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PETITIONER: HARNATH SINGH

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 27/09/1968

BENCH: MITTER, G.K. BENCH: MITTER, G.K. SHAH, J.C. RAMASWAMI, V. HEGDE, K.S. GROVER, A.N.

CITATION:  1970 AIR 1619            1969 SCR  (2) 289

ACT:     Code of Criminal Procedure, s. 164--Test  identification parade held by Magistrate of the Third Class--Record of such identification   whether   inadmissible   in   evidence   as contravening s. 164 of the Code.

HEADNOTE:     The appellant who was suspected  of having taken part in a dacoity was put .up ’for identification  by the  witnesses in  a test  identification parade which was conducted  by  a Magistrate   of  the Third Class.  The Magistrate  noted  in Co1. 5 of the prescribed form the fact of identification  by a witness, in Co1. 7 he recorded further statements made  by the witness after he had purported to identify the  accused. Later  the appellant was tried for the offence under s.  395 at the Indian Penal Code, and convicted.   His appeal to the High Court failed.  In this Court it was urged on behalf  of the  appellant  that the record of the  test  identification parade  was  inadmissible  in  evidence  as  the  statements the  rein were recorded by a Magistrate of the  Third  Class who  was not empowered under s. 164 of the Code of  Criminal Procedure to record such statements.     HELD:   A  Magistrate  when  called   upon  to   conduct verification proceedings should confine his attention   only to  the steps to he taken to ensure that the witnesses  were able  to  identify  certain persons  alleged  to  have  been concerned  in  the commission at the crime  or  to  identify certain  things  which were said to be  the  subject  matter thereof.  The Code of Criminal Procedure does  not  sanction his  transgression  of  this limit and  recording  at  other statements  which  may have a bearing  in  establishing  the guilt of the accused except in accordance with s. 164 of the Code. [296 C-D]     In the present case the Magistrate was called upon  only to  conduct  the’ identification proceedings.   He  was  not required   to  record  any  confession  or  to   interrogate witnesses  to  elicit any other facts or call upon  them  to make   any   statement  beyond  mere   identification.   The statements  in  Co1. 7 would therefore  be  inadmissible  in

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evidence.   This  would  however not be  applicable  to  the record under Col. 5 [296 G]     As  the High Court had not taken into consideration  the statements  in  Col.  7 its judgment could not  be  said  to suffer    ’from    the   infirmity  of  having   relied   on inadmissible evidence. [296 H]     Deep  Chand v. State of Rajasthan, [1962] 1 S.C.R.  662, applied.     Nazir  Ahmad v. King Emperor, A.I.R. 1936 P.C.  253  and Ramkrishan  Mithanlal  Sharma v. State  o/Bombay,  [1955]  1 S.C.R. 903, referred to.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 130 of 1966.     Appeal  by  special leave from the  judgment  and  order dated  April  24, 1985 of the  Madhya  Pradesh  High  Court, Gwalior Bench in Criminal Appeal No. 55 of 1964. 290      R.L. Kohli, for the appellant.      I. N. Shroff for the respondent.      The Judgment of the Court was delivered by      Mitter, J.  This is an appeal by Special Leave from the judgment and order of the Madhya Pradesh High Court, Gwalior Bench on April 24, 1965  in Criminal Appeal No. 55 of  1964. The  said  appeal was heard and disposed of along  with  two other  appeals  Nos.  44 and 45 of  1964.    The   appellant before   us, Harnath Singh, was the appellant in Appeal  No. 55  of  1964  while Narayan Singh  and  Chhotelal  were  the appellants  in  the other two appeals.   Narayan  Singh  and Harnath  Singh  were, convicted by the  Additional  Sessions Judge,  Morena, under s. 395 of the Indian Penal Code  while Chhotelal was convicted in the same trial under s. 395  read with s. 75 of the Indian Penal Code.       The  prosecution  case was as follows.   There  was  a dacoity at the house of one Dhudilal in village Chhota Kheda on  the night of December 10, 1962 in which the  inmates  of the  house  were  beaten and property, to wit,  Rs.  350  in currency notes, some silver ornaments etc., belonging to one Raghunath   were   taken away by the dacoits from  the  said house.  Ramkumar (P.W. 1 ) raised an alarm which brought the neighbours  on the scene and one of the dacoits,  Chhotelal, was  caught on the spot and handed over to the police.   The first  information report was lodged by Dhudilal at about  9 a.m.  on the  following morning.   During investigation  Rs. 335 in currency notes besides some silver articles and small change  were found on the person of Chhotelal.Some  articles were also produced by Narayan Singh on December 12, 1962. On the same day, on a personal search of the appellant  Harnath Singh, four George V silver rupee coins, one Victoria silver rupee  coin, one silver half-rupee coin and one  old  square coin  with  vermillion on them were found  and  seized.   On December 25, 1962 there were test identification parades  of the  accused and all the appellants were identified by  some of  the  eye  witnesses The appellant,  Harnath  Singh,  was identified   by   Ramkumar (P.W. 1), Panabai (P.W.  13)  and Hari Shankar (P.W. 15). The articles seized from the accused were also identified. Chhotelal admitted his presence in the village of the night of the incident and the seizure of  Rs. 335 from his person but claimed them as his own.  He  denied the  seizure  of the other articles  from   his  possession. Narayan Singh denied the recovery of any  articles from  his house  while  the  appellant  Harnath  Singh,  admitted  the

