P.L.Bhargava, J. - (1.) This is a reference by the Sessions Judge, Mirzapur, Under section 438, Criminal P. C. The facts leading to the reference are few and simple: Ghulam Mohiuddin is being prosecuted for an offence punishable under Section 188, Penal Code. When he appeared before the City Magistrate of Mirzapur for trial, he made an application to the Court alleging that the prosecution witnesses had not seen him and would not be able to identify him, and praying that, before recording their evidence, steps may be taken for his identification by the witnesses. The learned Magistrate passed the following order on the application: "This is being tried summarily. No formal identification parade is essential. In view of Ruling In re Sangiah, 49 Cr L. J. 89 : (A.I.R. (35) 1948 Mad. 113) of the Madras High Court, the application is rejected. No later Ruling has been shown to me."
(2.) Against this order, Ghulam Mohiuddin filed a revision in the Court of the Sessions Judge. The learned Judge has, in the order of reference, stated: "On principle, it seems perfectly clear to me that it is an important and valuable right of an accused to say that he should be placed in such a position as to be able to ask the witnesses to point him out correctly. The answer to a question about pointing out the accused would be an important piece of evidence crediting or discrediting the veracity of the witnesses, and it is one of the most important modes of testing if a witness is genuine or not. In my opinion, it would be seriously prejudicing the trial if that right is refused by depriving the accused of the means of putting that test to the witnesses. Any conviction after taking away that right would be, in my opinion, not justified." The learned Judge realised that "there is no provision in the Criminal P. C,, prescribing a procedure for the identification parade to be held at the instance of the accused"; but he has observed: "But there is no provision for identification parade being held at the instance of the prosecution either. This method, has, however, been always recognised and adopted as furnishing a valuable mode of testing evidence, since it has an important corroborative value for the prosecution. If it can be adopted affirmatively to corroborate a thing, it can equally be adopted to negative it." The learned Judge thought that the "right" can be claimed by an accused and it would be proper for the Court to allow it to be exercised before recording evidence. Accordingly, the learned Judge has recommended, "that the order of the Magistrate be set aside and the Magistrate be directed to take further proceedings for identification of the accused by the prosecution Witnesses before recording the evidence."
(3.) At an identification parade, the witnesse, who claim to have seen or recognised an ,accused person in the act of committing a crime, are called upon to identify the accused when he stands in the midst of a number of other persons. It is presumed that the witnesses did not know him from before and had No occasion to see him between the date of the commission of the crime and the date when they are called upon to identify him. The main object of holding the parade is to test the memory of the witnesses based upon first impressions and also to enable the prosecution to decide whether all or any of them could be cited as eye-witnesses of the crime. The test is usually adopted during the investigation of a crime by the police, when the witnesses are interrogated for the first time and state that they had seen some persons committing the crime but do not know their names and would be able to identify them if they could see them again. In such cases, as a rule, the Investigating Officer submits a report to the proper authority for the holding of an identification parade; and if the Investigating Officer omits to do so, the accused may, if so advised, point out the omission but he has no right to demand that an identification parade must be held. The omission will certainly entitle the accused to challenge the veracity of the witnesses on that ground at the trial.;