Supreme Court of India
STATE OF M.P.versusDEVENDRA
- Citation
- 2009 INSC 670
- Decided
- 5 May 2009
- Disposal
- Disposed off
- Bench
- ARIJIT PASAYAT
Holding
The Supreme Court held that the High Court's directions are subordinate to the Identification of Prisoners Act, 1920, the Madhya Pradesh Police Regulations and the Code of Criminal Procedure, and in case of any conflict the statutory provisions prevail, leading to a modification of the directions.
Summary
The State of Madhya Pradesh appealed against directions issued by the Indore Bench of the High Court that mandated the State Government to amend police regulations to require photographs of complainants, material witnesses and accused persons to be taken and attached to charge sheets in all criminal cases except minor or non‑cognizable offences. The State contended that the directions were impracticable and conflicted with the Identification of Prisoners Act, 1920, the Madhya Pradesh Police Regulations and the Code of Criminal Procedure, 1973. The Supreme Court examined whether a court can impose procedural requirements that override statutory provisions and whether the High Court's directions were consistent with the statutory scheme. It held that the directions are subject to the provisions of the Prisoners Act, the police regulations and the Code, and that in any conflict the statute prevails. Accordingly, the Court modified the High Court's directions, limiting their application and emphasizing that photographs of rape victims should not be taken, and disposed of the appeal.
Issues considered
- Whether the High Court's directions requiring mandatory photographing of complainants, witnesses and accused persons are consistent with the Identification of Prisoners Act, 1920, the Madhya Pradesh Police Regulations and the Code of Criminal Procedure, 1973.
- Whether a court can impose procedural directives that override or add to statutory provisions governing identification of prisoners.
- What is the effect of a conflict between the High Court's directions and the statutory scheme; which law prevails.
- Whether the directions should apply to minor, petty and non‑cognizable offences.
- Whether photographs of rape victims may be taken under the proposed directives.
Legislation cited
- Code of Criminal Procedure, 1973s. 160, s. 161, s. 170, s. 171, s. 439
- Identification of Prisoners Act, 1920s. 3, s. 4, s. 5, s. 54(A), s. 6
- Madhya Pradesh Police Regulations
Subjects
identification of prisonersphotographsimpersonationcriminal procedurestatutory interpretationhigh court directionsprisoners actpolice regulations
Judgment
[2009] 8 S.C.R. 98 ..
A
A STATE OF M.P.
v.
DEVENDRA
(Criminal Appeal No . 979 of 2002)
MAY 05, 2009
B
[DR. ARIJIT PASAYAT, D.K. JAIN AND DR.
MUKUNDAKAM SHARMA, JJ.)
Identification of Prisoners Act, 1920 - Identification of
c prisoners and methods for investigation - Directions by High
Court to State Government in regard thereto to avoid
impersonation - On appeal held: Directions by High Court
modified - Directions subject to provisions of the Act, the
Regulation and the Code - In case of conflict statute would
D prevail - M.P. Police Regulations - Code of Criminal
Procedure, 1973.
-·
In this appeal, directions issued by High Court to the
State Government as regards identification of prisoners
and methodology for investigation, is under challenge.
E
Disposing of the appeal, the Court
HELD: 1.1. Direction 1 that the State shall make
suitable amendments in .the Police Regulations about
F 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; and
Direction 3 that in all criminal cases and sessions trials,
G 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 and the State may
H 98
STATE OF M.P. v. DEVENDRA 99
j
also retain copy of photographs with the case diary or A
at the police station for the purposes of service of
summons and warrants for arresting the absconding
accused persons, 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 B
complainant and the witnesses are concerned their role
is during the trial. [Para 3 and 10] [101-B-C-E-G; 107-F-G]
1.2. The directions given by the High Court are
modified. As regards para 8 of the directions the
identification has to be based on the basis of information c
relating to identification of somebody. So far as the
direction no. 9 that in all appeals ~gainst 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 D
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 E
and address with the photograph, is concerned only
when it is so necessary by the Magistrate action shall be
taken. 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 F
witnesses, where prosecution wants to protect the
identity, the reasons, therefore, must be recorded. In case
of rape victims, photographs should not be taken. [Para
11] [107-G-H; 108-A-B]
G
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
I
No. 979 of 2002.
From the Judgment & Order dated 18.02.2002 of the High
Court of Madhya Pradesh, Indore Bench, Indore, Madhya
H
100 SUPREME COURT REPORTS [2009] 8 S.C.R. -.
.._
A Pradesh in Misc. Crl. Case No: 2932 of 2001.
Vibha Datta Makhija for the Appellant.
Ex-Parte for the Respondent.
B 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
c 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
D 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
before the Test Identification Parade. The High Court was
G
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.
H
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
cases, sessions trials, except in minor/petty offences and
c
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
all the accused persons and the same should be part of F
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.
G
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
102 SUPREME COURT REPORTS [2009] 8 S.C.R.
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
of identification should be checked with the accused.
- 8
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.
c
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
E 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
F
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.
G
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
STATE OF M.P. v. DEVENDRA 103
[DR. ARIJIT PASAYAT, J.]
(2), 171. A
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
imprisonment for a term of one year of upwards, or
c
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
y
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.
A 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,
B 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
c for abstaining from commission of certain offences
under Section 18 ·Of the Dangerous Drugs Act,
1930.
shall if so required allow his measurements and
D 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
E 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.
F
STATE AMENDMENTS
Gujarat: (i) In its application to the State of Gujarat
for Sect.ion 4, the following substituted, namely:
G . "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
H
STATE OF M.P. v. DEVENDRA 105
[DR. ARIJIT PASAYAT, J.]
Procedure, 1898, or under Section 4 of the A
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 B
Beggars Act, 1945, or in connection with an
off~nce punishable with rigorous
imprisonment for a term of one year or
upwards, or
(b) in respect of whom a direction or order under C
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, D
shall, if so reql,lired 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, E
for Section 4 substitute the following:
• "4. Taking of measurements or photographs of
.... unconvicted persons. - Any person -
F
(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 G
v
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
H
106 SUPREME COURT REPORTS (2009] 8 S.C.R.
A (b) in respect of whom direction or order under
Section 54 or 55 of the Kamataka Police Act, 1963,
has been made,
shall if so required by a police officer, allow his
measurements or photographs to be taken in the
B
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
c the provisions of the Kamataka Habitual Offenders Act,
1961, shall if so required by a Police Officer, allow his
measurements of photograph to the taken in be prescribed
manner".
D [Kamataka 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
E 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
F 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."
G [Karnataka Act 1 of 1987]. y
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
H Code of Criminal Procedure, 1898, it is expedient to direct
STATE OF M.P. v. DEVENDRA 107
[DR. ARIJIT PASAYAT, J.]
/,.
any person to allow his measurements or photograph to A
be taken, he may make an order to the effect, and in that
i 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 B
officer:
-': Provided that no order shall be made directing any person
to be photographed except by a Magistrate of the first
class:
c
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
D
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
E
far as Section 5 is concerned it deals with the power of the
Magistrate to direct any person for measurement or
J :t
photographs to be taken if he is satisfied that for the purpose
of any investigation or proceedings under the court the same
is necessary.
F
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.
G
'r 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
H
108 SUPREME COURT REPORTS [2009] 8 S.C.R.
A relating to identification of somebody. So far as the direction
No.9 is concerned only when it is so necessary by the
t
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
-
;
8 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.
C N.J. Appeal disposed of.
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