# HARNATH SINGH v. STATE OF MADHYA PRADESH

- **Citation:** [1969] 2 S.C.R. 289
- **Court:** Supreme Court of India
- **Decided:** 1968-09-27
- **Case number:** Criminal Appeal No. 130 of 1966
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/harnath-singh-v-state-of-madhya-pradesh-4497
- **Pages:** 8

## Headnote

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HARNATH SINGH
v.
STATE OF MADHYA PRADESH
September 27, 1968
B
[J. C. SHAH, V. RAMASWAMI, G. K. MITTER, K. S. HEGDE
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AND A. N. GROVER, JJ.)
Code of Criminal Procedure, s. 164-Test identification
parade held
by Magistrate of the Third Class-Record of such identification whether
inadmissible in evidence as contl'avening s. 164 of the Code.
The appellant who was suspected of having taken part in a dacoity
was put up 'for identification by the witnesses in a test identification
parade which was conducted by a Magistrate of the Third Class.
The
Magistrate noted in Col. 5 of the prescribed form the fact of identification by a witness, in Col. 7 he recorded further statements made by the
witness after he had purported to identify the accused. Later the appellant
was tried for the offence under s. 395 df the Indian Penal Code, and convicted.
His appeal to the High Court failed. In this Court it was urged
on behalf of the appellant that the record of the test identification parade
was inadmissible in evidence as the statements the·rein were recorded by a
Magistrate of the Third Class who was not empowered under s. 164 of
the Code of Criminal Procedure to record such statements.
HELD : A Magistrate when called uoon to conduct verification proceedings should confine his attention onlv to the steps to be taken to
ensure that the witnesses were able to identify certain pernons alleged to
have been concerned in the com.mission df the crime or to identify certain
things which were said to be the subject matter thereof. The Code of Criminal Procedure does not sanction his transgression of this limit and record~
ing dI other statements which may have a bearing in establishing the guilt
of the accused except in !!.ccordance with s. 164 of the_ Code. [296 C-D]
In the present case the Magistrate was called upon only to conduct the
identification proceedings. He was not required to record any confession
or to interrogate witnesses to elicit any other facts or call upon them to
make any statement beyond mere identification. The statements in Col. 7
would therefore be inadmissible in evidence. This would however not be
applicable to the record under Col. 5 [296 G]
A, the. High Court had not taken into consideration the statements in
Col. 7 its judgment could not be said to suffer 'from the
infirmity of
having relied on inadmissible evidence. [296 HJ
Deep Chand v. State of Rajasthan, [1962] 1 S.C.R. 662, applied.
Nazir Ahmad v. King Emperor, A.I.R. 1936 P'.C. 253 and Ramkrishan
Mithan/a/ Sharma v. State of Bombay, [1955] 1 S.C.R. 903, referred to .

## Text

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A
HARNATH SINGH
v.
STATE OF MADHYA PRADESH
September 27, 1968
B
[J. C. SHAH, V. RAMASWAMI, G. K. MITTER, K. S. HEGDE
c
D
E
F
G
H
AND A. N. GROVER, JJ.)
Code of Criminal Procedure, s. 164-Test identification
parade held
by Magistrate of the Third Class-Record of such identification whether
inadmissible in evidence as contl'avening s. 164 of the Code.
The appellant who was suspected of having taken part in a dacoity
was put up 'for identification by the witnesses in a test identification
parade which was conducted by a Magistrate of the Third Class.
The
Magistrate noted in Col. 5 of the prescribed form the fact of identification by a witness, in Col. 7 he recorded further statements made by the
witness after he had purported to identify the accused. Later the appellant
was tried for the offence under s. 395 df the Indian Penal Code, and convicted.
His appeal to the High Court failed. In this Court it was urged
on behalf of the appellant that the record of the test identification parade
was inadmissible in evidence as the statements the·rein were recorded by a
Magistrate of the Third Class who was not empowered under s. 164 of
the Code of Criminal Procedure to record such statements.
