LexHARNATH SINGH versus STATE OF MADHYA PRADESH
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. - -' - ' • • • A HARNATH SINGH v. STATE OF MADHYA PRADESH September 27, 1968 B [J. C. SHAH, V. RAMASWAMI, G. K. MITTER, K. S. HEGDE c D E F G H AND A. N. GROVER, JJ.) Code of Criminal Procedure, s. 164-Test identification parade held by Magistrate of the Third Class-Record of such identification whether inadmissible in evidence as contl'avening s. 164 of the Code. The appellant who was suspected of having taken part in a dacoity was put up 'for identification by the witnesses in a test identification parade which was conducted by a Magistrate of the Third Class. The Magistrate noted in Col. 5 of the prescribed form the fact of identifica- tion by a witness, in Col. 7 he recorded further statements made by the witness after he had purported to identify the accused. Later the appellant was tried for the offence under s. 395 df the Indian Penal Code, and con- victed. His appeal to the High Court failed. In this Court it was urged on behalf of the appellant that the record of the test identification parade was inadmissible in evidence as the statements the·rein were recorded by a Magistrate of the Third Class who was not empowered under s. 164 of the Code of Criminal Procedure to record such statements. HELD : A Magistrate when called uoon to conduct verification pro- ceedings should confine his attention onlv to the steps to be taken to ensure that the witnesses were able to identify certain pernons alleged to have been concerned in the com.mission df the crime or to identify certain things which were said to be the subject matter thereof. The Code of Crimi- nal Procedure does not sanction his transgression of this limit and record~ ing dI other statements which may have a bearing in establishing the guilt of the accused except in !!.ccordance with s. 164 of the_ Code. [296 C-D] In the present case the Magistrate was called upon only to conduct the identification proceedings. He was not required to record any confession or to interrogate witnesses to elicit any other facts or call upon them to make any statement beyond mere identification. The statements in Col. 7 would therefore be inadmissible in evidence. This would however not be applicable to the record under Col. 5 [296 G] A, the. High Court had not taken into consideration the statements in Col. 7 its judgment could not be said to suffer 'from the infirmity of having relied on inadmissible evidence. [296 HJ Deep Chand v. State of Rajasthan, [1962] 1 S.C.R. 662, applied. Nazir Ahmad v. King Emperor, A.I.R. 1936 P'.C. 253 and Ramkrishan Mithan/a/ Sharma v. State of Bombay, [1955] 1 S.C.R. 903, referred to . CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 130 of 1966. Appeal by special leave from the judgment and order dated April 24, 19e5 of the Madhya Pradesh High Court, Gwalior Bench in Criminal Appeal No. 55 of 1964. 290 SUPREME COURT REPORTS I R. L. Kohli, for the appellant. I. N. Shroff, for the respondent. ( 1969] 2 S.C.R. A The Judgment of the Court was delivered by ~ Mitter, J. This is an appeal by Special Leave from the judgment and order of the Madhya Pradesh High Court, Gwalior Bench on April 24, 1965 in Criminal Appeal No. 55 of 1964. B The said appeal was heard and disposed of along with two other appeals Nos. 44 and 45 of 1964. The appellant before us, Harnath Singh, was the appellant in Appeal No. 55 of 1964 while Narayan Singh and Chhotelal were the appellants in the other two appeals. Narayan Singh and Harnath Singh were convicted by the Additional Sessions Judge, Morena, under s. 395 of the Indian c Penal Code while Chhotela1 was convicted in the same trial under s. 395 read with s. 75 of the Indian Penal Code. The prosecution case was as follows. There was a dacoity at the house of one Dhudilal in village Chhota Kheda on the night of December 10, 1962 in which the inmates of the house were beaten and property, to wit,· Rs. 350 in currency notes, some siiver ornaments etc., belonging to one Raghunath were taken away by the dacoits from the said house. Ramkumar (P.W. 1) raised an alarm which brought the neighbours on the scene and one of the dacoits, Chhotelal, was caught on the spot and handed over to the police. The first information report was lodged by Dhudilal at about 9 a.m. on the following morning.. During investigation Rs. 335 in currency notes besides some silver arti- cles and small change were found on the person of Chhotelal. Some art
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