KRISHNA MOHAN ALIAS BACHHIA KATAO Vs. STATE

JUDGEMENT

(1.) This is a third bail application. The applicant is accused of having committed an offence under Section 302, I. P. C. The fresh point raised is that, after the rejection of his second bail application by me on the 27th July, 1981, his application for bail, on the technical grounds mentioned in paragraph 21 clauses (1) to (5) of the application equivalent to paragraph 22 of the affidavit, was rejected by the Sessions Judge by an order dated 13th August, 1981, and thereafter the applicant made an application before the Chief Judicial Magistrate, Agra, on 29th August, 1981, stating therein that Smt. Krishna the wife of Vinod and the other eye witnesses do not know the applicant and in case the applicant is put up for identification, they would not be in a position to identify him. This application, it is stated, was "vehemently opposed by the counsel for the prosecuting agency" and the Chief Judicial Magistrate rejected it by his order dated 29th August, 1981. The order is a short one and may accordingly be quoted :- " I have heard the parties and gone through the record. The accused is named in the F. I. R. The accused as well as the eye witnesses belong to the same town. There is no indication in the case diary that the accused was unknown to the eye witnesses. Police has submitted charge sheet in the Court. From the perusal of the charge sheet and the case diary it appears that the eye witnesses knew the accused from before. I find no reason to direct the police to arrange for the identification parade. The accused may however claim identification at the time of trial in the Sessions Court. The application has no force which is accordingly rejected. " Mr. N. C. Upadhyaya, learned counsel for the applicant, pressed this third bail application primarily on the ground of the rejection by the learned Magistrate of the applicant's prayer for the test identification. He relied on the following cases and urged that the refusal of the prosecuting agency to put up the accused applicant for a test identification by the witnesses shows that the witnesses, who were alleged to have seen the accused committing the crime, would not be able to identify him, for, if they could, the prosecution should have been only too happy to put up the accused for test identification before these witnesses ; and that being so there are now almost cent per cent chances of the acquittal of the accused. The first case cited by the learned counsel was a Division Bench decision of our Court in Asharfi and another v. The State (A. I. R 1961 All 153 ). In paragraph 52 at page 167 of the report of that case in the All India Reporter, it is stated that "although the accused has no right to claim identification, if the prosecution turns down his request for identification they run the risk of the veracity of the eye witnesses being challenged on that ground, and that the prosecution would be exposing the claim of such witnesses to the criticism that the test identification was shirked because the witnesses would not have been able to stand the test" ; and that, therefore, "if the Court reasonably comes to the conclusion that there may be force in what the accused contends, it should direct the holding of a regular test identification in order that the witness's veracity may be tested", and further that the Court had ample power to do so under Section 540 of the Cr. P. C. The learned counsel pointed out that the equivalent provision in the Code of Criminal Procedure, 1973 was Section 311. The next case cited was the decision of the Supreme Court in Jadu Nath Singh v. The State of U. P. (1971 Alld. Cr. Cases 80 ). It has been ruled in paragraph 18 at page 17 of that report : "if the prosecution fails to hold an identification on the plea that the witnesses already knew the accused will and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case, It seems to us that if there is any doubt in the matter the prosecution should hold an identification parada specially if an accused says that the alleged eye witnesses did not know him previously. It may be that there is no express provision in the Code of Criminal Procedure enabling an accused to insist on an identification parade, but if the accused does make an application and that application is turned down and it transpires during the course of the trial that the witnesses did not know the accused previously, as pointed out above the prosecution will, unless there is some other evidence, run the risk of losing the case on this point. " It has been further ruled in paragraph 20 of that report "it seems to us that the reason given by the Public Prosecutor in the report and the reason given by the Additional District Magistrate (Judicial) in the order directing that identification requested for be not held, were, not valid. The fact that a charge sheet had been received and the accused had been named by P. Ws. was no justification for not having ordered the test identification. But on the facts of this case it is clear that P. W. 2 at least knows the accused from before. As regards P. W. 3, although he claims to have known the accused, it is clear that his knowledge of the accused was very scant and if it had not been for the evidence of P. W. 2 we would not have placed reliance on the evidence of P. W. 3 in view of the fact that the police did not ask him to identify the applicant. " This is followed by the approval by the Supreme Court in paragraph 21 of that report at page 415 of Phioson's statement of the law ;- " In criminal cates it is improper to identify the accused only when in the dock, the police should place him, beforehand, with others and ask the witness to pick him out. Nor should the witness be guided in any way, nor asked "is that the man ?" The Supreme Court observed that the same is law in India, if the identity is in doubt. But it held, in that case, for the aforesaid reasons, that the trial was not vitiated on the ground that the accused persons were denied identification. The last case relied upon by the learned counsel in this context was the decision of a learned Single Judge of our Court in Hanif v. State (1973 Alld. Cr. Cases 238 ). The learned Judge observed in that case that even in a case of spot arrest the Court may, under suitable circumstances, grant permission for holding test identification. The decision of the Supreme Court in Jadu Nath Singh's case (supra) was noticed; but, on the facts of the case before the learned Judge, he held that the refusal to hold a test identification on the application made by the accused was a very material circumstance which raised a doubt about the veracity of the prosecution witnesses although by itself it was not sufficient to challenge their veracity which had to he judged in the totality of the circumstances. These principles of law appear to have become well known by now and it seems to me that the application itself was made on be halt of the accused application for test identification at this stage, to take advantage of the aforesaid case law, hoping that in all probability the application would be rejected probably because the accused was well known to the witnesses since before. It cannot be assumed that the prosecution and the learned Magistrate were unaware of the case law on this point. I cannot, therefore, proceed on the assumption that the prosecuting agency deliberately opposed the request for the credibility of the eye witnesses on whom it was relying for proving its case. Nor can I countenance the suggestion that the police refused to put up the accused for test identification because it was made aware of the position that the witnesses, who are alleged to have been eye witnesses of the occurrence, will be unable to identify the accused if he were put up for test identification. The learned Magistrate has, on examination of the case diary, found that the witnesses knew the accused from before. I have no reason to doubt the correctness of that inference. I am accordingly not in a position to share the doubt raised by the learned counsel for the applicant about the veracity of the eye witnesses on the ground that his application for test identification was rejected by the learned Magistrate by his order dated 29th August, 1981. I may add that having heard Mr. Upadhyaya at some length on other aspects of the case also, I was unable to find any good reason for ordering the applicant's release on bail. This third bail application, therefore, fails and is rejected. .