Law Centrum
16 Jun 2022
Comments on Criminal Procedure (Identification) Act, 2022
INTRODUCTION
The Criminal Procedure (Identification) Act, 2022 has repealed the 102-year-old colonial law (the Identification of Prisoners Act, 1920) on 18th April 2022. The Criminal Procedure (Identification) Act, 2022 was introduced by the government on March 28, passed by Lok Sabha on April 4 and by the Rajya Sabha on April 6, 2022. The new Act came into force on 18th April, 2022 with the assent of the President. The act is intended to provide the legal authority to law enforcement in procuring identificatory evidence. The act deals with the manner, method and circumstances under which scientific techniques is used in the criminal investigation. Such evidence can be obtained without requiring the arrested person to exhibit the body or otherwise to participate physically. But certain types of evidence can be secured only by his active physical participation and the act provides the statutory authority for requiring the accused to do so. Physical evidence is of infinite variety, it may include hair, the human voice and fingerprints.
The object of the act is to procure evidence, its vital bearing on the law of evidence is obvious. But the evidence procured is of a special nature, being somewhat different from oral or documentary evidence which constitutes the usual species. The material sought to be procured with the help of the coercive measure sanctioned by the act is really in the nature of demonstrative evidence.
According to the Law commission report 1980 on Identification of Prisoners Act, 1920, the act was drafted in urgency in order to address certain uncertainties in the absence of complete examination in the year 1920.
GENESIS OF LAW COMMISSION REPORT 1980
Law commission has examined the Identification of Prisoners Act, 1920 and published its report on 29 August 1980. In its report the commission has recommended several amendments to the act and emphasised necessity to revise the act so as to make it correspond with modern trends in criminal investigation. The report has cited the suggestion made by the Supreme Court in State of U.P, v. Rambabu Misra (1980) for amending law relating to identification.
With regards to power of police to investigate, the report states that “Undoubtedly, the police have power to arrest in specified cases, but this power is not corollary to the right to search”. Concerned with the coercive measures employed in the investigative process, the report has encouraged striking balance between the rights of an individual and the imperative need in the interest of the society. The report found that the act is not exhaustive since section 2(a) of the act includes only finger impressions and foot-print impressions under the definition of “measurements”. The law commission in its report commented on the above-mentioned provision with regard to addition of palm impressions. The report reveals the in-depth analysis of the Identification of Prisoners Act, 1920 and commented on various aspects of the act.
Privacy Concerns
The report found two competing interests with regard to the privacy of the individual - (1) the interest to be protected from invasion of the individual’s physical privacy and (2) the interest of the State to secure evidence. The report refers the expression “privacy” as physical interference.
IDENTIFICATION OF PRISONERS ACT, 1920
The principal objective of the act is to permit the taking of certain coercive measures in order to facilitate the ‘identification’ of convicts, persons arrested in connections with certain offences, and persons ordered to give security in certain cases. Thus, the main intent of the act is to facilitate the identification of criminals or suspected criminals.
Real or Demonstrative Evidence
Demonstrative evidence is often the most important evidence in a criminal trial. The human body, pictures, maps, charts, drawings, models, and samples of handwriting, are all examples of demonstrative evidence, which must also meet the tests of admissibility ad relevancy. Important examples of demonstrative evidence might be – finger-prints of an accused on the stolen property or on doorways, or on furniture at the scene of the crime. Measures of identification has a significant part to play in criminal investigation.
Object of procuring identification
According to Law commission report 1980, taking of measurements and photographs for the purpose of identification and the procuring of other evidence for that purpose might have four objects to be achieved.
1. Collecting and storing of identification will be helpful in case of suspected repetition of offences by the same person.
2. It is necessary for the purpose of an investigation into an alleged offence in order to establish the identity of the person arrested with the actual culprit.
3. Identification may be useful to establish a previous conviction – i.e., identity of the arrested.
4. Identification may be useful for statistical purposes
Dichotomy
The act makes distinction between two situations – (1) situations where the power to take such evidence is given to a police officer (of prescribed rank), and (2) situations where an order of the magistrate is considered as pre-requisite before taking such evidence. The act is based on the principle that “less serious the offence, the more restricted should be the power to make coercive measures. Correspondingly, the more serious the offence, the wider the power to make coercive measures conferred by the act”. Section 3 confers specified powers on police officer. But in contrast, section 5 requires magisterial orders before coercive measures can be taken thereunder.
