This article has been written by Burre Anitha and has been edited by Shashwat Kaushik.

It has been published by Rachit Garg.

Introduction

The Criminal Procedure (Identification) Act of 2022 became law on April 18, 2022, upon receiving the President’s assent, replacing the Identification of Prisoners Act, 1920, a colonial era law.

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The new Act allows the police and prison authorities to collect, analyse, and store physical and biological samples, including retina and iris samples of the convicted. The old act is limited to the collection of fingerprints, foot impressions, and photographs of the convict.

The advancement in technology and scientific techniques used in criminal investigation is the main reason for the formation of new acts.

All about Prisoner’s Act, 1920

  • The Identification of Prisoners Act, 1920, is applicable to the entire country except for the territories that were part of the Part B States before November 1, 1956.
  • In this Act, measurements include fingerprints and footprints.
  • Persons who have been sentenced for a year or more and persons who have been ordered to give security for maintaining peace or good behaviour under Cr.P.C. have to provide measurements.
  • A police/ prison officer can take measurements from such people.
  • Refusal to provide measurements is an offence under Section 186 of the Indian Penal Code.
  • If a person who has not been previously convicted of an offence punishable with imprisonment for one year or more is released without trial or acquitted, all the measurements and photographs taken must be destroyed unless the court, the District Magistrate, or Sub-Divisional Officer directs otherwise.
  • The state government has the authority to make rules.

Criminal Procedure (Identification) Act, 2022 

What is it

The Criminal Procedure (Identification) Act, 2022 seeks to collect ‘measurements’ from certain classes of persons and further allows for their processing, storage, preservation, dissemination, and destruction with the aim of identification and investigation in criminal matters and for the prevention of crimes.

Measurements include:

  • Finger-impressions,
  • Palm-print impressions,
  • Foot-print impressions, photographs,
  • Iris and retina scan,
  • Physical and 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 of 1973.

Section 53 of the 1973 Code of Criminal Procedure includes the examination of blood, blood stains, semen, swabs in cases of sexual offences, sputum and sweat, hair samples, and fingernail clippings by the use of modern and scientific techniques, including DNA profiling and such other tests as:

Section 53A of the Code of Criminal Procedure of 1973 includes knowing the:

  1. Name and address of the accused and of the person by whom he was brought,
  2. age of the accused,
  3. marks of injury, if any, on the person of the accused,
  4. description of material taken from the person of the accused for DNA profiling, and
  5. other material particulars in reasonable detail.

Who can collect the measurements 

The police,the prison officer, a registered medical practitioner, or any other person, or his authorised person, who can collect the measurements as per the Act.

 Measurements could be collected from:

  1. Any person convicted of any offence under any law in force.
  2. Any person who has been detained under any preventive detention law.
  3. Any person ordered to give security for maintaining peace or good behaviour under 117 of the Cr.P.C. for proceeding under sections 107 to 110 of Cr.P.C. can provide the measurements.

These people are compelled to give all measurements except biological ones. But however, all the persons who have committed crimes against a child or a woman and who have been convicted with imprisonment of 7 years or more are compelled to provide the biological measurements as well.

Further, the Act expands the scope of persons to whom measurements can be compelled. Provided, the magistrate can order any person to give their measurements if he deems it fit for an investigation or proceeding under any other law.

Refusal to give measurements

Any person who has refused to give measurements to police or prison officers is considered to have committed an offence under Section 186 of the Indian Penal Code, 1860.

Process and storage of the measurements:

  1. The Act provides notification for collection, preservation, and sharing to state-level agencies.
  2. Provides these records to law enforcement agencies.
  3. These records are stored digitally or electronically for 75 years without deletion.

However, the records of measurements could be deleted from the database only for persons with no convictions at any point in time and who were released without trial, acquitted, or discharged of the offence alleged against them.

This can be done only after all the legal remedies against such a release/acquittal have been completed.

The deletion of such records of measurements is done only at the discretion of the magistrate.

Authority 

The National Crime Records Bureau (‘NCRB’) is the nodal agency for storing, preserving, destroying, processing, and disseminating ‘records of measurements’. 

Provisions of Criminal Procedure (Identification) Act, 2022

The Criminal Procedure (Identification) Act, 2022 has many provisions but the key provisions are stated below

  • Section 1- Short title and commencement 

The Act is called the Criminal Procedure Identification Act, 2022, and it came into force on a date specified by the Central Government through a notification in the official gazette.

  • Section 2- Definitions

The Act provides definitions for various terms, like

  1. Magistrate as a judicial officer of a specific rank.
  2. Measurements include both physical and biological samples.
  3. A police officer is officer in charge who is not below the rank of head constable.
  4. Prison officer means below the rank of head warder.
  • Section 3- Taking of measurements

It mentioned from which class of persons the measurements are to be taken, like

  1. Convicted under any offence and punishable under any law for the time being in force.
  2. If the person has been ordered to behave well or keep the peace by the court concerning certain legal proceedings.
  3. If the person has been arrested for a crime or detained under a preventive detention law.
  • Section 4- Collection, storage, preservation of measurements, and storage, sharing, dissemination, destruction, and disposal of records

The National Crime Records Bureau is the authority for the collection, storage, and destruction of the measurements. The Act specifies that the measurements are to be preserved digitally or electronically for a period of 75 years.

