2009 (8 )  SCR 98         

STATE OF M.P. v.

DEVENDRA (Criminal Appeal No . 979 of 2002)

MAY 05, 2009 [DR. ARIJIT PASAYAT, D.K. JAIN AND DR. MUKUNDAKAM SHARMA, JJ.]

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the order passed  by a learned Single Judge of Madhya Pradesh High Court, Indore Bench, which  

gave certain directions to the State Government in the matter of identification of  

prisoners and methodology for investigation. The respondent No.1 had filed an  

application  for  grant  of  bail  in  terms  of  Section  439 of  the  Code of  Criminal  

Procedure,  1973  (in  short  the  ‘Code’).  During  hearing  of  the  petition  the  

respondent No.1 who was the applicant before the High Court stated that the  

petition has become infructuous. Therefore, he did not want to press the same.  

The High Court held that even though the petition had become infructuous certain  

directions were necessary to be given to the concerned authorities.  

2. The stand before the High Court by the appellant-State was that there  

were  not  many  cases  where  impersonation  was  involved  and  therefore  the  

desirability of taking the photographs in all cases would be an additional burden  

on  the  State  Exchequer.  It  was  pointed  out  that  Sections  4,  5  &  6  of  the  

Identification  of  Prisoners  Act,  1920  (in  short  the  ‘Prisoners  Act’)  provided  

sufficient  guidelines.  Direction  was  given  to  the  State  about  affixing  the  

photographs of the accused persons as well as the witness. There is a likelihood  

of  a grievance being made that  the photographs were shown to the accused  

before the Test Identification Parade. The High Court was however of the view  

that at the time of filing charge sheet, the photographs of the witnesses as well as  

the accused persons should be given to avoid impersonation and to curb delay  

due to non-service of summons and warrants in criminal trials.

3. The High Court noted that though Section 170(2) of the Code provides for  

taking surety bonds from the accused persons for their appearance in court at the  

time  when  the  charge  sheet  is  filed  or  when  the  accused  is  forwarded  to  

Magistrate, this is not sufficient safeguard in cases of impersonation. Accordingly  

the following directions were given:

“1.  That  the  State  shall  make  suitable  amendments  in  the  Police  

Regulations about taking and filing photographs of the complainant material  

witnesses and accused persons alongwith the charge sheet in all  criminal  

cases,  sessions trials,  except  in  minor/petty  offences and non-cognizable  

offence.

2. In a case where there is no dispute of identification of the accused,  

the photograph of  such person should invariably be taken at  the time of  

arrest of any person for crime, while noting his identification marks to avoid  

any  set  back  on  the  prosecution  case  regarding  identification  and  when  

identification is doubtful then the photograph should be taken at the time of  

filing charge sheet.

3. In all criminal cases and sessions trials, except in non-cognizable  

and minor/petty offences, at the time of filing of the challan/charge sheet the  

State should also file the photographs of complainant,  material  witnesses  

and all the accused persons and the same should be part of the papers of  

the trial. The State may also retain copy of photographs with the case diary  

or at the police station for the purposes of service of summons and warrants  

for arresting the absconding accused persons.

4. The photographs should be of enough number to show the accused  

clearly from his front pose and may include a photograph of the accused in  

standing position.

5.  The  photographs  of  the  accused  persons  should  be  duly  

authenticated by the concerned officer, who arrested the accused persons.

6. In all sessions trials and criminal cases when warrants of arrest are  

issued the photographs and mark of identification should be checked with  

the accused.

7. In all  sessions trials  and criminal  cases at the time of arrest the  

identity of the accused should be properly verified and care should be taken  

to ascertain his correct name and address.

8. The officer arresting the accused must certify the photographs and  

the particulars of his identity with a certificate which should accompany the  

chargesheet, which is sent to the court.

9. In all  appeals against acquittal  the photographs should also form  

part  of  record  of  the  trial  court  and  whenever  notices  and  warrants  are  

issued by the appellate court or High Courts the photographs and marks of  

identification should be cross checked by the office with the accused and  

when  the  notices  are  returned  duly  served  and  warrants  executed,  they  

should accompany a certificate by the officer that the accused has been duly  

served after verifying the identity, name and address with the photograph.”

4.  It  is  submitted  by  learned  counsel  for  the  State  that  most  of  these  

directions  are  impracticable  and  in  some  cases  run  counter  to  the  statutory  

mandate of the Prisoners Act.  

5. There is no appearance on behalf of respondent.

6. Learned counsel for the State pointed out that the directions Nos. 1, 2, 3,  

8 & 9 are incapable of implementation and in any event suggestions are provided  

in the Prisoners Act, M.P. Police Regulation (in short the ‘Regulation’) and the  

provisions of Code more particularly Sections 160, 161, 170 (2), 171.

7. Reference is also made to Section 54(A) of the Act. As a matter of fact the  

High Court’s directions are intended to meet the challenge of impersonation.  

8. Sections 3, 4 & 5 of the Prisoners Act read as follows:

3. Taking of measurements, etc., of convicted persons. — Every person who  has been, —  

(a) convicted of any offence punishable with rigorous imprisonment  

for a term of one year of upwards, or of any offence which would  

render  him  liable  to  enhanced  punishment  on  a  subsequent  

convicted; or

(b) ordered to give security for his good behaviour under Section 118  

of the Code of Criminal Procedure, 1898 (5 of 1898) .

shall, if so required, allow his measurements and photograph to be  

taken by a Police Officer in the prescribed manner.

STATE AMENDMENTS

Gujarat-   In clause (b) of Section 3, add the following at the end:

“or under Section 93 of the Bombay Prohibition Act, 1949”.

