..(1).. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.192 OF 2006 The State of Maharashtra. ..Applicant. Versus Gumnaram @ Ramesh Bhikaji Kumbhar @ Prajapati. ..Respondent. .... Mr.K.V.Saste, APP, for the Applicant-State. .... CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. CORAM : SMT.V.K.TAHILRAMANI,J. DATED : 11th September, 2008. DATED : 11th September, 2008. DATED : 11th September, 2008. P.C.: 1. Heard the learned APP for the Applicant-State. None appears for the respondent though served. 2. C.R.No.69 of 2004 came to be registered with V.P. Road police station on 9.3.2004. The said case was under Section 394 read with 34 of Indian Penal Code. The FIR was registered against three unknown persons. It is the prosecution case that the three unknown persons stole property i.e. diamonds worth Rs.30,000/- jewellery worth Rs.9 lakh and cash in the amount of Rs.80,000/-. Despite investigation, no accused persons could be traced hence the police preferred "A" summary stating therein that the ..(2).. offence is true but undetected. "A" summary order came to be passed. On 29.8.2005 the respondent accused came to be arrested in another case i.e. C.R.No.67 of 2005 of V.P.Road police station. The said case is mainly under Sections 395, 397 of IPC. Thereafter the respondent came to be arrested in the present case. During the course of investigation in the present case i.e. C.R.No.69 of 2004, the respondent made statement under Section 27 of the Evidence Act stating that he would produce one packet of diamonds worth Rs.30,000 which he had kept with his relative. Accordingly the respondent led the police and panchas to the house of his relative and diamonds worth Rs.30,000/- came to be seized at the instance of the respondent. Thereafter identification parade also came to be conducted. The respondent was identified in the TIP. All these facts were brought to the notice of the learned Magistrate. However, the learned Magistrate by order dated 12.12.2005 declined to issue process. Being aggrieved by the said order, this Revision has been preferred. 3. From the material on record, it is seen that the respondent has been identified in the TIP. So ..(3).. also there is recovery of diamonds worth Rs.30,000/- at his instance in the present case. The learned Magistrate declined to issue process on the ground that the place from where the diamond came to be recovered was not in the sole and exclusive possession of the accused. As far as the identification parade is concerned, the learned Magistrate has observed that it is of no legal consequence in view of the fact that on 7.9.2005 when recovery of diamond was effected at the instance of the respondent, at that time veil of the accused came to be removed so that he could be confronted with his relation. The learned Magistrate has observed that in such case, it is reasonable to expect that the accused must have been shown to other persons also. Hence, the learned Magistrate has observed that the identification parade cannot be relied upon. Moreover, the learned Magistrate observed that the identification parade should have preceded recovery. 4. There is no such rule that the identification parade has to precede recovery. It is open to the investigating agency to conduct the investigation in the manner that they think appropriate in the facts and circumstances of each case. The learned ..(4).. Magistrate has proceeded to decide the matter as if the entire evidence has been led and thereafter he arrived at conclusion that there was no material to issue process against the accused. As stated earlier, the respondent has been identified by the witnesses in the parade. So also there is recovery at his instance. In the present case there was sufficient material before the learned Magistrate to take cognizance of the offence. Hence, the order dated 12.12.2005 having clearly proceeded on erroneous grounds is set-aside. The learned Magistrate to take cognizance of the case and thereafter proceed in accordance with law. 5. Criminal Revision Application is allowed accordingly. (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.) (SMT.V.K.TAHILRAMANI,J.)