to the police in different ways and, in gathering scientiﬁc evidence, different types of coercion may have to be applied. But there is one general legal principle which, though elementary, requires to be pointed out. That is the principle that in a country govern- ed by the rule of law such coertion must have speciﬁc legal sanction.

Hence the need for provisions clearly demarcating what coercive measures can be adopted in investigation.

1.6. The police do have powers of arrest in speciﬁed cases. But mere arrest does not give P"l'i"°"3 °f ""3 a right to search5 the person or to take other coercive measures of interference with the P°'°°' person. This rule of the common law is the implicit assumption underlying the Act, and forms the basis for speciﬁc and precise provisions on the matters concerned". This Report seeks to examine how far those provisions are in need of improvement.

'State of U. P. V. Ram Babu Misra, (1980) 2 S.C.C. Part 3, pages 343, 346, para 8 (issue dated May 1980). 'Para. 5' 25, Infra.

'Chapter 2, infra.

'Para 1- 1, supra.

'The King v. Queen, (1968) 3 W.L.R. 39l,f39l.H, 39S_(P.C.).

'See, further Chapter 2, infra.

Need for balance.

Article 21 of the Constitution--

procedure establish-

ed by law.

Guidelines in judicial pr0nouI1('e-

merits.

Scheme of discus-

sion.

Constitutional competence.

_ 1.7, The Report is therefore concerned with coercive measures employed in the investi' gative process. In the formulation of such coercive measures, a balance has to be struck between the rights of an individual and the imperative need in the interests of the society log the protection and punishment of crime. This is not an easy task. It is beset with diffi- cu ties.

Thereare in conflict two competing interests--the interest of the citizen to be protected from invasion of his physical privacy and the interest of the State to secure evidence which has a bearing upon the commission of crime are in conﬁict.

Reconciliation of the two is the basic problem. Of course, we are here using the expression :'privacy" 2 s indicating those values whicha civilised society would like to cherish for protecting the ltuman desire for secrecy and anonymity as also for freedom from physical interference. The discussion is not intended to imply that such a right in all its amplitude is recognised in Indian law.

1.8. Besides the above general consideration which emphasises the need to reconcile two conflicting interests, it is proper to mention that we have, in formulating our recommendations, borne in mind the developing law relating to the concept of "procedure established by Law"

under Article 21 of the Constitution'.

Recent years have witnessed a judicial construction of this concept that adds a new dimen- sion to the Article? The effect of decisions of the Supreme Court--to state it very broadly- is that it is not enough that the action ofthe State conforms to the fundamental rights guaranteed by other provisions in Part ill of the Constitution. State action must also satisfy the test of Article 21, and can be challenged if it restricts personal liberty in a manner that violates the requirement o--f""procedure" established by law, as construed judicially.

1.9. This Ts a compzrratively recent development and not all the aspects of legislation restrio ting personal liberty have yet come before the courts for being tested in the light of the cri- teria" laid down by the Supreme Court4. One cannot, therefore, with very great conﬁdence, assert that this or that restriction on personal liberty would, or would not, meet the criteria so laid down. However. such guidelines as are available from judicial pronouncements on the subject rendered so far-7 have been kept in mind by us in formulating our recommendations. We have considered this to be particularly necessary, since the subject touches a sensitive area of human rights~bodily integrity and intcrfeienc with it at the instance of the State, although such interference may be in the cause of the prevention and detection of crime.

1.10. In order to obtain a proper perspective of the subject matter of the Act, we pro- pose to deal first with its significance, its general scheme and its history, and then to proceed with an examination of its provisions. These provisions fall into three main categories----

(i) preliminary, (ii) operative", and (iii) incidental7. The territorial extent of the Act and the deﬁnitions given in the Act, which constitute the preliminary provisions, will be taken up first, followed by a review of the operative provisions. We shall conclude our Report by a con-

sideration of the incidental provisions of the Act.

1.11. Some of the matters that fall to be considered in this Report involve an examination of one important constitutional question----h0w far does the subject matter of the Act fall within the competence of Parliament ? We shall deal with this question in due courses. when we commence our detailed consideration of the Act. However, by way of anticipating our con- clusion, we may state that, in our view, rarliament is competent to legislate on the matters which are, at present, dealt with in the Act of 1920 as also on the matters in regard to which we are, in this Report, proposing an addition to the law.

'See, Appendix 3.

2800 Appendix 3.

"Parzt l~S, supra.

4Append.ix 3.

-"Appendix 3.

"Pa.r'a. 3- 123, fnfrrz.

71'-.u'a. 3'13. infwl.

Waragraplis 43 to 4'8. infra.

CHAPTER 2 HISTORICAL

2.1. As enacted, the Act gives importance to three species of evidence--ﬁnger-prints',FinEI°FPFinbS- measurements and photographs. Of these three, historically speaking, ﬁnger-prints are the most important. It is well known that the science of ﬁnger-prints originated in India, Sir William Herschel of the Indian Civil Service and Sir Francis Galton being the scientists who systema- tised it. The use of ﬁnger-prints for the investigation of crime is now a common method all over the world. It has been stated :

"Although the use of ﬁnger-prints for identiﬁcation is said to have been known to the ancient Egyptians, its place in Anglo-Saxon jurisprudence was not established until after the middle of the ninteeth century. The Bertillon system of identiﬁcation which includes photographs, ﬁnger prints and measurements of the body, is of a still more recent date. This system as used in Criminal Law has two main purposes. The ﬁrst is the iden- tiﬁcation of the accused person as the person who committed the crime with which he is charged, and the second is the identiﬁcation "of an accused as the same person \i ho has been charged with or is convicted of other crimes. For this second purpose the police of most of the cities of this country (U.S.A.) and Europe attempt to keep the des- cription cf every person arrested by them, in permanent records. These records are popularly known as 'rogues' galleries'."2 2.2. One of the leading cases in Australia' illustrates the importance of ﬁngerprints. Casein Australia- The appellant had been convicted of house-breaking. The only evidence against the appellant depended upon a comparison of one of several ﬁnger-prints on a bottle (which was in a shop when broken into), with a print of the middle ﬁnger of the appellants' left hand taken in goal. The High Court refused leave to appeal against the conviction observing as follows :--

"Signatures have been accepted as evidence of the identity as long as they have been used. The fact of the individuality of the corrugations of the skin on the ﬁngers of the human hand is now so generally recognised as to require very little, if any, evidence of it, although it still seems to be the practice to offer some "expert evidence on the point. A ﬁnger-print is therefore in reality an uiiforgeable signature. This is now recognised in a large part of the world and in some parts has been for centuries."

2.3. At this stage, we would like to quote the statement of Objects and Reasons annexed Statement of to the Bill which became the Act of 1920. The reasons for the enactment of the Act are thus Obiecls and R°al°°5- given in the Statement of Objects4 2 "STATEMENT OF OBJECTS AND REASONS"

"The object of this bill is to provide legal authority for the 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 and photographs as agents in the detection of crime and the identiﬁcation of criminals is well known, and modern developments in England and other European countries ren- der it unnecessary to enlarge upon the need for the proposed legislation." }'

1. See definition of "measurements".

2. Annotation, Right to Take Finger Prints and Photographs of the Accused (1933) 83 I.L.R. 127.

3. R. V. Parker, (1912) 14 C.L.R. 680 (Australia).

4, Gazette of India (1920), Part. V, page 162.

History of section 5 cular relevance to section 5, 4 "The existing system by which the police in India take ﬁnger impression, 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, 11911 (III of 1911). The need for legalising the practice has long been recognised, but it was not thought expedient to take the matter up so long as no practical dtﬁiculties arose. Instances have recently been reported to the Government of India where prisoners have refused to allow their ﬁnger prints or photographs tobetaken. Witha 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?

2.4. We shall have occasion to deal in detail with the history of certain points of parti- in this Report.

'. Criminal Tribes Act, 1911.

'. Paragraphs 5- 21 and 5- 22, infra.

CHAPTER 3 SIGNIFICANCE or TI-IE ACT : Irs GENERAL SCHEME AND ANALUGOUS LAWS

1. Signiﬁcance 3.1. At this stage, a few words about the significance of the provisions of the Act of 1920 Signiﬁcance, in the general context of the Indian Legal system would be appropriate.

3.2. The principal object of the Act of 1920 is to permit the taking of certain coercive Object of coercj-,«e measures in order to facilitate the "identiﬁcation" of-- measurfs and {ela- tionship to criminal

(l) convicts, p'°°°d"r°' (2) persons arrested in connections with certain offences, and (3) persons ordered to give security in certain cases.

THESE MEASURES constitute the means sanctioned by the Act. The object, of course, is to facilitate the identiﬁcation of criminals or suspected criminals. The mer sures themselves are connected with the subject of "cr1mina1produdure"-- an aspect to which we shall advert later.' 3.3. Modern writers on criminology now use the word "criminalistics" to denote the use Criminalisticg and of scientiﬁc techniques in the investigation of crime'?-3 It is an applied science devoted to physical evidence. the application of the natural sciences for the purposes of law enforcement. In U.S.A., criminalistics has been deﬁned as that part of that aspect of police work which involves the collection and processing of physical evidence!-5 3.4. Much of such evidence can be obtained without requiring the arrested person to Relationship of the exhibit the body or otherwise to participate physically. But certain types of evidence can be Act to the law of secured only by his active physical participation and the Act provides the statutory authority T0"-

r req 'ring the accused to do so. In this sense, the Act is of considerable importance in t_ e r_ of the law of torts, since the rules re cognised by that law confer protection against physical interference without lawful authority.

3.5. The object of the Act being to procure evidence, its vital bearing on the law of evi- Relationship of tl.e dance is obvious. But the evidence procured is of a special nature, being somewhat diﬁ"- Act. *0 the L-"-''-' 'f erent from oral or documentary evidence which constitutes the usual species. The material E"d°"°"~ sought to be procured with the help of the coercive measure sanctioned by the Act is really in the nature of demonstrative evidence".

3.6. The object of all evidence is to re--create the events that led to the controversy now Object of evidence, under trial. Its goal is to appeal to the ﬁve senses of the presiding oﬁicer, so that he rnay_(on the disputed facts) arrive at a conclusion from what he perceives by those senses. Tl11S is sought to be achieved, in practice, by a variety of means constituting several species of evi- dence.

'Para. 3' 3. infra.

'Cf. Grassberger. University Teaching ofSocial Sciences (UNESCO) (1957), page 62.

'See also Sutherland and Cressey, Criminology (1968). pages 348. 349, reserrintz also to Ohara and 0'st-erlinz. Introduction to Criminalistics.

'Bennett Snndler, Law Enforcement and Criminal Justice (1979), page 127.

'As to the term "physical evidence", see note in (1969 80 L.Q.R. 18.

'See para. 3'9, infra.

81-MiJ(N)56MofLJ&CA--2 8'0'! 6 Vital question in B . . 3.7. The ultimate. and most vital question in a criminal trial is-- criminal case.

Are the accused person and the person chrtrmteriscd its having committed the crime one and the SZHIIC pcrsoii'? The qucsiioii is most commonly €'l15€\-'.'LIl"('rd in one of'the two ways' (tr) it imiy be possible to establish :2 connection bctv. ccii sonic pliysicizl ovidcncc z=_ss0ciz1- ted with the crime :,-,nd some personal chnrzicie-i'istic of the tccuscd (such as, blood group, ﬁnger-prints, etc.).

(b) It may be possible to show :2 connection between the scene of crime and some other definite f'_ctor linked with the accused such cs, the ﬁbres of a textile which had been put on by the :~.ccused, or the peculiar nature of the physical marks on the garment found at the scene of crime and its connection with the Vocation of the accused. Work done in the course of 3. vocation m::.y be of a particular nature which leads to the coming into existence of some peculiar marks on the garments.

Phgsicﬂl g 9Vi1<'t<=']1t'e\ 3. 8. Of course, physiczzl evidence? is of inﬁnite variety; it may include blood, haii, ammuni- :2tCn.§:?:;°"" C 1"' tion and t"ire:.rms, soil, the humzzn voice anti ﬁn_:;er-prints.

Personal ch::r:i,cteristics used for theidentiﬁcation of criminals P.I'6----l'0l]ghly in order of precision--the following"

(I) blood group :

(2) colour of the ll-Zlll' :

(3) voice 2 (4) general izppearzmces:

(5) slmpe ('ltd size :;ml arrangement of the teeth and bones .' and (6) fingcrprir-.ts.

I I. Demonstrative Evidence Real or den1onstra-

the 0 id "Ce 3'9. Such n-viclence falls in the category of real or demonstrative evidence. Real 01' ' V (' .

demon,str:1tive* evidence is the "'rhin.;2s" that are introduced as exhibits and explained by testimony. In such circum.stm1cr:s oral testimony is secondary to the exhibit or object. Demons- trative evidence is omit the most in1poi't;.iit evidence in a criminal trial. The human body. pictures, maps, charts, drawings, models, and samples of handwriting, ere all examples of demonstrative evidence, which must also meet the tests of admissibility and relevancy. Im- portarit exniiiplcs of demonstrative evidence might bc-ﬁnger-prints of an accused on the stolen pi'opeity or on dciorii/zays, or on furniture at the scene of the crime. Measurements have also :1 part to play.

