DIANA

 fanciful rights of accused persons cannot be allowed to prevent the functioning of the police and
so jeopardize the safety of the public. 1
 As a, physical invasion it amounts to almost nothing, and as a humiliation it can never amount to
as much as that caused by publicly attending a sensational indictment to which innocent men
may have to submit.The interference with the person not seem sufficient to warrant a court in
holding finger printing unjustifiable. It furnish strong evidence of a man's guilt. 2
 A police officer has a right to fingerprint a person when he makes an illegal arrest 3
 failure by a sheriff or other police official of his statutory duty to take fingerprints is an indictable
offense4.The actual recording of fingerprints is not an indignity in itself 5
 . But when a law enforcement officer does make a lawful arrest, as a general rule, he has the
right to fingerprint under the general police power. 6

FINGERPRINTING AND SELF-INCRIMINATION

 The prohibition of compelling a man in a criminal case to be witness against himself is a

prohibition of the use of physical or moral compulsion to extort communication from him, not
an exclusion of his body as evidence when it may be material 7
 .It was held that the primary purpose of the provision is to prohibit the compulsory oral
examination of the arrestee, either before or at trial, "to prevent his being required to
incriminate himself by speech or the equivalent of speech 8 "speech or the equivalent of speech"
refers to a communication, whether oral or written. Thus, it was held that an arrestee may be
photographed9, or be required to assume positions taken by the perpetrator of a crime 10, or to
participate in a police line-up11," without violation of his constitutional rights. It was also held
that the privilege covers oral testimony only, and does not preclude the use of the suspect's
body or secretions thereof and their chemical analysis as evidence 12.
 There is neither torture nor volition nor chance of error in taking fingerprints 13. Even if
fingerprints have been obtained through a subterfuge on the part of the police, the privilege
against self-incrimination is not violated. Thus, when a defendant in custody was asked by
officers to sign a sheet of paper, and at the same time impressed latent fingerprints on the

1
Bartletta v. McFeely 107 N.J. Eq. 141, 152 Atl. 17 (1930), afl'd, 109 N.J. Eq. 241, 156 Ad. 658 (1931).
2
United States v. Kelly 55 F.2d 67 (2d Cir. 1832).
3
Bynum v. United States, 262 F.2d 465 (D.C. Cir., 1959).
4
State v. McGovern, 136 N.J.L. 115, 54 A.2d 812 (1947).
5
State ex rel. Mavity v. Tyndall, 224 Ind. 364, 66 N.E.2d 755 (1946)
6
Ibid.
7
Holt v. United States, 218 U.S. 245, 252, 31 Sup. Ct. 2, 6, 54 L. Ed. 1021, 1030 (1910).
8
Commonwealth v. Statti, 166 Pa. Super. 577, 73 A.2d 688 (1950).
9
shaffer v. United States, 24 App. D.C. 417 (1904), cert. denied, 196 U.S. 639, 25 Sup. Ct. 795 (1905).
10
State v. Neville, 175 N.C. 731, 95 S.E. 55 (1918).
11
Merivether v. State, 63 Ga. App. 667, 11 S.E.2d 816 (1940).
12
United States v. Nesmith, 121 F. Supp. 758 (D.D.C. 1954).
13
People v. Sallow, 100 Misc. 447, 165 N.Y. Supp. 915 (Gen. Sess. 1917). See notes in 17 Colum. L. Rev. 633 (1917),
and 27 Yale L.J. 412 (1918).
 sheet, the court held that the prints were voluntarily given, although unknowingly, and would
be admissible14.

FINGERPRINTING-INVASION OF PRIVACY

 The authorities are almost unanimous in holding that the mere making of a record of
fingerprints by police officers of persons in custody on a criminal charge does not constitute an
unwarranted invasion of the right of privacy 15. Fingerprints in themselves are not a badge of
crime16.
 The practice of dissemination of fingerprint records to other law enforcement agencies before
conviction was held to be proper exercise of the police power for the purpose of facilitating
crime detection, and that "one who has been indicted must submit to such slight invasion." 17
 The court also pointed out that when a person is indicted, his life ceases to be private and
becomes a "matter of public interest."18 And fingerprints can be given in case of public interest
without a warrant.
 In Voelker v. Tyndall19, the Indiana court held that statutes establishing state and police
identification services and permitting the fingerprinting and photographing of persons arrested
on a criminal charge are a proper exercise of the police power and do not abridge the privileges
or immunities of citizens or deprive them of due process of law.

