1. A simple but important and interesting question of law has come up for consideration in this Criminal Revision Petition. That is regarding the scope and ambit of an inquiry under S.202(1) of the Criminal Procedure Code with particular reference to the powers of the magistrate to conduct a test identification parade as part of such an inquiry.

2. One P.V. Prakasan, a little boy aged 11 years, son of one Lakshmi aged 45, was working as domestic servant at the residence of one Radha, employed as a Nurse in the Government Hospital, Tellicherry. On 25-4-1985 a necklace belonging to Radha was found missing and she suspected Prakasan. He was taken to the Tellicherry Police Station and the matter was reported by her. She went back leaving the boy to the mercy of the police. After sometime she found the necklace in the house itself. She went back to the police station and conveyed the information. The boy was released to her custody and she took him back to her house.

3. The complaint is that while in the police station the boy was cruelly manhandled by four police constables. The boy does not know the names and other details of the assailants. He could identify only one of them by name Chandran. This identification itself is because he heard one of them being called Chandran by others. He gave some identification marks of the assailants and said he could identify them by sight.

4. Next morning his mother Lakshmi heard about the incident. She went to Radha. Her son was found injured and naturally he told his mother what happened. She took him to the Judicial First Class Magistrate II, Tellicherry and a complaint was given. The Magistrate took cognizance of the offence. Sworn statement of the boy was recorded. On behalf of the complainant a petition was filed requesting that a test identification parade may be conducted so that the boy before his memory fades, may be able to identify the assailants. The learned Magistrate allowed this petition and has written to the Chief Judicial Magistrate also. The Chief Judicial Magistrate seems to have ratified the action. After ascertaining the details of the police officers who were on duty in the station on that particular day the Magistrate directed 15 police officers including the present petitioner to appear for a test identification parade to be conducted at 11.30 a.m. on 20-5-1985. The boy was also given intimation accordingly.

5. The petitioner is one of the persons to whom notice was issued by the Magistrate directing appearance along with others for the proposed test identification parade. He successfully avoided notice and approached this Court seeking its inherent jurisdiction to quash the order and consequent proceedings. Contention is that a test identification parade is the province of investigation by the police and in an inquiry under S.202(1) of the Code the magistrate has no authority to adopt such a course.

6. Lakshmi, mother of the boy, entered appearance through counsel and filed a counter affidavit stating that if an identification parade is not conducted without delay there is the possibility of evidence being lost since the memory of the boy is likely to fade by lapse of time.

7. I requested the Director of Public Prosecutor as well as Sri M.B. Kurup, a senior lawyer of this Court, to argue the matter since in my opinion it involved a question of importance, the decision of which may have its impact in other identical cases likely to arise in future. Both of them as well as the counsel for the petitioner and Lakshmi assisted me ably and I wish to place on record my appreciation.

8. The argument of the petitioner was that if the magistrate thought that a test identification parade is necessary, he ought to have ordered an investigation. Instead what the Magistrate has done was to take cognizance of the case and proceed to conduct an enquiry as envisaged in S.202(1) of the Criminal Procedure Code. Even without conducting an enquiry the Magistrate could have complied with th