One l<nowledge:.l~.le writer-'* has mentioned the following measures of identiﬁceition in dct::il :

((1) Flil§_Er'T"-l3i'l!liS.r0('i"Dl'l§1l§f|,l'1(lf0Ot\'VCHT' prints:

(1)) Ear :

(c) Bones and teeth;

(:17) Skull;

(e) Fluids and hair (External);

(f) Fluids (Int-ern;'=.l);

(g) Fibres;

(12) Hrndwriting;

(1') Voiceprint (spectrograph).

'H. J. Wndts, FO1'('l1Sl'Cj\Ie(1l('-l!l0(1969:), page 9. 2P£LI'iL 2'3, supra.

3H, J. \Va.tt-s 4 l"(>i*vi1'~'iclvleiliciiic(I968).page 106.

"For the ])l1l'fl-S0 "[1C!)10'13l«l'§)/Li'-.'0", see D. .1 George, (i')TlSirll.rl1ti0I1i'J.i liniitations on evidence in criminal cases (1969) prizzcs ]95~--9f\.:'v.

5H. L. Bami, "Pe1'Sorio.l itlentiiﬁcatvioil----Reccnt trends and techniques" (July 1970), Indian ,P0]iG8 JOIN'!-'IN pages 16-22.

é 7 III. Objects of identiﬁcation 3.10. We shall now deal brieﬂy with the objects of identiﬁcation. The taking of mea- The objects of iden- surements and photographs for the purposes of identiﬁcation and the procuring of other tiﬁcatiom evidence for that purpose might have a number of objects to be achieved.

(a) In the ﬁrst place, if ﬁnger-prints or other identifying materials in regard to a parti- cular person have been taken or collected, identiﬁcation becomes easy when there is a suspec- ted repetition of the offence or of a similar offence by the same person, since it is then possible to check whether the person as to whom the record of identiﬁcation material has been kept is the person who has now repeated the offence.

Section 3 of the Act would be particularly useful for these purposes, dealing as it does with the taking of measurements etc. of convicted persons or persons who have been ordered to give security for good behaviour. Here, the section looks to the future.

Measurements so taken may also be useful in cases where there is a suspicion (at the time of taking measurements or other evidence for identiﬁcation) that the person made to undergo this procedure has had a previous conviction.' Here, the section looks to the past.

(b) Secondly, identiﬁcation may be necessary for the purpose of an investigation into an alleged oﬁ'ence in order to establish the identity of the person arrested with the actual culprit, on the basis of the demonstrative evidence. Ultimately, the material so collected would be tendered as evidence, mainly under section 9 of the Evidence Act. Sections 4 and 5 of the Act of 1920 are primarily concerned with this aspect. Section 7 is also, to some extent, concer- ned with such identiﬁcation.

(c) Thirdly, identiﬁcation may be useful to establish a previous conviction--i.e. iden- tity of the arrested person with a person previously convicted. Section 3 would be useful in this context? Such previous conviction may itself be admissible in evidence either for impos- ing higher punishment or (in some cases) as a relevant fact or fact in issues.

(d) Finally, identiﬁcation may be useful for statistical purposes,----for example, measure- ments of convicted persons may be collected and analysed in order to conﬁrm or reject any theories of anthropoligical interest that may be put forth in regard to criminals. The Act of 1920 does not directly concern itself with this aspect. But measurements and other material taken under the Act can be used for such purpose also, if necessary.

IV. Scheme ofthe Act Scheme of the Act-.

3.11. Let us now see how the Act seeks to achieve these objectives. The scheme of the Act brieﬂy is this. The ﬁrst two sections deal with preliminary matters (short little, extent of the Act and deﬁnitions). Various species of demonstrative evidence that can be procured form the subject matter of three operative provisions---sections 3, 4, and 5--which confer on the speciﬁed authorities power to take such evidence.

3.12. Here the Act employs a dichotomy. It makes a distinction between (i) situations D'°"°'°"~-"~ where the power to take such evidence is given to a police officer (of the prescribed rank), and

(ii) situations where an order of the Magistrate is considered a pre-requisite before taking such evidence. The distinction so made is obviously based on the solicitudc of the law for the free- dom of the individual even while he is under arrest.

3.13 The operative provisions of the Act are : P1_0viSions8nMys9_ Section 3--Taking of measurements etc. of convicted persons.

Section 4----Taking of measurements etc. of non-convicted persons arrested for an offence punishable with rigorous imprisonment for one year or upwards.

Section 5---Power of Magistrate to order a person to be measured or photographed.

' See para. 3-10 (c), infra.

3 See para 3'10 (3), supra.

Principle underlying the Act.

Act not exhaustive other techniques of identiﬁcation.

Voice prints furnish one example of phy-

sical evidence not dealt with by the Act.

Categories Ofident-L ﬁcation material not closed.

The following sections deal with incidental or consequential matters :--

Section 6. Resistance to the taking of measurements, etc. Section 7. Destruction of photographs and records of measurements etc. on acquittal.

Section 8. Power to make rules.

Section 9. Bar of suits.

3. 14. It may be observed that the Act proceeds upon the principle that the less serious the oﬁ"ence, the more restricted should be the power to make coercive measures. Correspondingly, the more serious the offence, the wider the power to take coercive measures conferred by the Act. Thus, section 3 (which is mainly conﬁned to offences of a serious nature) confers the speciﬁed powers on police oﬂicer. But, in contrast, section 5 (which has a much wider scope) requires magisterial orders before coercive measures can be taken thereunder. Section 5 is applicable to action to be taken for the purposes of "any investigation or proceeding under the Code of Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ." ' (provided the person has been previously arrested) and is thus much wider than section 3.

V. Scope 3.15. The Act of 1920 does not, of course, exhaust all the conceivable species of evidence that might be collected to facilitate identiﬁcation. In addition to the matters included in the Act, a great variety of techniques for the study of the traces of crime has been developed. The techniques of physics and chemistry have, in recent times, been extensively applied to the detection of crime. It would be diﬁicult to enumerate all of them exhaustively. It is also un- necessary to do so, since we do not propose to insert in the Act any omnious provision or an all-embracing section on the subject. As we have already stated', in formulating such pro- posals the law must try to strike a proper balance between social needs and individual privacy An all-embracing and pervasive provision might unintentionally have the effect of authorising many practices, which may not be desirable.

3.16. Often, it becomes desirable to have an accused person speak for the purposes of giving to the police an opportunity to hear his voice and try to identify it as that of the criminal offender. A comparison may even be desired between the voice of an accused person and the recorded voice of a criminal which has been obtained by, say, telephone tapping. To faci- litate proof of the crime the police may like that the accused should be compelled to speak,- and even that his voice as recorded may be converted into a 'voice print}?-3 Words so compelled to be spoken for the purposes of comparison may not amount to testimonial compulsion with the scope of the constitutional privilege against self-incrimination as now understood, so long as the matter which the accused is compelled to speak does not relate to the crime.4 They represent really evidence of a physical nature. The accused, -by speaking such words,_ is giving merely "identiﬁcation data", and is n.ot subjected to any "testimonial compulsion." ' However, if the accused refuses to furnish such voice, there is no legal sanction for compelling him to do so, and the use of force for that purpose would be illegal.

3.17. Obviously, the categories of data to be collected for purposes of indentiﬁcation cannot be closed. At 3 given point of time they may be enumerated with reference to the species of evidence generally found to be useful at that particular time. But advancing scientiﬁc-know- ledge must go on adding to the list. In fact, there could be no end to the species of demonstra- tive evidence that can come into existence and prove to be useful in the investigation of crime. Even shoe-prints have been regarded as useful in identiﬁcationﬁ

1. See para. 1' 7, supra.

2. (7f. R. v. Kealing, (1909) 2 Cr. Appeal Reports 61.

3 See Thoma-S McDarle, "Tho V0ice--Print" (July 1970) Indian Police Journal, pages 26 -34.

4 Compare Inban, Self-inoriminat-ion (1950), page 51, referred to by Moreland, Criminal PI09ed|l1'° (1959), pages 78-79.

5 HS. Longia, "Shoe-print Identiﬁcation" Vol. 18, Indian Police Journal, pages 14 to 19.

3.18. This somewhat elaborate discussion of the signiﬁcance of the Act and of the Manifold 3-SP°°"'S Of various aspects of identiﬁcation would show how important a place the Act occupies, not ° only in the realm of evidence but also in the realm of criminal procedure and-----what is often not adeauaetly appreciated--in the realm of criminal statistics and pcnology.

IV. Analogous provisions.

3.19. The Act of 1920 is not the only statutory authority for the taking of signature in é'_2:lS°iS:1;9£eP1i§'V:5en_ legal proceedings. There is an analogous provision in section 73 of the Indian Evidence Act, 0'8 Act' " ' 1872. That section empowers the Court to take specimen signature or ﬁnger-prints from a person present in Court.

3.20. Section 73 was considered at length by the Law Commission in its Report on the Emier momma". Evidence Act. 1-'3 The Commission discussed in detail the conﬂict of decisions on the question dat-ion'as to Section wheather section 73 could be invoked at the stage of Investigation. The Commission noted 73' EVid'~"'°° Act- that the Evidence Act applies only to 'judicial proceedings' and observed that it would be inconsistent with the general scheme of the Act to provide in a section of the Act for a power exercisable at an earlier stage, and recommended that it should be made clear that the power under section 73 operates only after the Court has taken cognisance of a matter.

The Commission recommended the following re-draft of section 73 :--

"73. ( 1) In order to ascertain whether a signature, writing, or seal is that of the person by whom it is alleged to have been written or made, any signature, writing or seal admitted or proved "to the satisfaction of the Court to have been written or made by that person may be compared by or under the orders of the Court with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.

(2) The Court may direct any person present in Court to write any words or ﬁgures for the purpose of enabling comparison of the words or ﬁgures so written with any words or ﬁgures alleged to have been written by such person.

(3) This section applies also, with any necessary modiﬁcations, to ﬁnger impressions, palm impressions, fool- prints and typewriting.

ExplanaIion.----Nothing in this section applies to a criminal court before it has taken cognizance of an o;j'"ence."

3. 21. Besides the Evidence Act, the Foreigners Act3 gives power to the Central Govern- Foreignms Act merit to make rules, inter alia, requiring a foreigner to allow his photograph and ﬁnger im- pressions to be taken and to furnish specimens of handwriting and signature to the prescribed authority at the prescribed time and place.

dsection by section 3.22. After this brief survey of the scheme of the Act and of analogous provisions an . . examination.

recommendations made in the past, we proceed to examine the Act of 1920 section by Section.

'. Law Commission of India, 69th Report (Indian Evidence Act, 1872) (May 1977), pages 445 to453, chapter 33

2. Law Commission of India, 69th Report (Indian Evidence Act, 1872) (May 1977), pages 452.53, para 33.40

3. Section 3(2) (iv) and 11(2) , Foreigners Act, 19-L6.

CHAPTER 4 PRELIMINARY MATTERS : SECTIONS 1 AND 2 S°°t'°n 1 (1)-Com- 4.1. With reference to section 1(1) which relates to the short title of the Act, we would $22: rﬁﬁifdiﬁg 311: like to point out that the present short title is not quite appropriate, for two reasons. Act. First, the use of the word "prisoners" is somewhat misleading. That word, to the ordinary laylhan, carries the sense of a convicted person. The Act, however, is applicable not only to persons convicted, but also to a person who has been arrested for the speciﬁed offence or for the speciﬁed cause.

Secondly, the word "identification" used in the title is also not very expressive. It seems to lay emphasis on the process of identiﬁcation and creates an impression that the Act is concerned with what have come to be known as "identiﬁcation parades." However, the scope of the Act is quite different from that of" identiﬁcation parades." It is concerned more with certain measure- es to be taken and evidence to be collected that would facilitate identiﬁcation at a later stage than with the process of identiﬁcation.

In view of this, we are of the oninion that there is room for improvement in the short title. It is diiﬁcult to think of a title which would be short and at the same time expressive; but we suggest that the Act can be more appropriately titled as "Criminal Procedure (Physio- logical Evidence) Act" or as "Criminal Investigation (Physiological Evidence) Act."

Section 1(2) of the 4. 2. Section 1(2) provides that the Act extends to the whole of India except the terri-

A0' °f1920- tories which immediately before the 1st November, 1956, were comprised in Part B States. Thus, some areas of India are stillleft out of the scope of the Act. In 1951, a number of Central Acts were by a speciﬁc Central legislationl extended to areas then comprised in Part B States, but the Act under consideration was not so extended. We have devoted some thought to the matter and have come to the conclusion that the Act should be so extended to those areas.