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 and is released without trial, 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.

  • Section 5- Power of the magistrate to direct a person to give measurements 

The provision grants authority to the magistrate to order a person to provide measurements for an investigation or proceeding under the Code of Criminal Procedure or any law for the time being in force. The person must comply with the orders of the magistrate.

  • Section 6- Resistance to allow taking of measurements

If any person bound to provide measurements resists or refuses to give measurements, then the police officer/prison officer can take measurements as prescribed in the law.

Resistance or refusal to provide measurements is considered an offence under Section 186 of the Indian Penal Code.

  • Section 7- Bar of the suit

This provision states that no legal suit or proceeding can be initiated against any person for acting in good faith under this Act or any rule made under it.

  • Section 8- Power  to make rules

The Central and state governments have the power to make rules for carrying out the purposes of the Act.

These rules include the manner of taking, collecting, storing, and disposing of the measurements and may include any other necessary provisions.

  • Section-9 Power to remove difficulties

If any difficulties arise in implementing the provisions of the Act, the Central Government may issue an order to resolve the issues. However, such orders must be published in the Official Gazette and cannot be made three years after the Act’s commencement.

Advantages of Criminal Procedure (identification) Act, 2022

Criminal litigation

Use of modern technology 

The previous Act was limited only to fingerprints and footprint impressions, which are minimal sources for catching criminals. In the new Act, there is storage of not only mere fingerprints or footprints but even biological samples, which are stored in the DNA bank, which makes it easier to catch criminals.

Expansion in the list of criminals

The new Act enables the expansion of taking measurements from people and makes the evidence more accessible. So the investigation becomes easy for the authorities.

This makes the investigation easier, and the conviction rate increases.

Drawbacks of Criminal Procedure (Identification) Act, 2022

Vagueness in the terminology

  1. The term “biological samples” is not defined properly, so it could lead to breaches of bodily samples related to DNA.
  2. Private details and medical histories could be unnecessarily stored.
  3. Due to the storage of the individual’s DNA, the family history will be known, which leads to information about the individual’s family.

Degradation of the biological samples

Biological samples are prone to contamination and degradation. The Act doesn’t clearly mention the contamination. In India, the samples are stored by the police, and they lack infrastructure for the storage of samples.

Excessive collection and storage of  measurements

Due to excessive storage and collection of the data, which leads to the creation of extensive databases. It may increase the chances of identifying criminals. Still, due to a lack of people in forensic and other criminal departments, it leads to more excessive work rather than solving the issue.

Cost compliances

Not only for the creation of the DNA databank, but also for the collection process, which also requires a lot of funds. The process of digitization needs a lot of time and funds, which are limited in comparison to the budgets for similar databases in other jurisdictions.

Issues with the NCRB’s role

It is well known that NCRB outsources the day-to-day management to private contractors, which affects the reliability of the data and samples given. It could be easily available to others, which intrudes on their right to privacy.

Disposal or destruction of measurements

The process of destroying measurements is not mentioned. This may lead to confusion about when and how the measurements are to be disposed of, and doubts may arise about whether the measurements are disposed of or not.

Conflicts with Constitutional Law

Issue with Article 14 (Right to Equality)

Due to excessive power delegation to police, prison authorities, or magistrates, they may compel more people to provide their measurements, and even rejection of giving the measurements is also a crime. Such excessive and uncontrolled powers may lead to discriminatory use of powers, which intrudes on the right to equality as enshrined in the Constitution of India.

Issue with Article 21 (Right to Privacy)

The Act’s coverage of the collection of measurements is overboard. So, even the people who  got arrested are compelled to give measurements, which intrude on their right to privacy.

It not only intrudes on the right to privacy of the convicted persons but also of every citizen of India, as the biological samples being collected make it easier to know the family genealogical conditions.

Issue with Article 20(3) (Right Against Self Incrimination)

The word biological samples is not defined properly. This leads to the forced collection of biological samples, which is in conflict with Article 20(3) of the Constitution.

Conclusion

The word measurement has more coverage in the Criminal Procedure (Identification) Act, 2022, compared to the Prisoners Act, 1920, and the word biological samples is not defined properly in the new Act. India is a democratic country, and that doesn’t mean we should intrude on someone’s right to privacy. To resolve this issue, the government has to introduce a Data Protection Bill to safeguard the sensitive information of the public. There is a great need to construct more forensic labs and data storage banks in the country.

We agree that there is a need to improve the efficiency of investigations, and for that purpose, the collection of measurements is essential. But this cannot be implemented at the cost of intruding on the fundamental rights of the citizens of the country.

References

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