Harnath Singh Vs. State of Madhya
Pradesh  INSC 233 (27 September 1968)
27/09/1968 MITTER, G.K.
CITATION: 1970 AIR 1619 1969 SCR (2) 289
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
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
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 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,  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,  1 S.C.R. 903,
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 seizure
of the five rupee coins and the square coin from his person but claimed them as
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
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 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)  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.
"...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 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
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
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)  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 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
"....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
(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
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
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 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
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)  1 S.C.R. 662.