IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 Crl.MC.No. 4047 of 2005 ------------------------- CMP.3326/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEYYATTINKARA .................... PETITIONER: COMPLAINANT. --------------------------- R.A.ANEESH(MINOR), REPRESENTED BY HIS MOTHER ANITHA, ANEESH BHAVAN, KIZHAKKUMKARA, SATHYAN NAGAR, PAPPANAMCODE ESTATE P.O. THIRUVANANTHAPURAM. BY ADV. SRI.S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): 1 ---------------- 1. THE STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. 2. SUKUMARAN NAIR, SUB INSPECTOR OF POLICE, NEMOM, THIRUVANANTHAPURAM. 3. AZEEZ, ADDITIONAL SUB INSPECTOR OF POLICE, NEMOM. 4. JAYAKUMAR, CHAVANIVILAKOM, SATHYAN NAGAR, ESTATE P.O. PAPPANAMCODE. By PUBLIC PROSECUTOR MR.C.M. KAMMAPU RESPONDETNS 2 TO 4 ARE X DELETED FROM THE ARRAY OF RESPONDENTS AS PER ORDER DATED 17-2-2009 IN CRL.M.A. NO. 3235/2006 IN CRL.M.C. NO. 4047/2005. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03/04/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.A. NO. 14701/2005 IN CRL.M.C. NO. 4047 OF 2005THIS DISMISSED. ¾/2009 SD/-M.C. HARI RANI, JUDGE TRUE COPY P.S. TO JUDGE ks. M.C. HARI RANI, J. ====================== CRL.M.C.NO. 4047 of 2005 ======================= Dated this the 3rd day of April 2009 ORDER The petitioner herein, who is the complainant in C.M.P.No.3326/2005, was represented by his mother as the guardian, filed an application C.M.P.No.4347/2005 before the Court of Judicial First Class Magistrate-I, Neyyattinkara with the prayer to conduct test identification parade among the policemen working in Nemom police station during the period between 19-4-2005 and 25-4-2005 for the purpose of identifying the policemen who allegedly assaulted the minor petitioner from the police station. In that petition an order has been passed by the learned Magistrate on 25-6-2005, relevant portion of which reads as follows: “In the above circumstance, it is necessary to conduct a test identification parade in accordance with law to identify the suspects in accordance with law. Hence CRMC. 4047/2005 -2- the application is submitted before the Hon'ble Chief Judicial Magistrate, Thiruvananthapuram for necessary orders.” A copy of the abovesaid order is produced as Annexure-III. After receipt of that order, the learned Chief Judicial Magistrate passed O.M. dated 18-7-2005, copy of which is produced as Annexure- IV. It reads as follows: “With reference to the above, the Judicial I Class Magistrate-I, Neyyattinkara is informed that the prayer for conducting test identification parade in private complaint cannot be allowed, in view of the dictum laid down in the decision reported in (on) 1985 KLT 615 Venugopalan v.Prakasan. Hence the application filed by the complainant is returned herewith to the Magistrate. The magistrate will bring this position to the learned counsel for the complainant and after giving an opportunity for hearing the matter; if the Magistrate feels that the said dictum is not the correct preposition in the light of any other provision or ruling, he has the CRMC. 4047/2005 -3- liberty to make another request quoting the same.” That order has been challenged by the petitioner herein by filing this Crl.M.C.with the prayer to direct the court below to conduct identification parade for the purpose of ascertaining the identity of unidentified accused for the purpose of issuing process or in the contrary direct an investigation for the purpose of conducting test identification parade. 2. Pending this petition before this Court, respondents 2 to 4 herein who were already in the party array as accused 1 to 3 as mentioned by name in the complaint, copy of which is produced as Annexure-I, have been deleted from the party array as per order dated 17-2-2009 in Crl.M.A.3235/2006. The petitioner attained majority during pendency of this petition and has been declared as major as per order dated 1-4-2009 in Crl.M.A.No.1579/2009 and the learned counsel has filed memo of appearance to him. 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 4. It is submitted by the learned counsel appearing for the petitioner that Annexure-I complaint has been filed before the CRMC. 4047/2005 -4- Court of Judicial First Class Magistrate-I, Neyyattinkara against accused Nos. 1 to 3 and some other identifiable police personnel who can be identified by sight on conducting test identification parade and proceedings can be initiated against those police personnel also as the culprits and committed assault on the petitioner while he was in police custody during the period from 19-4-2005 to 25-4-2005. With that request the complainant represented by his mother has preferred C.M.P.No.4347/2005 on 10-5-2005, copy of which is produced as Annexure-II wherein the learned Magistrate has convinced that a test identification parade is necessary to identify the suspects in accordance with law, for which the learned Magistrate has sought permission from the learned Chief Judicial Magistrate as per order dated 25-6-2005, Annexure-III. The learned Chief Judicial Magistrate as per O.M.dated 18-7-2005, Annexure-IV has informed