True position as to 4.3. Legislative competence of Parliament as to the subject matter of the competence Act cannot in our opinion, be doubted as it falls within "criminal procedure." '?Section 3 of the Act (which deals with obtaining the measurement of convicted persons) is, no doubt, concerned with persons in prison and could arguably be related to the legislative entry--'prison and prisoners.' But 3pretty large portions of the Act--particular1y, sections 4 and 5 (and so much of sections 6 to 9 as provides for matters connected with sections 4 and 5), are really relatable to 'criminal law' and 'criminal pro- cedure,'----matters which fall in the Concurrent List. 'If the investigation of an otfence can be regarded as .1 part of 'criminal procedure,' then certainly these sections of the Act should also be regarded as forming part there of.

Section 3 as falling 4.4. Even as to section 3, which we have already mentioned above", its subject-matter 'V'"1'n "cfjminal seems to fall within the topic of "criminal procedure." Fingerprints of various persons men- p'°°°d'"° - tioned in the section are principally taken to ensure their identiﬁcation in case of suspected repetition of crime or, in some cases, to check if they have already committed a crime. Essen- tially speaking, then, the section deals with a matter incidental to the enforcement of the criminal law by appropriate process and belongs to the ﬁeld of criminal procedure.

Scope of "criminal 4.5. It is true that these matters (i.e. the taking of ﬁngerprints etc.) were not "included procedure". in the Code of Criminal Procedure" at the commencement of the Constitution. 80 that the inclusive portion of the relevant constitutional entry relating to "criminal procedure" may not literally apply to them. But that does not necessarily imply that they do_ not_ belong to the domain of "criminal procedure". The ambit of that concept is fairly wide, if prpperly understood. Though the taking of measurements etc. is not speciﬁcally mentioned in the Code of Criminal Procedure, it cannot be denied that it is part of_the investigative process, its object being to arrive at a certain tentative conclusion on the basis of material so collected.

1. (a) Part, B States (Laws) Act, 1951. (Relevant File is not easily available).

(b) Acts extending the Procedural Codes.

3. Coiicnrreiit List.

3. State List, Entry 4.

4. Coiiciirreiit List, Entries l-2.

°. para 4, 3, supra.

l 0 ll

4. 6. We may, as regards the scope of the expression "criminal procedure", mention that éﬁcedemlic preface- man books on criminal rocedure deal with the sub'ect of investi ation also. One notable """""' P'°° u"

y . p . . -l . g an extensive con-

example is that of the leading American book on the subject'. cept.

As has been observed by another writer? on the American Legal System, while describing police investigation,--

"Criminal procedure is an extensive concept. It describes the entire ﬁeld of criminal prosecution, beginning with the police investigation and, thus, is not limited to the actual prosecution WhlCl1 begins with the indictment".

4.7. The in w,ttci' could be zi,ppi'o:i,ch.ed from aiiother angle. From the analysis of the 0_bjectf§ _<=0nne¢g'»6d various aspects of l(lCl1tlllC:'llOll me do earlier in this Report, it3 would be evident that the princi- Wm' °"m'""'l i"St'°°- pal purpose of identiﬁcation is the achievement of certain objects essentially connected with criminal justice. So viewed, the entirety of the subject matter ofthe Act of 1920 can be legi- timately regarded as elling within the subject of "criminal procedure".

Section 1(2) to be 4.8. If the view taken by us 'izabout legislative competence is correct in law, then there d d ELIIICH C .

should be no difficulty in extending the Act of 1920 to the whole of India except the State of Jammu and Kashmir. Once this is done, the way is clear for considering improvements in various sections of the Act. The changes to be proposed need not therefore be confined to the provisions of section 5.

In the light of the above discussion, we recommend that the Act should be extended to the whole of India. except the State of Jammu ar-.d Kashmir. The zrmcnding Act will, of course, take care to repeal corresponding laws in force in areas formerly comprised in Part B States and make such tl'£Li'I.Sltl0llZ1l provisions as nu y be 11€CCSS:'-.Ty.

Section 2--Defin i-

4.9. This takes us to section 2 which contains three deﬁnitions. "ms Clause (21) provides that 'measurements' includes ﬁnger impressions and foot-print impressions.

Clause (b) provides that 'police oﬁicer' means 211 officer in clwrgc of a police-station, a police oﬂicer iiiaking an investigzitioii under Chzaptm' XIV of the Code of Cl'lI'lllZllll Proce- dure, 1898, or any other police otﬁcer not below the rank of sub--inspcctor.

According to clause (c), 'prescribed' means prescribed by rules made under this Act.

4.10. We have comments to otter only on clauses (:1) and (b) of section In clause (a), Changes mommcm which deﬁnes 'measurements', palm impressions should be added. Their utility is well esta- (lcd in section 2(a) blished, in regard5 to the investigation of offences. and Section 2 (0)-

. In clause (b), it reference to the Code of 1973 (and its relevant chapter) should be substi- tuted, in place of the reference to the Code of 1898.

We recommend that section 2(a) and 2(b) should be amended accordingly.

1. Orﬁeld, Criminal Procedure from arrest to appeal.

'-'. Peter Hay, Introduction to United States Law (1976), page 193.

3. Para 3'10, supra.

'. Para. 4- 7, supra.

5. 0/. English law (Appendix 1).

Import-aiico of Statutory autlioi'ity.

Use of force lllega] Without authority.

Section 49, Cr. I'.C 1973.

Taking graphs.

of Photo-

Importance of sec-

tions3-5.

CHAPTER 5 TAKING or MEASUREMENTS, FINGER-PRINTS AND PHOTOGRAPHS : SECTIONS 3 to 5

1. Statutory authority for use offorce ' 5.1. propose to consider in this Chapter sections 3 to 5, which constitute the statu- tory autliprity for taking certain measures for collecting evidentiary material from arrested or convicted persons and others. The use of force as a sanction for such measures, dealt with in section 6, will be considered in a later chapter.

. 5.2. it is well established that in the absence of a speciﬁc statutory provision empower- Hig 41 Spegilﬁed authority to take ﬁnger-prints or measurements or to compel a person to fur- nish specimen signature, the use of force for any of these purposes would primafacie amount to ClVll wrong.1 If there 15 actual or threatened physical interference with the body by compul- sion,'--' the common law action in tort; (for assault or battery) would be available. Where such compulsionis "non-testimonial", questions of a constitutional nature with reference tot/grticle 20(3) may not arise, but the general law of tort would still have to be complied wi .

5.3. Moreover, it is against the spirit of the Code of Criminal Procedure to read any mplicsd power to direct a' person to give a specimen of his signature under pain of penalty or to furnish other physical evidence.

In this context, section 49 of the Code of Criminal Procedure quoted below is relevant---

"49. T he person arrested shall not be subjected to more restraint than is necessary to prevent his escape".

Thus, even if the testimony sought to be procured thereby is not of a "communicative" nature, the use of coercive measures would be illegal unless speciﬁc statutory authority exists. This shows the signiﬁcance of sections 3-5, which confer such authority in regard to measure-

ments as well as photographs.

5.4. As to photographs, the taking of photographs without the consent of thepcrson to be photographed is no doubt not illegal, according to the position as generally understood in India. But the use of force to compel a person to stand up for being photographed would need statutory authority, and this is precisely what saction 6 provides.

II. T he proper approach-balance between law enforcement and liberty.

5.5. Such coercive measures--i.e., the use of force for procuring identiﬁcatory evidence- derive their authority from sections 3, 4 and 5 read with section 6. Sections 3, 4 and 5 confer power on the police, or in certain cases, on the magistrates, to direct the persons concerned to furnish demonstrative evidence of the speciﬁed types. Section 6 authorises the use of force for the purpose. These provisions constitute the most important part of the Act.

Improvements appear to be needed in these operative provisions, in certain respects. For example, the species of evidence that may be directed to be furnished by. an arrested' per- son or by a convict may have to be added to, in view of various scientiﬁc developments, The range of olfences in connection with which (after arrest) such evidence can be required to be furnished may also need to be expanded, in the interest of detection and prevention of crime. Further, even where, though no 'offence' in the strict sense is char , yet_pro_ceed- ings for good behaviour (or analogous proceedings) have been institutedun er the law, some expansion of the scope of the relevant provisions may be called for.

1. Law Commission of India, 37th Report (Code of Criminal Procedm-e)(sections I to 176), Appendix 6, pages 203 to 208.

3. Law ('oiiimission ol'Incli.1_. 69th Report (Evidence Act), Chapter 33.

3. Section -19, Code of Criminal Procedure, 1973.

12 13

5.6. At the same time, while expandin tect freedom of the individual ought not to of human rights-bodily integrity and interfer is an aspect of fundarnental importance.

tions, we have not lost sight of this imp g the scope of these provisions, the need to pro-

be lost sight of. The subject is a sensitive area ence therewith under the aegis of the law. This We hope that while formulating our recommei1da-

ortant aspect.

II I . Taking of specimen signature and possible legislative devices for making an amendment 5.7. Before dealing with the content of the o ourselves to :1 consideration of the legislative device best ﬁtted to implement the suggestion made by the Supreme Court in the judgement'-' to which we have already made a reference3. Holding that section 73 of the Evidence Act cannot be invoked for requiring a person to furnish a specimen of his /zandwriting at the stage of investigation, the Supreme Court added that "suitable legislation" (on the analogy of section 5 of the Identiﬁcation of Prisoners Act, 1920) should be enacted, investing Magistrates with powers to require a person to furnish spe- cimen writing or signature during investigation.

perative provision, we would like to address There can hardly be any doubt about the need to amend the la by the Supreme Court. The question that requires to be consider device to be adopted for achieving the objects in question. The obje with the power in question could be achieved by adopting one of seve w on the point suggested cd is about the legislative ct of investing Magistrates ralalternatives :

(i) amending4 the Code of Criminal Procedure, 1973,-

(ii) amending5 the Identiﬁcation of Prisoners Act, 1920;

(iii) framing" a separa-te law for the purpose.

Amendment of section 73 of the Evidence Act would, of course ' _ _ _ , be out of question, as the Act lS not concerned with the stage of investigation.

The Supreme Court did not, of course, make any observations implying that the amend- ment or addition to be made for this purpose should be made to the Act of 1920, or, for that matter, to any particular enactment. The words "suitable legislation" (in the judgemcnt)7 leave the matter elastic. In this connection, we have, as stated above,-considered several possible alternatives. Our examination of the present statutory framework has satisﬁed us that most convenient course would be to make the necessary amendment in the Act of 1920. The posi- tion with reference to the merits of each alternative, brieﬁy discussed below, would seem to support our conclusion.

5.8. The first alternatives would be to a inserting suitable provisions either in the Ch as section 165A, 165B and so on) or in the Ch mend the Code of Criminal Procedure, 1973 by apter of that Code relating to investigation (say, apter dealing with search. In that case, however, . by way of penalties, deﬁnitions and rules----would cidental matters, and these might spoil the compact- ness of Chapter 14 of the Code, if not the symmetry of the entire Code.

Moreover, for the detailed implementation of the matters would have necessarily to be left to ru1es----a cour ral pattern and style of the Code. A serious drawbacks.

power proposed to be added, some se which does not ﬁt in with the gene-

11 amendment of the Code woud therefore suffer from certain . See also para 1-7, supra.

. State of U. P. v. Ram Babu (Wit-'rrl, (1980) Vol. 2. Part 3, S.C.C. 343, 346 (May 1, 1980). . Para. 1-1, supra.

. Para. 5-8, infra.

. Para. 5'9, infra.

. Para 5'10, infra.

7 5

. Paragraphs 1- 1 and 5-5, supra.

'. Para 5'7, supra.

81-M]J(N)56M'ofLJ&CA---3 / , , #A-{..------:----2.

Aspect of human rights.

Legislative device considered.

Amendment of the Code not preferred.

Second alternative preferable.

Question of separate legislation.

Act of 1920 to be amended.

Section 3 Changes recommended.

Section 3 Amendment.

State 14 5.9. In comparison, the second alternative1 mentioned by us----amending the Act of 1920- appears to be a smoother one. The Act is a more appropriate place for inserting the requisite provisions (both substantive and consequential). The substantive additions---power to require a person to sign--can be made without much violence to its present structure. Moreover, amendment of that Act would involve adding the least amount of statutory matter. The Act already contains detailed provisions dealing with matters incidental to, or consequential on, a direction to furnish the speciﬁed types of demonstrative evidence.

Any new power to be conferred could be dealt with suitably by an amendment of the rele- vant operative provision; and provisions incidental to the exercise of the new power could also be conveniently accommodated in the existing incidental provisions of the Act.

In fact, by making minor amendments to sections 6 to 8 of the Act, incidental matters could be adequately provided for and this process would involve addition of the minimum amount of statutory matter. It is therefore preferable to amend the Act of 1920.

5.10. We also considered the third? alternative, namely, enactment of separate legislation to deal with the matter. However, if this device is adopted, the advantages to be gained by amending the Act of 1920, to which we have already madea reference above", would be lost. The separate law to be newly enacted would have to provide for several incidental matters, thus leading to duplication. We would, therefore, adhere to our preference for amending the Act of l920 as the most convenient device for dealing with the point raised' in the judgement of the Supreme Court.

A separate Act would have to provide for a number of matters of detail. The provisons to be inserted would, having regard to the methods of legislative drafting in India and its traditions, have to follow closely the wording of the Act of 1920. Such a course should, if possible, be avoided, since it would needlessly encumber the statute book and duplicate certain propositions.