ADMISSIBILITY OF WHARSAPP CHATS

 According to Section 2(1) (t) of the IT Act, an electronic record is “data, record
or data generated, image or sound stored, received or sent in an electronic
form or micro film or computer generated micro fiche”. ( I have included this
just to give definition of electronic devices.)
 SMS/WhatsApp message would be admissible under the court of law for the
documents are admissible under the Section 65 of Indian Evidence Act, 1872.

14
State v. Cerciello, UNITED STATES: United States v. lacullo, 226 F.2d 788 (7th Cir. 1955). ARIZ.: Moon v. State, 22
Ariz. 418, 198 Pac. 288 (1921). CALIF.: People v. Jones, 112 Cal. App. 68, 296 Pac. 317 (1931). MICH.: People v. Les,
267 Mich. 648, 255 N.W. 407 (1930). MO.: State v. Carrenza, 357 Mo. 1172, 212 S.W.2d 743 (1948). N.J.: State v.
Cerciello, 86 N.J.L. 309, 90 At. 1112 (1914). N.Y.: People v. Sallow, supra note 113. NO. CAR.: State v. Rogers, 233
N.C. 390, 64 S.E.2d 572 (1951). TEXAS: McGarry v. State, 82 Tex. Crim. 597, 200 S.W. 527 (1918). VT.: State v.
Watson, 114 Vt. 543, 49 A.2d 174 (1946). WASH.: State v. Lei, 365 P.2d 609 (1961). W. VA.: State v. Johnson, 111
W. Va. 653, 164 S.E. 31 (1932).
15
Hodgeman v. Olsen, 86 Wash. 615, 150 Pac. 1122 (1915); Miller v. Gillespie, 196 Mich. 423, 163 N.W. 22 (1917);
State ex rel. Mavity v. Tyndall, 224 Ind. 364, 66 N.E.2d 755 (1946).
16
Andre A. Moenssens, Admissibility of Fingerprint Evidence and Constitutional Objections to Fingerprinting Raised
in Criminal and Civil Cases, 40 Chi.-Kent L. Rev. 85 (1963).
17
McGovern v. Van Riper140 N.J. Eq. 341, 54 A.2d 469 (1947).
18
Ibid.
19
226 Ind. 43, 75 N.E.2d 548 (1947).
  four conditions must be fulfiiled for a whatsapp chat to be a document
mentioned in the section before it can be deemed as a document. Such
conditions are a) the computer that produced it must have been used regularly
at the time of production of such electronic documents; (ii) the kind of
information contained in the computer must be such that it is regularly and
normally supplied to the electronic device; (iii) the computer should be in
proper condition and must work properly at time of creation of electronic
record; and, (iv) the duplicate copy must be a reproduction of the original
electronic record.
 if there is a scope of misuse of system or failure of operating system or
interpolation as to affect the accuracy of such electronic data then it is the onus
on the person who is challenging such electronic data. The court said that mere
theoretical and general apprehensions cannot make clear evidence inadmissible
in court.-  State of Delhi v. Mohd. Afzal & Others,
 Sections 85-A, 85-B, 85-C, 88-A and 90-A were C, added. These provisions are
referred only to demonstrate that the emphasis, at present, is to recognize the
electronic records and digital signatures, as admissible pieces of evidence. 20
 Under the provisions of Section 88A, it is presumed that an electronic message
forwarded by a sender through an electronic mail server to an addressee
corresponds with the message fed into thesender's computer for
transmission. However, there is no presumption regarding the person who
sent the message. This provision presumes only the authenticity of the
electronic message and not the sender of the message. absconding to avoid
the production of a document or electronic record in, a court (Section 172 of
the Penal Code).
 It was held that for inclusion of whatsapp chats an expert opinion as to their
genuiness should be looked into by the court as evident.21

 Electronic record being more susceptible to tampering altercation,

transposition, excision etc., without such safeguards the whole trial based on
proof of electronic records can lead to traverty of Justice In the aforesaid
judgment the court has held that Sec.65B of the Evidence Act being a "not
obstante clause" in override the general law on secondary evidence u/s.63 and
65 of Evidence Act. Sec.63 and 65 of the Evidence Act have 22

20
Bodala Murali Krishna Vs. Smt. Bodala Prathima (2007 (2) ALD 72
21
Anvar PV Vs. P.K.Basheeer and others.
  The only option to prove the electronic record/evidence is by producing the
original electronic media as a primary evidence court. 23

 The fingerprints were admissible as Section 273 of Cr.P.C contemplates

constructive presence. Indeed, actual physical presence of acused is not a must.
This indicates that the term “presence”, as used in section 273 of Cr.P.C is not
incorporated in the sense of actual physical presence.

