SHARIF AHMAD Vs. STATE OF U P

JUDGEMENT

(1.) BY this revision the accused challenges the order of the Sessions Judge dated 6-10-1980 by which he rejected the application of the revisionist for identification proceeding by witness Zarif on the ground that the application was highly belated as the trial was fixed for evidence on 13-10-1980. The learned counsel has shown to me certified copies suggesting that the public prosecutor had given no objection on 6-10-1980 to the application dated 4-10-1980 of the accused for ordering an identification before the start of the case.

(2.) JADUNATH Singh v. State of U. P., AIR 1971 SC 363 sets out the principles to be observed when an accused applies for identification proceeding. Their Lordships held that the absence of test-identification in all cases was not fatal and if the accused person was well-known to the witnesses it would be a waste of time to put him up for identification. But if the prosecution fails to hold an identification on the ground that the witnesses already knew the accused well 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 loosing its case and therefore, if there is any doubt in the matter the prosecution should hold an identification parade especially if the accused says that the eye-witnesses did not know him previously. Their Lordships further observed that even though the CrPC does not contain any express provision for an identification parade at the instance of the accused 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 the prosecution will unlese there is some evidence, run the risk of loosing the case on that point. These observations were made in an appeal against a conviction recorded after trial in a case in which the accused who was in jail had claimed identification during the inquiry stage and the prayer had been opposed on behalf of the State and was rejected by the Magistrate. It is not possible to read these observations as implying that the accused has a right to demand test-identification after the case has been committed to the court of session and even within 10 days of the date of commencement of the trial. Especially when after filing this revision on 10-10-1980 he has secured an order dated 4-11-1980 for release on bail and has apparently been released on bail I also think that the learned Sessions Judge was justified in summarily rejecting the application on the ground that it was far too belated. Then objection by the public prosecutor did not affect this position for it was too late for the prosecution to seek to rectify the omission (if there was an omission) of not holding a test parade. The prosecution case had been that the witnesses including Zarif knew the accused persons. Under the circumstances the trial had to go through on this basis with the prosecution taking the consequence of not holding any test identification proceeding in accordance with the law on the point. The stage and the nature of the accused's objection on this point and his conduct in obtaining bail will also be matters to be considered if and when such consequences fall to be determined With these observations, the revision is dismissed. Stay order dated IO-lO-1980i is vacated. Revision dismissed.