Paragraph numbers below are the court’s original numbering, recovered from the source text.
36. The three Judge Bench clearly held that it was not necessary for the Police officer to obtain an order from a Magistrate for obtaining specimen of fingerprints. Law laid down by three-Judge Bench judgment is thus clearly applicable in the present case.
37. One of the reasons given by Full Bench of Delhi High Court in Sapan Haldar case was that there being no rules or executive instructions prescribing a manner of taking of fingerprints, Police Officer cannot exercise the power under Section 4. We need to dwell this aspect little more. The word prescribed has been defined under Section 2(c) as “prescribed means prescribed by rules made under this Act”. Section 8 empowers the State Government to make rules for the purpose of carrying into effect the provisions of the Act. Section 8 is as follows: “8. Power to make rules.—(1) The State Government may, 1[by notification in the Official Gazette,] make rules for the purpose of carrying into effect the provisions of this Act.—(1) The State Government may, 1[by notification in the Official Gazette,] make rules for the purpose of carrying into effect the provisions of this Act.” (2) In particular and without prejudice to the generality of the foregoing provision, such rules may provide for— (a) restrictions on the taking of photographs of persons under section 5; (b) the places at which measurements and photographs may be taken; (c) the nature of the measurements that may be taken; (d) the method in which any class or classes of measurements shall be taken; SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI [ASHOK BHUSHAN, J.] (e) the dress to be worn by a person when being photographed under section 3; and (f) the preservation, safe custody, destruction and disposal of records of measurements and photographs. [(3) Every rule made under this section shall be laid, as soon as may be after it is made, before State Legislature.]”
38. Whether the power of the Police Officer under Section 4 cannot be exercised till the State make rules under Section 8? The appellant supporting the judgment of the Delhi High Court contends that since Section 4 uses the words “allow his measurement to be taken in the prescribed manner”, unless there is a prescribed manner by the rules fingerprints cannot be taken. The power of the State given under Section 8 to frame rules is an enabling power. The word used under Section 8 is, the State Government “may”. Can it mean that till the rules are framed by the State, power under Sections 3 and 4 cannot be exercised? The power given to the Police Officer to ask a person arrested to give his measurements is a substantive power. This power is hedged by the condition that such measurement has “to be taken in the prescribed manner” if there is any prescribed manner that cannot be breached by such Police Officer. Taking of the measurements in the prescribed manner is a procedural part of the Section which does not affect the substantive power of the Police Officer to ask an accused who is under arrest to give his measurement.
39. In event, it is held that unless the rules are framed under Section 8 power under Section 4 cannot be exercised that will not be in consonance with the very purpose and object for which Section 4 has been enacted. The submission of the appellant further is that when there is no rule framed providing prescribed manner for taking fingerprints, resort to Section 5 has to be taken by IO. Section 5 is a separate power given to Magistrate. The power of the Magistrate is an additional and separate power to secure ends of justice for purpose of investigation and proceedings under Code of Criminal Procedure. It may be exercised even in a case where after arrest Police Officer has not taken fingerprints of an accused. But, it cannot be held that power under Section 4 can be exercised by the Police Officer only after obtaining an order under Section 5.
40. One more aspect needs to be looked into. Section 3 also provides for taking of measurements of convicted person. Section 3 also uses the phrase “allow the measurement and photographed be taken by Police Officer in the prescribed manner”. Now, if the phrase “prescribed manner” has to be read as existence of a rule providing for a prescribed manner of taking of evidence, in absence of rule no fingerprints can be taken under Section 3 also of a convicted person, it is relevant to note that Section 5 can also not be resorted in Section 3. Since Section 5 can only be resorted for the purposes of any investigation or proceeding under the Code of Criminal Procedure 1898. After a conviction of an accused Section 5 is inapplicable then if the interpretation placed by appellant is accepted, even for convicted persons, it would not be permissible to ask measurement unless the rules are framed.
