Not illegal for Police to procure Fingerprints without Magistrate order
Ashish Jain Vs Makrand Singh and Ors
CRIMINAL APPEAL NO. 1980 OF 2008
About/from the judgment:
The Supreme Court has clarified that the police can procure the fingerprint evidence during investigation, even in the absence of a Magistrate order.
While dismissing an appeal filed against a High Court acquittal in a murder case, the Bench of Justices NV Ramana and MM Shantanagoudar noted,
“… it cannot be held that… fingerprint evidence was illegally obtained merely due to the absence of a magisterial order authorizing the same.
If certain suspicious circumstances do arise from a particular case relating to lifting of fingerprints, in order to dispel or ward off such suspicious circumstances, it would be in the interest of justice to get orders from the Magistrate …[However, there] cannot be any hard and fast rule that in every case, there should be a magisterial order for lifting the fingerprints of the accused.“
The case before the Court concerned the acquittal of three persons in a triple murder case. All three were accused of having robbed and murdered a pawnbroker/moneylender, his wife and daughter, during the course of a robbery. While the trial court had sentenced the three accused to death, the Madhya Pradesh High Court reversed the conviction itself on appeal. Appeals against this acquittal were filed in the Supreme Court by both the State as well as a relative of the deceased.
The Supreme Court, in turn, concluded that the investigation and the evidence on record were racked with discrepancies, which favoured the acquittal of the accused, more so since the High Court had already acquitted them once.
“In a case wherein the High Court has acquitted the accused of all charges, there is a double presumption in favour of the accused, as the initial presumption of innocence is further reinforced by an acquittal by the High Court…these apparent infirmities [in the evidence on record] create nothing but doubts in our minds regarding the guilt of the accused.“
Amidst the various material collected during the course of investigation were the fingerprints of the accused. The police had sought to draw a match between these fingerprints and prints found on tea cups at the scene of the crime. The Court eventually found that a reliable fingerprint match could not be inferred in the present case.
However, in the course of deciding the case, the Bench also observed that there was no illegality in the fingerprints being procured by the police without an order of the Magistrate.
In this regard, the police are empowered by Section 4 of the Identification of Prisoners Act, 1920, which reads as follows,
“4. Taking of measurements, etc., of nonconvicted persons.—Any person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner.”
While Section 5 of the Act provides for the taking of such samples upon an order of a Magistrate, the Court noted that such Magistrate order is not mandatory before fingerprints are taken by the police. The Court reiterated that the only purpose served by obtaining a Magistrate order before taking a fingerprint is to lend more credibility to the evidence so gathered. This has already been clarified in earlier case laws.
“…as affirmed recently by this Court in Sonvir v. State (NCT) of Delhi, (2018) 8 SCC 24, Section 5 is not mandatory but is directory, and affirms the bona fides of the sampletaking and eliminates the possibility of fabrication of evidence.“
This conclusion was also fortified by the fact that Madhya Pradesh has introduced rules of its own to allow the police to procure fingerprints during investigation. In this backdrop, the Court held,
“A bare reading of these rules makes it amply clear that a police officer is permitted to take the photographs and measurements of the accused. Fingerprints can be taken under the directions of the police officer.
As held by this Court in Sonvir (supra), although Section 4 mentions that the police officer is competent to take measurements of the accused, but to dispel doubts as to its bona fides and to rule out the fabrication of evidence, it is eminently desirable that they were taken before or under the order of a Magistrate.
However, the aforesaid observations cannot be held to mean that this Court observed that under Section 4, police officers are not entitled to take fingerprints until the order is taken from a Magistrate.”
However, given the facts of the case before it, the Court acquitted all the accused before it for want of sufficient evidence affirming their guilt.
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