The eleventh part of our explainer series on criminal law deals with an important procedure conducted during investigation that has far-reaching effects on fate of the criminal trial – the test identification parade..————-.Previous parts: FIR | Refusal of police to register an FIR | Police investigation | Police officers' power to search without search warrants | Default bail | Closure report and police case diary | Completion of investigation | Charge | Discharge | Criminal trial.THE Indian Evidence Act, 1872 deals with, among other things, the admissibility and inadmissibility of evidence before court in a trial, including the examination of witnesses and the evidentiary value of documents produced before the trial court..One such provision which forms part of the Evidence Act is Section 9, which deals with admissible facts which are necessary to explain or introduce relevant facts such as the place or date of the offence, the name or identity of parties, other circumstances, and so on..Section 9 of the Evidence Act and Section 54A of the Criminal Procedure Code, 1973 deal with the procedure and legality of a test identification parade, though the former does not explicitly mention the same..Section 9 of the Evidence Act makes the test of identification admissible and a relevant fact in the court of law, and section 54A of the Code states in simple words that when the identification of an accused by the witness is considered necessary for investigation of such an offense in which the accused is under arrest, then the court having jurisdiction may, on request made by the officer in charge of the police station, direct the accused so arrested to make himself available for identification by the witness(es) in such manner as the court may deem fit..What is a test identification parade?.In all criminal cases, two important questions have to be answered:.Whether the alleged offence was committed?If yes, then who committed the alleged offence?.Section 9 of the Evidence Act read with section 54A of the Code relates to the procedure to answer the second question, that is, who committed the alleged offence, and its admissibility in a court of law..The idea of identification satisfies two needs:.To satisfy the investigating agency, before sending the case for trial to a court, that the person arrested for the offence, who was not previously known to the witness, was one of those who committed the offence.To prima facie satisfy the court that the accused was the offender of the crime committed..The whole idea of the test identification parade is for the witnesses who claim to have seen the culprits at the time of occurrence, to identify such person(s) in midst of other persons without any aid or any other source. It is done to test the veracity of the claim of the witness..The entire identification parade is not meant for the court but to aid the officers in conducting the investigation..When a first information report is lodged against unknown persons, a test identification parade in terms of section 9 of the Evidence Act is held for the purposes of testing the capability of the witness to identify persons who were previously unknown to them that they claim to have seen committing the alleged offence..Generally, the test identification parade is conducted in cases of murder and dacoity, and offences under the Maharashtra Control of Organised Crime Act, when such an offence is committed in presence of an eye witness who claims and agrees to identify such person during the test identification..On the other hand, in cases registered under the Narcotic Drugs and Psychotropic Substances Act, 1985, test identification parade is not held or is immaterial as the accused person is apprehended/arrested in the presence of panch witnesses. Therefore, the entire exercise of conducting the identification parade will be futile..Legal value of test identification parade.High Courts and even the Supreme Court has held time and again that the test identification parade does not form a substantive piece of evidence in the eyes of law. Moreover, it is important to note that failure to hold an identification parade does not make the identification in front of the court as inadmissible..What forms part of a substantial piece of evidence is the identification of the accused persons before the court by a witness and that prior identification or un-identification during a test identification parade is immaterial as long as the witness identifies the accused before the trial Court. The test identification parade only forms a corroborative piece of evidence in the eyes of law..In the writer's personal opinion, this position of law needs to change for a simple logical reason that when the witness identifies the accused person(s) before the trial court, it is only that one accused person or the set of persons accused of committing offence under trial, who is present in the court; therefore, it becomes very easy and rather straight-forward for the witness to identify the accused person. However, the test identification parade is conducted under a specific set of rules, procedure and guidelines laid down under Indian criminal law..Procedure for conducting test identification parade.The judicial magistrate or civil judge is specifically directed not to associate themselves with test identification parades. The same is evident from the order in the Government Circular, Home Department, No. MIS. 1054/84588, dated April 22, 1955, which is reproduced below:."In the Judgment delivered by the Supreme Court in Ramkishan vs. Bombay State AIR 1955 SC 104, it has been held that the statements made before police officers by witnesses at the time of identification parades are statements to the Police, and as such are hit by Section 162 of the Code of Criminal Procedure, 1898. In view of that ruling, it is necessary that such parades are not conducted in the presence of Police Officers. The alternative is to take the help of the Magistrates or leave the matter in the hands of panch witnesses. There would be serious difficulties in panch witnesses conducting parades successfully..In regard to Magistrates, it is not feasible to associate Judicial Magistrates with such parades. The only practicable course, therefore, is to conduct the parades under Executive Magistrates and Honorary Magistrates (not doing judicial work). Government is accordingly pleased to direct that the Police Officers concerned should obtain the help of Executive Magistrates and Honorary Magistrates in holding identification parades.".The guidelines adopted for the conduct of a test identification parade is not exhaustive but illustrative and has been adopted from principles enumerated by British legal writer J.F. Archbold in his treatise 'Pleading, Evidence & Practice in Criminal Cases'..Some of the important principles for a better understanding of the subject are reproduced below:.– The officer conducting investigation of the concerned offence must not take part in the identification parade..– The parade should be arranged by an officer who is not a police officer..– Once the parade begins, the entire procedure must take place in the presence of the accused who is proposed to be identified, including every instruction given to the witness..– The witness must be prevented from seeing the accused or a photo of the accused before identifying them, otherwise the entire veracity of the parade is lost..