K.J Vaidya, J.:—

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10. While parting, it may be stated that ordinarily since the original accused No. 2 Habib Siddi Khatki having been already acquitted of all the charges and further still there being no appeal against him by the State before us, we are not supposed to touch that pail of the evidence which particularly pertains to him. Still, however, having regard to the overall importance of two material consequential questions involved in the case, namely-(i) the necessity and urgency of holding the test identification parade within the shortest possible time to ensure fair trial to the prosecution and the accused on the one hand, and on the other hand (ii) in future how to tackle such most sluggish, callous and irresponsible manner and method in which the identification parade of the accused No. 2 came to be attended to both — by the investigating agency and the Executive Magistrate, we feel constrained and duty bound to spotlight, discuss and suggest certain remedial measures with a view to see that the same as far as practicable do not occur in future to the prejudice of the prosecution and disadvantage to the liberty of innocent citizen. In fact, we have been noticing in number of such cases that whenever the question as regards the test identification parade of any suspect arises, time and again simple and avoidable mistakes somehow are committed repeatedly by the investigating agency and as a result of which even the good cases fail and the accused get acquitted.

11. It is solely with a view to meet with this persistent and nagging problem of the carelessness and irresponsibility in conduct of the test identification parade that we deem it all the more necessary to discuss the point involved at some length and highlight the material factors for (i) the better, fair and efficient investigation, which may in turn (ii) not only protect and preserve the liberty of an innocent citizen, who to his misfortune, sometimes gets booked by the police as a suspect on some vague allegations costing him his precious liberty, but also to help the prosecution in securing better results at trial, if possible.

12. Now in order to appreciate the problem involved and the attempt sought to be made by us to resolve and salvage the same, it is necessary first of all to recapitulate certain relevant facts of the prosecution case touching upon the question involved. Accordingly, we may briefly refer back to FIR Ex. 148 filed by Tapu Popat (PW-4, Ex. 22) an only eye witness in this case. As per the said FIR, the alleged incident took place at about 22-30 hours at night time on a lonely road at Wankaner when two accused persons came on bicycle, out of which one was the appellant-accused who after having some conversation with the deceased Hari Soma immediately gave him three successive knife blows on his chest, while another unidentified accused who was riding the bicycle (accused No. 2) exhorted the appellant-accused by asking him to give 2-3 more knife blows to the injured so as to finish him. Thus, in the FIR Ex. 148, except the above general allegations regarding the manner of participation in commission of offence against the said unidentified accused, no other particulars as such have been furnished. No description about any physical appearance, that is to say the description regarding any height, structure, complexion of the skin, shape of face, nose, eyes, forehead, voice, clothes and/or any other distinct features by way of any injury marks, if any, etc. etc., have been given on the basis of which the said unidentified suspect could not reasonably spotted, arrested and ultimately put up for the test identification by the investigation agency. What is merely alleged against the unidentified accused in the FIR Ex. 148 is only to the effect that — “I do not know the name of a person who was Abbas Hasam (appellant-accused). Only on seeing him, I identify.” This simply meant that for the purposes of correct identification of the said unidentified accused, he was first required to be arrested and then produced before the said eye witness for the purposes of being shown to him for ascertaining and getting fixed his identity. Now indeed absence of any material by way of some description about the said unidentified accused given in the FIR at Ex. 148 on what basis the police was expected to trace him out and arrest for being shown to the said witness Tapu Popat. In short, such vague disclosures about any identified person as an accused in a statement or FIR by itself could be neither here nor there and does not help the investigating agency to make any headway worth the name in the investigation. It is indeed strange and quite surprising too to find that despite no material in the FIR Ex. 148 to fix up the identity of an unknown accused somehow or the other accused No. 2 came to be arrested on 14-8-1983 at 22-00 hours!! How and on what basis and particulars the said accused came to be arrested by the police is indeed a matter, of ‘guess’, ‘puzzle’ and ‘surprise’ for anybody!! Even the learned APP when asked to explain, he also expressed his inability to throw any light on the question. Frankly, in absence of any description about the identity, prima facie, there was no justification whatsoever for arresting the accused No. 2. Mind well, to arrest an unidentified person as an accused and that too on a serious charge of murder in absence of any material to the said effect, is a very serious thing.