Thus, even for the limited purpose of effecting a reform on that point, amendment of the Act of 1920 is the most convenient course. In fact, the point is analogous to section 5.

5 .11. Prima facie, then. we are inclined to adopt the alternative of incorporating the necessary amendments tin the Act of 1920. We do not think that such a course is likely to raise any serious legal or practical problems.

IV. Powers of the police : sections 3 and 4 5.12. With these general observations as to the operative provisions, we proceed to con- sider their speciﬁc content and text.

5.13. Section 3 requires every person who has been convicted of certain speciﬁed offences or who has been ordered to furnish security for good behaviour under the Code of Criminal Procedure to allow his measurements and photographs to be taken by the police officer in the prescribed manner, if so required. Offences mentioned in this behalf are----oﬂ'ences punishable with rigorous imprisonment for a term of one year or upwards and also offences which would render the person convicted liable to enhanced punishment on a subsequent conviction.

As a result of practical difficulties experienced in the working of the section--presumably because of its limited scope--extensive amendments have been made by several States in the, section. We have taken ourselves through those amendments and, as a result of our study have come to the conclusion that the scope of the section needs to be expanded in certain di- rections. For example, while the test of punishment of rigorous imprisonment of one year or upwards laid down in section 3 is satisfactory so far as it goes, certain other offences should also be included, having regard to their nature and to the consideration that, in practice, they are likely to be persistently repeated, because of the prospect of gain. For this reason, we re- commend that the offence under section 19 the Dangerous Drugs Act, 1930 should be included in section 3 of the Act of 1920. Section 19 punishes a person who, without licence, engages in, or controls, any trade whereby a dangerous drug is obtained outside India and supplied outside India. The offence is likely to be repeated in View of substantial proﬁts likely to accrue from its commission.

. Para 5~ 7, supra.

. Para 5~ '7, supra.

. Para 5-9, supra.

as-€.aNII-I . Para. 5-7, supra.

5.14. Apart from the case of conviction under section 19 of the Dangerous Drugs Actl, Section 13. Dang- a person in respect of whom orders under section 18 of that Act have been passed should also, °'°"s D""3s A"

in our opinion, be included in section 3. Section 18(1) of that Act reads as under :-

"l8. Security for abstaining from commission of certain oﬂences--(1) Whenever any person is convicted of an offence punishable under section 10, section 12, section 13 or section 14 and the Court convicting him is of opinion that it is necessary to require such person to execute a bond for abstaining from the commission of offences punishable under those sections, the Court may, at the time of passing sentence on such person, order him to execute a bond for a sum proportionate to his means, with or without "sureties, for abstaining from the commission of such offences during such period, not exceeding three years, as it thinks ﬁt to ﬁx."

In our opinion, such persons may, for purposes of the matter under discussion, be regarded as standing on the same footing as persons to whom section 3 already applies. The epithet "dangerous" in the short title of the Act is signiﬁcant.

5.15. While the amendments recommended above would expand the scope of section-3, Other minor changes a few other minor changes are also required in the section. In clause (b), in place of the present in S°°"°" 3- reference to the Code of Criminal Procedure, 1898, reference to the provisionn in the Code of 1973 should be substituted. Further, in the last line, after the words "if so required", the words "by a police officer" should be added, for the sake of precision'1.

5.16. In the light of the above discussion, we recommend that section 3 should be re- Suggested redxaftof vised as under :-- -"°°"°" 3- Revised section 3 "3. Every person who has been--

(a) convicted of any offence punishable with rigorous imprisonment for a term of one "year or upwards, or

(b) convicted of any oﬂence punishable under section 19 of the Dangerous Drugs Act, 1930, or

(d) ordered to give security for his good behaviour under section 117 of the Code of Crimi- nal, Procedure, 1973 or under any other law for the time being in force, or

(e) ordered to give security for abstaining from the commission of certain oﬂences3 under section 18 of the Dangerous Drugs Act, 1930.

shall, if so required by a police oﬁicer allow his measurements and photographs to be taken by a police officer in the prescribed manner."

5,17. Section 4 provides for the taking of measurements of any person who has been section 4,_st,,,te arrested in connection with an offence punishable with rigorous imprisonment fora term of one Amendments. year or upwards, if so required by a police officer. State amendments to this section have expanded its scope in several directions.

In the first place, power has been given to take also a photograph of the persons concern- ed.

In the second place, persons who have been arrested under section 19 of the Dangerous Drugs Act4 or section 7 of the Drugs and Magic Remedies (Objectionable Advertisements), Act, 1954 or section 8 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 have been covered5.

1. Para. 5-13, supra.

". Compare section 4.

'. Under section 18, Dangerous Drugs Act, security for abstaining from the commission of certain offences can be required.

'. Para. 5-13, supra.

'. Compare Maharashtra Act 35 of 1970.

Nead. to the section.

In the third place, persons arrested under sections 54, 55 or 151 of the Code of Criminal Procedure, 1898 (now the Code of 1973--sections 41 and 151), have been covered.' In the fourth place, persons in respect of whom a direction or order under section 5 of the Passport (Entry into India) Act, 1920 has been made, have been covered. That section autho- rises the Central Government to order the removal from India of a person who has entered without passport.

In the ﬁfth place, persons to whom pardon has been tendered under certain provisions of the Code of Criminal Procedure have been covered. Finally, persons arrested in connection with ogences under certain local laws relating to police, beggers and habitual eﬂenders have been ccvere .9 0 improve 5.18. We are of the opinion that many of these amendments, in view of their importance to the detection and prevention of crime and the maintenance of records of suspected criminals and otherwise with reference to achieve satisfactorily the various objects of identiﬁcation, deserve to be adopted for the whole of India. While some of them are of local interest, a few others have an all-India importance. At the same time, we are not inclined to make the scope of the section very wide.

As regards persons arrested by the police under section 41, it is enough to include section 41(2) of the Code of quoted below :--

"41(2). Any oﬂicer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons speciﬁed in section 109 or section 110."

Section 151(1) of the Code may be expressly covered. It reads----i "l5l. (1) A police oﬂicer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so de- signing, if it appears to such oﬂicer that the commission of the oﬂemre cannot be otherwise prevented."

Section 19 of the Dangerous Drugs Act, 1930 has already been referred to. It punishes a person who "engages in or controls any trade whereby a dangerous drug is obtained outside India and supplied to any person outside India, otherwise than in accordance with conditions of the licence granted under the Act."

Section 7 of the Drugs & Magic Remedies (Objectionable Advertisements) Act, 1954 pu- nishes a person who "contravenes any of the provisions of the Act or the rules made thereunder".

Section 8 of the Suppression of Immoral Trafﬁc in Women & Girls Act, 1956 punishes the act of abducting or soliciting for the purposes of prostitution.

Section 4 of the Passport (Entry into India) Act, 1920 provides for the arrest of "any person who has contravened or against whom a reasonable suspicion exists that he has con- travened any rule or order made under section 3."

Section 5 of the Passport (Entry into India) Act, 1920 provides for the issue of a direc- tion or order for the "removal of any person from India who, in contravention of any rule made under section 3 prohibiting entry into India without passport, has entered therein. . . .".

Section 306 of the Code of Criminal Procedure, 1973 provides for the tender of pardon to any person supposed to have been directly or indirectly conerned in, or_p_rivy to, an olfence to which the section applies. Pardon is tendered to such person on condition of his making a full and true disclosure.

Section 307 of the same Code provides for the tender of pardon to any person supposed to have been directly or indirectly concerned in, or privy to, certain offences.

These are all offences which represent serious anti-social conduct likely to be indulged in frequently because of proﬁts. Identiﬁcation material~suCh as ﬁngerprints and photo- gi-aphs----would be particularly useful in such cases.

1>_JCQ]:npa,1'e Maharashtra and Gujarat Amendment-. 2 Maharashtra Act. 35 of 1970, amendment of section 4 and new section 4A inserted by liombay Act 53 of 195 3.

8. Petra. 5-13. wim-

5.19. Bearing the above considerations in mind, we recommend that section 4 should ReC°mm°ml""°*1 be revised as under :-

Rev-ised section 4 "4. Any person---

(a) who has been arrested in connection with an offence punishable with rigorous im-

prisonment for a term of one year or upwards, or

(b) who has been arrested under sub-section (2) of section 41 of the Code of Criminal, Pro- cedure, I973, or (is) who has been arrested under section l5l of the Code of Crz'mir.a1 Procedure, 1973, or

(d) who has been arrested in connection with an cﬂence punishable under- (I) section 19 of the Dmrgerous Drugs Act, 1930, or

(ii) section 7 of the Drugs and Magic Remedies (Objectionable Advertisements) AC1, l954, or

(iii) section 8 of the Suppression of Immoral, Traﬁic In Women and Girls Act, 1956, or

(e) who has been arrested under section 4 of the Passport (Entry into India) Act, 1920, or

(f) in respect of whom a direction or order under section 5 of the Passport (Entry into India) Act, l920 has been made, or

(g) to whom a pardon has been tendered under section 306 or 307 of the Code of Criminal Procedure, 1973.

shall, if so required by a police ofﬁoer, allow his measurements or photograph to be taken by a police oﬁcer in the prescribed manner."

V. Magisterial orders----section 5---the present position as to signature.

5.20. This takes us to section 5. That section empowers a magistrate to order a person to allow his measurements or photograph to be taken, where the magistrate is satisﬁed that for the purpose of any 'investigation or proceeding under the Code of Criminal Procedure, 1898' (this was the Code then in force), it is expedient to make such a direction. It is then obligatory for the person directed to attend at the time and place speciﬁed in the order and to allow his measurements or photograph to be taken by the police officer. There are cer- tain safeguards in this behalf, provided by the two provisos to the section.

5.21. It is to be noticed that section 5, as it stands at present, does not permit an order to be pa-".3erl directing a person to furnish :1 specimen signature or handwriting. The rea- sons for this n-.u'r:=.v scope of the section are partly historical. The Act of i920 was drafted to meet an immediate need. The difficulty that had been actually experienced roundabout 1915 related only to photographs and ﬁngerprints. There had been no diﬂiculty reported as to taking a specimen signature.

5.22. Even as regards photographs and ﬁngerprints, no difficulty seems to have been felt before 1915. But, in 1915, the Government of Bengal drew attention to the case of two dangerous conspirators convicted in the Raja Bazar bomb case who were most persistent in their refusal to be photographed. That Government further reported that instances were becoming frequent in which prisoners refused to allow their ﬁngerprints or photographs to be taken. It was in this background that the Government of Bengal suggested certain amend- ments in the Police Act and the Prisoners Act with a view to enabling the police oﬂicers and jail superintendents to take ﬁngerprints, measurements, etc. of persons under arrest, under- trial prisoners and convictsl.

1. National Arclrivcs, papers 1-olttt-Eng to Act 53 of 1920. despot-ch to the Secretary of State for India. from the Home Depsrtment; No.8 of 1918 dated 18th September, 1918 .

to revise section 4.

Section 5.

Position as to taking of specimen signature.

Position before and after 1915.

Legal questions not raised so far.

Position in England as to signature.

Suggestion of Supreme Court.

Identiﬁcation of voico~preSent position.

_The Government of India, after an examination of the whole question, came to the con- clusion that--

''No further time should be lost in placing on a regular footing a practice which is the normal incident of police practice in India."

Since no difﬁculty had been felt as regards the taking of signatuieas such, no provision on that point was contemplated in 1920.

5.23. In fact, even after 1920, the legality of coercive mezsures to secure identiﬁcatory evidence in general does not seem to have been directly in issue before the courts. After the commencement of the Constitution, some constitutional questions with reference to the compulsory taking of evidence have, no doubt, been debated in courts. But the position under the general law of torts has not been discussed at length in India. Even in the leading case relating to sclf--incrimin3tion under article 20(3) of the Constitution, where one of the set of documents in issue related to certain specimen signatures taken from the accused in the erstwhile State of Bombay, the legality of the practice as such was not challenged.

The position in this respect, however, has now changed. The observations made by the Supreme Court, already referred'! to, render a detailed examination of this aspect desirable.

5.24. It would be of interest to note that in England no power has been taken to use force to compel the taking of signature, though the taking of ﬁngerprints has been provided for by statutory regulations. We are setting out in an Appendix the English law in some detail.

5.25. In India, the deﬁciency in section 5, resulting from the absence of a provision as to the taking of signature became crucial in the case before the Supreme Court.4 The Sup- reme Court, aftcr holding that section 73 of the Indian Evidence Act did not apply at the stage of investigation, made the following pertinent observations :-

"We accordingly dismiss the appeal and while doing so, we would suggest that suit- able legislatioir' may be made on the analogy of section 5 of the Identiﬁcation of Priso- ners Act, to provide for the investiture of magistrates with the power to issue directions to any person, including an accused person to give specimen signatures and writings."

Since a difficulty has already arisen as to specimen signature, :2 suitable amendment of the law is necessary on the point. We shall, towards the close of this Chapter," suggest a suitable re-draft of section 5.