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seizure of the five rupee coins and the square coin from his person but claimed them as his own.       The  Sessions Judge found all the accused  guilty  and sentenced them as stated. 291     So far as the appellant Harnath Singh is concerned,  the High  Court held that he had been "identified as one of  the dacoits  by  Ramkumar (P.W. 1), Panabai (P.W. 13)  and  Hari Shankar (P.W. 15)" and they had also "identified him earlier in  a test identification parade."  Discussing the  question as  to  whether  the  evidence  with  regard  to  the   test identification  parade  was admissible in view of  the  fact that it was conducted by a Magistrate of the Third Class who was not empowered to  record  statements under s. 164 of the Criminal procedure Code, the High Court was of the view that               "the test identification parade  ....   cannot               be  disregarded  as  of  no  value  under  the               circumstances of the case." The High Court then went on to consider the evidence against the appellant as to his being concerned in the dacoity.   It relied the testimony of Ramkumar, P.W. 1, that the appellant was  standing near his sister, Tulsabai and had  a  Gajkundi and  was  firing  crackers.   Ramkumar  had  also  given   a description of the appellant to the police and stated in his evidence  that he was able to identify him from  his  facial features.   Panabai, another of the  identifying  witnesses, had  stated that the appellant was wearing a black coat  and was  flashing a torch.  The third identifying witness,  Hari Shankar,  could give no special reason for  identifying  the appellant  but  stated that he was standing near  his  aunt, Tulsabai.    All  these  witnesses  stated  that  they   had identified  the  appellant  in  the  identification  parade. Tulsabai did not identify the appellant but had stated  that the person standing near her had a black coat on.  The  High Court  held  on the evidence that there  was  no  sufficient reason  to  discard the testimony of these  persons  on  the point  of  their  identifying the appellant as  one  of  the dacoits  although  there were some  minor  discrepancies  in their  statements.  The  High  Court  also  found  that  the evidence of the witnesses was amply corroborated from  other evidence on record.     One   of  the  circumstances  which   corroborated   the testimony of the witnesses, according to the High Court, was the  unexplained possession of the appellant of some of  the articles taken away by the dacoits from the scene after  the incident.   In the first information report there  had  been specific  mention of the loss of four George V rupee  coins, one Victoria rupee coin and a gilt half rupee piece.   These correspond  with the recovery from the appellant along  with one  square  coin  probably of brass all  bearing  marks  of vermillion.   This mark was explained  by   Raghunath,   the claimant  of  the coins as having been used  in  the  Diwali pooja. The High Court did not accept the appellants  version of  his having carried them on his person because they  used to  be worshipped by his father and grand-father.  The  High Court held that the 292 presence  of the square piece in his possession  showed  his complicity in the offence.  According to Raghunath this coin was  kept  separately  from the other  coins  but  all  bore vermillion  mark because of their use in the pooja.     The  second circumstance incriminating the appellant  as found  by  the High Court was his unexplained  absence  from duty  in  the Chambal Canal Project from December  9,  1962. While  the appellant admitted his absence from duty he tried