13. This is absolutely unjustifiable and arbitrary action of the police, as it cannot be permitted to take a leap in the dark to catch anybody as it likes as a suspect connecting him with the crime alleged without there being anything on the record. To touch a person of any citizen and to arrest him without any justifiable particulars is not a joke as the same not only sadly reflects upon the very integrity and honesty of the investigating agency and stops there as (sic) the consequences by way of accountability in given case can be far reaching!!! The matter unfortunately does not merely rest here as even after arrest of accused No. 2, for as many as 40 long days, lest identification parade was not held!! For this, it appears from the evidence of the Dy. S.P Mr. V.M Desai (PW-53, Ex. 155) that on 16-8-1983 he had sent a Yadi-Ex. 77 to the Executive Magistrate for holding the test identification parade of the accused No. 2. This has been duly admitted by Mr. B.K Thakkar, Executive Magistrate (PW-32, Ex. 16) in his evidence as received on 18-8-1983. It further appears that on 9-8-1983 the Executive Magistrate has pul his endorsement below the same to the effect that the lest identification parade may be held on 15-9-1983 when the accused No. 2 was to be brought from Morbi jail to Wankaner. The evidence further shows that the lest identification parade was ultimately held on 23-9-1983, i.e, exactly after 40 days of the arrest of the accused No. 2. Now despite the fact that the, accused No. 2 was very much available in the police custody, yet the test identification parade could not be held for about 40 days, is a story shocking enough and speaks volumes indicating as to how callous, negligent and irresponsible the investigating agency as well as the Executive Magistrate were in performance of their respective most important and elementary duties of holding the test identification parade at the earliest. It also sadly reflects upon their utter ignorance regarding the importance of the time factor in holding the test identification parade and gross disregard towards the liberty of citizen. No doubt, it is the duty of the investigating agency to arrest the suspect involved in commission of offence, but it should also bear in mind that while discharging the said duty it does not lightly truffle with the liberty of any citizen. The importance and urgency of holding the lest identification parade is too well-known to be told and emphasised to the investigating agency as well as to the Executive Magistrate. The endorsement put by the Executive Magistrate that the test identification parade may be held on 15-9-1983 at the time when the accused No. 2 was to be produced from Morvi jail to Wankaner, with respect discloses his utter ignorance of law and duty as Executive Magistrate regarding the object and importance of the earliest test identification parade of the suspect accused. It appears that initially the investigating agency did take desired care in holding the test identification parade at the earliest as found from the Yadi-Ex. 77 dated 16-8-1983 addressed to the Executive Magistrate. But thereafter for whatever reasons the slackness gripped the investigation at its further initiative appeal's to have been surrendered to the leizure and pleasure of the Executive Magistrate. This ought not have happened as ultimate responsibility of the investigation rests with the Investigating Officer. In that view of the matter, it should have definitely insisted upon earliest test identification parade by requesting the concerned Executive Magistrate to do the needful at the earliest. Holding of the test identification parade is not a matter of any idle formality and therefore it can never be a matter of leizure or pleasure or convenience of the Executive Magistrate. It is a matter of urgent duty to be attended to at the earliest and at any cost. In fact, the moment Yadi-Ex. 77 was received by the Executive Magistrate for holding the test identification parade, he should have leaving aside everything given top most priority to this part of the duty. The reason is that the test identification parade must be conducted at the earliest possible opportunity in order to enable the eye witnesses to spot out the unidentified accused before his memory fails him with the passage of time creating problems in correct identification of the accused. In fact, delayed holding of the identification parade is not only unfair to the eye witness because of the memory problem, but the same is equally unfair to the prosecution as good cases can be easily lost on the said count and accused going unpunished. It is equally unjust and unfair to the concerned identified accused too as what ought we know that had his identification parade has been held at the earliest and in case if the witness failed to spot him out and fix the identity, he could as well have merited earlier release!

14. Thus, the above discussion brings to the light two important aspects, viz. (i) indiscreet attitude and impermissible remissness of the investigating agency and the Executive Magistrate in attending to the test identification parade of unidentified accused (accused No. 2) at the earliest; and (ii) absence of particulars, descriptions regarding the physiognomy, dress, etc. etc. in FIR Ex. 148 of unidentified accused on the basis of which his liberty could have been justifiably encroached upon. As a matter of fact, as stated above these are the common features which the Courts trying criminal cases coming across in number of cases. Thus, as hinted above in the beginning of para-10 of this judgment, now we may proceed ahead to suggest to the State Government some measures which may enlighten the erring investigating agency as well as the Executive Magistrate to mend their ways in conduct of the test identification parade.

