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2007 DIGILAW 311 (HP)

VIJAY KUMAR v. STATE OF H. P.

2007-07-23

SURJIT SINGH

body2007
JUDGEMENT Surjit Singh, Judge (Oral):- Heard and gone through the record. 2. A request was made by the Police to the Judicial Magistrate 1st Class, Mandi, seeking permission to take photographs of the revision petition for the purpose of comparing the same with the photograph of a man appearing in an obscene movie clipping. The application was made under Section 5 of the Identification of Prisoners Act. Admittedly, the revision petition had been arrested in connection with a case on the complaint of woman and was in custody as an under trial when the application was moved. The Magistrate dismissed the application of the police. State went in revision to the Sessions Court. Learned Sessions Judge has allowed the revision petition and consequently the order of the Magistrate has been set aside an the prayer of the police for taking photographs of the revision petitioner granted. 3. It is not in dispute that the provision of Section 5 of the Identification of Prisoners Act applicable to the fact of the case on all fours. However, the learned counsel has submitted that no rules having been framed by the State Government, as per requirement of Section 4 of the said Act, the provision of Section 5 is inapplicable. Section 4 pertains to the prescription of rules by the State Government only with regard to the taking of measurements of the person and not the taking of his photographs. The procedure and manner of taking the photographs is given in Section 5 itself. Hence, the submission is rejected. 4. Next submission made on behalf of the revision petitioner is that Section 5 is ultra vires of Article 20(3) of the Constitution of India. A Constitution Bench of Honble Supreme Court in State of Bombay versus Kathi Kalu Oghad, AIR 1861 (sic-1961) Supreme Court 1808 has held that the bar of Clause 3 of Article 20 of the Constitution of India is applicable where someone accused of an office is sought to be compelled to make a statement against himself either by a word of mouth or in writing. Taking of photographs of an accused does not amount to his making a statement against himself of becoming a witness against himself, in view of the aforesaid judgment of the Constitution Bench of the Honble Supreme Court. 5. For the foregoing reasons, the revision petition is dismissed. Cr. Taking of photographs of an accused does not amount to his making a statement against himself of becoming a witness against himself, in view of the aforesaid judgment of the Constitution Bench of the Honble Supreme Court. 5. For the foregoing reasons, the revision petition is dismissed. Cr. MPs No. 250 & 251 of 2007 Infructuous. Interim order dated 11.6.2007, passed on Cr. MP No. 250 of, 2007, stands vacated.