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to  account for it by saying that he was ill but offered  no independent witness to establish his statement. Accordingly, the High Court found itself unable to disturb the conviction of the appellant under s. 395 and dismissed the appeal.     Before  us learned counsel for the  appellant  contended that the conviction of the appellant could not stand in view of the reliance of the High Court on the record of the  test identification parade. In our opinion, the learned Judges of the High Court did not affirm the conviction relying  merely or  mainly on the said report.  The elaborate discussion  on this  point  appears  to  have  been  prompted  by  the  two judgments  in Appeal No. 218/1963 and Appeal No. 35/1964  of the same High Court on which reliance was placed by  counsel for  the  accused.  As noted already, the view of  the  High Court  was that the test identification parade could not  be discarded  as of no value in the circumstances of the  case. It  was  only after recording the said view  that  the  High Court  proceeded to consider the evidence of  the  witnesses and  the circumstances which corroborated  their  testimony. These  were  only   two  as  discussed  above.   It  appears therefore that although  the  High Court did not reject  the testimony of the Naib Tehsildar, Dinkar Rao who presided  at the parade, it really upheld the conviction of the appellant on other evidence on the record.     Relying  principally  on the judgment  of  the  Judicial Committee  of  the  Privy Council in  Nazir  Ahmad  v.  King Emperor(1)  and to certain observations of this   Court   in Ramkrishan   Mithanlal  Sharma  v. The  State  of  Bombay(2) counsel    for   the appellant attacked  the  identification proceedings  as  being  without  jurisdiction  and  as  such inadmissible in evidence.  It was further argued that if the High Court had rejected the said evidence, it would not have maintained  the  conviction of the appellant.  In  order  to appreciate the foundation for this argument, it is necessary to   take   a  brief  note  of  the   reason   for   holding identification  proceedings and the scope  thereof.   During the  investigation  of  a  crime  the  police  has  to  hold identification parades for the purpose of enabling witnesses to  identify the properties which are the subject matter  of the  offence  or to identify the persons who  are  concerned therein. They have thus a two-fold object: first, to satisfy the investigating (1) A.I.R. 1936 P.C. 253.   (2) [1955] 1 S.C.R. 903. 293 authorities  that a certain person not previously  known  to the witnesses was involved in the commission of the crime or a  particular property was the subject of the Crime.  It  is also  designed  to  furnish  evidence  to  corroborate   the testimony  which  the witness concerned tenders  before  the court.   The process of  identification proceedings and  the legal basis of evidence adduced thereat were considered’  by this  Court in Ramkrishan Mithanlal Sharma v. The  State  of Bombay(1).  It was there said (at p. 920): "...it  is clear that the process of identification  by  the identifying   witnesses  involves  the  statement   by   the identifying   witnesses  that  the   particular   properties identified  were the subject matter of the offence  or   the persons  identified  were concerned in  the  offence.   This statement  may  be express or implied.  The  identifier  may point out by his finger or touch the property or the  person identified,  may either nod his head or give his  assent  in ’answer  to a question address to him in that behalf or  may make  signs or gestures which are tantamount to saying  that the  particular property identified. was the subject  matter of  the offence or the  person identified was  concerned  in