15. Investigating Officer and test identification parade. To start with, we may once again invite the attention of the State Government to the exercise undertaken by this Court on the point of test identification parade to be held by the investigating agency in the case of the Sates v. Chhaganlal Mangaldas, reported in 32 = (1991) 1 GLR page 15, wherein this aspects has been exhaustively dealt with in paras 9, 9.1, 9.2, 10, 10.1 and 11. This was a case wherein the Investigating Officer did not hold the test identification parade of the accused. In order to maintain the continuity of the suggestions, relevant paras from the said judgment are usefully reproduced as under:

“9.1 In context of the point under consideration at this juncture it would be useful to refer to the relevant provisions contained in Vol. HI of the Gujarat Police Manual, 1975, wherein in a chapter on “Detailed Procedure regarding Investigation”, provisions are incorporated in Rule 137 to Rule 239 setting out exhaustive guidelines as to how methodically and correctly the investigation of a crime is to be carried out by the Investigating Officer. Any Police Officer ignorant of any of the guidelines cannot be called an Investigating Officer who can ever be entrusted with the investigation and detention of the crime save and except at the cost of peril of public and fair name of the police. The relevant Rule 181 enlisting instructions as to how the test identification parade is to be held and carried out, reads as under:

Rule - 181 Holding of Identification Parade:

(1)(a) Object of the identification parade of accused persons is to test the varacity of eye witnesses when they have a genuine claim to have seen the culprit and to assure reliability of the witnesses who pass the test.

(b) The statement made before Police Officers by witnesses, at the time of identification parades are statements to the police and as such are not by Section 162, Criminal Procedure Code. In view of this, it is necessary that identification parades are not conducted in the presence of Police Officers and as such identification parades are held in the presence of the police are inadmissible in the Courts. The Police Officers concerned should obtain the help of Executive Magistrates to hold Identification Parades. When the presence of Executive Magistrate is not readily available, the only alternative is to hold the parade by the panch witnesses.

(c) The Police Officers should arrange for the identification parade in all cases in which the identity of the accused could not otherwise be established beyond doubt.

(d) The identification proceedings being in the nature of tests, no provision for holding them is to be found in the Code or even in the Indian Evidence Act. Proceedings are record of facts which establish the identity of any thing or person and which may be relevant under Section 9, Indian Evidence Act.

(e) The identification test is usually adpoted during the investigation of crime by the police when the witnesses are interrogated and state that they had seen some persons committing the crime, but do not know their names and would be able to identify them.

(f) The identification parade is held during investigation only, only at the instance of investigation agency, to satisfy itself whether the particular suspect participated in the crime or not by putting him up before the witnesses who claim to have been present at the time the crime was committed.

(g) Since the human memory is at to get dulled with the passage of time, it is desirable both in the interests of the honest witness and of the suspect himself that the latter be pul up for identification without delay. Test identification parade should be arranged early at any rate before the accused goes on bail. In fact, courts ought to refuse bail if an identification parade is going to be and ought to be held. So, not only the test identification parade has to be arranged at the earliest possible opportunity, but bail will have to be opposed strenuously until the test identification parade is finished.

(h) Piece meal identification parades are deprecated, at the same time delays mar its sanctity.

(i) The Police should continue the investigation and collect evidence even though the accused are identified in identification parades.

Procedure for Identification Parade:

(2)(a) Before the identification parade:

(i) The accused or suspect at the time of his arrest to be told that he is to be put on test identification parade.

(ii) The investigating officer should screen the lock-up in which the suspect is kept before sending to jail.

(b) At the time of parade and after:

(i) The number of persons to be mixed should not be too few or too many. It is better to have separate parades for not more than two at 1 time. However, it is advisable to mix up the accused or suspect with other person in the proportion of 1 to 9 and for every additional accused or suspect the number of persons to be mixed should be increased by 5.

(ii) Police Officers should completely obliterate themselves after arranging the parade.

(iii) Witnesses to be kept away at a distance and called one by one.

