MANU/GJ/0285/1990

Equivalent Citation: 1993GLH(1)33

IN THE HIGH COURT OF GUJARAT

Criminal Appeal No. 133 of 1985

Decided On: 26.12.1990

Appellants: Abbas Hasam Ghanchi

Vs.
Respondent: State of Gujarat

Hon'ble Judges/Coram:
K.J. Vaidya and K.R. Vyas, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: A.D. Shah, Advocate

For Respondents/Defendant: K.H. Baxi, Addl. PP.

Case Note:
Criminal - Test identification parade - Manner of conduction - Present appeal
filed for challenging manner of test identification parade by Investigating
Officer/Police against Appellant who was acquitted from all charges -
Whether test identification parade was conducted in good manner and it was
required to be conducted in short time and good manner - Held, in First
Information Report (FIR), except above general allegations regarding manner
of participation in commission of offence against said unidentified accused, no
other particulars as such had been furnished - No description about any
physical appearance had been given on basis of which said unidentified
suspect could be reasonably spotted, arrested and ultimately put up for test
identification by investigation agency - In absence of any description about
identity, there was no justification whatsoever for arresting Appellant - This
was absolutely unjustifiable and arbitrary action of police, as it could not be
permitted to take leap in dark to catch anybody - To touch person of any
citizen and to arrest him without any justifiable particulars was not joke as
same not only sadly reflected upon very integrity and honesty of investigating
agency and stops - This highlighted lapses and remissness on part of some of
Investigating Officer and Executive Magistrates - Therefore, State
Government was directed to make compulsory 'Refresher Course' to conduct
copy-book test identification parade - Appeal disposed of. [paras 10 and 11]

JUDGMENT

K.J. Vaidya, J.

to 9. xxx xxx xxx xxx

10. While parting, it may be stated that ordinarily since the original accused No. 2
Habib Siddi Khatki having been already acquitted of all the charges and further still
there being no appeal against him by the State before us, we are not supposed to

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touch that part of the evidence which particularly pertains to him. Still, however,
having regard to the overall importance of two material consequential questions
involved in the case, namely - (i) the necessity and urgency of holding the test
identification parade within the shortest possible time to ensure fair trial to the
prosecution and the accused on the one hand, and on the other hand (ii) in future how
to tackle such most sluggish, callous and irresponsible manner and method in which
the identification parade of the accused No. 2 came to be attended to both - by the
investigating agency and the Executive Magistrate, we feel constrained and duty bound
to spotlight, discuss and suggest certain remedial measures with a view to see that the
same as far as practicable do not occur in future to the prejudice of the prosecution
and disadvantage to the liberty of innocent citizen. In fact, we have been noticing in
number of such cases that whenever the question as regards the test identification
parade of any suspect arises, time and again simple and avoidable mistakes somehow
are committed repeatedly by the investigating agency and as a result of which even
the good cases fail and the accused get acquitted. It is solely with a view to meet with
this persistent and nagging problem of the carelessness and irresponsibility in conduct
of the test identification parade that we deem it all the more necessary to discuss the
point involved at some length and highlight the material factors for (i) the better, fair
and efficient investigation, which may in turn (ii) not only protect and preserve the
liberty of an innocent citizen, who to his misfortune, sometimes gets booked by the
police as a suspect on some vague allegations costing him his precious liberty, but also
to help the prosecution in securing better results at trial, if possible.

