STATE OF KERALA Vs. VIJAYAN ALIAS RAJAN

JUDGEMENT

(1.) An unknown procedure and an unprecedented relief naturally provoked the State to invoke the jurisdiction of this Court under S.482 of the Code of Criminal Procedure.

(2.) Majeendran was shot dead on the morning of 9th October,1981. The suspect, the first accused, avoided the police and absconded for about three years. In July 1984 he surrendered before the Judicial Magistrate of the IInd Class, Ernakulam. He was remanded and is now in judicial custody. The Deputy Superintendent of Police, C.B.C.D., Quilon, barely within a fortnight thereafter, reported to the Chief Judicial Magistrate that during investigation 9 witnesses stated that they did not know the respondent, the first accused, personally but could recognise him by sight and therefore prayed that a Magistrate may be authorised to conduct an identification parade. The Chief Judicial Magistrate directed the Judicial IInd Class Magistrate, Ernakulam, to conduct the identification parade in accordance with law. The Magistrate, in his turn, requested the Superintendent of the Jail to arrange at least 10 persons of the same stature and complexion of the first accused for the parade. The parade scheduled to be conducted at 2.30 p.m. on 25-7-1984 could not be conducted as the accused was reported sick. Eventually the identification was conducted on 7-8-1984 and as per the proceedings drawn by the Magistrate on the same day, it is seen that he selected 10 persons from the Sub Jail with the help of the Sub Jail Superintendent who appeared to him of the "same, stature, complexion, build and age of the accused, Rajan. All of them were having moustache,"

(3.) On the same date, at about 2 p. m., the counsel for the first accused filed an application making very serious allegations against the Magistrate who was about to conduct the investigation parade and also sought permission from the Magistrate "to interview the petitioner (accused) so that he may be given necessary instructions regarding the precautionary measures to be taken in the parade". He also prayed that the accused be given "all safeguards and protection at every stags of the investigation". This application is CMP. 2277 of 1984. As the identification parade was conducted without the ''precautionary advice of the counsel of the accused", after the parade, on 9-8-1984, the counsel filed yet another application CMP. 2684 of 1984 in which he prayed that he may be permitted "to go and interview those non suspects who participated in the identification parade and who are now available in the Sub Jail". This was of course an extraordinary request, for, the counsel of an accused did not have any statutory or constitutional right to go to a Sub Jail and interview the prisoners accused in other cases, just for information which was likely to assist him in his defence in the future.