(iv) After identification witnesses should not be allowed to mix with other witnesses who are still to be forwarded.

(v) Any objection by the accused or suspect for the presence of any person at the parade should be given proper consideration.

(vi) In cases where an accused or suspect whose identification is necessary is lying in hospital, the identifying witnesses should be kept out of sight of the Ward in which he is lying and the accused or suspect should be shown to the panchas and given the option of having his col changed if he so desires. The Panchnama should show whether this was done or not and should also show how many patients and cots are there in the Ward, with their numbers. Identifying witnesses should then be called and the procedure outlined above should be followed.

(viii) The attendance of witnesses at the Identification Parade is the sole responsibility of the investigating officer.”

“9.2 Having seen appreciated the aforesaid illuminating lucid guidelines, the question that arises is as to how and why the same was not followed by the investigating officer. To utter shock and surprise who supervises all these? Where is that live, responsible people oriented and accountable administration? Whatever be the reason, but fact remains that with such a callous investigation to except the maintenance of law and order in a society is just hoping against the hope…. Thus, it is very clear that but for the inefficient investigation in establishing the identity of the accused and lack of supervision and control by senior officer, to that extent, the prosecution would not have failed. Thus, of on the score of the identity alone, if the accused is acquitted, then is it not the investigating agency which can be blamed/accused of indirectly saving the accused?”

“10. It is sad to find the accused going unpunished on account of such sheer carelessness of the investigating agency in not holding the test identification a parade. If such carelessness is not attended to promptly and taken appropriate care the same can as well mar far more serious offences like murder, decoity, etc. The very foundation of justice in criminal cases is an honest, intelligent and efficient investigation. Having regard to the principles of criminal jurisprudence and the doctrine of benefit of doubt thereunder to which our judicial system is wedded to, a slight lapse here or there either by the investigating agency in conducting the investigation or by some witness in giving evidence before the Court, can result into the accused getting off of the prosecution hook.”

“10.1 The experience show that such lapses on the part of the investigating agencies though often criticised with a view to see that they are corrected in time and do not get repeated in future to the disadvantage of the prosecution itself or or be more precise to the disadvantage of the society, there is no desired improvement in the same. Comments are made not for the sake of commenting but are made with a view to see that the method of investigation is corrected and improves further and further. This Court has not even a slightest of doubt that higher officers in this regard must be taking some steps against the erring investigating agencies reprimanding them to improve their qualities of investigation. Yet, unfortunately, this do not appear to be enough to have solved the problem to the extent which is generally expected to be. True, it is not possible to control the witness deposing in a particular manner before the Court, however, so far as the investigating agency is concerned, it can certainly be well informed, educated and if needed reprimanded and thereby corrected and controlled in conducting the investigation if it is so seriously willed, planned and perused. It is not at all difficult to weed out certain recurring prototype investigational lapses like (i) not holding of the test identification parade; (ii) if held, not holding it as promptly and in copy book fashion as directed in the Police Manual, etc. (iii) improper selection of panchas; (iv) not taking proper care in sealing muddamal articles; and in immediately not forwarding the same for analysis; (v) investigating officers not appearing before the Court in some cases to give evidence; (vi) delay and/or not serving the court's process in certain cases; (vii) not following the express guidelines provided in the Gujarat Police Manual in the matter of conducting investigation, etc. If the Courts of law and the top police authorities in charge of law and order affairs of the State jointly resolve to compliment each other's efforts by constructive, continuous and positive inter action in this direction.”