10.1. Now in order to appreciate the problem involved and the attempt sought to be
made by us to resolve and salvage the same, it is necessary first of all to recapitulate
certain relevant facts of the prosecution case touching upon the question involved.
Accordingly, we may briefly refer back to FIR Ex. 148 filed by Tapu Popat (PW - 4, Ex.
22) an only eye witness in this case. As per the said FIR, the alleged incident took
place at about 22-30 hours at night time on a lonely road at Wankaner when two
accused persons came on bicycle, out of which one was the appellant-accused who
after having some conversation with the deceased Hari Soma immediately gave him
three successive knife blows on his chest, while another unidentified accused who was
riding the bicycle (accused No. 2) exhorted the appellant-accused by asking him to
give 2-3 more knife blows to the injured so as to finish him. Thus, in the FIR Ex. 148,
except the above general allegations regarding the manner of participation in
commission of offence against the said unidentified accused, no other particulars as
such have been furnished. No description about any physical appearance, that is to say
the description regarding any height, structure, complexion of the skin, shape of face,
nose, eyes, forehead, voice, clothes and/or any other distinct features by way of any
injury marks, if any, etc. etc., have been given on the basis of which the said
unidentified suspect could be reasonably spotted, arrested and ultimately put up for
the test identification by the investigation agency. What is merely alleged against the
unidentified accused in the FIR Ex. 148 is only to the effect that - "I do not know the
name of a person who was Abbas Hasam (appellant-accused). Only on seeing him, I
identify." This simply meant that for the purposes of correct identification of the said
unidentified accused, he was first required to be arrested and then produced before the
said eye witness for the purposes of being shown to him for ascertaining and getting
fixed his identity. Now indeed absence of any material by way of some description
about the said unidentified accused given in the FIR at Ex. 148 on what basis the police
was expected to trace him out and arrest for being shown to the said witness Tapu
Popat. In short, such vague disclosures about any identified person as an accused in a
statement or FIR by itself could be neither here nor there and does not help the
investigating agency to make any headway worth the name in the investigation. It is
indeed strange and quite surprising too to find that despite no material in the FIR Ex.

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148 to fix up the identity of an unknown accused somehow or the other accused No. 2
came to be arrested on 14-8-1983 at 22-00 hours!! How and on what basis and
particulars the said accused came to be arrested by the police is indeed a matter, of
'guess', 'puzzle' and 'surprise' for anybody!! Even the learned APP when asked to
explain, he also expressed his inability to throw any light on the question. Frankly, in
absence of any description about the identity, prima facie, there was no justification
whatsoever for arresting the accused No. 2. Mind well, to arrest an unidentified person
as an accused and that too on a serious charge of murder in absence of any material to
the said effect, is a very serious thing.

This is absolutely unjustifiable and arbitrary action of the police, as it cannot be

permitted to take a leap in the dark to catch anybody as it likes as a suspect
connecting him with the crime alleged without there being anything on the record. To
touch a person of any citizen and to arrest him without any justifiable particulars is not
a joke as the same not only sadly reflects upon the very integrity and honesty of the
investigating agency and stops there as (sic) the consequences by way of
accountability in given case can be far reaching !!! The matter unfortunately does not
merely rest here as even after arrest of accused No. 2, for as many as 40 long days,
test identification parade was not held !! For this, it appears from the evidence of the
Dy. S.P. Mr. V.M. Desai (PW-53, Ex. 155) that on 16-8-1983 he had sent a Yadi-Ex. 77
to the Executive Magistrate for holding the test identification parade of the accused No.
2. This has been duly admitted by Mr. B.K. Thakkar, Executive Magistrate (PW - 32,
Ex. 16) in his evidence as received on 18-8-1983. It further appears that on 9-8-1983
the Executive Magistrate has put his endorsement below the same to the effect that
the test identification parade may be held on 15-9-1983 when the accused No. 2 was
to be brought from Morbi jail to Wankaner. The evidence further shows that the test
identification parade was ultimately held on 23-9-1983, i.e., exactly after 40 days of
the arrest of the accused No. 2. Now despite the fact that the accused No. 2 was very
much available in the police custody, yet the test identification parade could not be
held for about 40 days, is a story shocking enough and speaks volumes indicating as to
how callous, negligent and irresponsible the investigating agency as well as the
Executive Magistrate were in performance of their respective most important and
elementary duties of holding the test identification parade at the earliest. It also sadly
reflects upon their utter ignorance regarding the importance of the time factor in
holding the test identification parade and gross disregard towards the liberty of citizen.
No doubt, it is the duty of the investigating agency to arrest the suspect involved in
commission of offence, but it should also bear in mind that while discharging the said
duty it does not lightly trifle with the liberty of any citizen. The importance and urgency
of holding the test identification parade is too well-known to be told and emphasised to
the investigating agency as well as to the Executive Magistrate. The endorsement put
by the Executive Magistrate that the test identification parade may be held on 15-9-
1983 at the time when the accused No. 2 was to be produced from Morvi jail to
Wankaner, with respect discloses his utter ignorance of law and duty as Executive
Magistrate regarding the object and importance of the earliest test identification
parade of the suspect accused. It appears that initially the investigating agency did
take desired care in holding the test identification parade at the earliest as found from
the Yadi-Ex. 77 dated 16-8-1983 addressed to the Executive Magistrate. But thereafter
for whatever reasons the slackness gripped the investigation at its further initiative
appears to have been surrendered to the leisure and pleasure of the Executive
Magistrate. This ought not have happened as ultimate responsibility of the
investigation rests with the Investigating Officer. In that view of the matter, it should
have definitely insisted upon earliest test identification parade by requesting the
concerned Executive Magistrate to do the needful at the earliest. Holding of the test
identification parade is not a matter of any idle formality and therefore it can never be