the learned Magistrate that the prayer for conducting test identification parade in private complaint cannot be allowed in view of the dictum laid down in the decision reported in Venugopalan v. Prakasan, 1984 K.L.T.615. The learned counsel has read over the relevant portions of the above said decision as follows:- CRMC. 4047/2005 -5- “S.203 was relied only to impress me that in an inquiry under S.202(1) the Magistrate is entitled only to examine the complainant and the witnesses and do nothing else. In other words, the contention was the identification of persons not named as accused in a private complaint is the province of investigation by the police alone and not part of inquiry by the Magistrate under S.202(1). For reasons to be recorded hereunder I think the petitioner's counsel is justified in his submission that the Magistrate is competent only to conduct an inquiry or trial and not to embark upon anything during inquiry under S.202(1) which may be within the province of investigation by the police because by assuming such a power he will be running the risk of acting as an investigator which he cannot do. If he assumes the role of an investigator which he cannot assume, he will be disentitling himself to conduct the inquiry or trial even though discharge of the official duty of conducting an inquiry under S.202(1) will not disqualify a Magistrate from trying the case. It was also argued that inquiry CRMC. 4047/2005 -6- under S.202(1) could only be directed to ascertain whether there are grounds against named accused in order to proceed with the complaint in an attempt to avoid harassment by proceeding with vexatious complaints and not to collect evidence to ascertain the identity or complicity of the accused”. 5. On a perusal of the dictum laid down in that case, I find that the same Magistrate, who conducted S.202 of Cr.P.C.enquiry, cannot directly conduct the test identification parade in the very same case. Section 202 of Cr.P.C. reads as follows: “202.Postponement of issue of process,-(1)Any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under section 192, may, if he thinks fit, [and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction] postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose for deciding CRMC. 4047/2005 -7- whether or not there is sufficient ground for proceeding:” 6. On a reading of Section 202(1) of Cr.P.C.it is clear that any Magistrate on receipt of a complaint of an offence of which he is authorized to take cognizance can either enquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit for the purpose for deciding whether or not there is sufficient ground for proceeding. “Sub-section 3 of Section 202 of Cr.P.C. reads as follows: (3)If an investigation under sub-section(1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant.” 7. On a reading of the abovesaid provisions of Cr.P.C.and also the dictum laid down in the decision 1985 K.L.T.615 (supra) it is evident that during enquiry under Section 202 of Cr.P.C., the Magistrate is empowered to enquire the case by himself or direct the investigation by police officer or by such other person which is to the discretion of the learned magistrate. CRMC. 4047/2005 -8- In the present case, the accused being the police personnel, no purpose will be served by directing the police officer to conduct the investigation parade which is a relevant piece of evidence. As per Section 9 of the Evidence Act, there is no prohibition to conduct a test identification parade which is within the exercise of power of the investigation of a Magistrate. 8. On a perusal of the allegations made in the complaint, Annexure-I, specific averments are there regarding the assault and overt acts committed by the police personnel while the petitioner herein was in custody. Therefore, test identification parade to be conducted is necessary to meet the ends of the justice in the present case. 9. According to the petitioner, he can identify those police personnel by sight. The incident in the present case happened in between 19-4-2005 and 25-4-2005. So to conduct test identification parade at the earliest is absolutely necessary. The delay for the same will be fatal and injustice also. Such other person as mentioned in Section 202(1) of Cr.P.C. is of the discretion of the learned Magistrate who can very well be a retired Judicial Officer or even an Advocate or such other person CRMC. 4047/2005 -9- who is competent enough to conduct the test identification parade and excluding a police officer in the present case. A direction can very well be given by the learned Magistrate to that person to conduct a test identification parade strictly in accordance with law and to file a report at the earliest positively. In the above circumstances, this petition is allowed accordingly. The learned Magistrate is directed to complete the procedures at the earliest by giving a time limit to the concerned officer to be posted for this purpose and to dispose of the case at the earliest, at any rate, within a period of six months from the date of receipt of a copy of this order. M.C. HARI RANI JUDGE ks.