VI. Recording of voice

5. 26. The scope of section 5 needs to be expanded in another respect. The general power of investigation given to the police under the Criminal Procedure Code may not imply the power to require the accused to furnish a specimen of his voice. Cases in which the voice of the accused was obtained for comparison with the voice of the criminal offender aie known but the question whether the accused can be compelled to do so does not seem to have been debated so far in India.

There is no speciﬁc statutory provision in India which expressly givespower to a police ofﬁcer or a court to require an accused person to furnish a specimen of his voice.

'. Kathi Kalu, A.I.H. 19618.0. 1808, 1816, para. 21.

2. Chapter 1, supra.

3. See Appendix 1.

4. State of U. P. v. Ram Bzibu Misra. (1980) 2 S.C.C. 341, para. 8 (1st May, 1980).

5. Emphasis added.

°. Para 5-32, infra.

5.27. It would appear that there is scope for the use of recording of voice in investigation. A sound recording would, for example, be very useful where accent or lisp is important.1 A voice print? is :1 visual recording of voice. It mainly depends on the position of "for- mants". These are concentrates of sound energy at a given frequency. It is statcd3 that their position in the "frequency domain" is unique to each speaker. Voice prints resemble ﬁnger prints, in that each person has a distinctive voice with characteristic features dictated by vocal cavities and articulr,tcs4.

Voice-print identiﬁcation seems to have a number of practical uses. In England, in November 1967 at the Winchester Magistrate's Court, a man was accused of making malici- ous telephone calls. Voice--print identiﬁcation (spectrograph) was used and the accused. was found guilty'''.

Identiﬁcation by voice has been often resorted to elsewhere".

5.28. In view of this scientiﬁc advance, it may be useful to expand the scope of 'the coercive measures sanctioned by the Act, so as to cover identiﬁcation by voice. Though the need for such identiﬁcation may arise only occasionally, such a provision could be of great value. Of course, a provision requiring a person arrested to speak certain words or to make certain sounds cannot be enforced directly. in as much as, if the person concerned refuses to do so, it is not physically possible to compel him to speak. At the same time, indirect sanctions in tlltle shape of a penalty (compare section 6) for refusal to do the speciﬁed act could be app 'ed.

If the above approach is accepted, the object could be carried out by adding, in section 5, suitable words at the appropriate place7.

VII. Recording Iaf reasons for order of the Magistrate 5.29. We have so far discussed, in regard to section 5, questions of a substantive nature mainly concerned with scope of the section. It is now necessary to consider matters of a pro- eedural character. As the section stands at present, the magistrate is not required to give reasons for the direction made by him under the section". It appears to us that there are several important considerations justifying the insertion of such a requirement.

In the ﬁrst place, the section applies to "any person"--tl1ough, under the proviso, it is necessary that such person should at some stage have been under arrest. Its scope is thus fairly wide. In the second place, the section authorises the giving of a direction for the purpose of "any investigation or proceeding" under the Code. This also shows the width of its coverage. In the third place, the kind of action that may be directed under the section interferes with bodily integrity and refusal is attended by criminal penalties.9 Propriety, therefore, requires that reasons should be given for such a direction.

Apart from this one cannot overlook the emerging interpretation") of "procedure estab- lished by law" (article 21) that is now being developed by the Supreme Court. In view of this development, it is desirable that the section should incorporate such a safeguard as is sug- gested above. For all these reasons, we are including this amendment in the redraft of section 5 which we are recommending later in this Chapter".

VIII. Overlapping between section 5 and section 73 5.30. While the above amendments would expand the scope of section 5, there is one point in regard to which its scope may need to be restricted. This IS necessary in order to remove a certain amount of overlapping that exists at present between section 5 of the Act 1_ men Smiiuels, "Idenit-iﬁcation Evidence" (1975)125 New L. J. 1146, 1147.

. Bonnctt Sandler, Law Enforcement and Criminal Justice (1979), page 303.

-'1. Bennett Sandlcr, Law Enforcement and Criminal Justice (1979) note below ﬁgure 9-7. '1. Bennett Sandler, Law Enforcement and Criminal Justice (1979), pages 303-304.

5 Timmas are Dado, "The vo1ce..pmit'* (1970 July), Indian Police Journal, pages 2634 -

5. See Appendix.

7. See para 5- 32, infra.

s. J.E. Gubbarg v. Emperor, A.I.R. 1936 Cal. 65. 67-

9. Section 6.

. See Appendix 3.

_ Para. 5- 32, infra.

N Chapter 5-----Utility voice recorder.

Need to extend the scope of section 5.

Reasons for a direc-

tion under section 5.

Overlapping between section 5, Act of 1920 and section '13, Evidence Act.

Need for amend-

ment« excluding from section 5 cases covered by section 73, Evidence Act-.

Recommendation to revise section 5.

of 192_0 and section 73, Evidence Act. If one takes the case of a magistrate acting in the course of trying an offence, the overlapping becomes manifest. The magistrate may, at the trial stage, require the person coneorned--usu;tlly, the accused person--to furnish a specimen of his ﬁnger impression not only under section 73, but also under section 5. Section 5 is wide enough to cover the stage of trial, as it covers every "proceeding" under the Code. There exists, thus, an overlapping between the two.

So far as section 73 is concerned, its scope will, to a certain extent, come to be better deﬁned, after the recommendation? of the Law Commission on the Evidence Act is im- plemented. According to the clariﬁcation as recommended by the Law Commission, section 73 will apply to a court only after it has taken cognizance of an offence. To this extent the overlapping will be reducedb'.

But section 5 (unless suitably amended) will continue to apply, inter alia, to the stage after cognizance of an offence by a magistrate and, to that extent, overlapping will continue. It does not need much argument to point out that such overlapping jurisdiction in this matter is not only unnecessary, but also likely to create confusion. For example, section 5 is hedged in with certain safeguards, while section 73 is not. Thus, the question whether safeguards should or should not be complied with in a partiular case will depend on the statutory pro- vision resorted to. This should be avoided.

5.31. It is to be noted that section 5 covers ﬁnger impressions and (after the proposed amendment) will cover also signature'. Both are covered by section 73 also, in regard to the trial stage. That is how overlapping arises.

In order to remove the overlapping, it is necessary that a provision should be inserted in section 5 to ensure that it does not apply in relation to any action that the court is competent to take under section 73 of the Evidence Act".

IX. Recommendation as to section 5 5.32. In the light of the above discussion, we recommend that section 5 should be re- vised as under :--

Revised section 5 "(l) If a Magistrate is satisfied that, for the purpose of any investigation or pio-

ceeding under the Code of Criminal Procedure, 1973, it is expedient to direct any person---

(a) to allow his measurements or photograph to be taken, or

(b) to furnish a specimen of his signture or writing, or

the Magistrate may make an order to that effect, recording his reasons for such an order.

(2) The person to whom the order relates--

(a) shall be produced or shall attend at the time and place speciﬁed in the order, and

(b) shall allow his measurements or photograph to be taken by a police officer, or furnish the specimen signature or writting or furnish a specimen of his voice, as the case may be in conformity with the orders of the Magistrate before a police oﬁicer.

"(3) No order directing any person to be photographed shall be made except by a metropolitan Magistrate or a Magistrate of the first class. (4) No order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding. (5) Where a court has taken cognisance of an oﬂence a Mag_istraIe.shall not under this section, give to the person accused of the oﬂence any direction which could, under section 73 of the Indian Evidence Act 1872, be given by such Magistrate."

1_-G) Superihiendeni and RemembrancerofLega!A_fj"aira v. Kirambalrz, A. I. R. 19231928 Patna. 103. (vb) n=Za}m;_ _ Emperor, A.I.R. 1928 Patna. 103.

. Law Commission of India, 69th Report, para 33 - 40.

. See para. 3~20, supra.

_ Pam, 5-32, infra. andpara 5-23, supra.

. Para 5-32, infra.

can-uia CHAPTER 6 lI\'CIDENTAL PROVRSIONS : SECTIONS 6 TO 9 6.1. By now, we have disposed of the operative provisions of the Act, and we now proceed to coiisider its incidental provisions. Of these provisions, section 6 is the most im- portant. It provides cci'tz.in sanctions in reg; rd to resistznce to the taking of me: surements or photographs. Under su.b-sqtctioii ( l), it shall be lawful to use z.ll1r.C£,i1S11CCC.5S2_.ry to secure the taking of nicasui't:ni-nits or p'nctcgr;,phs. Under sub--section (2), resistance to, or refusal to allow the taking of, niesisureinents or photographs is deemed to be an offence under section 186 of the Indian Penal Code (voluntarily obstructing a public servant acting in the discharge of his official duties).

6. 2. The provision in section 6(1) to the effect that on the resistance to the taking of mea- surements or photographs or on the refusal to allow the taking of the same, "it shall be lawful to use all I119-£1,118 necc.ss2.ry to secure the taking thereof" raises an interesting question, in mely, how fair is the person using such "necessary means" allowed to go and what is the extent of force that he can employ for the purpose 'I This sub-section is modelled on the provision relating to arrest in the Code of Criminal Procedure'. Under that Code, if ii person to be arrested resists forcibly the endeavour to arrest him or attempts to evade the arrest, the police oﬁicer or other person arresting him "may use all means necessary to effect the arrest". The Code, however, further provides that nothing in the section gives a rig t to cause death of a person who is not accused of an otfence punishable with death or with imprisonment for life.

In the context of measures for identiﬁcation, no such qualiﬁcation was apparently con- sidered necessary, because it would be unthinkable that the person taking "measurements" would go to the length of causing death or even serious bodily injury.

We would leave section 6(1) undisturbed, no difficulty having arisen so far, 6.3. In xiew of the amendment recommended by us in section 5 of the Aci2, section 6(2) will need CBI't:i,lI1 consequential changes so as to penalise refusal to furnish specimen signature or voice.

6.4. Accordingly, we recommend that section 6 should be revised as under :--

Revised section 6 "6. Resistance to the taking of measurements, etc.--(l) If any person who, under this Act, is required to allow his measurements or photograph to be taken resists or refuses to 2,-.llow the taking of the s:imc3, it shall be lawful to use all means necessary to secure the taking thereof.

(2) Resistance to, or refusal to allow, the taking of measurements or photographs or refusal to furnish a specimen signature or writing, or a specimen of voice under this Act shall be deemed to be an offence under section 186 of the Indian Penal Code,"

6.5. Section 7 provides for the destruction of photographs and 'records of measurements on acquittal, except where the person concerned has been previously convicted of an offence punisliable with rigorous imprisonment. for .1 term or one year of upwards, 1 . Section 46(2) and 46(3), Code of Criminal Procedure, 1973 .

2. Para 5'32, supra.

3 . It. is iinnecessary toadd the taking of signature insub-section.

Section 6.

Questions raised by section 6(1) "means necessary".

Changes needed in section 6(2).

Suggested re-draft of section 6.

Section 7.

S , t' 7 - - - . . .

Va?" '° be '99 view of the changes recommended by us in section 5, section 7 will also need ampliﬁcation so_ as to provide for the destruction of specimen signature or wirting or specimen of voice. Accordingly, we recommend the following re-draft of section 7 :--

Revised section 7

"7. Destruction of photographs and records of nieasureiirerits etc. on acquittal.- _Where any person,._. . . . : . . . .not having been previously convicted of an offence pun- ishable with rigorous imprisonment for a term of one year or upwards,----

(a) has had his' measurements taken or has been photographed or has furnished any specimen. signature or writing or a specimen of his voice in accordance with the pI'OVlSlOI'lS of this Act, ( b) and is released without trial or discharged or acquitted by any Court, all measurements and all photographs (both negatives and copies) so taken, and all specimen signature and writings or specimens of voice so furnished, shall, unless the Court or (in a case where such person is released without trial) the District Magistrate or Sub- Divisional Oﬂicer for reasons to be recorded in writing, otherwise directs, be destroyed or made over to him."

seer.-an 3_ ' 6. 7. Section 8 empowers the State Government to make rules for the purpose of carrying into effect the provisions of the Act, including, in particular, certain speciﬁed matters, which are mostly connected with action to be taken under sections 3 to 7.

Revised section 8. 6. 8. This section will need consequential changes in view of the amendments recommended by us in section 5. Apart from that, opportunity may also be taken of providing that rules under the section should be made by means of notiﬁcation to be published in the oﬁicial gazette. Accordingly, we recommend that section 8 should be revised as under :--

Revised section 8

"8. Power to make rules.--(l) The State Government may, by notiﬁcation in the Oﬁicial Gazette, make rules for the purpose of Carrying into elfect the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing provision, such rules may provide for-----

(a) restrictions on the taking of photographs of persons under section 5 ;

(b) the places at which measurements and photographs may be taken or at which any person may be required to furnish "any specimen signature or writing or specimen of his voice under this Act ,-

((1) the method in which any class or classes of measurements shall be taken under this Act;

(e) the dress to be worn by a person when being photographed under section 3; and

(f) the preservation, safe custody, destruction and disposal of records of measure- ments and photographs and of specimen signatures and writings or specimens of voices taken under this Act.