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a matter of leisure or pleasure or convenience of the Executive Magistrate. It is a
matter of urgent duty to be attended to at the earliest and at any cost. In fact, the
moment Yadi-Ex. 77 was received by the Executive Magistrate for holding the test
identification parade, he should have leaving aside everything given top most priority
to this part of the duty. The reason is that the test identification parade must be
conducted at the earliest possible opportunity in order to enable the eye witnesses to
spot out the unidentified accused before his memory fails him with the passage of time
creating problems in correct identification of the accused. In fact, delayed holding of
the identification parade is not only unfair to the eye witness because of the memory
problem, but the same is equally unfair to the prosecution as good cases can be easily
lost on the said count and accused going unpunished. It is equally unjust and unfair to
the concerned identified accused too as what ought we know that had his identification
parade has been held at the earliest and in case if the witness failed to spot him out
and fix the identity, he could as well have merited earlier release!

10.2 Thus, the above discussion brings to the light two important aspects, viz. (i)
indiscreet attitude and impermissible remissness of the investigating agency and the
Executive Magistrate in attending to the test identification parade of unidentified
accused (accused No. 2) at the earliest; and (ii) absence of particulars, descriptions
regarding the physiognomy, dress, etc. etc. in FIR Ex. 148 of unidentified accused on
the basis of which his liberty could have been justifiably encroached upon. As a matter
of fact, as stated above these are the common features which the Courts trying
criminal cases coming across in number of cases. Thus, as hinted above in the
beginning of para-10 of this judgment, now we may proceed ahead to suggest to the
State Government some measures which may enlighten the erring investigating
agency as well as the Executive Magistrate to mend their ways in conduct of the test
identification parade.

10.3 Investigating Officer and test identification parade. To start with, we may once
again invite the attention of the State Government to the exercise undertaken by this
Court on the point of test identification parade to be held by the investigating agency
in the case of the Sates v. Chhaganlal Mangaldas, reported in 32 : (1991) 1 GLR page
15, wherein this aspects has been exhaustively dealt with in paras 9, 9.1, 9.2, 10, 10.1
and 11. This was a case wherein the Investigating Officer did not hold the test
identification parade of the accused. In order to maintain the continuity of the
suggestions, relevant paras from the said judgment are usefully reproduced as under:

"9.1 In context of the point under consideration at this juncture it would be

useful to refer to the relevant provisions contained in Vol. III of the Gujarat
Police Manual, 1975, wherein in a chapter on "Detailed Procedure regarding
Investigation", provisions are incorporated in Rule 137 to Rule 239 setting
out exhaustive guidelines as to how methodically and correctly the
investigation of a crime is to be carried out by the Investigating Officer. Any
Police Officer ignorant of any of the guidelines cannot be called an
Investigating Officer who can ever be entrusted with the investigation and
detention of the crime save and except at the cost of peril of public and fair
name of the police. The relevant Rule 181 enlisting instructions as to how
the test identification parade is to be held and carried out, reads as under:

Rule - 181 Holding of Identification Parade: (1)(a) Object of the

identification parade of accused persons is to test the veracity of
eye witnesses when they have a genuine claim to have seen the
culprit and to assure reliability of the witnesses who pass the
test.