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the  offence.  All  these  statements  express  or   implied including   the  signs  and  gestures  would  amount  to   a communication   of  the  fact  of  identification   by   the identifier   to   another   person.....The   distinction.... between   the   mental  act  of   identification   and   the communication thereof by the identifier to another person is quite  logical  and such communications  are  tantamount  to statements made  by  the identifiers.......The physical fact of identification has thus no separate existence apart  from the    statement   involved   in   the   very   process   of identification  ......."     On   the  above  logic  the  Court  pointed   out   that identifications  by a police officer would be hit by s.  162 of the Code of Criminal Procedure.     It  being  hardly  practicable  to  have  identification proceedings conducted by private citizens they are as a rule held  by  Magistrates at the request  of  the  investigating police ’authorities.  Usually the record of the  proceedings is made on certain forms and one such, Ex. P-1, was used  in this  case.  This form contains 9 columns, the  first  being for  the  serial  number, the second for the  names  of  the witnesses who identified the accused, the third for names of the  accused who are to be identified,’ the fourth  for  the number  of  persons  who were mixed  in  the  identification parade,  the fifth being headed "correctly identified";  the sixth   reading  "wrongly  identified",  the   seventh   for "statement of the witnesses (1) [1955] 1 S.C.R. 903. 294 about  identification", the eighth for the signature of  the identifying  witnesses  and  the ninth and  last  being  for remarks.   The  note at the end of the form  shows  how  the parade  was conducted, where it was held, how  many  persons were mixed up with the accused in the case, what precautions were  taken so that the  witnesses could not see  the  steps being  taken for mixing the accused persons etc.   The  last sentence of the form reads:                     "From  their gestures it  appeared  that               the  witnesses  had correctly  identified  the               accused persons." In  Nazir  Ahmad’s  case(1), the  appellant  .was  convicted mainly,  if not entirely, on the strength of  a  corffession said to have been made by the appellant to a Magistrate  who was  examined at the trial.  The Magistrate however did  not record   the   confession  under  s.  164  of  the  Criminal Procedure Code which provides that a Magistrate of the class therein  mentioned  may record any statement  or  confession made to him in the course of an investigation in the  manner prescribed and after complying with the formalities  therein laid  down.  The Judicial Committee  found  that though  the Magistrate  was  manifestly  acting  under  Part  V  of  the Criminal Procedure Code, he neither purported ’to follow nor in  fact  followed the procedure of ss. 164 and 364  of  the Code.  To quote the words of the judgment to show absence of non’compliance  with  secs.  164 and 364  of  the.  Criminal Procedure Code:                   "....there  was no record in existence  at               the  material  time (at the time  the  alleged               confession was made), there was nothing to  be               shown  or  to  be read  to  the  accused,  and               nothing he could sign or refuse to sign." The Magistrate gave no explanation as to why he adopted this procedure.   It was argued on behalf of the appellant   that by necessary implication in the Code of  Criminal  Procedure the Magistrate must either proceed under s. 164 of the  Code

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or  not  at  all. Considering the position  of  the  accused persons  and  the position of the magistracy,  the  Judicial Committee  observed  that  it  was  most  undesirable   that Magistrates and Judges should be in the position of  witness insofar  it  could be avoided.  According  to  the  Judicial Committee:                  "....it  would be particularly  unfortunate               if  Magistrate were asked at all generally  to               act rather as police officers than as judicial               persons;  to  be by reason of  their  position               freed  from  the disability that  attaches  to               police officers under s. 162 of the Code;  and               to be ’at the same time freed, notwithstanding               their   position  as  Magistrates,  from   any               obligation  to make records under s. 164.   In               the  result they would indeed be relegated  to               the   ,position   of  ordinary   citizens   as               witnesses and then would be. (1) A.I.R. 1936 P.C. 253. 295               required  to depose to matters transacted   by               them in their official capacity unregulated by               any   statutory rules of procedure or  conduct               whatever," In  the  result  it  was held  that  the  Code  of  Criminal procedure  did not sanction any departure from the  mode  in which  the  confeSsions  were  to  be  dealt  with  by.  the Magistrates when made during an investigation.     This  decision of the Judicial Committee was  considered by this Court in Deep Chand v. The State of Rajasthan(1) and the’ above observations were adopted-In this case, one Suraj Bhan  had been abducted by certain persons and according  to the prosecution case he was taken first to the house of Deep Chand  and  kept blind folded and confined in a  small  room for  17  days.During this period after temporary removal  of the  bandage over his eyes he was made to write  letters  to his father  asking for moneys to be paid for releasing  him. He  was thereafter removed to the house of one Lachman.   As regards  the identification of Deep Chand’s house, the  High Court accepted the  evidence  of Suraj Bhan that he had been able  to note certain features of it through a chink in  the wall of his room.  Suraj Bhan’s evidence was corroborated by the  evidence of one Devi Singh, a Magistrate who had  taken Suraj  Bhan along with him to the house of Deep Chand.   The Magistrate  had inspected the house and got a plan  prepared under  his supervision and recorded a memorandum   in  which his observations and the statements made by Suraj Bhan  were noted  down.   The  Magistrate gave evidence  at  the  trial describing  the  building  of  Deep  Chand  and  proved  the memorandum  prepared  by him.  Objection was  taken  by  the appellant  to the verification proceedings conducted by  the Magistrate  on  the strength of Nazir Ahmad’s case(9) and it was  argued  that  the High Court had gone wrong  in  acting upon  the memorandum  are  the Magistrate.  It  was  pointed out by this Court prep    by  ....that the decision in Nazir Ahmad’s  case(a)  did  not   preclude   a  Magistrate   from deposing to relevant facts if no statute precluded him  from doing  so either expressly or impliedly.  It was  also  said that  neither  the  evidence Act nor the  code  of  Criminal procedure prohibited a Magistrate from deposing to  relevant facts  within  the  meaning of s. 9 of  the.  Evidence  Act. Reference  was  made  by this Court to  the  observation  in Amiruddin Ahmad v. Emperor(a) in relation to  identification proceedings  that "the main concern of the Court would  seem to be to ensure that evidence not strictly admissible is not