10.4 The Executive Magistrate and the test identification parade: Now tracing back the little history of the procedure and duties to be followed and discharged by the Executive Magistrates in the matter of test identification parade, it appeal's that the practice of taking their help in the process of conducting the test identification parade started in Greater Bombay with the issuance of the Circular on CPM-MAG-20/1955, dated 5-8-1955, pursuant to the judgment of the Supreme Court in the case of 1. Ramkishan Mithanlal Sharma v. (Original Accused 4), reported in AIR 1955, S.C 104. In the said decision, it was held by the Supreme Court that the statement before the Police Officers by identifying witnesses at the time of identification parade would be hit by Section 162 of the Criminal Procedure Code, since these were the Statements made to the police in the course of an investigation. It was also observed that the evidence of such statements having been made by the identifying witnesses could not be given even by panch witnesses unless the police had completely withdrawn themselves from the identification parade. As a result of this decision, it became necessary to arrange the identification parade not conducted by or in the presence of the Police Officers so that evidentiary value of the important statement made by the identifying witnesses at the time of the parade may be preserved and could be rendered admissible in the trial. The Government accordingly, after carefully considering this matter, directed by the aforesaid circular that, as a practical course, the police should take the help of the honorary Magistrates in Greater Bombay for holding the test identification parade. It was under these circumstance that the Executive Magistrates started figuring-in while holding the test identification parade. Now pursuant to the same, further by the aforesaid Circular, certain procedure was laid down indicating as to how and in what manner the Presidency Magistrates were to conduct the said test identification parade. For the benefit of all in such matters, the relevant procedure indicated in the said circular is reproduced as under:

CIRCULAR

No. CPM/MAG-20 of 1955

CHIEF PRESIDENCY MAGISTRATES OFFICE,

Esplanade, Bombay.

5th August, 1955.

Subject: Identification Parades, Holding of—

EXPLANATORY

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II. PROCEDURE

1. An Honorary Presidency Magistrate, if called upon for this purpose, should Remember that he is the person who conducts the parade; i.e, he himself will not be a panch witness, but will be in full and sole charge of entire proceedings.

2. The Honorary Presidency Magistrate should first acquaint himself very briefly with the facts of the case, and find out who is to be put in the parade for identification and who are the witnesses to be called up for identification.

3. Two independent panch witnesses (not being persons connected with the police) should be first called up. The police themselves will have normally arranged to call up the panchas; but the Honorary Presidency Magistrate will question them and satisfy himself that they are independent panch witnesses and are fairly intelligent persons. In order that they may follow the proceedings Magistrate should acquaint them briefly with the facts of the case and as to who is sought to be identified and who are to come for identification.

4. The parade should then be arranged in a room or a place which is such that the identifying witnesses as well as the persons connected with the police should not be able to look into it.

5. If there is only one accused person to be identified, there should be at least half a dozen-persons placed in the parade. If two accused persons are to be identified, then there should be about 10 or 12 persons in the parade and so on. Normally, the police themselves will have called up the persons to be put in the parade but the Honorary Presidency Magistrate should see that they are persons of more or less the same physical appearance and approximately of the same age as the person to be identified.

6. No person other than the persons in the parade and the panchas should be allowed to remain in the room where the identification proceedings are being held. In particular, the Police Officers and Constables should be asked to withdraw themselves completely from the room. There is no objection to any of them remaining, outside the room or otherwise at hand ready to be called up in case the accused creates trouble or in case of emergency. They should however not be visible from the room or the place where the parade is being held.

7. After the parade is arranged, one of the panchas should be sent to bring the accused from the lock-up. Care should be taken to see that when the accused is being brought from the lock-up, the identifying witnesses do not have an opprotunity of seeing him. They should be kept in a quite different room, out of sight of the lock-up.

8. At this stage, the Honorary Presidency Magistrate should commence to write the panchnama. It should include—

(a) the place at which and the date on which the parade is being held and the time at which it was commenced;

(b) the names, ages, occupations, and the full addresses of the panchas;

(c) the names and the approximate ages of the persons standing in the parade, mentioning clearly one below the other, in numercial 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 panchas were allowed to remain in the room and that all Police Officers and constables were asked to withdraw; and

(e) that panch so and so fetched the accused from the lock-up and that the identifying witnesses were in a different room so that they cannot see him being brought from the lock-up to the identification room.

9. When the accused is brought, the Honorary Presidency Magistrate should ask him to take whatever place he liked in the parade. The place which he selects should be noticed in the panchnama. For example, he may elect to stand between numbers 3 and 4 in the parade and it should then be noted that he took his position between Nos. 3 and 4 in the parade. The original numbering of the persons in the parade should not be altered simply because the accused has now joined in.’

10. The accused should then be asked if he wants to make any alternation in his dress. He may change his cap or coat; or he may decide to put on (or remove) a cap or coat. He should be allowed to do so this and that fact should be noted in the panchnama. If he does not wish to change his dress, then that fact too should be noted in the panchnama.