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 (b) The statement made before Police Officers by witnesses, at
the time of identification parades are statements to the police
and as such are not by Section 162, Criminal Procedure Code. In
view of this, it is necessary that identification parades are not
conducted in the presence of Police Officers and as such
identification parades are held in the presence of the police are
inadmissible in the Courts. The Police Officers concerned should
obtain the help of Executive Magistrates to hold Identification
Parades. When the presence of Executive Magistrate is not
readily available, the only alternative is to hold the parade by the
panch witnesses.

(c) The Police Officers should arrange for the identification parade
in all cases in which the identity of the accused could not
otherwise be established beyond doubt.

(d) The identification proceedings being in the nature of tests, no

provision for holding them is to be found in the Code or even in
the Indian Evidence Act. Proceedings are record of facts which
establish the identity of any thing or person and which may be
relevant under Section 9, Indian Evidence Act.

(e) The identification test is usually adopted during the

investigation of crime by the police when the witnesses are
interrogated and state that they had seen some persons
committing the crime, but do not know their names and would be
able to identify them.

(f) The identification parade is held during investigation only, only

at the instance of investigation agency, to satisfy itself whether
the particular suspect participated in the crime or not by putting
him up before the witnesses who claim to have been present at
the time the crime was committed.

(g) Since the human memory is apt to get dulled with the
passage of time, it is desirable both in the interests of the honest
witness and of the suspect himself that the latter be put up for
identification without delay . Test identification parade should be
arranged early at any rate before the accused goes on bail. In
fact, courts ought to refuse bail if an identification parade is going
to be and ought to be held. So, not only the test identification
parade has to be arranged at the earliest possible opportunity,
but bail will have to be opposed strenuously until the test
identification parade is finished.

(h) Piece-meal identification parades are deprecated, at the same

time delays mar its sanctity .

(i) The Police should continue the investigation and collect

evidence even though the accused are identified in identification
parades.

Procedure for Identification Parade:

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 (2)(a) Before the identification parade:

(i) The accused or suspect at the time of his arrest to

be told that he is to be put on test identification
parade.

(ii) The investigating officer should screen the lock-up

in which the suspect is kept before sending to jail.

(b) At the time of parade and after:

(i) The number of persons to be mixed should not be

too few or too many. It is better to have separate
parades for not more than two at 1 time. However, it
is advisable to mix up the accused or suspect with
other person in the proportion of 1 to 9 and for every
additional accused or suspect the number of persons
to be mixed should be increased by 5.

(ii) Police Officers should completely obliterate

themselves after arranging the parade.

(iii) Witnesses to be kept away at a distance and called

one by one.

(iv) After identification witnesses should not be

allowed to mix with other witnesses who are still to be
forwarded.

(v) Any objection by the accused or suspect for the

presence of any person at the parade should be given
proper consideration.

(vi) In cases where an accused or suspect whose

identification is necessary is lying in hospital, the
identifying witnesses should be kept out of sight of the
Ward in which he is lying and the accused or suspect
should be shown to the panchas and given the option
of having his cot changed if he so desires. The
Panchnama should show whether this was done or not
and should also show how many patients and cots are
there in the Ward, with their numbers. Identifying
witnesses should then be called and the procedure
outlined above should be followed.

(viii) The attendance of witnesses at the Identification

Parade is the sole responsibility of the investigating
officer."

"9.2 Having seen appreciated the aforesaid illuminating lucid guidelines, the
question that arises is as to how and why the same was not followed by the
investigating officer. To utter shock and surprise who supervises all these?
Where is that live, responsible people oriented and accountable

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 administration? Whatever be the reason, but fact remains that with such a
callous investigation to except the maintenance of law and order in a society
is just hoping against the hope.... Thus, it is very clear that but for the
inefficient investigation in establishing the identity of the accused and lack
of supervision and control by senior officer, to that extent, the prosecution
would not have failed. Thus, if on the score of the identity alone, if the
accused is acquitted, then is it not the investigating agency which can be
blamed/accused of indirectly saving the accused?"

