Power of police in respect of photographing an accused.
Laws relating to Photographing an accused:
The source of power to take photographs of an accused during the course of investigation flows from Section 5 of the Identification of Prisoners Act, 1920, and not from the Code of Criminal Procedure, which is as under:
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 (5 of 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.
As per Tamil Nadu Police Standing Order 646:
(1) The photographing of undertrial prisoners is generally forbidden. However, photographing of under-trial prisoners is permitted under certain condition as laid down in sections 4 and 5 of the Identification of Prisoners Act, 1920.
There is no specific provision in the Cr.P.C. authorising the Police to take photograph and above provisions cover this aspect of photographing an accused.
Can the Police be allowed to take photographs of the accused in the Police Station without Magisterial sanction?
View of Madras High Court in India:
If we concede that power, what will be the plight of women-accused? Can the Police take the accused to the scene of crime or anywhere else and take photographs of him? If the photographs leak to the Press will it not affect the evidentiary value of identification in the Test Identification Parade and Court?
……..Taking into consideration all this, we hold that photograph of an accused can be taken only in terms of Section 5 of the Identification of Prisoners Act, 1920 and the Police have no authority to do it on their own. We also deprecate the practice of taking the accused to the place of occurrence or place of discovery and taking photographs of him.
Photography of accused or scene of crime:
An Observation Mahazar can be relevent under Section 7 of the Evidence Act only if it states as to what the Police Officer sees and notes at the place of occurrence. A Police Officer cannot import into the Observation Mahazar and Rough Sketch the knowledge gained by him from witnesses much less from the accused because they are hit by Section 162 Cr.P.C. It is also not a healthy practice to draw such Observation Mahazars and take videograph of accused while asking him to re-enact the drama. Therefore, the Observation Mahazar [Ex.P7] is an inadmissible piece of evidence.
Madras High Court carved out an exception to above rule:
Photographing an accused for identification:
We are also conscious of the fact that the photographs of accused prisoners are essential for myriad reasons. A Division Bench of the Gujarat High Court in Mahendra Urjeevan Luhar v. State [(CDJ) 199 GHC 034] and the Madhya Pradesh High Court in Devendra v. JMFC Indore [2002 (3) MPLJ 337] have observed that there is rampant impersonation of accused during trial and even after conviction. Therefore, these Courts have directed that photographs of the accused should be filed along with the final report so that the menace of impersonation can be tackled. We are also agreeing with the view of these two High Courts and we suggest to the Investigating Agencies to take photographs of accused involved in serious cases by resorting to Section 5 of the Identification of Prisoners Act, 1920 after identification parades, if required, are held. This will ensure that the State also has record of persons and the mischief of impersonation can also be controlled.
Note: It may however be noted that the conviction of accused was not upset by High Court due to overzealous efforts of Investigating Officer in photographing an accused even if the same were unwarranted and illegal.