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admitted."   In  that  case,  the  High  Court  had  further observed  that  the  verifying  Magistrate  should  not   be permitted to speak to statements said to have been made  to. him  in  the  course  of the  proceedings.  The  High  Court observed that (1)  (1962) 1 S.C.R.662 (2)  A.I.R. 1936 P.C. 253. (3)  I.L.R. 45   Calcutta 557. 296                 "additional statements being statements made               in  the course of an investigation, when   not               recorded in the manner provided in section 164               of  the  Code of  Criminal  Procedure......are               inadmissible." According  to  this   Court,  the  above  decision  was  "an authority  for  the position that the evidence  given  by  a Magistrate  on  the basis  of the  verification  proceedings conducted  by him is relevant evidence, though he could  not speak  to  statements  made  by the  accused  or  a  witness recorded  by him in contravention of s. 164 of the  Code  of Criminal Procedure."     Deep  Chand’s  case(1) goes to show  that  a  Magistrate when called upon in a case like this to conduct verification proceedings  should confine his attention only to the  steps to  be  taken  to ensure that the  witnesses  were  able  to identify  certain persons alleged to have been concerned  in the  commission of the crime or to identify  certain  things which  were said to be the subject matter thereof. The  Code of Criminal Procedure does not sanction his transgression of this limit and recording of other statements which may  have a bearing in establishing the guilt of the accused except in accordance with s. 164 of the Code.   In  this case the Magistrate gave evidence to  the  effect that he was a Naib Tehsildar at Sirpur on 26th December 1962 on   which   date  he  had  executed  the   proceedings   of identification  parade  of the three accused  including  the appellant.  He also stated that he had the power of a  Third Class   Magistrate.   After  stating  how  the  parade   was conducted   he  recorded  statements  in  support   of   the identification  of the three accused by  different  persons. He  also surported  to give evidence of what  the  witnesses had  said after identifying a particular  accused.   Learned counsel for the appellant contended that as he had purported to  record statements made in the course  of  investigation, the  entire evidence of the Magistrate including the  record of   the  identification  proceedings  became   inadmissible because  he  was a Third Class Magistrate not  empowered  to proceed  under s. 164 Cr.P.C.  We find ourselves  unable  to accept  this argument.  The Magistrate was called upon  only to  conduct  the  identification proceedings.   He  was  not required   to  record  any  confession  or  to   interrogate witnesses  to  elicit any other facts or call upon  them  to make  any   statement   beyond  mere  identification.    The statements  in column 7 would therefore be  inadmissible  in evidence.   This  would  not however be  applicable  to  the record under column 5.  The High Court did not refer to  the statements in column 7 at all.  It would therefore be  clear that  the  judgment-does  not  suffer  from  the   infirmity complained  of  and the appeal must fail.  It  is  therefore dismissed. G.C.                    Appeal dismissed. (1) [1962] 1 S.C.R. 662. 297

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