"10. It is sad to find the accused going unpunished on account of such sheer
carelessness of the investigating agency in not holding the test identification
a parade. If such carelessness is not attended to promptly and taken
appropriate care the same can as well mar far more serious offences like
murder, dacoity, etc. The very foundation of justice in criminal cases is an
honest, intelligent and efficient investigation. Having regard to the principles
of criminal jurisprudence and the doctrine of benefit of doubt thereunder to
which our judicial system is wedded to, a slight lapse here or there either by
the investigating agency in conducting the investigation or by some witness
in giving evidence before the Court, can result into the accused getting off
of the prosecution hook."

"10.1 The experience show that such lapses on the part of the investigating
agencies though often criticised with a view to see that they are corrected in
time and do not get repeated in future to the disadvantage of the
prosecution itself or be more precise to the disadvantage of the society,
there is no desired improvement in the same. Comments are made not for
the sake of commenting but are made with a view to see that the method of
investigation is corrected and improves further and further. This Court has
not even a slightest of doubt that higher officers in this regard must be
taking some steps against the erring investigating agencies reprimanding
them to improve their qualities of investigation. Yet, unfortunately, this do
not appear to be enough to have solved the problem to the extent which is
generally expected to be. True, it is not possible to control the witness
deposing in a particular manner before the Court, however, so far as the
investigating agency is concerned, it can certainly be well informed,
educated and if needed reprimanded and thereby corrected and controlled in
conducting the investigation if it is so seriously willed, planned and perused.
It is not at all difficult to weed out certain recurring proto-type investigation
lapses like (i) not holding of the test identification parade; (ii) if held, not
holding it as promptly and in copy book fashion as directed in the Police
Manual, etc. (iii) improper selection of panchas; (iv) not taking proper care
in sealing muddamal articles; and in immediately not forwarding the same
for analysis; (v) investigating officers not appearing before the Court in
some cases to give evidence; (vi) delay and/or not serving the court's
process in certain cases; (vii) not following the express guidelines provided
in the Gujarat Police Manual in the matter of conducting investigation, etc. If
the Courts of law and the top police authorities in charge of law and order
affairs of the State jointly resolve to compliment each other's efforts by
constructive, continuous and positive inter-action in this direction."

10.4 The Executive Magistrate and the test identification parade: Now tracing back the
little history of the procedure and duties to be followed and discharged by the
Executive Magistrates in the matter of test identification parade, it appears that the
practice of taking their help in the process of conducting the test identification parade

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started in Greater Bombay with the issuance of the Circular on CPM-MAG-20/1955,
dated 5-8-1955, pursuant to the judgment of the Supreme Court in the case of
Ramkishan Mithanlal Sharma v. State of Bombay, reported in MANU/SC/0044/1954 :
A.I.R. 1955, S.C. 104. In the said decision, it was held by the Supreme Court that the
statement before the Police Officers by identifying witnesses at the time of
identification parade would be hit by Section 162 of the Criminal Procedure Code, since
these were the Statements made to the police in the course of an investigation. It was
also observed that the evidence of such statements having been made by the
identifying witnesses could not be given even by panch witnesses unless the police had
completely withdrawn themselves from the identification parade. As a result of this
decision, it became necessary to arrange the identification parade not conducted by or
in the presence of the Police Officers so that evidentiary value of the important
statement made by the identifying witnesses at the time of the parade may be
preserved and could be rendered admissible in the trial. The Government accordingly,
after carefully considering this matter, directed by the aforesaid circular that, as a
practical course, the police should take the help of the honorary Magistrates in Greater
Bombay for holding the test identification parade. It was under these circumstance that
the Executive Magistrates started figuring-in while holding the test identification
parade. Now pursuant to the same, further by the aforesaid Circular, certain procedure
was laid down indicating as to how and in what manner the Presidency Magistrates
were to conduct the said test identification parade. For the benefit of all in such
matters, the relevant procedure indicated in the said circular is reproduced as under:

CIRCULAR

No. CPM/MAG-20 of 1955 CHIEF PRESIDENCY MAGISTRATES OFFICE,

Esplanade, Bombay.

th August, 1955.

