Obtaining of fingerprints by police

IDENTIFICATION OF PRISONERS ACT,1920  deals with the procedure of taking measurements

including finger prints of suspects and convicts. Sections 2(1)(a), 4 and 5 of the said Act empowers
the police.

Section 2(a) of the Act defines 'measurements' which include finger impressions and foot-print
impressions.

Sections 4 and 5 of the Act read as under:

4. Taking of measurements, etc. , of non-convicted persons- Any person who has been arrested in
connection with an offence punishable with rigorous imprisonment for a term of one year or upwards
shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner.

5. Power of Magistrate to order a person to be measured or photographed- If a Magistrate is satisfied

that, for the purpose of any investigation or proceeding under the Code of Criminal Procedure, 1898,
it is expedient to direct any person to allow his measurements or photograph to be taken, he may make
an order to that effect, and in that case the person to whom the order relates shall be produced or shall
attend at the time and place specified in the order and shall allow his measurements or photograph to
be taken, as the case may be, by a police officer:

Provided that no order shall be made directing any person to be photographed except by a Magistrate
of the First Class:

Provided further, that no order shall be made under this section unless the person has at some time
been arrested in connection with such investigation or proceeding.

By virtue of the powers conferred on it by Section 8 of the Act, the State Government made A.P.
Identification of Prisoners Rules, 1975. As per Rule 3 of the said Rules, measurements and
photographs can be taken only at (a) Jails (b) Magistrate's Court (c) police stations and out-posts and
(d) police lock-ups. As per Rule 12 (xxiiii) (c), finger prints of all persons, who take part in violent
crimes, whether political or non-political, involving injury to body, life or property, can be taken by
the police. Rule 2(g) of the Rules defines 'finger print slip' means the finger print slip of a suspect
taken on Form II (Annexure 1) by the Station House Officer and sent for search to the Bureau at
Hyderabad with Form III (Annexure III) in order to know his antecedents.

As per Section 2(h) of the Code of Criminal Procedure, 'investigation' includes all the proceedings
under this Code for the collection of evidence conducted by a police officer or by any person (other
than a Magistrate) who is authorised by a Magistrate in this behalf. Under Section 156(1) of Cr.P.C.,
any officer in charge of a police station may, without the order of a Magistrate, investigate any
cognizable case which a Court having jurisdiction over the local area within the limits of such station
would have power to inquire into or try under the provisions of Chapter XIII. Therefore, the object of
investigation is to collect the evidence.

In "State of Bombay Vs. Kathi Kalu Oghad", 1961 (2) Cri.L.J. 856, an Eleven Judges Bench of
the Supreme Court examined the question as to whether giving of thumb impression or handwriting
by an accused constitutes breach of Article 20(3) of the Constitution. After reviewing case law on
subject, the Apex Court, inter alia, held as under:

"To be a witness" may be equivalent to "furnishing evidence" in the sense of making oral or written
statements, but not in the larger sense of the expression so as to include giving of thumb impression or
impression of palm or foot or fingers or specimen writing or exposing a part of the body by an
accused person for purpose of identification. "Furnishing evidence" in the latter sense could not have
been within the contemplation of the Constitution makers for the simple reason that - though they may
have intended to protect an accused person from the hazards of self-incrimination, in the light of the
English Law on the subject - they could not have intended to put obstacles in the way of efficient and
effective investigation into crime and of bringing criminals to justice. The taking of impressions of
parts of the body of an accused person very often becomes necessary to help the investigation of a
crime. It is as much necessary to protect an accused person against being compelled to incriminate
himself, as to arm the agents of law and the law courts with legitimate powers to bring offenders to
justice. Furthermore it must be assumed that the Constitution makers were aware of the existing law,
for example, S.73 of the Evidence Act or Ss. 5 and 6 of the Identification of Prisoners Act (XXXIII of
1920). Section 5 authorises a Magistrate to direct any person to allow his measurements or
photographs to be taken, if he is satisfied that it is expedient for the purposes of any investigation or
proceeding under the Code of Criminal Procedure to do so: Measurements include finger impressions
and foot-print impressions. If any such person who is directed by a Magistrate, under S.5 of the Act,
to allow his measurements or photographs to be taken resists or refuses to allow the taking of the
measurements or photographs, it has been declared lawful by S.6 to use all necessary means to secure
the taking of the required measurements or photographs. Similarly S.73 of the Evidence Act
authorizes the Court to permit the taking of finger impression or a specimen handwriting or signature
of a person present in Court, if necessary for the purpose of comparison.

