State of M.P. v. Devendra

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 c 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. E 2. The stand before the High Court by the appellant-State was that there were not many cases wher~ impersonation was involved and therefore the desirability of raking 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 • F 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 G 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. STATE OF M.P. v. ·DEVENDRA 101 [DR. ARIJIT PASAYAT, J.] ; 3. The High Court noted that though Section 170(2) of the A 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: B "1. That the State shall make suitable amendments in the Police Regulations about faking and filing photographs of the complainant material witnesses and accused persons alongwith the charge sheet in all criminal c 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 D 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. E 3. In all criminal cases and sessions trials, except in non-cognizable and minor/petty offences, at the time of y filirig of the challan/charge sheet the State should also file ~. the photographs of complainant, material witnesses and F 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. v 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 H A be duly authenticated by the concer.ned officer, who arrested the accused persons. 6. In all sessions trials and criminal cases when warrants of arrest are issued the photographs and mark 8 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. D 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." -F 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 ·H provisions of Code more particularly Sections 160, 161, 170 ~ y (2), 171. STATE OF M.P. v. DEVENDRA [DR. ARIJIT PASAYAT, J.] 103 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: B 3. Taking of measurements, etc., of convicted persons. - Every person who has been, - (a) convicted of any offence punishable with rigorous c 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 D under Section 118 of the Code of Crim in al Procedure, 1898 (5 of 1898) . shall, if so required, allow his measurements and photograph to be takE;n by a Police Officer in the E prescribed manner. STATE AMENDMENTS Gujarat- In clause (b) of Section 3, add the following at the end: F "or under Section 93 of the Bombay Prohibition Act, 1949". [Bombay Act 58 of 1953]. Maharasthra- For Section 3, substitute the following G namely,- "3. Taking of measurements, etc., of convicted persons. - Every person who has been - (a) convicted of any offence punishable with H 104 SUPREME COURT REPORTS (2009] 8 S.C.R. rigorous imprisonment for a term of tone year or upwards or of any offence punishable under Section 19 of th.e Dangerous Drugs Act, 1930, or of any offence which would render him liable to enhanced punishment ori 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 photogr_aphs 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. (a) STATE AMENDMENTS Gujarat: (i) In its application to the State of Gujarat for Sect.ion 4, the following substituted, namely: . "4. Taking of measurements of photographs of non-convicted persons. - An person - who has been arrested - (i) under Section 55 of the Code of Criminal ....