Subject : Identification Parades, Holding of-

EXPLANATORY

xxx xxx xxx xxx xxx xxx

II. PROCEDURE

1. An Honorary Presidency Magistrate, if called upon for this purpose,

should remember that he is the person who conducts the parade; i.e., he
himself will not be a panch witness, but will be in full and sole charge of
entire proceedings.

2. The Honorary Presidency Magistrate should first acquaint himself very

briefly with the facts of the case, and find out who is to be put in the parade
for identification and who are the witnesses to be called up for identification.

3. Two independent panch witnesses (not being persons connected with the
police) should be first called up. The police themselves will have normally
arranged to call up the panchas; but the Honorary Presidency Magistrate will
question them and satisfy himself that they are independent panch
witnesses and are fairly intelligent persons. In order that they may follow
the proceedings Magistrate should acquaint them briefly with the facts of

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 the case and as to who is sought to be identified and who are to come for
identification.

4. The parade should then be arranged in a room or a place which is such

that the identifying witnesses as well as the persons connected with the
police should not be able to look into it.

5. If there is only one accused person to be identified, there should be at

least half a dozen persons placed in the parade. If two accused persons are
to be identified, then there should be about 10 or 12 persons in the parade
and so on. Normally, the police themselves will have called up the persons
to be put in the parade but the Honorary Presidency Magistrate should see
that they are persons of more or less the same physical appearance and
approximately of the same age as the person to be identified.

6. No person other than the persons in the parade and the panchas should
be allowed to remain in the room where the identification proceedings are
being held. In particular, the Police Officers and Constables should be asked
to withdraw themselves completely from the room. There is no objection to
any of them remaining outside the room or otherwise at hand ready to be
called up in case the accused creates trouble or in case of emergency. They
should however not be visible from the room or the place where the parade
is being held.

7. After the parade is arranged, one of the panchas should be sent to bring
the accused from the lock-up. Care should be taken to see that when the
accused is being brought from the lock-up, the identifying witnesses do not
have an opportunity of seeing him. They should be kept in a quite different
room, out of sight of the lock-up.

8. At this stage, the Honorary Presidency Magistrate should commence to

write the panchnama. It should include-

(a) the place at which and the date on which the parade is being
held and the time at which it was commenced;

(b) the names, ages, occupations, and the full addresses of the
panchas;

(c) the names and the approximate ages of the persons standing
in the parade, mentioning clearly one below the other, in
numerical order, their positions in the parade (which positions
they should not be allowed afterwards to alter);

(d) the fact that no persons, other than those in the parade and
the panchas were allowed to remain in the room and that all
Police Officers and constables were asked to withdraw; and

(e) that panch so and so fetched the accused from the lock-up
and that the identifying witnesses were in a different room so
that they cannot see him being brought from the lock-up to the
identification room.

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 9. When the accused is brought, the Honorary Presidency Magistrate should
ask him to take whatever place he liked in the parade. The place which he
selects should be noticed in the panchnama. For example, he may elect to
stand between numbers 3 and 4 in the parade and it should then be noted
that he took his position between Nos. 3 and 4 in the parade. The original
numbering of the persons in the parade should not be altered simply
because the accused has now joined in.

10. The accused should then be asked if he wants to make any alternation
in his dress. He may change his cap or coat; or he may decide to put on (or
remove) a cap or coat. He should be allowed to do so this and that fact
should be noted in the panchnama. If he does not wish to change his dress,
then that fact too should be noted in the panchnama.

11. Then one of the panchas be asked to fetch the first identifying witness
from the room in which he may be sitting. When the witness arrives, the
Honorary Presidency Magistrate should ask him to view the parade carefully
and see whether he would be able to identify the person who for instance
stabbed him or whom he saw firing a shot from a revolver or whom he saw
inside the flat in which a burglary may have taken place or as the case may
be. The identifying witness will then go up and look closely at the parade. If
he identifies any person, he should be asked to go forward and touch that
person and not merely to point him out from a distance. This is necessary in
order that the identifying witness identifies the accused, should be noted in
the panchnama (alongwith the name of that accused) and of course also if
he failed to identify him or identified a wrong person. It should further be
noted whether the witness identified the accused straightway, or after some
hesitation or after first pointing out a wrong person and then correcting
himself and pointing out the accused. When this is over, the identifying
witness should be asked to go away into a different room and not to contact
the remaining identifying witnesses. He may even be asked to go away.