11. Then one of the panchas be asked to fetch the first identifying witness from the room in which he may be sitting. When the witness arrives, the Honorary Presidency Magistrate should ask him to view the parade carefully and see whether he would be able to identify the person who for instance stabbed him or whom he saw firing a shot from a revolver or whom he saw inside the flat in which a burgalary may have taken place or as the case may be. The identifying witness will then go up and look closely at the parade. If he identifies any person, he should be asked to go forward and touch that person and not merely to point him out from a distance. This is necessary in order that the identifying witness identifies the accused, should be noted in the panchnama (alongwith the name of that accused) and of course also if he failed to identify him or identified a wrong person. It should further be noted whether the witness identified the accused straightway, or after some hesitation or after first pointing out a wrong person and then correcting himself and pointing out the accused. When this is over, the identifying witness should be asked to go away into a different room and not to contact the remaining identifying witnesses. He may even be asked to go away.

12. After he leaves the room the accused should be asked once again, whether he desires to change his place in the parade. K he changes his place, it should be noted in the panchnama and also if he declines to do so. He should also be asked again if he wants to change his dress and if he does so, or if he declines to do so, that fact should also be noted in the Panchnama.

13. Then one of the panchas should be asked to fetch the second identifying witness. In regard to the identification by him also the same procedure should be gone through as in the case of the first identifying witness the panchnama being also written up side by side.

14. This procedure should be followed for each subsequent identifying witness.

15. After all the identifying witnesses have thus been exhausted one after the other the panchnama should be wound up by stating the time at which it was concluded. Then the panchnama should be read over and explained to the panchas in a language which they understand. If the panchas know English well, then they should be asked, in addition, to read over the panchnama for themselves.

16. After the panchas declare that they have found the panchnama to be correct, an endorsement should be made by the Honorary Presidency Magistrate that the same was read over and explained to the panchas (in Hindi or Marathi, or as the case may be) and that it was found by them to be correct.

17. Then the signatures of the panchas should be taken on a each sheet of the panchnama as also at the foot of the panchnama.

18. The Honorary Presidency Magistrate himself should also sign every sheet and also in the left-hand bottom corner at the foot of the panchnama, below an endorsement that the parade was held by him and that the panchnama was written out by him. He should put his designation and the date.

19. All corrections and interlinalions in the panchnama should be initialled by both the panchas as well as by the Honorary Presidency Magistrate.

20. The panchnama should be handed over to the Police Officer concerned.

21. Care should be taken to see that at no stage of the proceedings any Police Officer or any Police Constable comes into the room in which the parade is being held. The police should not be allowed to interfere with the proceedings which are entirely to be conducted by the Honorary Presidency Magistrate. It will be advisable to note in the panchnama itself and before the panchas have signed it that no Police Officer or constable was present at any time during the entire proceedings of the identification parade.

22. The most important part of the panchnama will be the statement made by the identifying witnesses. These should be very carefully recorded alongwith the questions asked to the identifying witnesses. (This recording need not be in the question and answer form). For example, an identifying witness may point out the accused and may add that it was not the accused who actually fired, but that the accused was standing by the side of the man who had fired the shot. In that case, whatever the identifying witness states should be carefully noted as far as possible in his words (translated into English).

23. If more than one accused are placed in a parade, then in the panchnama they should not be referred to “Accused No. 1”, “Accused No. 2” etc. but they should be referred to by their full names.

24. The panchnama should be written out in English since that is at present the language of the Courts in Greater Bombay.

25. At the hearing of the case, the Honorary Presidency Magistrate who held the parade and wrote out the panchnama may be called upon to give evidence in that case he should state exactly what happened. He has a right to refresh his memory by referring to the panchnama which he had himself prepared.

26. For the guidance of the Honorary Presidency Magistrate a modal form is attached to this Circular.

27. The Honorary Presidency Magistrates are requested to consult the Chief Presidency Magistrate on any matter of doubt or difficulty in regard to the holding of identification parade.

