Criminal Procedure (Identification) Act, 2022
Law enforcement has relied on fingerprint analysis and other criminal measurements to identify suspects and solve crimes for more than 100 years. Investigators use fingerprints to link a perpetrator to a crime scene. The advent of forensic science has revolutionized the manner of detecting crime. Investigative procedures have seen a change over the course of the past two decades due to the constantly developing technologies used as a part of forensic science and its role in getting convictions cannot be denied.
Criminal Procedure (Identification) Act, 2022 (the Act) has come into force on 18th April 2022 and replaced the over hundreds of years archaic `Identification of Prisoners Act, 1920’, and expanded the ambit of people from whom information can be collected, and the categories of information that can be collected. The objective of the Act is to authorize law enforcement agencies to take measurements of convicts and other persons to identify and investigate criminal matters and preserve records.
It’s an Act to authorise for taking measurements of convicts and other persons for the purposes of identification and investigation in criminal matters and to preserve records and for matters connected therewith and incidental thereto. The Act specifies the grounds under which measurements may be collected and who can collect such measurements. The Act delegates certain powers to the Government and the Rules further delegate these to the National Crime Records Bureau (NCRB).
Power to make Rules:
The Central Government or the State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act. Such rules may provide for all or any of the following matters:
(a) The manner of taking measurements,
(b) The manner of collection, storing, preservation of measurements and sharing, dissemination, destruction and disposal of records,
(c) The manner of taking of measurements,
(d) Any other matter which is to be prescribed, or in respect of which provision is to be made.
The Criminal Procedure (Identification) Rules, 2022 (The Rules) were notified by the Ministry of Home Affairs on September 19, 2022.
Measurements: In this Act, “measurements” includes
• palm-print impressions,
• foot-print impressions,
• iris and retina scan,
• physical, biological samples and their analysis,
• behavioural attributes including signatures, handwriting or any other examination.
Who shall allow measurements to be taken?
As per Section 3 of the Act, any person, who has been,
(a) convicted of an offence punishable under any law for the time being in force; or
(b) ordered to give security for his good behaviour or maintaining peace under section 117 of the Code of Criminal Procedure, 1973 (Code) for a proceeding under section 107 or 108 or 109 or 110 of the said Code; or
(c) arrested in connection with an offence punishable under any law for the time being in force or detained under any preventive detention law,
shall allow his measurement to be taken by a police officer or a prison officer. The Rules specify that for certain persons measurements will not be taken unless they have been charged or arrested in connection with any other offence.
Who are authorised to take measurements:
As per the Act measurements will be taken by a police officer or a prison officer. The Rules specify that the following persons take the measurements:
• Authorised user – An authorised user has been defined as a police officer or a prison officer, who has been authorised by the NCRB to access the database.
• Any person skilled in taking the measurements.
• A registered medical practitioner.
• Any person authorised in this behalf may take such measurements.
Power of Magistrate to order taking of measurements:
Where the Magistrate is satisfied that, for the purpose of any investigation or proceeding under the Code of Criminal Procedure, 1973 or any other law for the time being in force, it is expedient to direct any person to give measurements under this Act, the Magistrate may make an order to that effect and in that case, the person to whom the order relates shall allow the measurements to be taken in conformity with such directions.
If any person who is required to allow the measurements to be taken under this Act resists or refuses to allow taking of such measurements, it shall be lawful for the police officer or prison officer to take such measurements in such manner as may be prescribed. Resistance to or refusal to allow the taking of measurements under this Act shall be deemed to be an offence under section 186 of the Indian Penal Code – voluntarily obstructing any public servant in the discharge of his public functions which shall be punishable with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
No suit or any other proceeding shall lie against any person for anything done, or intended to be done in good faith under this Act or any rule made thereunder.
Storing of records and Role of NCRB
NCRB, is the Central Agency set up to function as repository of information on crime and criminals so as to assist the investigators in linking crime to the perpetrators.
The NCRB shall, in the interest of prevention, detection, investigation and prosecution of any offence under any law for the time being in force
(a) Collect the record of measurements from State Government or Union territory Administration or any other law enforcement agencies.
(b) Store, preserve and destroy the record of measurements at a national level.
(c) Process such record with relevant crime and criminal records; and
(d) Share and disseminate such records with any law enforcement agency, in such manner as may be prescribed.
The Rules specify that the NCRB will issue SOPs for taking measurements including:
(i) Specifications and the format of the measurements to be taken.
(ii) Specifications of the devices to be used for taking these measurements.
(iii) The method of handling and storing these measurements.
(iv) The digital format to which each measurement should be converted before uploading on to the database and
(v) The encryption method.
Sharing of records:
The measurements stored by NCRB are used for the purpose of crime detection. To get the record of measurements of a person matched with the data recorded, an authorised user will forward the request to NCRB. NCRB will match the record and provide a report to the authorised user through a secure network.
Retention and Destruction of records:
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 measurements.
Provided that where any person, who has not been previously convicted of an offence punishable under any law with imprisonment for any term, has had his measurements taken according to the provisions of this Act, is released without trial or discharged or acquitted by the court, after exhausting all legal remedies, all records of measurements so taken shall, unless the court or Magistrate, for reasons to be recorded in writing otherwise directs, be destroyed from records.
As per the Rules, the SOPs will provide the procedure for destruction and disposal of records and the NCRB will destroy the records as prescribed. The State or Central government or UT administration will nominate a nodal officer to whom requests for destruction of record of measurements will be made. The Rules put the onus on the person to request for the destruction of such records. The nodal officer will recommend the destruction of records to NCRB after verifying and making sure that such records are not linked with any other criminal cases.
Violation of constitutional rights:
Article 20 (3) assures that no person accused of an offence shall be compelled to be a witness against himself. Taking biological samples and allaying them could lead to Narco-analysis and brain mapping of the accused or the arrested which is alleged to be in violation of Article 20 (3).
The provisions of the Act also apply to persons held under any preventive detention law, which is a violation of Article 21.
Some argue that the bill empowers the police and courts to take measurements of persons who are under trial and suspected to be involved in a case. The presumption that they may commit an illegal act in future could be an erroneous presumption.
In respect of authorised user, storing of the data etc., the Rules have gone beyond the provisions of the Act and thus expanded the scope of the Act.
*The Author S. Prabhakar, is a Fellow member of the Institute of the Company Secretaries of India, Chartered Secretary from the UK, Lawyer, and Registered Insolvency Professional.
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