12. After he leaves the room the accused should be asked once again,
whether he desires to change his place in the parade. If he changes his
place, it should be noted in the panchnama and also if he declines to do so.
He should also be asked again if he wants to change his dress and if he does
so, or if he declines to do so, that fact should also be noted in the
Panchnama.

13. Then one of the panchas should be asked to fetch the second identifying
witness. In regard to the identification by him also the same procedure
should be gone through as in the case of the first identifying witness the
panchnama being also written up side by side.

14. This procedure should be followed for each subsequent identifying

witness.

15. After all the identifying witnesses have thus been exhausted one after
the other the panchnama should be wound up by stating the time at which it
was concluded. Then the panchnama should be read over and explained to
the panchas in a language which they understand. If the panchas know
English well, then they should be asked, in addition, to read over the
panchnama for themselves.

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 16. After the panchas declare that they have found the panchnama to be
correct, an endorsement should be made by the Honorary Presidency
Magistrate that the same was read over and explained to the panchas (in
Hindi or Marathi, or as the case may be) and that it was found by them to
be correct.

17. Then the signatures of the panchas should be taken on a each sheet of
the panchnama as also at the foot of the panchnama.

18. The Honorary Presidency Magistrate himself should also sign every
sheet and also in the left-hand bottom corner at the foot of the panchnama,
below an endorsement that the parade was held by him and that the
panchnama was written out by him. He should put his designation and the
date.

19. All corrections and interlunations in the panchnama should be initialed

by both the panchas as well as by the Honorary Presidency Magistrate.

20. The panchnama should be handed over to the Police Officer concerned.

21. Care should be taken to see that at no stage of the proceedings any
Police Officer or any Police Constable comes into the room in which the
parade is being held. The police should not be allowed to interfere with the
proceedings which are entirely to be conducted by the Honorary Presidency
Magistrate. It will be advisable to note in the panchnama itself and before
the panchas have signed it that no Police Officer or constable was present at
any time during the entire proceedings of the identification parade.

22. The most important part of the panchnama will be the statement made
by the identifying witnesses. These should be very carefully recorded
alongwith the questions asked to the identifying witnesses. (This recording
need not be in the question and answer form). For example, an identifying
witness may point out the accused and may add that it was not the accused
who actually fired, but that the accused was standing by the side of the man
who had fired the shot. In that case, whatever the identifying witness states
should be carefully noted as far as possible in his words (translated into
English).

23. If more than one accused are placed in a parade, then in the
panchnama they should not be referred to "Accused No. 1", "Accused No. 2"
etc. but they should be referred to by their full names.

24. The panchnama should be written out in English since that is at present
the language of the Courts in Greater Bombay.

25. At the hearing of the case, the Honorary Presidency Magistrate who held
the parade and wrote out the panchnama may be called upon to give
evidence in that case he should state exactly what happened. He has a right
to refresh his memory by referring to the panchnama which he had himself
prepared.

26. For the guidance of the Honorary Presidency Magistrate a modal form is
attached to this Circular.

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 27. The Honorary Presidency Magistrates are requested to consult the Chief
Presidency Magistrate on any matter of doubt or difficulty in regard to the
holding of identification parade. Now on carefully examining the aforesaid
procedure, it appears that one of the most important aspect which needed
to be taken an utmost care and which unfortunately has been lost sight of
has been enlisted in the said procedure is the time factor of holding the test
identification parade without losing any time whatsoever. Under the
circumstances, we feel that over and above the procedure laid down in the
above circular to Executive Magistrates invested with the powers of holding
test identification parade need to be further impressed that the underlying
spirit and object of the urgency and importance of the time factor and its
consequential adverse effects of the belated test identification parade on the
result of the prosecution as well as the liberty of the innocent citizen. This
has to be done so that the blunder that has occurred in the present case
may not occur in similar cases in future. Accordingly, we feel that it would
not be out of place if it is recommended to the State Government to just
add one more direction in the above circular impressing upon the concerned
Executive Magistrates of the said urgency and importance of the time factor
in holding expeditious test identification parade.