41. In this context, we may like to refer the judgment of Constitution Bench of this court in V.T. Khanzode and Others vs. Reserve Bank of India and Another (1982) 2 SCC 7. In the above case, this Court had occasion to consider the Reserve Bank of India Act, 1934, Section 58 sub section (2). Section 58 was power of the Central Board for making regulations. Section 58(1) and (2) has been referred in para 13 of the judgment which is to the following effect: “13. Turning to the first question, Section 58(1) of the Reserve Bank of India Act, 1934 provides that: “The Central Board may, with the previous sanction of the Central Government, make regulations consistent with this Act to provide for all matters for which provision is necessary or convenient for the purpose of giving effect to the provisions of this Act.” Sub-section (2) of Section 58 provides that in particular and without prejudice to the generality of the foregoing provision, such regulations may provide for all or any of the matters mentioned in the various clauses of that sub-section. Clause (j) refers to “the constitution and management of staff and superannuation funds for the officers and servants of the Bank”, while clause (r) refers to the subject: “generally, for the efficient conduct of the business of the Bank”….” SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI [ASHOK BHUSHAN, J.]
42. This Court on Section 58(1) had observed that the power given to Central Board was an enabling power which is clear from the use of word “may”. Following was observed in para 18 marked portion: “18…..On that argument, it is material to note that Section 58(1) is in the nature of an enabling provision under which the Central Board “may” make regulations in order to provide for all matters for which it is necessary or convenient to make provision for the purpose of giving effect to the provisions of the Act. This provision does not justify the argument that staff regulations must be framed under it or not at all. The substance of the matter is that the Central Board has the power to frame regulations relating to the conditions of service of the Bank’s staff. If it has that power, it may exercise it either in accordance with Section 58(1) or by acting appropriately in the exercise of its general power of administration and superintendence.”
43. The Constitution Bench also held that in absence of regulation under 58(1), the Central Board could have issued administrative circulars and there was no prohibition in regulating service conditions by administrative circulars.
44. The above view of ours find support from the judgment of this Court reported in (1986) 4 SCC 667, Surinder Singh Vs. Central Government & Ors. In the above case, this Court had occasion to consider the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1954. Section 8 of the Act lays down that a displaced person shall be paid compensation as determined under Section 7 “subject to the rules that may be made under this Act”. Section 40 confers power on the Central Government to frame rules to carry out the purpose of the Act. Clause (j) of sub-section (2) of Section 40 provides for framing of rules laying down procedure for transfer of property out of the compensation pool and the manner of realisation of the sale proceeds. The Central Government had not framed rules regulating the disposal by sale or otherwise of urban agricultural land forming part of the compensation pool.
45. The authority constituted under the Act disposed of urban agricultural property by auction sale. The High Court had held that disposal of property forming part of the compensation pool was “subject” to the rules framed as contemplated by Sections 8 and 40 of the Act and since no rules had been framed by the Central Government with regard to the disposal of the urban agricultural property forming part of the compensation pool, the authority constituted under the Act had no jurisdiction to dispose of urban agricultural property by auction-sale.
46. This Court reversing the above opinion of the High Court held that where a statute confers powers on an authority to do certain acts or exercise power in respect of certain matters, subject to rules, the exercise of power conferred by the statute does not depend on the existence of rules unless the statute expressly provides for the same. In Para 6, following has been laid down:- 6……….. In our opinion the view taken by the High Court is incorrect. Where a statute confers powers on an authority to do certain acts or exercise power in respect of certain matters, subject to rules, the exercise of power conferred by the statute does not depend on the existence of rules unless the statute expressly provides for the same. In other words framing of the rules is not condition precedent to the exercise of the power expressly and unconditionally conferred by the statute. The expression “subject to the rules” only means, in accordance with the rules, if any. If rules are framed, the powers so conferred on authority could be exercised in accordance with these rules. But if no rules are framed there is no void and the authority is not precluded from exercising the power conferred by the statute………………..”