Now on carefully examining the aforesaid procedure, it appeal's that one of the most important aspect which needed to be taken an utmost care and which unfortunately has been lost sight of has been enlisted in the said procedure is the time factor of holding the test identification parade whithout losing any time whatsoever. Under the circumstances, we feel that over and above the procedure laid down in the above circular to Executive Magistrates invested with the powers of holding test identification parade need to be further impressed that the underlying spirit and object of the urgency and importance of the time factor and its consequential adverse effects of the belated test identification parade on the result of the prosecution as well as the liberty of the innocent citizen. This has to be done so that the blunder that has occurred in the present case may not occur in similar cases in furture. Accordingly, we feel that it would not be out of place if it is recommended to the State Government to just add one more direction in the above circular impressing upon the concerned Executive Magistrates of the said urgency and importance of the time factor in holding expeditious test identification parade.

16. Now the above discussion regarding the copy-book investigation in the matter of test identification parade has one unavoidable condition-precedent to be fulfilled, viz. the availability of some bare minimum material in the statements of the prosecution witnesses disclosing some description about the physiognomy of the suspect accused as regards his height, structure, shape of the face, nose, eyes, ears, forehead complexion of the skin, voice, clothes and/or any other distinct features by way of any marks of injury, etc. etc. if any. This as stated above, is indeed unavoidably must before the police can embark upon arresting the suspect accused. There must be at least some bare minimum description about the accused on the basis of which the police can honestly and reasonably trace, spot verify and conform the identity of the alleged unidentified suspect accused for the purpose of being shown to the concerned eye witness at the time of the test identification parade. Now it can as well happen that in a given case some times some rustic illiterate village witness who though had an enough opportunity of seeing the incident and the accused previously unknown to him sometimes not realizing the importance of giving detailed description of the physical appearance of the alleged unidentified suspect accused, or because of some threats, fear, certain unknown embarrassments or confusion, etc., he may not disclose the said identity and particulars to the Police Officer. Under such circumstances, it ought to be the top-most anxiety and the duty of the concerned Police Officer recording the statement of such witnesses to see to it that proper information regarding the identity of the suspect accused are tactfully elicited from such witnesses by winning their confidence and putting certain special questions to him digging out the desired material, on the basis of which the said suspect accused can be reasonably spotted out and arrested by the police ultimately for the purpose of holding the test identification parade. This particular aspect also very much requires to be brought to the notice of some inexperienced Investigating Officer investigating such cases and, therefore, desired attention needs to be drawn of the concenaed by the State Government.

17. The aforesaid discussion clearly highlights and enlightens us regarding the lapses and remissness on the part of some of the Investigating Officer and the Executive Magistrates costing in given cases either costly failure of the prosecution or loss of the priceless, liberty of some innocent citizen as work as some Ways and means to be counter and straighten up the same. It is earnestly hoped that in overall public interest and/or in the interest of justice (both terms are synonymous) that the State Government will lake a fresh look at the problem involved and accordingly evolve some effective measures at the earliest to counteract the case of lapses and dereliction of duties in the matter of test identification parade with a view to make the investigation more justice oriented. This will indeed ensure the fair trial both to the prosecution and the accused. One of such effective measures which the State Government can certainly implement is that — that on the basis of some legal expertise assistance based on certain leading decisions of the High Courts and the Supreme Court on the point to test identification parade, some sort of compulsory ‘Refresher Course’ is prepared for the purpose of effectively guiding some inexperienced Investigating Officers and Executive Magistrates in further investigation of the case. This will thoroughly train, equip and prepare the said Investigating Officers and Executive Magistrates in the matter of how to conduct the copy-book test identification parade. This ‘Refresher Course’ in black and white circulars or the manual of direction can as well as be futher translated into preparing video cassettes instructions demonstrating how and in what best possible maimer the test identification parade can be conducted by the Investigating Officers and the Executive Magistrates. This indeed will greatly facilitate the concerned Investigating Officer and the Executive Magistrates to better understand and efficiently apply themselves to the aforesaid ‘Refresher Course’. Over and above this, some sort of ‘Personal Accountability’ is also required to be fastened upon the erring Investigating Officers as well as the Executive Magistrates and the Officers supervising them by the State Government in order to see that the circulars issued by the Government in such matters do not remain merely lifeless cold prints on papers, but the same are effectively implemented for the purposes for which they are meant. In this regard, it shall also be the duty of every Criminal Courts coming across the lapses or remissness in the matter of test identification parade and other investigation exhibited by any Investigating Officer or Executive Magistrate to immediately report to the concerned D.S.P, D.G.P, as well as the Home Department without fail.

18. Order accordingly.