The accused have a right to identification parade under Section 9 of the Evidence Act, and the prosecution cannot refuse to arrange for it without a valid reason.

( 1 ) THIS is an application for bail by Prakash Dhobi and Kailash Dhobi sons of Pyare said to be involved under sections 147, 148, 307,302/149 and 506, I. P. C. registered at crime No. 117 of 93 P. S. Cantt. District Varanasi.

( 2 ) THE bail in this case is desired primarily on the ground that the applicants had claimed identification and the same has not been arranged and rather denied by the prosecution.- In this behalf observations are there in the order of the Sessions Judge refusing bail to the effect that the applicants had applied for getting them identified by the prosecution witnesses but the same was refused by the police station concerned with a report that it was not needed since the accused persons were named in the First Information Report. It also appears that during the pendency of the bail application before the Sessions Judge, again accused persons had applied for getting identification proceedings conducted and again the prosecution had avoided it. It is the effect of this refusal, which has to be considered in this bail application with some general principles of law.

( 3 ) IT appears from a perusal of order dated 54-93 of the Sessions Judge that decision of this Court reported in U. P. Criminal Cases 1992 page 196 in re: Babu Singh v. State were brought to his knowledge, amongst other decision but it is strange that the public prosecutor in the face of this judicial decision, again opposed the identification and still more strange is that the Sessions Judge accepted the contention. It is in these circumstances that I consider it necessary to elaborate further the law observed in the above mentioned decision, so that it may be followed by the courts below in proper perspective. I am afraid I feel constrained to say that the learned Sessions Judge has possibly avoided to understand the basic principles of criminal jurisprudence procedure and rights of the accused with the presumption of innocence and the principles for which identification proceedings are taken.

( 4 ) IT appears that the learned Sessions Judge has followed a simple impression that the identification proceedings are conducted for the pleasure of the prosecution when the accused are not named in the First Information Report. The real purpose behind the test identification proceedings is different. When a person is not named in the First Information Report and is worked out by the police or by other agency it has to be seen whether the working out is correct or not and this can be done only at the earliest possible state by showing the person concerned to the witnesses. If this situation waits for the entire proceedings of enquiry and trial, the memory of the witnesses concerned may be lost. Further more, it has to be ascertained as to whether the person that has been worked out by the police through some other information, which are not admissible in evidence; for the limitations in the Evidence Act, it has to be tested through the identification proceedings. The identification itself is not a basic evidence in itself. The conduct of the witnesses in pointing out to the accused in parade about 10 other persons as his test as to whether he can really place him or not and this is only used as a matter of corroboration at the time of real trial when again the witness has to say that a particular individual pointed out by him in the court was present during occurrence. It is this statement in the court which is really admissible part of evidence while conduct of the witness during identification proceedings is only a corroboration to the above mentioned fact by showing that the man could be worked out even amongst 8 to 11 persons standing in the line up. If a witness identifies a person in the identification proceedings and is not later on examined in the court, the identification itself is not be read in evidence.

( 5 ) THIS conduct of pointing out to a person in a parade is relevant and that too only as a corroborate piece of evi