HELD : A Magistrate when called uoon to conduct verification proceedings should confine his attention onlv to the steps to be taken to
ensure that the witnesses were able to identify certain pernons alleged to
have been concerned in the com.mission df the crime or to identify certain
things which were said to be the subject matter thereof. The Code of Criminal Procedure does not sanction his transgression of this limit and record~
ing dI other statements which may have a bearing in establishing the guilt
of the accused except in !!.ccordance with s. 164 of the_ Code. [296 C-D]
In the present case the Magistrate was called upon only to conduct the
identification proceedings. He was not required to record any confession
or to interrogate witnesses to elicit any other facts or call upon them to
make any statement beyond mere identification. The statements in Col. 7
would therefore be inadmissible in evidence. This would however not be
applicable to the record under Col. 5 [296 G]
A, the. High Court had not taken into consideration the statements in
Col. 7 its judgment could not be said to suffer 'from the
infirmity of
having relied on inadmissible evidence. [296 HJ
Deep Chand v. State of Rajasthan, [1962] 1 S.C.R. 662, applied.
Nazir Ahmad v. King Emperor, A.I.R. 1936 P'.C. 253 and Ramkrishan
Mithan/a/ Sharma v. State of Bombay, [1955] 1 S.C.R. 903, referred to .
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
130 of 1966.
Appeal by special leave from the judgment and order dated
April 24, 19e5 of the Madhya Pradesh High Court, Gwalior
Bench in Criminal Appeal No. 55 of 1964.
290
SUPREME COURT REPORTS
I
R. L. Kohli, for the appellant.
I. N. Shroff, for the respondent.
( 1969] 2 S.C.R.
A
The Judgment of the Court was delivered by
~
Mitter, J.
This is an appeal by Special Leave from the
judgment and order of the Madhya Pradesh High Court, Gwalior
Bench on April 24, 1965 in Criminal Appeal No. 55 of 1964.
B
The said appeal was heard and disposed of along with two other
appeals Nos. 44 and 45 of 1964.
The appellant before us,
Harnath Singh, was the appellant in Appeal No. 55 of 1964 while
Narayan Singh and Chhotelal were the appellants in the other two
appeals.
Narayan Singh and Harnath Singh were convicted by
the Additional Sessions Judge, Morena, under s. 395 of the Indian c
Penal Code while Chhotela1 was convicted in the same trial under
s. 395 read with s. 75 of the Indian Penal Code.
The prosecution case was as follows.
There was a dacoity
at the house of one Dhudilal in village Chhota Kheda on the night
of December 10, 1962 in which the inmates of the house were
beaten and property, to wit,· Rs. 350 in currency notes, some
siiver ornaments etc., belonging to one Raghunath were taken
away by the dacoits from the said house. Ramkumar (P.W. 1)
raised an alarm which brought the neighbours on the scene and
one of the dacoits, Chhotelal, was caught on the spot and handed
over to the police. The first information report was lodged by
Dhudilal at about 9 a.m. on the following morning..
During
investigation Rs. 335 in currency notes besides some silver articles and small change were found on the person of Chhotelal.
Some articles were also produced by Narayan Singh on December
12, 1962. On the same day, on a personal search of. the appellant
Harnath Singh, four George V silver rupee coins, one Victoria
silver. rupee coin, one silver half-rupee coin and one old square
coin with vermillion on them were found and seized. On December 25, 1962 there were test identification parades of the accused
and all the appellants were identified by some of the eye witinesses
The appellant, Barnath Singh, was identified by Ramkumar
(P.W. 1), Panabai (P.W. 13) and Hari Shankar (P.W. 15).
The articles seized from the accused were also identified. ChhotelaJ
admitted his presence in the village o,n the night of the incident
and the seizure of Rs. 335 from his person but claimed them as
his own. He denied the seizure of the other articles from his
possession. Narayan Singh denied the recovery of any articles
from his house while the appellant Harnath Singh, admitted the
seizure of the five rupee coins and the square coin from his person
but claimed them as his own.
The Sessions Judge found all the accused guilty and sentenced
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them as stated.
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HARNATH v. M. P. STATE (Mitter, !.)
291
So far as the appellant Hamath Singh is concerned, the High
Court held that he had been "identified as one of the dacoits by
Ramkumar (P.W. 1), Panabai (P.W. 13) and Hari Shankar
tP.W. 15)" and they had also "identified him earlier in a test
identification parade."
Discussing the question as to whether the
evidence with regard to the test ideintification parade was admissible in view of the fact that it was conducted by a Magistrate of
the Third Class who was not empowered to record statements
under s. 164 of the Criminal Procedure Code, the High Court was
of the view that
"the test identification parade. . . . cannot be disregarded as of no value under the circumstances of the
case."