Section 9 No 6.9. Section 9 contains a general provision barring suits or proceedings for anything change ' done or intended to be done in good faith under the Act or under rules made thereunder. Follow- ing as it does, the usual pattern, it needs no special comments.

1. Para 5 .32, supra.

CHAPTER 7 SUMMARY or RECOMMENDATIONS We summarise below the recommendations made in this Report.

Chapter 4----Preliminary matters (1) Short title of the identiﬁcation of Prisoners Act, 1920 should be amended as re- commended in the Report'.

(2) Section 1(2) of the Act should be amended so as to extend the Act to the whole of India except the State of Jammu and Kashmirﬂ.

(3) In section 2(a), which deﬁnes "measurements," palm impression should also be added?

(4) In section 2(b), in place of the present reference to the Code of Criminal Procedure, 1898, a reference to the Code of 1973 should be substituted4.

Chapter 5---- Taking of measurements, ﬁngerprints and plwtographs : sections 3 to 5.

(5) In section 3, the offence under section 19 of the Dangerous Drugs Act, 1930 should be added. Further, iii the same section, person in respect of whom orders under section 18 of the Dangerous Drugs Act, 1930 have been passed should also be included".

(6) In section 3(b), in place of present reference to the Code of 1898. a reference to the Code of 1973 should be substituted. Further, after the words "if so required," the words "by a police officer" should be added, for the sake of precision".

(7) Section 4 should be amended so as to empower a police officer (as deﬁned in the Act to take photographs of the persons to whom the section'7 applies.

(8) Section 4 should be further amended to cover the taking of identiﬁcation data from certain other persons mentioned in the Reports, being persons arrested under various statutory provisions as speciﬁed.

(9) Section 5 should be amended to provide speciﬁcally for a power (to be exercisable by the authorities and subject to the safeguards given in the existing section) to require the persons mentioned in the section to furnish-----

(a) specimen signature or writing"

(1)) specimen of voice".

(10) For a direction given by the Magistrate under section 5, reasons should be given".

([1) Overlap between section 5 of the Act of 1920 and section 73 of the Evidence Act should be removed by excluding from the scope of section 5 a casein which a. court can act under section 73.12

1. Paragraph 4- 1.

. Pumgmph4~ 8 .

. Pn.ragraph4' 10.

. Paragraph 4- 10.

. Paragraphs5' 13,5- l~La.nd5-16.

5. Para.graphs5- 15 a.nd5' 16.

7. Paragraphs5-17to 5- 19.

3. Paragraphs 5- 17 to 9 19.

1'. Paragraphs 5-21 to 5-25 and 532.

1°. Paragraphs 526 to 5' 28 and 5- 32.

11. Paragraphs 529 and 5-32.

1'. Paragraphs 5-30, 5-31 and 5-32.

usual»:

Chapter 6--Incidential provisions .' sections 6 to 9.

(12) In view of the amendments rec should also be amended to make conseq A 24 ommended in the other provisions of the Act, section uential changes'.

(13) In view of the amendments recommended in section 5, section 7 should also be consequentially revisedz.

(14) In view of the amenmdnets recommended in section 5, section 8 should also be amended for carrying out consequential changes. Further, it should be provided in the section that rules under the section shall be made by means of a notiﬁcation to be published in the Official Gazette3.

P.V. Dixit.

S.N. Shankar Gangeshwar Prasad RM. Bakshi 27th August, 1980.

(Sd/) . . . . . . . .

Chairman Sd/--

Member Sd/--

Member Sd/---

M ember-Secretary

1. Paragraphs 6-3 and 6-4.

'. Paragraph 6~6.

3. Paragraph 6-8.

APPENDIX 1 ENGLISH LAW AS TO FINGERPRINTS AND MEASUREMENTS I. Common law There is no general common law right to search the body of a person arrested,' except for weapons which he carries or for evidence on his possession which is material to the bﬂence alleged to ha ve been committed.'--'-3 Although there is little English authority, it can be said with some conﬁdence that the use of force :n.g~:.inst the body of a detained person for the purpose of obtaining evidence would (unless there is U. speciﬁed rule of statutory authority sanctioning it) be actionable as a tort.

There is a common law power to search arrested persons (the police have not tried to assert th-rt this power extends to a search of the body, as distinct from a search of the clothes or exterior)4. But other cases of use of force would require statutory authority.

There is no common law right in the police in England to take ﬁnger prints without the consent of the accused'. The consent must be free".

Scott L.J. regarded the taking of ﬁngerprints without statutory authority as inconsistent with the presumption of innocence until proof of guilt and (if it followed an arrest) as an element in the false imprisonmcnt7.

The Scottish Justiciary Appeal Court in 19338. by a majority judgment, held that forcible taking of ﬁnges-prints did not constitute a violation of the common law right of the subject in Scotland. But it would appear that the English law was diﬁerent this was pointed out by Lord Hunter in l1is disszntingjudgment in the above mentioned case.

Om C.)ntemp0r..,r y article" offered these comments on the Scottish case. "Forcible taking of ﬁngerprints does not I1'.l.p8T'.I' to have been the subject ofreported English judicial decisions. It would b: wise, however, for those on whom the taking of such (ﬁngerprints) devolves to acqu tint themselves with the regulations on the subject and see that such (regulations) are strictly carried out."

II. Present statutory provisions as to ﬁnger prints The position in England as to ﬁnger prints is now governed by statutory provisions. The Magistrates may order fingerprints"? and palm prints" of the accused to be taken, Where he has been chai ged with a summary or indicatable offences, if an application is made by a Police Ofﬁcer not below the rank of Inspector. This power cannot, however, be invoked where the accused is under 14 y.:ars ofage.1'3-13 For the purp )s 2 of taking ﬁngerprints, such reasonable force may be used as is necessasy. Fin 3 :r pri its rn ~.y b: taken at the place where the court is sitting or where the person concerned is comtnitted to custody or remand.

1. See also Chapter 1 of the Report.

9. Bessell v. Wilson, (1853) Law Times old series 233.

3. Halsbury, 4th Edition, Vol. 11, page 85, para. 121.

'. Glmville L. Williams, The Privilege Agtinst Selfglncrimination-. An International tymposium (England) (1961), 51 J. of Cri. Law, Criminology and Police Science 166, 169.

5, Isschinsky v. C/zrilie, (1946) KB. 124, 142 (Scott L.J.).

". Dumbell v. Roberts. (1944) 1 All 15.3,. 326, 330 (C.A.) (Per Scott L.J.).

Dumbell v. Roberts. (1944) 1 All E.R. 326, 330.

. See Law Commission of India, 69th Report.

. Note in the Justice of Peace, reproduced in (1933) 34 0|-iminel Law Jounral 71, 73 .

. Section 40(1). Magistrates Courts Act, 1952.

. Section 33. Criminal Justice Act, 1967.

12. Section 40(1), Magistrates Courts Act read with section 8, Children and Young Persons Act, 1967. '3, .'VIori-_1rt_V, Police Law (1976), page 16.

7- m 25 Search of body.

Position in England as to battery.

Position in Enland as to ﬁngerprints.

Use of force.

Regulations under the Prisons Act.

Photographs.

Compulsion to attend identiﬁes;

cion parade.

_ Fingerprints can be taken only of a person "who has been taken into custody and charged with an oﬁence before a magistrate."

But such prints may also be taken from any person who appears before a Magistrate's Court lllZ'.l1S\VCl' to_:x._sumni0n for any offence punishable by imprisonment by virtue of one of the the statutory pl'0Vl§l0I1S.2 » .

_ If the iiiﬁormzitioii is dismissed, or_if the examining justices" do not commit the accused for trial or if he 1S ccquittcd, the ﬁnger-prints and all copies and records thereof must be destroy-

' yed." ' Apart from the provisions mentioned above, there are statutory Regulations in force in England relevant to the subject.4 Under the Prisons Act, the Secretary of State may makeregu- lations for measuring and photographing of psisonersﬁ This provision applies also to remand centres, detention centres and Borstal institutions and persons detained therein. Such Regu- lations were mrzde in 1896 under the corresponding earlier legislation, and are continued in force by the Prisons Act."-7 A .crim.in:=,l prisoner may be photographed and measured at any time during imprison- ment, either in prison dress or in any other dress suitable to his position in life. "Measurements" includes the taking of impressions of external ﬁlaments of the ﬁngers and thumb of each hand with ink.

An untried prisoner may be photographed or measured and his ﬁnger impressions taken while in prison by order of the Secretary of State or upon a written application by a police oﬂicer of not lower rank then a Superintendent. The application must be conﬁrmed by a magistrate or (in the metropolitan area) by the Commissioner or an Assistant Commissioner of Police. The 'application must set forth that, from the character of the offence with which the prisoner is charged or for other reasons, there are grounds for suspecting that the prisoner has been previously convicted or has been engaged in crime or that from any other cause'? his photograph and measurements are required for the purposes of justice9.

There are provisions in England for the destruction or return of the photograph and measurements on acquittal etc. where the person concerned is an untried prisoner who has not been previously convicted of crime. The provisions also enable the prisoners' ﬁgnerprints to be compared with other prints in the possession of the prosecution.

The U. K. Committee on identiﬁcation evidence said") :--

"The first and most obvious case is when the accused refuses to attend the parade. We have noted that in parts of the United States there has been a move in recent years to employ a court order to compel..a suspect who is not already in custody to attend an identiﬁcation parade. .But such has never been the practice in this country (U.K.) and none of our witnesses had advocated its introducion; apart from the objectio.' in principle to the exercises of compulsion, everyone is agreed that a fair parade requires the accused's co-operation."

1. Section 40(2), Magistrates Courts Act, 1952.

3. Section 33, Criinianl Justice Act, 1967.

3. Section 40(4), Magistrates Courts Act, 1952.

4. Stone's Justices' Manual (1970). Vol. 2, pages 2636-2637. Also Vol. 1, page 455.

5. Sections 16 and 43(3), Prisons Act, 1952 ' ' ". Stone'S Justices' Manual (1970), Vol. 2,,pages 2636-2637.

7. See Halsbury, 3rd Ed., Vol. 30, page 591, para. 1131.

9. Stone's Justices' Manual (1970), Vol. 2, pages 2636-2637.

9. See also Halsbury, 3rd Ed., Vol. 30, page 596, para 1143.

1°. Departmental Committee on Evidence of Identiﬁcation in Criiniml Cases (1976), pages 97,98, 27 III. History of English law The present law on the subject of ﬁngerprints has developed gradually and through stages. In the case of convicted criminals, section 6(6) of the Prevention of Crimes Act, 1871 (34 and 35 vie. Chapter I 12) authorised the niaking of regulations for the photographing of criminals. The Penal Servitude Act added measurements to photography, and extended the Regulations made under the Act of 1871 so as to cause them to apply to "all prisoners who may for the time being be conﬁned in any prison."

Provision was made for ﬁngerprinting' in the Regulation of 1896 applying to criminal prisoners? A person on remand in custody or a convicted prisoner could be measured, photo- graphed and ﬁngerprinted.

The only difference between persons on remand and convicted persons was that the former could only be ﬁngcrprintcrd pursuant to a warrant issued by a magistrate on the application of a police officer not below the rank of Superintendent or, in the metropolitan area, the Commis- sioner or Assistant Commissioner of Police, while the latter cold be ﬁngerprinted at any time without warrant." If a prisoner on remand with no previous convictions was acquitted or dis- charged by the magistrate, his ﬁngerprints were to be destroyed. Until 1948 these Regulations provided the only authority for the compulsory ﬁnger-printing of suspected persons.4 The Regulations did not cover persons charged with offence triable summarily.

The law was altered by section 40 of the Criminal Justice Act, 1948, replaced by the Magis- trates' Courts Act, 1952, section 40 which (as subsequently amended)5 is the principal legis- lative provision governing ﬁngerprinting.

Section 40 (as amended) provides that where any person not less than 14 years of age who has been taken into custody or summoned is charged with an offence before a "magistrates" court, the court may, on the application of a police oﬂicer not below the rank of Inspector, order that his ﬁngerprints or palm prints shall be taken by a constable".

IV. Evidence illegally obtained in England However, evidence extracted without the consent of the person concerned is not necessarily inadmissible. A note in the Law Quarterly Review7 has put the position thus :

"It is clearly reasonable and just that a strict rule should apply to confessions and to other statements made in answer to questions asked by the police. Such an answer or statement is not admissible unless it is shown to have been in the sense that it has not been obtained by any threats or inducements."

"This distinction between statements and confessions on the one hand and what may be termed physical evz'dence3 on the other is an entirely rational one, becuase the danger in the case of confessions and statements is that they may be false. On the other hand physical evidence cannot be affected by any threats or inducements. The Judges' Rules concerning the admission of confessions do not therefore apply to fmger-prints."

V. Position in Australia In Australia'~', the High Court had occasion to deal with the position relating to photo- graphs at length. While noticing that section 81(4) of the Police Offences Act, 1953 to 1967 (State of South Australia) permitted the taking of photographs of a person in lawful custody on a charge of committing an otfece for the purpose of establishing the identity of such

1. Leigh, Police Powers in England and Wales (1975), pages 199-200.

2. Regulations for the Measuring and Photography of Criminal Prisoners, S.R. & O. 1986, No. 762, conti- nued in force by Prisons Act, 1952, 55. 16 and 54(3).

