Decided on April 13,1955

STATE Respondents


- (1.) THIS is a criminal reference by the Additional Sessions Judge of Bundi, dated the 29th January, 1955.
(2.) A case under Section 395, I. P, C. , is pending inquiry in the court of the Sub-Divisional Magistrate, Bundi, on a police report. One of the accused, namely, Narendra Singh was also an accused in that case. but he was shown as absconding by the police and he appeared before the Sub-Divisional Magistrate subsequently, A test identification was then arranged and the prosecution witnesses failed to identify him. Thereafter, the prosecution moved the Magistrate for arranging another identification parade on the ground that in the previous proceedings the faces of the accused were so hid that the witnesses could not possibly identify them. The learned Magistrate turned down the request. The prosecution then moved the District Magistrate who ordered the Sub-Divisional Magistrate to reconduct the identification proceedings for Narendra Singh. The learned District Magistrate assumed that in the previous identification proceedings the faces of the accused were so hid as not to allow a fair opportunity to the witnesses to identify the accused. The accused then went to the Additional Sessions Judge, Bundi and it was urged on his behalf that the District Magistrate had no jurisdiction to interfere in the judicial discretion of the Sub-Divisional Magistrate in asking him to arrange a fresh identification parade when the Magistrate had already turned down such a request. The learned Additional Sessions Judge accepted this objection of the accused and demanded explanation from the District Magistrate who reported that the test identification proceedings were part of investigation and as such he had full authority to order, such proceedings to be arranged and that these proceedings were not in the nature of judicial proceedings. The learned Additional Sessions Judge was not satisfied with this explanation and he has made this reference recommending that the order of the District Magistrate, dated the 10th October, 1954, should be set aside and the Sub-Divisional Magistrate be directed to be not influenced by it.
(3.) THE main question which has cropped up in this case is relating to the jurisdiction of the District Magistrate to interfere in the exercise of the discretion of the Sub-Divisional Magistrate who was seised of the case. The stand taken by the District Magistrate is that test identification proceedings are in the very nature part of the investigation side of the case and he was. therefore, well within his powers to issue a direction to the Magistrate for arranging test identification proceedings. He has cited two Lahore cases - 'amar Singh v. Emperor' AIR 1943 Lah 303 (A); and - 'sajjan Singh v. Emperor' AIR 1945 Lah 48 (B ).;

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