Key Provisions
Section 3 provides for taking of measurements of convicted persons. Section 4 allows to take measurements of non-convicted persons arrested of an offence punishable with rigorous imprisonment for one year or upwards. Section 5 empowers magistrate to order a person to be measured or photographed. Section 6 and section 7 are incidental and consequential in nature, since the respective provisions deal with resistance to the taking of measurements, and destruction of photographs and records of measurements. Section 3 of the act deals with taking measures of following convicted persons – Convicted or arrested for offences punishable with rigorous imprisonment of one year or more and Persons ordered to give security for good behaviour or maintaining peace.
Section 6 of Act states that the resistance to or refusal to allow taking of measurements or photograph under this Act shall be deemed to be an offence under section 186 of the Indian Penal Code, 1860 (45 of 1860). Section 8 of the act empowers the centre and state government to make rules to implement the act including the manner of collecting, storing and preserving the measurements.
THE CRIMINAL PROCEDURE (IDENTIFICATION) ACT, 2022
The objective of the new act is two-fold:
1. To authorise taking measurements of convicts and other persons
2. To preserve records for the purpose of identification and investigation
Analysis of the Section 2(b) of the act demonstrates that the legislators have considered the comments made by the law commission in its report 1980 vis-à-vis inclusion of palm-print impressions. Considering the development in science and technology over years, the other aspects like iris and retina scan, physical, biological samples and their analysis, behavioural attributes including signatures, handwriting or any other examination referred to in section 53 or section 53A of the Code of Criminal Procedure, 1973 are included in the definition.
The act elaborated the section 2(a) to deal with the power of magistrates. The term magistrate according “to the section means - (i) in relation to a metropolitan area, the Metropolitan Magistrate; (ii) in relation to any other area, the Judicial Magistrate of the first class; or (iii) in relation to ordering someone to give security for his good behaviour or maintaining peace, the Executive Magistrate;
Section 3 of the act deals with taking measurements of following convicted persons - convicted of an offence punishable under any law for the time being in force; ordered to give security for his good behaviour or maintaining peace under section 117 of the Code of Criminal Procedure, 1973 for a proceeding under section 107 or section 108 or section 109 or section 110 of the said Code; or rested in connection with an offence punishable under any law for the time being in force or detained under any preventive detention law. Provided that any person arrested for an offence committed under any law for the time being in force (except for an offence committed against a woman or a child or for any offence punishable with imprisonment for a period not less than seven years) may not be obliged to allow taking of his biological samples under the provisions of this section. With regard to the resistance to or refusal to allow the taking of measurements no change has been made in the new act.
Trichotomy
The act makes distinction between three situations – (1) situations where the power to take such evidence is given to a police officer (of prescribed rank), (2) situations where an order of the magistrate is considered as pre-requisite before taking such evidence, and (3) situations under which The National Crime Records Bureau (NCRB) shall, in the interest of prevention, detection, investigation and prosecution of any offence under any law for the time being in force, Collect, store, preserve measurement and store, share, disseminate, destruct and dispose records.
The power provided to the NCRB is elaborative since, the act empowers the department to collect the record of measurements from State Government or Union territory Administration or any other law enforcement agencies, store, preserve and destroy the record of measurements at national level, process, share and disseminate criminal records with any law enforcement agency.
CONCLUSION
Comparative analysis of the old and new act reveals the following facets
1. The definition of ‘measurement’ in new act is wider in scope compare
d to the old act. The 2022 Act expanded the scope of the term “measurements” to include biological samples, behavioural attributes including signatures, handwriting and examinations under Sections 53 and 53A of the Code of Criminal Procedure, of any arrested person, including convicts. While the old act allows for the measurement of finger impressions and foot-print impressions.
2. The new act has the following two key provisions: (a) The National Crime Records Bureau (NCRB) is empowered as central agency to collect, process and maintain the records. (b) The record of measurements shall be retained in digital or electronic form for a period of seventy-five years from the date of collection of such measurement. Provided the records will be destroyed in case of persons who are acquitted after all appeals, or released without trial.
3. The new act widened the ambit of category of convicted persons for procuring measurements. Thus, measurements can be collected from any person convicted of an offence punishable under any law for the time being in force as opposed to convicted persons arrested of an offence punishable with rigorous imprisonment for one year or upwards.
References
[1] The Criminal Procedure (Identification) Act, 2022 No. 11 Of 2022
[2] The Identification of Prisoners Act, 1920, ACT NO. 33 OF 1920
[3] Law Commission of India 1980, 87th Report on The Identification of Prisoners Act, 1920,