The matter may be looked at from another point of view. The giving of finger impression or of
specimen signature or of handwriting, strictly speaking, is not "to be a witness." "To be a witness"
means imparting knowledge in respect of relevant facts, by means of oral statements or statements in
writing by a person who has personal knowledge of the facts to be communicated to a court or to a
person holding an enquiry or investigation. A person is said to be a witness to a certain state of facts
which has to be determined by a court or authority authorized to come to a decision by testifying to
what he has seen, or something he has heard which is capable of being heard and is not hit by the rule
excluding hearsay, or giving his opinion, as an expert, in respect of matters in
controversy................................................ .................................................................. ................ When
an accused person is called upon by the Court or any other authority holding an investigation to give
his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of
the nature of a personal testimony. The giving of a personal testimony must depend upon his volition.
He can make any kind of statement or may refuse to make any statement. But his finger impressions
or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot
change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of
signatures by an accused person though it may amount to furnishing evidence in the larger sense, is
not included within the expression to be a witness. .....A specimen handwriting or signature or finger
impressions by themselves are no testimony at all, being wholly innocuous because they are
unchangeable except in rare cases where the ridges of the fingers or the style of writing have been
tampered with. They are only materials for comparison in order to lend assurance to the Court that its
inference based on other pieces of evidence is reliable. They are neither oral nor documentary
evidence but belong to the third category of material evidence which is outside the limit of
testimony."

In Narne Gopikrishna And Another vs State Of A.P. Rep By Public ... on 3 August, 2012

The division bench of AP high Court held the contrary that police have power to take fingerprints
without obtaining magisterial permission in case of cognizable offences:
“A bare reading of the above provisions contained in the Code of Criminal Procedure, the
Identification of Prisoners Act and the A.P. Identification of Prisoners Rules, 1975, makes it crystal
clear that the police officer has got the power and authority to take the fingerprints of a suspect even
without the permission of the Magistrate”.

Further, in Shankaria v. State of Rajasthan5, when it was contended by the appellant therein that in
view of Section 5 of the Identification of Prisoners Act, it was incumbent on the police to obtain the
specimen thumb impression of the appellant before a Magistrate, and since that was not done, the
opinion rendered by the Finger-Print Expert by using those illegally obtained specimen finger
impressions, must be ruled out of evidence, the Hon'ble Apex Court observed that the said
contention of the appellant therein appears to be misconceived and held that under Section4 of the
Identification of Prisoners Act, police are competent to take the finger prints.

In Soumen Adhikary @ Khocho vs The State Of West Bengal on 1 February, 2018 a division
bench of Calcutta High Court held that the magisterial permission is necessary to obtain finger prints
of accused in custody :

“Section 5 of the said Act provides that the magistrate upon being satisfied that such measurement is
necessary in any investigation or proceeding under the Code of Criminal Procedure may pass an order
to that effect allowing such measurements or photographs to be taken by police officer and call upon
the person to attend the time and place where such measurement or photographs are to be taken. The
aforesaid provisions leave no doubt in one's mind that it was incumbent on the investigating agency
to obtain magisterial permission prior to obtaining fingerprint or footprint impression of the
appellant while he was in police custody.”

The bench relied on Taylor vs Taylor and also Mahmood vs state of U.P and held:

“It is trite law if a statute has conferred a power to do an act and has laid down the
method in which that power has to be exercised, if necessarily prohibits the doing of the
act in any other manner than that which has been prescribed [See Taylor vs. Taylor,
(1876) 1 Ch.D. (426)].”

Hon'ble Apex Court in Mahmood v. State of U.P. (3 supra) and Mohd. Aman v. Babu Khan4 and
submitted that finger prints were taken without obtaining permission from the Magistrate as
contemplated under Section 5 of the Identification of Prisoners Act, 1920, and as such the same is
inadmissible in evidence and cannot be looked into and the conviction of the accused based on such
evidence cannot be sustained.