The }Iigh Court then went on to consider the evidence against
the appellant as to his being concerned in the dacoity. It relied
on the testimony of Ramkumar, P. W. 1, that the appellant was
standing near his sister, Tulsabai and had a Gajkundi and was
firing crackers. Ramkumar had also given a description of the
appellant to the police and stated in his evidence that he was able
to identify him from his facial features. Panabai, another of the
identifying witnesses, had stated that the appellant was wearing a .
black coat and was flashing a torch. The third identifying witness, Hari Shankar, could give no special reason for identifying
the appellant bu~ stated that he was standing near his aunt, Tulsabai.
All these witnesses stated that they had identified the appellant in the identification p~rade. Tulsabai did !10t identify the
appellant but had stated that the person stacriding near her had a
black CO!!t on.
The High Court held on the evidence that there
was no sufficient reason to discard the testimony of these persons
on the point of their identifying the appellant as one of the dacoits
although there were some minor discrepancies in their statements.
The High Court also found that the evidence of the witnesses was
amply corroborated from other evidence on record.
One of the circumstances which corroborated the testimony
of the witnesses, according to the High Court, was the ur;explained
possession of the appellant of some of the articles taken away by
the dacoits from the scene after the incident. In the first information report there had been specific mention of the loss of four
George V rupee coins, one Victoria rupee coin and a gilt half
rupee piece. These correspond with the recovery from the appellant along with one square coin probably of brass all bearing marks
of vermillion.
This mark was explained by Raghunath, the
claimant of the coins as having been used in the Diwali pooja.
The High Court did not accept the appellants version of his having carried them on his person because they used to be worshipped
by his father and grand-father.
The High Court held that the
292
SUPREME COURT REPORTS
[1969] 2 S.C.R
p~esi:nce of the square piece in his possession showed his complicity m the offence. According to Raghunath this coin was kept
separately from the other coins but all bore vern1illion
mark
because of their use in the pooja.
The second circumstance incrinlinating the appellant as found
by the High Court was his unexplained absence from duty in the
Chambal Canal Project from December 9, 1962.
While the
appellant admitted his absence from duty he tried to account for
it by saying that he was ill but offered no independent witness to
establish his statement. Accordingly, the High Court found itself
unable to disturb the conviction of the appellant under s. 395 and
dismissed the appeal.
Before us learned counsel for the appellant contended that the
conviction of the appellant could not stand in view of the reliance
of the High Court on the record of the test identification parade.
In our opinion, the learned Judges of the High Court did not affirm
the conviction relying merely or mainly on the said report. The
elaborate discussion on this point appears to have been prompted
by the two judgments in Appeal No. 218/1963 and Appeal No.
35/1964 of the same High Court on which reliance was placed
by counsel for the accused.
As noted a:Iready, the view of the
High Court was that the test identification parade could not be discarded as of no value in the circumstances of the case. It was
only after recording the said view that the High Court proceeded
to consider the evidence of the witnesses and . the circumstances
which corroborated their testimony.
These were only two
as
discussed above.
It appears therefore that although the High
Court did not reject the testimony of the Naib Tehsildar, Dinkar
Rao who presided at the parade, it really upheld the conviction
of the appellant on other evidence on the record.
Relying principally on the judgment of the Judicial Conmrittee
of the Privy Council in Nazir Ahmad v. King Emperor(') and to
certain observations o,f this Court in Ramkrishan Mithanlal
Sharma v. The State of Bombay(2 ) counsel
for the appellant
attacked the identification proceedings as being without jurisdiction and as such inadmissible in evidence. It was further argued
that if the High Court had rejected the said evidence, it would
not have maintained the conviction of the appellant. In order to
appreciate the foundation for this argument, it is necessary to take
a brief note of the reason for holding identification proceedings
and the scope thereof.
During the investigation of a crime the
police has to hold identification parades for the purpose of enabling witnesses to identify the properties which are the subject matter
of the offence or to identify the persons who are concerned therein.
They have thus a two-fold object : first, to satisfy the investigating
(I) A.LR. 1936 P.C. 253.
(2) [1955! I S.C.R. 903.
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HARNATH V. M. P. STATE (Mitter, J.)
293
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authorities that a certain person not previously known to the witnesses was involved in the commission of the crime or a particular
property was the subject of the crime. It is also designed to furnish evidence to corroborate the testimony which the witness concerned tenders before the court.
