Test Identification Parade Not Violative Of Article 20(3) Of Constitution ; Accused Cannot Refuse To Join TIP : Supreme Court

The Supreme Court observed that the conduct of Test Identification Parade is not violative of Article 20(3) of the Constitution of India.

An accused cannot resist subjecting himself to the TIP on the ground that he cannot be forced or coerced for the same, the bench of Justices MM Sundresh and JB Pardiwala observed.

The bench made these observations on TIP while dismissing an appeal against concurrent murder conviction. One of the issues that arose in the appeal was whether an accused decline to participate in the TIP that the investigating officer may propose to hold in the course of investigation on the ground that no person accused of any offence shall be compelled to be a witness against himself?  

The court noted that Section 54A of the Code of Criminal Procedure provides for the identification of the arrested person where it is considered necessary for the purpose of investigation by the officer-incharge of a police station. The said Section empowers the court, on the request of the officer-in-charge of a police station, to direct for placing the accused at test identification parade for identification by any person or persons in such manner as the court may deem fit. Referring to his provision, the bench observed:

"We are of the view that after the introduction of Section 54A in the CrPC referred to above, an accused is under an obligation to stand for identification parade. An accused cannot resist subjecting himself to the TIP 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 38 guarantee as enshrined under Article 20(3) of the Constitution will step in to protect him. However, 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 accused while subjecting himself to the TIP does not produce any evidence or perform any evidentiary act. As explained very succinctly by the learned Judges of the Calcutta High Court as above, it may be a positive act and even a volitional act, but only to a limited extent, when the accused is brought to the place where the TIP is to be held. It is certainly not his evidentiary act. The accused concerned may have a legitimate ground to resist facing the TIP saying that the witnesses had a chance to see him either at the police station or in the Court, as the case may be, however, on such ground alone he cannot refuse to face the TIP. It is always open for the accused to raise any legal ground available to him relating to the legitimacy of the TIP or the evidentiary value of the same in the course of the trial. However, the accused cannot decline or refuse to join the TIP."

The court added that what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine.

"In a case where an accused himself refused to participate in the TIP, it is not open to him to contend that the statement of the eye witnesses 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. Such a plea is available provided the prosecution is itself responsible for not holding a TIP. However, in a case where the accused himself declines to participate in a TIP, 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"

The court dismissed the appeal and affirmed the conviction of the accused.

Mukesh Singh vs State (NCT of Delhi) - 2023 LiveLaw (SC) 703 - 2023 INSC 765

Constitution of India, 1950; Article 20(3) - Test Identification Parade - Conduct of Test Identification Parade is not violative of Article 20(3) of the Constitution of India - What is prohibited by Article 20(3) of the Constitution is procuring by compulsion of the positive volitional evidentiary acts of an accused. It is true that an accused may be said to be compelled to attend a test identification parade, but this compulsion does not involve any positive volitional evidentiary act. His mere attendance or the exhibition of his body at a test identification parade even though compelled, does not result in any evidentiary act until he is identified by some other agency. The identification of him by a witness is not his act, even though his body is exhibited for the purpose. His 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. (Para 26)

Code of Criminal Procedure, 1973 ; Section 54A - This Section is restricted to identification of persons only. So this Section has no application where the question of identification of articles arises. (Para 33)

Code of Criminal Procedure, 1973 ; Section 54A - Test Identification Parade - An accused is under an obligation to stand for identification parade. An accused cannot resist subjecting himself to the TIP 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 38 guarantee as enshrined under Article 20(3) of the Constitution will step in to protect him. However, 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 accused while subjecting himself to the TIP does not produce any evidence or perform any evidentiary act - The accused concerned may have a legitimate ground to resist facing the TIP saying that the witnesses had a chance to see him either at the police station or in the Court, as the case may be, however, on such ground alone he cannot refuse to face the TIP. It is always open for the accused to raise any legal ground available to him relating to the legitimacy of the TIP or the evidentiary value of the same in the course of the trial. However, the accused cannot decline or refuse to join the TIP. (Para 35)

Criminal Trial - Test Identification Parade - In a case where an accused himself refused to participate in the TIP, it is not open to him to contend that the statement of the eye witnesses 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. Such a plea is available provided the prosecution is itself responsible for not holding a TIP. However, in a case where the accused himself declines to participate in a TIP, 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. 

Indian Evidence Act, 1872; Section 8,27 - The conduct of an accused is relevant, if such conduct influences or influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where he had concealed the weapon of offence would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act or not. (Para 78)

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