 a crossexamination of the competent witness acquainted with the functioning

of the computer during the relevant time and the manner in which the printouts
of the images were taken should be taken. 24

 computer output is not admissible without compliance of 65b. 25

 the law on admissibility of electronic evidence pertaining to electronic record

of this court, does not lay down correct position and is required to be overruled.
The legal interpretation by the court of the following Sections 22A, 45A, 59,
65A & 65B of the Evidence Act has confirmed that the stored data in
CD/DVD/Pen Drive is not admissible without a certificate u/s 65 B(4) of
Evidence Act and further clarified that in absence of such a certificate, the oral
evidence to prove existence of such electronic evidence and the expert view
under section 45A Evidence Act cannot be availed to prove authenticity
thereof.26

 The definition covers any type of document including electronic records.

Record of the matter is one thing and the deciphering of its meaning is another
thing. 27

 Electronic records are ‘secondary evidence’ 28

22
Ibid.
23
Ibid.

24
State (NCT of Delhi) vs. Navjot Sandhu (AIR 2005 SC 3820),

25
Anvar P.V. Versus, P.K. Basheer and Others, [MANU/SC/0834/2014],
26
Ibid.
27
Law commission report.
28
Public Prosecutor vs. Ang Soon Huat: 1991(1) Malay L.J. page 1.cc
  The "independent source" exception allows the government to use illegally
obtained evidence if the government also discovered the evidence by means
independent of its misconduct 29. The attenuation exception, in contrast, permits
the use of evidence discovered through the government's misconduct if the
connection between the misconduct and the discovery of the evidence is
sufficiently weak30.

 Sophisticated argument may prove a causal connection between information

obtained through illicit wiretapping and the Government's proof. As a matter of
good sense, however, such connection may have become so attenuated as to
dissipate the taint31." Silverthorne Lumber Co. v. United States 32,as
recognizing an independent source exception to the exclusionary rule 33

 the adoption of an exception mandating that evidence would not be excluded

on the basis of rights violations in cases where law enforcement agents acted
under a reasonable, goodfaith belief that their actions were   constitutional
(Ball, 1978).

 the exclusion of evidence is sought because police misconduct led to its

discovery, the evidence should still be   admitted when the conduct, even “if
mistaken or unauthorized, was yet taken in a    reasonable, goodfaith belief that
it was proper” 34The court justified this exception on the basis that the purpose

29
Silverthorne, 251 U.S. at 392. The independent source exception actually is more of a correlate than an exception
to the exclusionary rule. The exclusionary rule states that the government cannot use illegally obtained evidence;
the independent source exception states that the government can use illegally obtained evidence if the
government also discovered the evidence by means independent of its misconduct. Thus, the independent source
rule simply recognizes that the exclusionary rule does not apply where it was not meant to apply, to cases where
the government's misconduct was not the source of the evidence. However, because the courts refer to the
independent source rule as an exception to the exclusionary rule, see, e.g., United States v. Crews, 445 U.S. 463,
470 (1980), this Comment will refer to it as such. For further discussion of the independent source exception, see
infia notes 87-88 and accompanying text. In the 1983 term, the Supreme Court recognized for the first time an
inevitable discovery exception. In Nix v. Williams, 35 Cr. L. Rptr. 3119 (1984), the Court held that illegally obtained
evidence is admissible if the evidence "ultimately or inevitably would have been discovered by lawful means .. " 35
Cr. L. Rptr. at 3123
30
United States v. Ceccolini, 435 U.S. 268, 274-75 (1978); Wang Sun v. United States, 371 U.S. 471, 487-88 (1963).
31
Nardone v. United States, 308 U.S. 338, 341 (1939). For cases quoting this passage as the origin of the
attenuation exception, see, for example, United States cx rel. Owens v. Twomey, 508 F.2d 858, 865 (7th Cir. 1974);
United States v. Evans, 454 F.2d 813, 817 (8th Cir.), cert. denied, 406 U.S. 969 (1972).
32
251 U.S. 385 (1920).
33
Id. at 341
34
(U.S. v. Williams, 1980).
 of the exclusionary rule is to deter   police misconduct; thus, excluding
evidence when the police acted rightly is unnecessary 35  

 the Court stated that    illegallyobtained facts could still be admitted if knowledge of
them was garnered from an   independent source36

35
(Brown, 1982; Mertens & Wasserstrom, 1981).
36
Silverthorne Lumber Co. v. United States (1920),