, S.R.. & O. 1896, No. 762, paragrapus 3,4,5.

. Sir J. Moylan, Scotland Yard (1929), pages 192--194. '. Bv Criminal Justice Act, 1967, section 33.

. L(I'l',Ih, Police Powers in England and Wales (1975), page 200. . Note on Callie v. Gunn! (1963) 3 W.L.R.. 935 (1964) 80 L.Q.R. 17, 18. Note the expression 'physical evidence'.

Quwcn v. Irizlaml, (1974)) 44 Australian Law Journal Reports 263, 268.

3 4

'<9:

1! History.

Evidence not inadmissible because of force.

Photographs in Australia.

Evidence illegally obtained.

Sweden .

person with a person known to have committed the crime then under investigation, the High Court pointed out that the police ofﬁcer had no power to require a person to submit to photo- graphy for any purpose other than the identiﬁcation--th.at is, identiﬁcation to the extent men- tioned in the statute.

In this particular case photographs of the hand of the accused were taker. and used to assist the medical expert in the formation of the opinion that the scratches on the right hand of the accused could have been caused by handling the knife of which the handle had been broken. The accused had been charged with committing murder of a woman in ii kitchen, and amongst 1. c knives found in :1 drawer in the kitchen, three had traces of human blood protein rind the hp ndle of one of them was broken. There was evidence that two days before this incident the handle had been intact.

The cvidcnct: in question was excluded in exercise of the discretion of the Court.

According to English as well as Austrzzlian przticc, while the 1': ct that evidence w:'s illegally obtaiiied, does not make it inadmissible, it c. n be :1 ground for exercising the discretion of the court in favour of excluding the evidence. The matter has been dealt with at some length in on article published in the Austr. lian Law Journzl! some time rrgo. In general, if the evidence has been obtained by 'oppressive conduct' or unfairly, the judge would exclude it in exercise of such a discretion. This proposition has been re-iterated in a fz:,irly recent judgment? of the Privy Council where, however, on the facts, the evidence was allowed.

In Scotland, the position is more interesting, in as much as the evidence is not admitted unless the Judge in his discretion approves its admission'.

VI. Canada In Can.-ads, in one reported case' in the Ontario Court of Appe...,l in 1973, consideration was given to the question whether it was proper for the prosecution to give evidence that an ncctiscd l1'.(l refused to take p:.1't in ..n identiﬁcation parade. In his summing up the trial judge said that there was no sitttutory ztuthoriiy to force an accused person, or a suspect, or a person zit at police station, into a line up, and that it was for the jury to decide, on il1Cl0l'_'tll.Iy of the evidence, wh;..t sign.iﬁc.ence should be attached to Mr. Mz1rcoux's refusal to par.icip:=.te innsuggested line up.

On appeal, two judges of appeal held that this direction did not conﬂict with the principle that no man should be compelled to incriminate himself. They said :

"That privilege relates to the obtaining of oral confessions or statements from a prisoner. Here the evidence adduced relates to the conduct of the accused, not to something that he stated or did not state as to the charge against him. Thusitis not zvninvasion of his rights under the maxim (namely, the privilege ztgninst self-incrimination). It is but a circumstance which together with :11 the other circumstznccs the jury/a.re entitled to take into consideration."

In :1 dissenting judgment, Brooke J /A said that the privilege against self-incrimination vested in the zippellant the right to refuse to participate in the line-up, and that to allow a negative inference to be drawn from the exercise of that right would amount to :1 pf -,rti:1l denial of the right itself.

VII. Civil law countries The position does not appear to be substantially dilferent, even in the civil law countries. It is p3l'i1.-'tpS for this reason that, where necessary, some continental Codes of Cirminnl Procedure contain speciﬁc provisions') in regard to the employment of coercive measures by the police for identiﬁcation.

In Swcden, for identiﬁcation by voice, on severe.) occasions the suspect and other person have read a suitable text on tape which is later played back to the witness".

1. D.C. Pearce, "Judicial Review of Search Warrant" (1970) A.L.J. 467, 481.

3. King v. Reginam, (1969) A.C. 304 (P.C.).

3. King v. Regiimm, (1969) AC. 304; (1968) 2 All E.R- B10, 612, 617 (P.C.).

4. R. v. Illa»-corn: and Solomon, (1973) 23 CRNS 61 (Ontario) referred to by Departnlcnhal Committee on Evidence of Identiﬁcation in Criminal Cases (1976), page 193.

5. E.g. Section 81. a., German Code of Criminal Procedure.

". Departmentaal Committee on Evidence of Identiﬁcation in Critninnl cases (1976), Appendix L, page 196. para 36.

APPENDIX 2 AMERICAN LAw As TO FiNGER PRINTS AND MEASUREMENTS I. U.S.A.--The basis for federal jurisdiction In the U.S.A., the basis for federal constitutional jurisdiction in the area of criminal procedure is most prominently the 14th Amendment of the Constitution. Its mandate----"due process" as a condition for restricting a person in respect of his life, liberty or property--has furnished the Federal Courts with a jurisdicton whereunder, to a large extent, they require the law enforcement agencies and the courts to conform to certain norms. These norms are mainly derived from the ﬁrst ten amendments to the Constitution which contain various guarantees, includng certain guarantees relevant to criminalprocedure.

By their terms, these amendments do not apply to the States, but many of them have become applicable to the States by virtue of a series of Supreme Court decisions construing the words "due process" in the Fourteenth amendment as embracing all the essentials of a fair trial and therefore as incorporating many of the fundamental rights guaranteed by the ﬁrst ten amendments relevant to criminal proceedings. In other words, if a particular guarantee contained in the ﬁrst ten amendments is so fundamental as to justify the view that it should be regarded as part of "due process' then the States also must conform to them. It is on this basis that the privilege against self-incrimination (the Fifth Amendment) and the protec- tion against unreasonable search and seizure (the Fourth Amendment) have become applica- able to the States.'-2 II. Self-incrimination in U.S.A. The Fifth Amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself". Similar guarantees are embo- died in the Constitutions of every State, except Iowa and New Jersey. Iowa has read the pri- vilege into its "due process clause" and New Jersey has adopted it by statute.3-4 The privilege against self-incrimination in the United States is universally interpreted as protecting the accused from compulsion to testify against himself by a threat of the contempt power.5 The privilege is thus generally assumed to_ prohibit all forms of pressure on the accused to testify and also any adverse comment on him if he fails to testify. Asking the accused to take the stand and thus forcing him to claim the privilege affirmatively is also unconstitutional.

This concept of the privilege is the product of a complex history. In England," sus- picion of all interrogation of the accused emerged initially as a reaction to practices of the High Commission and the King's Star Chamber in enforcing unpopular religious and political laws in the late sixteenth and early seventeenth centuries. Accused persons were sometimes forced to testify against themselves by use of the contempt power and torture. In addition, since they were frequently not informed of any speciﬁc charge against them, they were compel- led not merely to incriminate themselves, but also to provide the material for a charge.7 In reaction the rule developed that the concempt power could not be used to compel an accused to testify, even after he had been speciﬁcally charged. The development of the accused's rights to counsel and to call witnesess, together with the tradition that the accused should not be put under oath, culminated in the nineteenth century in a general rule of compulsory silence. During this period the privilege acquired its greatest signiﬁcance, since the enforced silence could not logically give rise to an inference of guilt.

. Mapp. v. Ohio, (1961) 367 U.S. 643.

Malloy v. Hogan, (1964) 378 U.s. 1, Amamz Sociy v. Salzer, (1959) 250 Iowa. 380, 383; 94 N.W. 2d 337, 339.

N.J. Rev. Stat. 2A : 84A-17 (Supp. 1963), See generally Model Code of Evidence rule 203, comment (1942). . McCormick, Evidence (1954), 126, 263 and 264. .

. G. Williams, The Proof of Guilt 26 (1961), pages 38~15(3d ed. 1963).

. See also Ferguson v. Georgia, 365 U.S. 570, 573-78 (History of inoompetencv doctrine).

qua-Luau Origin of the pri-

vilege against self-

incrimination.

No compulsion and no adverse comment permitted.

Evolution.

Accused as witness.

When concern for the innocent led later in the 19th century to legislation enabling the accused to testify if he chose, the Acts in U.S.A. generally provided that no adverse inference should be drawn from failure to testify on part of the accused.

III. U.S.A.--Non-testimonial compulsion permitted In a number of comparatively recent decisions, the Supreme Court of U.S.A. has indicated that not all evidence which an accused is compelled to supply is protected by the ﬁfth amend- ment.'-2 Thus, in Schmerber v. California} the Supreme Court stated :

"The distinction which has emerged . . . . . . . . . . . .is that the privilege is a bar against compelling 'communications' or 'testimony', but that compulsion which makes a suspect or accused the source of 'real or physical' evidence does not violate the privilege."

Employing this distinction, courts have upheld the following acts----(i) compelling an accused to participate in a line-up4 (ii) to provide handwriting samp1es5 voice exemplars",

(iii) to provide blood samples,7 and ﬁnger--prints8 (iv) to dress in clothing related to the crime9 and (v) to identify himself as being present at the scene of an accident10-'2.

The Supreme Court has explained that such procedures do not violate the privilege, because they compel the accused only to "exhibit his physical characteristics, not . . . . . . . . . .to disclose any knowledge he might have" 13.

In the latest case" relating to voice-prints, the view was reaffirmed that a handwriting exemplar (in contrast to the content of the work written) is, like the voice or body itself, an identifying physical characteristic outside the protection of the ﬁfth amendment. It was em- phasised that the voice recordings were to be used solely to measure the physical properties of the voice of the persons concerned, and not for the testimonial or communicative content of what has been said.

IV. Due process Violation of due process, however, is not allowed where the police practice "shocks the conscience",--as where a stomach-pump is used to extract a substance from within the accused body. Such evidence is not admissible."

1. Aronson, "Payschistric Examination" (1973-74), 26 Stanford Law Review 55, 67, 68.

2. See 16 L. Ed. 2(d) 1332.

3. Schmerber v. California, (1966) 384 U.S. 757, 764. See also Gilbert V. California, (1967) 388 U.S. 263; United States v. Wade, (1967) 388 U.S. 218.

'. See United States v. Wade, (1967) 377 U.S. 218 (also permitting requirement that defendant speak for purpose of voice identiﬁcation) : United States v. Butlo, 393 p. 2d 783 (4h Cir. 1968).

5. Gilbert v. California, (1967) 388 U.S. 263, 265----67; United States v, Doe, 405 F. 32d 436 (2d Cir. 1968). °. See United Sates V. Dionisio, (1973) 410 US. 1.

7_ see Schmerber '0. California, (1966) 374 U.S. 757.

5. See United States ex. rel. 0 Halloran, v. Bundle, 266 F. Supp. 173 (E.D. Pa.) af'd , 384 F. 2d 997 (3rd Cir. 1967), cert, denied, (1968) 393 U.S. 860.

9. See United States v. Evans, 359 F. 2d (3d Cir.) cert. denied, (1966) 385 U.S. 863 Morrie V. State, 184, 50 2d 199 (Fla. App. 1966).

10. See California v. Byars, (1971) 402 US. 424.

11. Case Law of Fedral Courts taken mainly from Aaronson, Psyehiatrio Examination (1973-74) 26 Stanford Law Review 55, 67, 68.

12. See further 21 Americal Jurispurdence, 2d. articles 314-316 (Criminal Law).

13. United States v. Wade. (1967) 388 U.S. 218, 222.

:4. Us v. Dionisio, (1973) 410 U.S. 1. 6- i5_ Roohin V. California. (1952) 342 U.S. 165.

A subsequent illinois decision seems hardly reconcilable with the Supreme Court decision State v. Odom. 353 S.W. 2d 708 (Me. 1962).

The same test was applied to the extraction of a blood sample taken from an unconscious perpetrator though the test resulted in admissibility.' An American writer, after mentioning the eﬂ'ect of a violation of constitutional guaran- tees (the exclusionary rule), adds?-

"Included in this rule (due process) are--identiﬁcation during a line-up without the presence of the legal counsel, confessions . . . . . . . . . . . . . . ..(taken) during the time of detention by the police if the prisoner had no opportunity to have legal counsel present."

Within the due process limitation, scientiﬁc evidence may unquestionably be produced from a defendant as long as the methods are relatively gentle and scientiﬁcally proper.3 The demands of an urgent traﬁic law enforcement have contributed much to the admissibility of alcohol test resultshnd, forthat matter, of radar speed evidence5.

A suspect might be forced to wear particular clothing, where this was a material evidence in the identiﬁcation".

V. F irzger-prints and photographs It appears that in the United States the compulsory taking of ﬁnger-prints and photo- graphs from persons under arrest is a common practice7.

As already stated, what the constitution prohibits is physical or moral compulsion to ex- Non-testimonial tort communications from him, and not an exhibition of his body as evidence (when such compulsion in evidence may be material)". Therefore, no constitutional protection exists against compulsion ' 'A' to submit to giving ﬁngerprints, photographing, or measurements, to write or to speak for identiﬁcation, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.