In Mohd. Aman v. Babu Khan (4 supra), the Hon'ble Apex Court has given the benefit of doubt to the
accused on the ground that the brass jug and other articles seized by the police were kept in the police
station for five days without any justifiable reason and also on the ground that the finger prints of the
accused were not taken with the permission of the Magistrate in accordance with Section 5 of the
Identification of Prisoners Act, 1920, and further observed that though under Section 4 of the
Identification of Prisoners Act, 1920, police are competent to take finger prints of the accused, to
dispel any suspicion as to its bona fides or to eliminate the possibility of fabrication of evidence, it is
eminently desirable that they were taken before or under the order of a Magistrate.
In Mahmood -vs- State of UP, 1976 SCC (Cri) 72, the Apex Court had held that obtaining of
fingerprint impression of an accused behind the back of the magistrate is suspicious circumstances.

Proof required to establish guilt in criminal law

In Birdhichand Sarda v. State of Maharashtra6, His Lordships have observed that "A moral
conviction strong or genuine cannot amount to legal conviction supported in law, it must be realised
that the well established rule of criminal justice is that "foulder the crime higher the proof".

Conviction based on expert witness regarding fingerprints

In Narne Gopikrishna And Another vs State Of A.P. Rep By Public ... on 3 August, 2012 The
division bench of AP high Court held that:

“It has become a rule of law that evidence of finger print expert is not a substantive evidence. It is
well settled that opinion of expert must always be considered with great caution. Conviction cannot
solely be based on expert opinion without substantive corroboration.”

In "Murarilal Vs. State of M.P.", AIR 1980 SC 531, the Apex Court, inter alia, noted as under:

"... The more developed and the more perfect a science, the less the chance of an incorrect opinion
and the converse if the science is less developed and imperfect. The science of identification of finger-
prints has attained near perfection and the risk of an incorrect opinion is practically non-existent......"

In "Jaspal Singh Vs. State of Punjab", AIR 1979 SC 1708, the Apex Court reiterated that the
science of identification thumb impression is an exact science and does not admit of any mistake or
doubt.

No Compulsion to give specimen Handwriting

In Sashi Bhushan v. S.B.I., AIR 1986 Ori 218. It was held that:
A person required by the court to give a specimen may refuse to do so.There is no element of
compulsion in it.The only consequence of non-compliance is that the Court is free to draw an
adverse presumption under S-144 of IEA.

Dinanth v. Sukhdeo, AIR 1980 Pat 253. The court can direct even a stranger to the suit to
write something. The son of a party was so directed in this case.

State of U.P v. Rambabu Misra, AIR 1980 SC 791 : 1980(2) SCC 343. The court cannot
take specimen handwriting at the stage of investigation. There must be a case before it.
Followed in Harekrishna Patnaik v. State of Orissa, 1991 Cr LJ 462 (ori), the court
adding that if the specimen was taken by the investigating officer in the course of
investigation.even if with some irregularities, the same can still be used.

Comparing handwriting is an imperfect science

In Sunil Kumar @ Sonu vs State N.C.T. Of Delhi on 25 March, 2010
Author: V. K. Jain the Delhi HC held that:
“The science of identification of finger prints being absolutely reliable and almost perfect as
compared to imperfect nature of the science of the identification of handwriting and signatures, it
cannot be disputed that it is permissible for the court to base conviction solely upon the opinion of an
experienced finger print expert.”
 Taking specimen Handwriting under s-73

Sukhvinder Singh & Others Vs. State of Punjab", (1994) 5 SCC 152 and a decision of thi in In the
case of Sukhvinder Singh(supra), the Apex Court was of the view that under Section 73 of Evidence
Act it is the court which has to make comparison and it may either confirm opinion by comparing the
disputed and admitted writings or seek the assistance of an expert to put before the court all the
material together with reasons which induce the expert to come to the conclusion that the disputed and
the admitted writings are of one and the same, so that the court may confirm its own opinion on its
own assessment of the report of the expert based on the data furnished by the expert. It was further
held that since directions under Section 73 of the Evidence Act can be given for the purpose of
enabling the court to compare and not for the purpose of enabling the investigating or prosecuting
agency to obtain and produce as evidence in the case the specimen writings for their comparison with
the disputed writings, the accused cannot be compelled to give his specimen signatures during the
course of investigation. The Court was of the view that recourse to Section 73 of Evidence Act can be
had only when the inquiry or trial is pending before the court and the court wanted the writing for the
purpose of enabling it to compare the same. It was also held that the court, which can issue such a
direction, would either be the court holding inquiry under the Code of Criminal Procedure or the court
trying the accused.

In "Mukimuddin Vs. The State", 1991 Cri.L.J. 2903.The Delhi HC that specimen signatures of the
petitioner were taken while he was in custody and observed that the same are not admissible in
evidence.