The process of identification
proceedings and the legal basis of (:vidence adduced thereat were
B
considered by this Court in Ramkrishan Mithanlal Sharma v. The
State of Bombay('). It was there said (at p. 920) :
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" .... it is clear that the process of identification by
the identifying witnesses involves the statement by the
identifying witnesses that the particular properties identified were the subject matter of the offence or the
persons identified were concerned in the offence. This
statement may be express or implied.
The identifier
may point out by his finger or touch the propeny or the
person identified, may either nod his head or give his
assent in ·answer to a question address to him in that
behalf or may make signs or gestures which are tantamount to saying that the particular property identified
was the subject matter of the offence or the person
identified was concerned in the offence. All these statements express or implied including the signs and gestures would amount to a communication of the fact of
identification by the identifier to another person ..... .
The distinction . . . . between the mental act of identification and the communication thereof by the identifier to another person is quite logical and such communications are tantamount to statements made by the
identifiers. . ..... The physical fact of identification has
thus no separate existence apart from
the
statement
involved in the very process of identification. . ..... "
On the above logic the Court pointed out that identifications
by a police officer would be hit by s. 162 of the Code of Criminal
Procedure.
It being hardly practicable to have identification proceedings
conducted by private citizens they are as a rule held by Magistrates at the request of the investigating police ·authorities. Usually the record of the proceedings is made on certain forms and
one such, Ex. P-1, was used in this case. This fonn contains 9
columns, the first being for the serial number, the second for the
names of the witnesses who identified the accused, the third for
names of the accused who are to be identified, the fourth for the
number ot persons who were mixed in the identification parade,
the fifth being headed "correctly identified"; the sixth reading
"wrongly identified", the seventh for "statement of the witnesses
(I) [1955] 1 S.C.R. 903.
294
SUPREME COURT REPORTS
. [1969] 2 S.C.R.
about identification", the eighth for the signature of the identifying
witnesses and the ninth and last being for remarks. The note at
the end of the form shows how the parade was conducted, where
it was held, how many persons were mixed up with the accused
in the case, what precautions were taken so that the witnesses
could not see the steps being taken for mixing the accused persons
etc.
The last sentence bf the form reads :
"From their gestures it appeared that the witnesses
had correctly identified the accused persons."
In Nazir Ahmad's case(1), the appellant was convicted mainly,
if not entirely, on the strength of a confession said to have been
made by the appellant to a Magistrate who was examined ;tt the
trial. The Magistrate however did not record
the confession
under s. 164 of the Criminal Procedure Code which provides that
a Magistrate of the class therein mentioned may record any statement or confession made to him in the course bf an investigation in the manner prescribed and after complying with the formalities therein laid down.
The Judicial Committee found that
though the Magistrate was manifestly acting under Part V of the
Criminal Procedure Code, he neither purported to follow nor in
fact followed the procedure of ss. 164 and 364 of the Code.
To
quote the words of the judgment to show absence of non-compliance with secs. Hl4 and 364 of the Criminal Procedure Code :
" .... there was no record in existence at the material time (at the time the alleged confession was made),
there was nothing to be shown or to be read to the accused, and nothing he could sign or refuse to sign."
The Magistrate gave no explanation as to why he adopted this
procedure. It was argued on behalf of the appellant that by
necessary implication in the Code of Criminal Procedure the
Magistrate must either proceed under s. 164 of the Code or not
at all. ·considering the position of the accused persons and the
position of the magistracy, the Judicial Committee observed that
it was most undesirable that Magistrates and Judges should be in
the position of witness insofar as it could be avoided. According to the Judicial Committee :
" .... it would be particularly unfortunate if Magistrate were asked at all generally to act rather as police
officers than as judicial persons; to be by reason of their
position freed from the disability that attaches to police
officers under s. 162 of the Code; and to be at the same
time freed, notwithstanding their position as Magistrates,
from any obligation to make records under s. 164.
In
the result they would indeed be relegated to the position of ordin~ry citizens as witnesses and then would be
(1) A.LR. 1936 P.C. 253.
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HARNATH V. M. P. STATE (Mitter, !.)
required to depose to matters transacted by them in
their official capacity unregulated by
any
statutory
rules of procedure or conduct whatever."
295
In the result it was held that the Code of Criminal Procedure did
not sanction any departure from the mode in which the confessions were to be dealt with by the Magistrates when made during
an investigation.