[Bombay Act 58 of 1953].

Maharasthra-   For Section 3, substitute the following namely, —  

“3.  Taking of  measurements,  etc.,  of  convicted persons.  —  Every  person who has been —  

(a)  convicted of any offence punishable with rigorous imprisonment  

for a term of tone year or upwards or of any offence punishable under  

Section  19  of  the  Dangerous  Drugs  Act,  1930,  or  of  any  offence  

which  would  render  him  liable  to  enhanced  punishment  on  a  

subsequent conviction, or

(b)  ordered to give security for his good behaviour under Section 118  

of the Code of Criminal Procedure, 1898, or under Section 93 of the  

Bombay Prohibition Act, 1949, or to give security for abstaining from  

commission of certain offences under Section 18 of the Dangerous  

Drugs Act, 1930.

shall if so required allow his measurements and photographs to be taken by  

a police officer in the prescribed manner.”

[Maharashtra Act 35 of 1970].

4. Taking of measurement, 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.

STATE AMENDMENTS

Gujarat:    (i)  In its application to the State of Gujarat for Section 4,  

the following substituted, namely:

“4. Taking of measurements of photographs of non-convicted  

persons. — An person —  

(a) who has been arrested —  

(i) under Section 55 of the Code of Criminal Procedure, 1898,  

or under Section 4 of the Bombay Beggars Act, 1945;

(ii) in connection with an offence punishable under Section 122  

of the Bombay Police Act, 1951, or under Section 6 or 9 of the  

Bombay Beggars Act, 1945, or in connection with an offence  

punishable with rigorous imprisonment for a term of one year  

or upwards, or

(b) in respect of whom a direction or order under Section 55 or 56 of the  

Bombay Police Act, 1951, or under sub-section (1) or (2) of Section  

23  of  the  Bombay  Beggars  Act,  1945,  or  under  Section  2  of  the  

Bombay Public Security Measures Act, 1947, has been made,

shall,  if  so  required  by  a  police  officer,  allow  his  measurements  or  

photograph to be taken in the prescribed manner.”

Karnataka-   In  its  application  to  the  State  of  Karnataka,  for  Section  4  

substitute the following:

“4. Taking of measurements or photographs of unconvicted persons.   

— Any person —  

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

under Section 96 of the Karnataka Police Act, 1963, or in connection  

with an offence punishable of the Karnataka Police Act, 1963, or in  

connection with an offence punishable with rigorous imprisonment for  

a term of one year or upward or in connection with an offence for the  

commission of which on a second or subsequent occasion enhanced  

penalties have been provided for under any law for the time being in  

force; or

(b)  in respect of whom direction or order under Section 54 or 55 of  

the Karnataka Police Act, 1963, has been made,

shall  if  so  required  by  a  police  officer,  allow  his  measurements  or  

photographs to be taken in the prescribed manner.

“4-A.  Taking  of  measurements,  etc.  of  habitual  offenders  against  whom  

restriction order is made. — Any person against whom an order of restriction  

has been made under the provisions of the Karnataka Habitual Offenders  

Act, 1961, shall if so required by a Police Officer, allow his measurements of  

photograph to the taken in be prescribed manner”.

[Karnataka Act 29 of 1975].

(ii)  After  Section  4-A  as  inserted  in  Karnataka  insert  the  following  the  

following:

“4-B. Taking of measurement, etc., of beggars under the Karnataka  

Prohibition  of  Beggary  Act,  1975.  —  Any  person  who  has  been  

arrested and not released under sub-section (2) of Section 11 of the  

Karnataka  Prohibition  of  Beggary  Act,  1975  (Karnataka  Act  27  of  

1975) or against whom an order of detention has been made under  

sub-section (1) of Section 12 of the said Act, shall, if so required by  

an officer-in-charge of  a receiving centre  or  relief  centre  allow his  

measurements  and  photographs  to  be  taken  in  the  prescribed  

manner.”

[Karnataka Act 1 of 1987].

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

— If a Magistrate is satisfied that, for the purposes of any investigation or  

proceeding under the Code of Criminal Procedure, 1898, it is expedient to  

direct any person to allow his measurements or photograph to be taken, he  

may make an order to the 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.”

9. Section 3 deals with taking of measurement of the convicted persons. The  

photographs and measurements and photographs can be taken by the police

officer in the manner prescribed. Section 4 deals with taking of measurement etc.  

of non-convicted persons. It is taken if the police officer so requires it and it has to  

be done in the prescribed manner. So far as Section 5 is concerned it deals with  

the power of the Magistrate to direct any person for measurement or photographs  

to  be  taken  if  he  is  satisfied  that  for  the  purpose  of  any  investigation  or  

proceedings under the court the same is necessary.

10. Directions 1 & 3 are overlapping to certain extent. So far as the accused  

is concerned the Prisoners Act apply at both pre trial and post trial stages. So far  

as the complainant and the witnesses are concerned their role is during the trial.

11.  The directions  given by the High Court  are modified to the following  

extent:

So far as para 8 of the directions is concerned the identification has to be  

based on the basis of information relating to identification of somebody. So far as  

the direction No.9 is concerned only when it is so necessary by the Magistrate  

action shall be taken. Needless to say the directions are subject to provisions of  

the Act, the Regulation and the Code. In case of conflict statute itself prevails. In  

case of complainant as well as witnesses, where prosecution wants to protect the  

identity,  the  reasons,  therefore,  must  be  recorded.  In  case  of  rape  victims,  

photographs should not be taken.  

12. The appeal is accordingly disposed of.