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TMI Blog2012 (5) TMI 827X X X X Extracts X X X X X X X X Extracts X X X X ..... dmissible or not a Full Bench of this Court overruled the view taken by Division Benches holding against the admissibility of such evidence and affirmed the view taken by Division Benches holding in favour of admissibility of such evidence but proceeded to decide the reference, as would be evident from a reading of paragraph 18 of the opinion dated September 30, 2011, as if the question referred to the Full Bench embraced even a handwriting or a signature obtained from a person accused of an offence whilst in police custody. 3. We proceed our journey by noting the relevant provisions of The Identification of Prisoners Act 1920 . At the forefront stands the definition of the expression measurements as defined in clause (a) of Section 2 of the said Act. It reads as under:- Measurements includes finger impressions and foot-print impressions; 4. Section 4 reads as under:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to allow his measurements to be taken, and in respect of which power the section does not make any reference to a procedure to be prescribed. 9. The Constitutional guarantee of no person accused of an offence shall be compelled to be a witness against himself, under Article 20(3) of the Constitution of India, when used as a shield against admissibility of evidence obtained from an accused by compelling him to give finger print impression or handwriting to the police during investigation came up for consideration before a Constitution Bench of the Supreme Court, and we have the opinion rendered which is reported as (1962) 3 SCR 10 State of Bombay v. Kathi Kalu Oghad. The Supreme Court negated the contention that compelling a person who is accused of an offence to give his finger print impression or handwriting would amount to compelling the person to be a witness against his own self. But the discussion by the Supreme Court, for the purposes of answering the question by us, would be relevant, when the Supreme Court spoke of Section 73 of The Indian Evidence Act empowering a Court to obtain specimen writing or signatures and finger impressions of an accused person for purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing or signature from a person by a Magistrate in the course of investigation by the police is specifically excluded. When the Parliament made this enactment, it must have had in its mind not only that Section 73 of the Evidence Act does not give power to the Court to take finger prints, signature and handwriting from a person in the course of investigation by the police but also it must have thought that it might not be necessary to include the taking of handwriting or signature of a person in the course of investigation by the police. Otherwise, there is no tangible reason for the Parliament to exclude, under the Identification of Prisoners Act, the taking of handwriting or signature. The Parliament must have probably thought that though the taking of the handwriting or the signatures of a person is one of the modes of identification, it was not an infallible one and that the better mode of proving the handwriting or signature is what is provided under Section 47 of the Evidence Act, namely, the evidence of that person who is acquainted with the signature of the person concerned. In this context, it is also worthwhile to note in contrast to Sec.73 of the Evidence Act that this s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication of Prisoners Act. A possible view is that it was thought that S.73 of the Evidence Act would not take in the stage of investigation and so S.5 of The Identification of Prisoners Act made special provision for that stage and even while making such provision, signature and writings were deliberately excluded as we said, this is a possible view but not one on which we desire to rest our conclusion. Our conclusion rests on the language of S.73 of the Evidence Act. 12. In the next paragraph, the Supreme Court held that with reference to specimen signatures and handwriting it is only the Court which would hold the trial as per the Criminal Procedure Code which would be the Court having jurisdiction to direct the accused to furnish his specimen signatures or handwriting as per Section 73 of the Evidence Act 1872, and we highlight that in paragraph 8, the Supreme Court affirmed, after noting, the view taken by the Division Bench of the Madras High Court in T.Subbiah s case (supra). 13. We see hardly any scope for a controversy to be built, unless one intends to be argumentative for the sake of raising an argument, in view of the categorical pronouncement by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich with reference to a standard, would make the body a subject of comparison with other bodies. For example, by applying the criterion of there being 21 identifiable ridges on the human fingers known to scientists, in relation to the place where one or more of these 21 identifiable ridges are located, to distinguish one body from the other or with reference to a finger print impression, link the body to the fingerprint impression. There is a science and thus a theory which is empirical in the study of fingerprints. It is not so in relation to handwriting, which may be the subject of a specialized knowledge, but lacks the scientific temperament which a subject of science inheres. 18. We close the debate by highlighting that when we talk of measurements in relation to a human body, with dictionary in hand and the meaning of the words measurement and standard in mind, it would be difficult for us to escape from the conclusion that the measurements of a human body encompass only those standards which relate to the physical attributes of the human body and would encompass none else. Now, the height, the shape and size of the nose, eyes, ear, face, fingers, limbs, neck, tors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er prints obtained and the opinion of the expert thereon. The Supreme Court held that in said situation Section 5 of The Identification of Prisoners Act, 1920 ought to have been followed. 23. In the decision reported as (1978) 3 SCC 435 Shankaria vs. State of Rajasthan, noting that the State of Rajasthan had framed the necessary Rules pertaining to the manner in which an investigating officer could obtain the specimen finger prints of a person accused of an offence; there being complete compliance with the requirements of Section 4 of The Identification of Prisoners Act, 1920, the same being followed, it was held that evidence pertaining to the specimen finger prints was admissible. Similar was the view affirmed by the Supreme Court in the decision reported as (1997) 10 SCC 44 Mohd. Aman Ors. vs. State of Rajasthan. But relevant would it be to note that the Supreme Court affirmed so with a caveat, being to dispel any suspicion as to the bona-fides of the police and eliminate the possibility of fabrication of evidence, it being desirable that measurements should be obtained by following the procedure contemplated by Section 5 of The Identification of Prisoners Act, 1920 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouncements leans to hold that unless there is a manner prescribed, be it under the Rules framed by the State Government or an executive instruction issued, evidence pertaining to finger print impressions obtained by the investigating officer would be inadmissible in evidence; and even when the same is provided, as held by the Supreme Court in Mohd. Aman s case (supra), to obviate any suspicion, it should be desirable that procedure prescribed under Section 5 of The Identification of Prisoners Act, 1920 should be followed. 28. There is yet another argument which needs to be considered with respect to Section 4 of The Identification of Prisoners Act, 1920. The Section empowers a police officer to take measurements of a person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards. Ex-facie, the Section would have no application where the person is suspected of having committed an offence which is punishable with death or imprisonment for life, as was held by a Division Bench of the Bombay High Court in the decision reported as ILR 1983 Bom. 1508 Nizammuddin Usman vs. State of Maharashtra. We not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmit samples of his handwriting and/or signature for purposes of comparison. 32. Though not falling for consideration in this reference, with respect to finger prints, which are included in measurements, the weight of the authorities is that if by way of Rules or Executive instructions the manner is prescribed to take the measurements, alone then can an Investigating Officer, under Section 4 obtain the measurements but strictly as per manner prescribed; but it would be eminently desirable, CRL.A. 804/2001 Page 16 of 16 as per the decision in Mohd. Aman s case (supra) to follow the procedure ordained under Section 5 of The Identification of Prisoners Act, 1920. 33. Relevant would it be to further note that in relation to offences punishable with death or imprisonment for life, Section 4 of The Identification of Prisoners Act, 1920 would not be applicable because the said provision specifies a prerequisite : that the person concerned is accused of having committed an offence which is punishable with a sentence to undergo rigorous imprisonment for a term of one year or upwards i.e. the sentence must relate to imprisonment for a term and would thus exclude such off ..... X X X X Extracts X X X X X X X X Extracts X X X X
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