This decision of the Judicial Committee was considered by
this Court in Deep Chand v. The State of Rajasthan(') and the
above observations were adopted. In this case, one Suraj Bhan
had been abducted by certain persons and according to the prosecution case he was taken first to the house of Deep Chand and
kept blind-folded and confined in a small room for
17 days.
During this period after temporary removal of the bandage over
his eyes he was made to write letters to his father asking for
moneys to be paid for releasing him. He was thereafter removed
to the house of one Lachman.
As regards the identification of
Deep Chand's house, the High Court accepted the evidence of
Suraj Bhan that he had been able to note certain features of it
through a chink in the wall of his room. Suraj Bhan's evidence
was corroborated by the evidence of one Devi Singh, a Magistrate
who had taken Suraj Bhan along with him to the house of Deep
Chand. The .Magistrate had inspected the house and got a plan
prepared under his supervision and recorded a memorandum in
which his observations and the statements made by Suraj Bhan
were noted down. The Magistrate gave evidence at the trial describing the building of Deep Chand and proved the memorandum
prepared by him. Objection was taken by the appellant to the
verification proceedings conducted by the Magistrate on the
strength of Nazir Ahmad's case(2) and it was argued that the
High Court had gone wrong in acting upon the memorandum
prepared by the Magistrate.
It was pointed out by this Court
that the decision in Nazir Ahmad's case( 2 ) did not preclude a
Magistrate from deposing to relevant facts if no statute precluded
him from doing so either expressly or impliedly.
It was also said
that neither the evidence Act nor the code of Criminal Procedure
prohibited a Magistrate from deposing to relevant facts within
the meaning of s. 9 of the Evidence Act. Reference was made
by this Court to the observation in Amiruddin Ahmad v. Emperor(') in relation to identification proceedings that "the main concern of the Court would seem to be to ensure that evidence not
strictly admissible is not admitted." In that case, the High Court
had further observed that the verifying Magistrate should not be
permitted to speak to statements said to have been made to him
in the course of the proceedings. The High Court observed that
(I) [1962] 1 S.C.R. 662.
(2) A.LR 1936 P.C. 253.
(3)
1.L.R. 45
Calcutta 557.
296
SUPREME COURT REPORTS
[1969] 2 S.C.R.
"additional statements being statements made in the
course of an investigation, when not recorded in the
manner provided in section 164 of the Code of Criminal
Procedure ...... are inadmissible."
According to this Court, the above decision was "an authority for
the position that the evidence given by a Magistrate on the basis
of the verification proceedings conducted by l1im is relevant evidence, though he could not speak to statements made by the accused or a witness recorded by him in contravention of s. 164 of the
Code of Criminal Procedure."
Deep Chand's case(') goes to show that a Magistrate when
called upon in a case like this to conduct verification proceedings
should confine his attention only to the steps to be taken to ensure
that the witnesses 'were able to identify certain persons alleged to
have been concerned in the commission of the crime or to identify
certain things which were said to be the subject matter thereof.
The Code of Criminal Procedure does not sanction his transgression of this limit and recording of other statements which may
have a bearing in establishing the guilt of the accused except in
accordance with s. 164 of the Code.
In this case the Magistrate gave evidence to the effect that he
was a Naib Tehsildar at Sivpur on 26th December 1962 on which
date he had executed the proceedings of identification parade of
the three accused including the appellant. He also stated that he
had the power of a Third Class Magistrate.
After stating ho~
the parade was conducted he recorded statements in support of the
identification of the three accused by different persons. He also
purported to give evidence of what the witnesses had said after
identifying a particular accused. Learned counsel for the appellant contended that as he had purported to record statements made
in the course of investigation, the entire evidence of the Magistrate
including the record of the identification proceedings became inadmissible because he was a Third Class Magistrate not empowered .to proceed under s. 164 Cr.P .C.
We find ourselves unable to
accept this argument.
The Magistrate was called upon only to
conduct the identification proceedings.
He was not required to
record any confession or to interrogate witnesses to elicit any
other facts or call upon them to make any statement beyond
mere identification. The statements in column 7 would therefore
be inadmissible in evidence.
This would not however be applicable to the record under column 5.
The High Court did not
refer to the statements in column 7 at all. It would therefore be
clear. that the judgment does not suffer from the infirmity complained of and the appeal must fail.
It is therefore dismissed.
G.C.
Appeal dismissed.
(I) [1962] I S.C.R. 662.
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