Article 20 (3) & Test Identification Parade: The Question Of Rights And Obligations

The question came before the Court in an appeal wherein the accused had declined to participate in the Test Identification Parade on the ground that he was already shown to the witness prior to the conduct of the Test Identification Parade. The Court has observed that the under Article 20 (3) the procuring by compulsion of the positive volitional evidentiary acts of accused is prohibited. The accused may be compelled to attend the parade, but the compulsion does not provide any positive volitional evidentiary act. The compelled attendance at a Test Identification Parade is comparatively remote to the final evidence and cannot be said by itself to furnish any positive volitional evidentiary act.

Test Identification Parade is provided for under Section 54A of the Code of Criminal Procedure, 1973. The Section provides for the identification of the arrested person where it is considered necessary for the purpose of investigation. It empowers the Trial Court to direct for placing the accused at a Test Identification Parade for identification by any person or persons in such manner as the Court may deem fit. The Test Identification Parade is part of the investigation, and the investigation of a case is to be conducted by the investigating agency and part of its “statutory prerogatives”. During investigation of a crime committed by persons unknown to the witnesses, the persons arrested on the suspicion of their complicity in crime have got to be confronted by the investigating authority with the witnesses so that they can find out whether they are persons who committed the crime or not. It must be satisfied that the persons arrested by them are the persons accused of having committed the crime.

If the accused is known to the witnesses, the witnesses in ordinary course should have given their names and that would have established their identity but when they were not known, their identity could be established only if the witnesses on seeing them identify them as the offenders. The Court observed that if a witness picks out the arrested person with a mix of innocent men, then “that would add to the credibility of his statement that he was the offender. This is the primary object of identification proceeding”.

The Supreme Court in Rajesh Vs. State of Haryana (2021) 1 SCC 118 considered the purpose of conducting a TIP, the source of authority of the investigator to do so, the manner in which the proceedings should be conducted, the weight to be ascribed to identification in the course of TIP, and the circumstances in which an adverse inference can be drawn against the accused who refuses to undergo the process. The Court observed “In any event, as we have noticed, the identification in the course of a TIP is intended to lend assurance to the identity of the accused. The finding of guilt cannot be based purely on the refusal of the accused to undergo an identification parade.”

In Malkhan Singh Vs. State of Madhya Pradesh (2003) 5 SCC 746, it was observed that “As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence”. The Court further observed that “The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which belong to the stage of investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court”.

In Munna Vs. State of NCT of Delhi (2003) 10 SCC 599 it had held that “In a case where an accused himself refuses to participate in a test identification parade, it is not open to him to contend that the statement of the eyewitnesses made for the first time in court, wherein they specifically point towards him as a person who had taken part in the commission of the crime, should not be relied upon. This plea is available provided the prosecution is itself responsible for not holding a test identification parade. However, in a case where the accused himself declines to participate in a test identification parade, the prosecution has no option but to proceed in a normal manner like all other cases and rely upon the testimony of the witnesses, which is recorded in court during the course of the trial of the case.”

In State of Uttar Pradesh Vs. Rajju (AIR 1971 SC 708), the Court observed that “If the accused felt that the witness would not be able to identify them – they should have requested for an identification parade.” Therefore, it approved the right to ask for Test Identification Parade by the accused.

The Supreme Court of United States of America in John R. Manson, Commissioner of Correction of Connecticut Vs. Nowell A. Brathwaite (432 U.S. 98 (1977)) held “the opportunity of the witness to view the criminal at the time of the crime; the witness; degree of attention; the accuracy of his prior description of the criminal; the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.”

In Rex Vs. Christie^[3], with respect to test identification was observed that “its relevancy is to show that witness was able to identify at the time and to exclude the idea that the identification of the prisoner in the dock was an afterthought or a mistake.”

The provision for giving directions by the Court with regards to the manner in which the parade is to be conducted “may be viewed as treating the Court as part of the investigating agency”.

The Supreme Court has held that introduction of Section 54A of the Cr.P.C makes it obligatory on an accused to stand for identification parade and that the accused cannot resist subjecting himself to the Test Identification Parade on the ground that he cannot be forced or coerced for the same. If the coercion is sought to be imposed in getting from an accused evidence which cannot be procured save through positive volitional act on his part, the constitutional guarantee under Article 20 (3) of the Constitution will step in to protect him. The Court further held that if that evidence can be procured without any positive volitional evidentiary act on the part of the accused, Article 20 (3) of the Constitution will have no application. The Court has made it amply clear that a person accused in a criminal case is under obligation for a Test Identification Parade during an investigation under the Code of Criminal Procedure and that obligation does not violate the constitutional right of the accused person.

The author is an Advocate at Delhi High Court. Views are personal.