– The accused should be placed among persons (if practicable, eight or more) who are as far as possible of the same age, height, general appearance (including standard of dress and grooming) and position in life. Two suspects of roughly similar appearance should be paraded with at least twelve other persons. Where, however, the two suspects are not similar in appearance or where there are more than two suspects, separate parades should be held using different persons on each parade..– All members of a group of more than two accused persons should not be paraded together. There should be more parades than one, each including not more than two accused persons. Two suspects of obviously dissimilar appearance should not be included in the same parade. Identification numbers should be concealed..– The suspect should be allowed to select his own position in the line and should be expressly asked if they have any objection to the persons present with them or the arrangements made. They should be informed that if they so desire, they can have their advocate or a friend present at the identification parade..– The witnesses should be introduced one by one and, on leaving, should not be allowed to communicate with witnesses waiting to see the persons paraded. The accused should be informed that they are free to change their position after each witness has left..– The witness is generally asked to touch the person whom they are to identify so as to eliminate any possibility of error or vagueness in identification. However, if the witness is nervous, they can choose to point towards the person and in the event the witness is unable to identify, it is open for them to say the same. The fact that the witness has identified a particular person or has not identified anybody or has wrongly identified any person other than the suspect has to be recorded by the executive magistrate..– If any request is made by a witness, for example, to see the suspect with their hat on or off, or to see the person walk or to hear the person speak, and there being no objection to the person paraded as asked for, the incident should be recorded..On similar lines, the Government of Maharashtra has laid down certain rules and guidelines for conducting TI parade. In order that the proceedings of the identification parades are recorded properly and in conformity with the judicial requirements, the Maharashtra government's Home Department issued Circular No. PRO-2460/16653 IX, dated August 16, 1963, and laid down the following procedure for writing up of a memorandum:."The Executive Magistrate/Honorary Magistrate should commence to write the memorandum. It should include.(a) the place at which and the date on which, parade is being held and the time at which it was commenced;.(b) the names, ages, occupations and the full addresses of the two them on respectable persons;.(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 two respectable persons, were allowed to remain in the room and that all police officers and constables were asked to withdraw; and.(e) that respectable person so and so fetched the accused from the lock-up, and that the identifying witnesses were in a different room, so that they could not see him being brought from the lock-up.".Other procedural aspects are similar to that of the principles laid down by Archbold in his treatise..After all the identifying witnesses have thus been exhausted one after the other, the memorandum should be wound up by stating the time at which it was concluded. Then the memorandum should be read over and explained to the respectable persons in language which they understand..After the memorandum is completed, the executive magistrate/honorary magistrate should make the following endorsement at the end: "Identification Parade was conducted by me personally with the help of the two respectable witnesses, namely Shri …… and Shri…. whose signatures have been obtained in token of what transpired in their presence". They shall sign below this endorsement and put the date below their signature..There shall be another endorsement to the following effect:."We read above memorandum (or it was explained to us) and it depicts the correct State of affairs as stated in the memorandum". This shall be signed by the two respectable persons with whose help the identification parade was held..The magistrate himself should also sign every sheet of the memorandum. Any corrections, overwriting or alterations in the memorandum should be affixed with an initial by the magistrate. The memorandum should then be handed over to the police officer concerned..The most important facet of the identification conducted by the executive magistrate is that at the time of hearing of the concerned case, the magistrate who held the parade and wrote out the memorandum may be called as a witness to give evidence. In that case, they should state exactly what happened. They have the right to refresh their memory by referring to the memorandum, which they had themself prepared..Therefore, as indicated in its name, the procedure tests the memory of the witness during identification..Does the evidentiary value of test identification parade need to change?.Considering the aforesaid guidelines and the utmost care and concern mandated to ensure transparency and veracity of the identification process, it is the writer's personal opinion that the result of the test identification parade should be treated as good and admissible evidence as compared to the identification of an accused person before the trial court, where none of the above procedures are followed and the witnesses are susceptible for being tutored. Further it is fairly easy to identify an accused in court since they are the only one or the only group that occupies the box meant for the accused person in court, as against in the parade wherein they are to be identified from a group of similarly placed persons..It is equally important if the witness fails to identify the accused person during the test identification parade that the same must have a direct bearing on the merits of the trial since the same directly goes to the root of the matter. However, the current legal position is quite contrary since if the witness fails to identify a person during the parade but later on identifies them before the trial court, it is considered to be a valid identification..Moreover, it is also pertinent to note that the test identification parade is to be held as soon as possible by the investigating authorities after the arrest of the accused person, before the accused person is produced before the trial court, since once the accused person is produced before a trial court, the test identification conducted thereafter shall lose its significance..There have been many cases where if the identification parade has been delayed, courts have held them to valueless. However, if the police is able to explain the delay and give a reasonable explanation for the same, then the delay will not be considered fatal for the case of the prosecution..Thus, the entire procedure of conducting test identification parade forms an important part of the investigation conducted by the investigating authorities. Though it is an important procedure, the same is not considered to be a substantial piece of evidence and is merely used as a formality, which does not have a major bearing on the evidence recorded by the courts in the course of the trial..The test identification parade forms a crucial part of the investigation, which has great impact on the fate of the case. However, the current position of law does not give due importance to the said procedure.