10.5 Now the above discussion regarding the copy-book investigation in the matter of
test identification parade has one unavoidable condition-precedent to be fulfilled, viz.
the availability of some bare minimum material in the statements of the prosecution
witnesses disclosing some description about the physiognomy of the suspect accused
as regards his height, structure, shape of the face, nose, eyes, ears, forehead
complexion of the skin, voice, clothes and/or any other distinct features by way of any
marks of injury, etc. etc. if any. This as stated above, is indeed unavoidably must
before the police can embark upon arresting the suspect accused. There must be at
least some bare minimum description about the accused on the basis of which the
police can honestly and reasonably trace, spot verify and conform the identity of the
alleged unidentified suspect accused for the purpose of being shown to the concerned
eye witness at the time of the test identification parade. Now it can as well happen that
in a given case some times some rustic illiterate village witness who though had an
enough opportunity of seeing the incident and the accused previously unknown to him
sometimes not realizing the importance of giving detailed description of the physical
appearance of the alleged unidentified suspect accused, or because of some threats,
fear, certain unknown embarrassments or confusion, etc., he may not disclose the said
identity and particulars to the Police Officer. Under such circumstances, it ought to be
the top-most anxiety and the duty of the concerned Police Officer recording the
statement of such witnesses to see to it that proper information regarding the identity
of the suspect accused are factfully elicited from such witnesses by winning their
confidence and putting certain special questions to him digging out the desired
material, on the basis of which the said suspect accused can be reasonably spotted out
and arrested by the police ultimately for the purpose of holding the test identification
parade. This particular aspect also very much requires to be brought to the notice of
some inexperienced Investigating Officer investigating such cases and, therefore,
desired attention needs to be drawn of the concerned by the State Government.

11. The aforesaid discussion clearly highlights and enlightens us regarding the lapses
and remissness on the part of some of the Investigating Officer and the Executive
Magistrates costing in given cases either costly failure of the prosecution or loss of the
priceless, liberty of some innocent citizen as work as some ways and means to be
counter and straighten up the same. It is earnestly hoped that in overall public interest
and/or in the interest of justice (both terms are synonymous) that the State

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Government will take a fresh look at the problem involved and accordingly evolve
some effective measures at the earliest to counteract the case of lapses and dereliction
of duties in the matter of test identification parade with a view to make the
investigation more justice oriented. This will indeed ensure the fair trial both to the
prosecution and the accused. One of such effective measures which the State
Government can certainly implement is that - that on the basis of some legal expertise
assistance based on certain leading decisions of the High Courts and the Supreme
Court on the point to test identification parade, some sort of compulsory 'Refresher
Course' is prepared for the purpose of effectively guiding some inexperienced
Investigating Officers and Executive Magistrates in further investigation of the case.
This will thoroughly train, equip and prepare the said Investigating Officers and
Executive Magistrates in the matter of how to conduct the copy-book test identification
parade. This 'Refresher Course' in black and white circulars or the manual of direction
can as well as be further translated into preparing video cassettes instructions
demonstrating how and in what best possible manner the test identification parade can
be conducted by the Investigating Officers and the Executive Magistrates. This indeed
will greatly facilitate the concerned Investigating Officer and the Executive Magistrates
to better understand and efficiently apply themselves to the aforesaid 'Refresher
Course'. Over and above this, some sort of 'Personal Accountability' is also required to
be fastened upon the erring Investigating Officers as well as the Executive Magistrates
and the Officers supervising them by the State Government in order to see that the
circulars issued by the Government in such matters do not remain merely lifeless cold
prints on papers, but the same are effectively implemented for the purposes for which
they are meant. In this regard, it shall also be the duty of every Criminal Courts
coming across the lapses or remissness in the matter of test identification parade and
other investigation exhibited by any Investigating Officer or Executive Magistrate to
immediately report to the concerned D.S.P., D.G.P., as well as the Home Department
without fail.

Order accordingly.

© Manupatra Information Solutions Pvt. Ltd.

10-07-2017 (Page 13 of 13 ) www.manupatra.com Mr. Kaushik M. Bhatt