Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
+91 8851742417, +91 8800386163
Above all, the prosecution has not offered any explanation as to why the Magistrate, who conducted T.I. parade was not examined to prove the report, inasmuch as many things the defence could have brought out by way of cross-examination of the Magistrate regarding the irregularities or procedural infirmities, if any, made during conduct of the T.I. parade. Recently, in the case of Umesh Chandra and others -Vrs.-State of Uttarakhand reported in MANU/SC/1412/2021 : (2021) 17 Supreme Court Cases 616, the Hon'ble Supreme Court has expressed concern about non-examination of Magistrates to prove the sanctity of T.I. parade and observed as follows:
"10. But more important than that, the test identification parade being a part of the investigation, has to be proved by the prosecution as having been held in accordance with law. The onus lies on the prosecution to establish that the T.I parade was held in accordance with law. It is only after the prosecution prima facie establishes a valid T.I parade having been held, the question of considering any objection to the same arises. If the prosecution has failed to establish that a T.I parade was properly held by examining the witnesses to the same, there is nothing for the accused to disprove. In the present case, a Magistrate is stated to have conducted the T.I parade. The Magistrate has not been examined. No explanation is forthcoming why the Magistrate was not examined."
Thus, it is undisputed that the Public Prosecutor has a duty to examine the Magistrate who conducts the T.I. parade so that the legal sanctity of the T.I. parade report can be ascertained during the trial. Non-examination of the Magistrate strikes a severe blow not only to the prosecution case but also to the cause of justice as irregularities, if any, committed in such T.I. parade cannot be canvassed and discussed by the trial Court in his absence from the witness box. In the present case, no plausible explanation has been offered as to why the Magistrate was not examined in the Court to prove the T.I. parade report. In the case in hand, the prosecution has proved the T.I. parade report through P.W.4, the informant who has stated that he had signed the T.I. parade report and accordingly, the report was marked as Ext.2 and the signature of P.W.4 was marked as Ext.2/1. Mere marking of the T.I. parade report is not enough inasmuch as the person who conducted the T.I. parade could only highlight what precautions he took, what procedure he followed during such T.I. parade. Lapses, if any, on his part during the proceedings of the T.I. parade which strikes at the root of the identification evidence, can be brought out by the defence counsel in the cross-examination. If the Magistrate is dead or his attendance could not be procured during trial for any reason, the trial Court has to specifically mention the same in the order-sheet and thereafter the prosecution can adduce cogent evidence to prove such T.I. parade report. Identification proceedings are not conducted for the pleasure of the prosecution. It has got a valuable purpose even though the identification test does not constitute substantive evidence.
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA Nos. 21 of 2012, 504 of 2012 and 719 of 2012
Decided On: 04.04.2024
Baikuntha Bhoi and Ors. Vs. State of Odisha
Hon'ble Judges/Coram:
S.K. Sahoo, J.
Citation: MANU/OR/0369/2024
