( 1 ) HEARD Shri Sunil Kumar for the applicant in revision and the learned A. G. A.

( 2 ) THIS revision is directed against the order dated 6-7-2001 passed by Addl. Sessions Judge (Court No. 11) Gorakhpur in Sessions Trial No. 107 of 1998 directing the applicant to appear in person before the Court on 12-7-2001. It appears that when PW. 5 Head Constable Shree Niwas Rai was examined in the Court below he stated that he could identify the miscreants in Court if confronted with. Since the applicant was not present in Court on that day, the learned D. G. C. moved an application before the Court to adjourn the case and to direct the applicant to be present in person so that the said witness could identify him as one of the miscreants. This application has been allowed by the impugned order.

( 3 ) APART from the fact that the order in question is an interlocutory order against which no revision lies on account of the bar created by sub-section (2) of Section 397, Cr. P. C. this Court also otherwise finds no merits therein.

( 4 ) LEARNED counsel for the applicant in revision submitted before the Court the test identification of an accused is part of investigation and if the accused was not put up for identification during investigation, he cannot be compelled to be identified for the first time in the Court by a witness. This submission of the learned counsel in the opinion of the Court is highly misconceived. It is well settled that it is the statement given in the Court which is treated as substantive evidence. In the case of R. N. Patel v. State of Gujarat, (1999) 9 JT (SC) 319, it was held by the Apex Court that it cannot be held that in the absence of test identification parade, the evidence of eye-witnesses identifying the accused for the first time during trial would become inadmissible or totally useless. Whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case. . 1999 AIR SCW 4770

( 5 ) IN view of the aforesaid decision, therefore, it cannot be said that evidence of witness identifying an accused for the first time during trial is meaningless or has no evidentiary value as observed by the Apex Court and it would depend on the facts and circumstances of each case as to what weight is to be attached to the evidence of such a witness who identifies an accused for the first time in the Court.

( 6 ) THEREFORE, in my view, the learned Sessions Judge has committed no error either on fact or in law in directing the applicant to be present in Court before the statement of P. W. 5 is concluded. Revision has no merits and is liable to be dismissed.

( 7 ) REVISION is accordingly dismissed. Revision dismissed.

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