SC: Magisterial order not a mandatory prerequisite for lifting fingerprints.

Today, on 14thJanuary, 2019, in the matter of Ashish Jain v. Makrand Singh and Ors. (which was taken up along with the matter of State of Madhya Pradesh v. Makrand Singh and Ors.), the Hon’ble Supreme Court pronounced that there is no hard and fast rule that in every case, there should be a magisterial order for lifting the fingerprints of the accused. Also, the recovery made on the basis of involuntary statements effectively negates the incriminating circumstance based on such recovery, and severely undermines the prosecution case.

The Hon’ble Supreme Court observed that:

Once a confessional statement of the accused on facts is found to be involuntary, it is hit by Article 20(3) of the Constitution, rendering such a confession inadmissible. (Para 21)

There is an embargo on accepting self­ incriminatory evidence, but if it leads to the recovery of material objects in relation to a crime, it is most often taken to hold evidentiary value as per the circumstances of each case. However, if such a statement is made under undue pressure and compulsion from the investigating officer, the evidentiary value of such a statement leading to the recovery is nullified. (Para 21)

The recovery made on the basis of involuntary statements effectively negates the incriminating circumstance based on such recovery, and severely undermines the prosecution case. (Para 22)

Section 5 of the Identification of Prisoners Act, 1920, is not mandatory but is directory, and affirms the bona fides of the sample­ taking and eliminates the possibility of fabrication of evidence. (Para 27)

Although Section 4 of the Identification of Prisoners Act, 1920 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, it cannot be held to mean that under Section 4, police officers are not entitled to take fingerprints until the order is taken from a Magistrate. 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. Thus 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. (Para 27)

It cannot be held that the fingerprint evidence was illegally obtained merely due to the absence of a magisterial order authorizing the same.(Para 27)

Unless any blatant illegality or substantial error in the order of acquittal is proved by the appellants, and as long as the conclusion of acquittal is a possible view based on the circumstances and material on record, the Supreme Court is not bound to interfere with the same.  (Para 29)

When a reasonable suspicion or doubt persists regarding the guilt of the accused based on the case of the prosecution, the scales of criminal justice tilt in favour of acquittal of the accused. (Para 29)

Copy of judgement: Judgement 14-Jan-2019

-Tushar Kaushik

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