47. This Court further held that framing of the rules regulating the mode or manner of disposal of urban agricultural property by sale to a displaced person is not a condition precedent for the exercise of power by the authorities concerned under Sections 8, 16 and 20 of the Act. Following was laid down in Paragraph 7:- “7. ………..Framing of rules regulating the mode or manner of disposal of urban agricultural property by sale to a displaced person is not a condition precedent for the exercise of power by the authorities concerned under Sections 8, 16 and 20 of the Act. If the legislative intent was that until and unless rules were framed power conferred on the authority under Sections 8, 16 and 20 could not be exercised, that intent could have been made clear by using the expression “except in accordance with the rules framed” a displaced person shall not be paid compensation by sale of pool SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI [ASHOK BHUSHAN, J.] property. In the absence of any such provision the framing of rules, could not be a condition precedent for the exercise of power.”
48. What has been laid down above is fully attracted in the facts of the present case. Non-framing of any rules under Section 8 by the State Government does not prohibit the exercise of powers given under Sections 3 and 4 of the Act. Exercise of power under Sections 3 and 4 is hedged by conditions as prescribed but in a case where no rules have been framed, the authorities as empowered under Sections 3 and 4 are not denuded of their powers to act under Sections 3 and 4. In a case, the interpretation put by the learned counsel for the appellant that in absence of rules framed under Section 8, no power can be exercised under Sections 3 and 4 is accepted, the provisions of Sections 3 and 4 shall become dead letter, which has never been the intention of the legislature in enacting the 1920 Act.
49. It is relevant to note that the Delhi High Court in para 23 of the impugned judgment has discarded the chance evidence of palm impression by observing “no rules having been framed in Delhi and procedure as prescribed in Section 5 of Identification of Prisoners and having not been followed, we would thus discard the evidences of palm impressions”. Whether there were any executive instructions regarding taking of fingerprints in State of Delhi or not is an issue on which there is no clear materials. It is not the case of the appellant before any Court that fingerprints were taken in disregard of any executive instructions applicable in the State of Delhi.
50. Learned counsel for the respondent referring to the evidence of PW32 where he made a statement regarding taking of fingerprints of the accused, contended that there was no cross-examination by the defence on this aspect. It is useful to extract following portion of the written submissions of the respondent: “In this regard, the deposition of PW 32 at pg 173(bottom) is relevant, “During police custody remand of accused, I took finger print of accused Rajesh@Sultan and sonvir@Somvir. The same as well as the chance print picked up by SI Naresh Kumar were sent to the Fingerprint Bureau, Malviyanagar, for their comparison. My application in this regard is Ex PW32/N.” There is no cross examination by the defence on this aspect.”
51. In view of the foregoing discussion we are of the opinion that view of the Delhi High Court that evidence of fingerprints of the accused has to be discarded cannot be supported for the reasons given in the impugned judgment of the Delhi High Court.
52. Even if, we accept that fingerprints of appellant’s, chance print Mark Q5 (taken from iron safe) was identical to the specimen of left palm impression of Sonvir, it does not complete the chain of circumstances unerringly pointing out fingers to the appellant, that it was the appellant who committed the murder. Law of conviction based on circumstantial evidences is well settled. It is sufficient to refer to the judgment of this Court in Ramesh and Others vs. State of Rajasthan, (2011) 3 SCC 685 where in para 17 following has been held: “17. Before we proceed with the matter, it has to be borne in mind that this case depends upon circumstantial evidence and, as such, as per the settled law, every circumstance would have to be proved beyond reasonable doubt and further the chain of circumstances should be so complete and perfect that the only inference of the guilt of the accused should emanate therefrom. At the same time, there should be no possibility whatsoever of the defence version being true.”
53. Thus, even if, above evidence is not discardable the entire chain of circumstances is not complete to unmistakeably point out the guilt to the appellant.
54. In result, the appeal is allowed. The appellant stands acquitted of the charges under Sections 302, 392 read with Section 34 of the IPC. The appellant is directed to be released forthwith, if not required in any other case. Kalpana K. Tripathy Appeal allowed. SONVIR @ SOMVIR v. THE STATE OF NCT OF DELHI [ASHOK BHUSHAN, J.]