Also, there is in the United States (from the constitutional point of view) no protection against requiring the accused persons to adopt a particular stance9 or to give a specimen of his voice").

The question, thus, is only one of providing statutory authority for measurements or the Q"°s"°" °f '°8""'7« procurement of other demonstrative evidence so that no liability in tort arises. It would be tedious to deal with the position in various States of the U.S.A. According to one view' 1, to take a ﬁnger print, photograph or measurement of an arrested person is not violation of the privilege against self-incrimination1?, nor a breach of privacy.

According to some courts, therefore, it is valid without statutory authority"-14.

1. Breithaupt v. Abraham, (1957) 352 U.S. 432. Delaware reached an opposite conclusion in State v. Wolf 164 A. 2d 865 (Del., 1960).

2. Peter Hay, Introuction to U.S. Law (1976),Page 193.

3. See People v. Diicher, 189 Cal. App.2d 720, Cal.Eptr.407 (1961), Cf. Qotte v. Sta£e,172 Neb. 110, 108 N.W. 2d 737 (1961) '. E.g. State v. Baker, 56 VVa.Sh, 2d 846, 355 P. 2d 806 (1960); and See State V. Ball, 179 A. 2d 466 (Vt., 1962); Bean V. Stale, 12 Utah 201 76, 362 P. 2d 750 (1962).

5. Fiscr, Vehicle Traffic LaW(196l), pages 240-243.

6. Holt v. U.S., (1910) 218 U.S. 245, 252 (Holmes J.)

7. Moreland, Criminal Procedure (1969), page 76, citing the leading case of U.S. v. Kelly, (1932) 55 Federal 2d 67 83 A.L.R. 122.

3. Schmerbgr v. California, (1967) 384 U.S. 757., '. Gilbert, v. California, (1967) 338 U.S. 263.

W. See "Voice prints , infra and U.S. v. Wade, (1967) 388 U.S. 218.

1'. American Jurisprudence, 2nd Ed., Vol. 21, "Criminal Law" , pages 393-394, articles 369-370. '2. See Ameriea.11Jurispurdence,Ist Ed.~"Priva.cy" article 27.

13. United States v. Kelly, (CA 2) 55 F. 2d 67, cited in the American Jurisprudence, 2d Ed, Vo|, 21 "Criminal Law". ' 1'. Shannon v. The State, 207 Ark 658, cited in the American Jurispurdence, 2d Ed", V0] 21' "criminal Laws. pages 393-394, articles 369--370. ' Model Code of pre-

arraingment proce-

dure.

Voice prints.

No privilaege as re-

gards voice prints.

Use of voice prints.

But in some jurisdictions a different view is taken, tograph without consent and without statutory au assault'--'~'.

and the taking of ﬁgnger prints or pho-

thority is regarded as an actionable It would appear on the whole that speciﬁc legal authority would be required for compul- sory measures of identiﬁcation. This position, if not expressly or elaborately discussed, seems to have been impliedly accepted in U.S.A. in recent times. For example, the Model Code of Pro-arriagnment procedure adopted by the American Law Institute permits the taking of ﬁnger prints of arrested persons for the purpose of investigation at the stage before commence- ment of trial3.

The American Law Institute has proposed4 that the courts generally should be empowered to issue, on grounds of reasonable suspicion, an order to appear for identiﬁcation procedures, such procedures to include ﬁngerprints, blood or urine samples, identiﬁcation material that may be on the surface of the body or under ﬁnger--nails, and procedures to obtain witness identiﬁcation through line-ups, photographs, voice samples or handwriting exemplars.

VI. Voice prints.

Several courts on the federal and State level of Appeals).

Military Court of Appeal calls was upheld.

s in U.S.A. (including the Military Courts have accepted voice prints identiﬁcation5. In an interesting case before the s". the use of voice printing in a case involving obscene telephone incrimination in the U.S. does not extend to protect an accused 0 that he may be identiﬁed?

The privilege against self-

person who is required to speak s However, it would appear that a court order is taken to compel the accused to submit to having a tape record made of his voice. Thus it is stated" that in the State of New Jersey the Superior Court granted a prosecutor's request for an order compelling an accused to submit to having a tape made of his voice so that the resulting voice-print might be compared with another voice-print".

Voice prints are used to identify criminals who use the telephone to thereaten bombing of airlines and public buildings as well as those who make obscene telephone calls and put on the telephone threats of extortion and kidnappers who by telephone make demands for ransom".

1. Filder v. Murphy, 113 N.T.S. 'Ind 288, cited in the Law", pages 393-3 94.

See also cases cited in Blaelc. Law Ilictioum-y (I914). V»l- 3 Section 5.01, Model ('ode of }.'re--ai'-paigniotlt Procedure (A!Il.!3['lCELI1 Law Institute). Departmcntitl ('omniittttee on Evidence Of Itlentiﬁcatioll ill (ifinlinal 03505 (1976ls P3110 194, f-"~

-" Beiinntt Smnllor, Law l<'.n|"<n-content and ('mutual ~T11sti<'/9 IWQCS 3"-3"5 U.S. V'. \V:'it5I1t, (1967) I7 U.S.'.VI.A. I83.

(]_,s', v. IV(zzle (1967) 388 U.S. 218.

Thomas Me Dade , "The Voice-print; (I970 .Iu, Indian Police Journal, pages 26 ---34. Stage v_ MC],-pm¢a_ (226A) II 757 Superior Court ofNew Jersey. in LG. Kersta. "Voice-print identification amiapplieation" (1971) India. Police American Jurisprudence, 2d Ed., Vol. 21, "Criminal o , page 2586, under "Physical Exa.mination".

-1 Ii 7 8 9 Journal, pages 10----16.

APPENDIX 3 SELECTED CASES ON ARTICLE 21 or THE CONSTITUTION--PROCEDURE ESTABLISHED BY LAW

1. Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597; 1978(1) S.C.C. 248.

This was the first case spelling out the requirement of "procedure estalished by law" in Article 21 and its positive content.

2. In the Special Courts Bill 1978, A.I.R. 1979 S.C. 478, 516; 1979(1) S.C.C. 430, 433.

In this case, the Supreme Court, while upholding the constitutional validity of Special Courts Bill, 1978 with reference to Article 14, observed that the Bill had also got to meet the challenge of Article 21.

It was held by the majority in the Mancka Gandhi case that the procedure contemplated by Article 21 must be "right and just and fair and not arbitrary, fanciful or oppressive; other- wise, it would be no procedure at all and the requirement of Article 21 would not be satisﬁed".

It was, therefore, imperative to examine whether the procedure prescribed by the Special Courts Bill was just and fair or was, in any respect, arbitrary or oppressive.

3. Sita Ram V. State of Uttar Pradesh, A.l.R. 1979 S.C. 745, 753, 1979(2) S.C.C. 656, 669.

In this case the Supreme Court, while considering the validity of the SupremevCourt Rules (1966), Order 21, Rule l5(l)(¢-) and section 384 of the Code of Criminal Procedure, 1973, said that life and liberty had been the cynosure of special constitution attention in Article

21. The Court referred to M aneka Gandhi v. Union of India where the essence of the concept of natural justice as part of reasonable procedure had been brought out. That judgment sho- wed how the Supreme Court had unravelled the fuller implications of Article 21 and how (since then) the Court had followed that prescription and even developed it in humane direc- tions.

4. .iI;11us.§ainara Khatoon (I) v. Home Secretary, A.I.R. 1979 S.C. 1360, 1361; 1980(1) S.C.C. , 4.

In this case, the Supreme Court, while considering a petition for writ of habeas corpus said that there could be little doubt, after the dynamic interpretation placed by the Court on Article 21 in Maneka Gandhi v. Union of India, that a procedure which keeps such a large number of people behind the bars without trial so long cannot possibly be regarded as reasonable, just and fair as to be in conformity with the requirement of that Article.

5. Hussainara Khatoon (IV) v. Home Secretary A.I.R. 1979 S.C. 1369; (1979) 3 S.-C.R. 532, 537.

In this case, while considering the rights of the accused and the constitutional obligation of the State, the Supreme Court referred to M aneka Gandhi v. Union of India and said that it was now well settled (as a result of the decision in Maneka Gandhi 's case), that it was not enough that there should be some semblance of procedure provided by law, but the procedure under which a person may be deprived of his life or liberty should be 'reasonable, fair and just'. A procedure which did not make available legal services to an accused person who is too poor to alford a lawyer and who would, therefore, have to go through the trial without legal assis- tance, could not possibly be regarded as 'reasonable, fair and just'. It is an essential ingredient of reasonable, fair and just procedure that a prisoner, who is to Seek his liberation through the court'S process, should have legal services available to him.

6. Shri Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 S.C.C. 565, 586.

In this case, the Supreme Court, while determining the scope of section 438 of Code of Criminal Procedure, 1973 (anticipatory bail) and while discussing the question how best to balance the interests of personal liberty and the investigative powers of the police, said that section 438 was a procedural provision concerned with the personal liberty of the individual, who is entitled to the beneﬁt of the presumption of innocence. Since he is not (on the date 33 34 of_his application for anticipatory bail), convicted of the offence in respect of which he seeks bail, an over-generous_infusioi_1 'of constraints and conditions which are not to be found in section 438 can make its pl'0VlSl0nS constitutionally vulnerable. The right to personal free- dom cannot be made to depend on compliance with unreasonable restrictions'.

Th_e_beiieﬁcient provision contained in section 438 must be saved, not jettisoned. After the decision in Maneka Gandhi 's case, no doubt can survive that in order to meet the challenge of Article 21, the procedure "established by law" for depriving a person of his liberty must be fair. just and reasonanle.

7. P.S.R. Sadhanantham v. Arunachaiam, A.I.R. 1980 S.C. 856, 858-859.

In this writ petition the petitioner challenged the leave to appeal under Article 136 of the Constitution and subsequent proceedings as violative of Article 21, and hence unconstitu- tional. The Supreme Court was called upon to lay down the scope of Articles 136 and 21 of the Constitution. The court, while discussing the matter, said that Article 21 in its sub- lime brevity, guards human liberty by insisting on the prescription of "procedure established by law", and not a "fiat" as a "sine qua non for deprivation of personal freedom". And the procedure so established must be fair, not fanciful nor formal nor ﬂimsy- M aneka Gandhi 's case was referred to in this ontext. In express terms, Article 136 does not confer on a party a right to appeal as such, but it confers a wide discretionary power on the Supreme Court to interfere in suitable cases.

(On the facts, leave to appeal already granted was upheld).

8. Anand Vardhan Chandel v. University of Delhi, A.I.R. 1978 Delhi 308, 314.

In this writ petition, the High Court answered in the aﬁirmative the question whether there is a fundamental right to education to be spelt out of clauses (a), (b) and (c) of Article 19(1) and Article 21 of the Constitution. It said that the law is now settled by the Maneka Gandhi 's case that the expression 'life and personal liberty' in Article 21 of the Constitution includes a variety of rights, though they are not enumerated in Part III of the Constitution, pro- vided that they are necessary for the full development of the personality of the individual and can be included in the various aspects of the liberty of the individual.

9. Inder Parkash v. Dy. Commissioner, Delhil A.I.R. 1980 Delhi 87, 92.

In this case the High Court quashed the order cancelling the admission of the Petitioner as a medical student, on account of inordinate delay of about four years, during which the peti- tioner continued his studies. It referred to the Maneka Gandhi v. Union of India in order to show that the right to higher education or 5. professional education partakes of the nature of fundamental right, though not speciﬁcally mentioned in the Constitution. Any improper interference in such a pursuit would attract the fundamental right to carry on the profes- sion.

1. Emphasis added.

APPENDIX 4 lDENTn=r(:AT1oN or PRISONERS ACT, 1980---ANALYs1s or SIJBSTANTIVE PROVISIONS Section Persons affected Nature of power conferred Competent Authority 3 Convicted persons. Measurements (As de-

ﬁned in the Act--this includes ﬁngerprints).

3 Convicted persons. Photographs.

4 Arrested persons. Measurements (As deﬁ-

ned--this includes ﬁn-

gerprints).

5 Any person. (But he must have been arrested at some stage--see se-

cond proviso).

Measurements (As de-

ﬁned, it includes ﬁnger-

prints.) 5 Any person. (But he must have been arrested at some stage).

Photograph.

Police officer.

This means~ (1) Police ofﬁcer in charge of Police Station;

(ii) Police officer making an investigation under Chapter XIV of Code of Criminal Procedure, 1898; or

(iii) Any other Police olﬁ-

cer not below the rank of sub-inspector.

Police officer.

This means---

(i) Oﬂicer in charge of a Police Station;

(ii) Polioe oﬂicer making an investigation under Chapter XIV of Code of Criminal Procedure, 1898; or

(iii) Any other police om-

cer not below the rank of sub-inspector.

Police oﬂicer (as deﬁned in section 2(b).

Magistrate.

Magistrate of 1st Class (See ﬁrst proviso).

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Identification Of Prisoners Act,1920