JUDGMENT H.P. Asthana, J. - Shakoor and Jais Muhammad have been convicted u/s 396 I.P.C. by the Sessions Judge of Basti and have been sentenced to ten years' rigorous imprisonment each. They have appealed against their conviction and sentence. 2. It appears that on the night between the 24th and 25th March, 1952 a dacoity was committed by 25 or 30 men at the house of one Bhagelu in village Ahirauli P.S. Lotan in the district of Basti, and that one Mohsil younger brother of Bhagelu, was killed in this dacoity. The report of this dacoity was made at P.S. Lotan which is three miles from the place of occurrence on 25th Marcb, 1952 at about 8 A.M. in the morning. It was mentioned in the report that in all 25 or 30 dacoits who were armed with lathis, spears and electric torches entered the house by getting over the tiled roof and after entering the house, best the complainant's wife, the wives of his two younger brothers, Tahsil and Mohsil, and also the daughter of Mohsil, and snatched the ornaments from their persons and also looted utensils, grain and clothes inside the house and that Mohsil was sleeping on a cot in the Ghari and the dacoits inflicted injuries on him with a spear as a result of which he died. Ten of the dacoits are named in this report and the present Appellants are among them. As a result of the investigation seven persons including the two Appellants were sent up for trial. They were both named by Bhagelu Shamsullah and some other witnesses. Besides this evidence there was further evidence of recovery of a Batu'a and a pair of shoes from the house of Jais Muhammad at the time of its search. These articles were put up for identification and were correctly identified to be the looted property. 3. Both the Appellants denied that they had committed dacoity and pleaded that they had been falsely implicated on account of enmity with one Lalcy, who is the Samdhi of P.W. Bhagelu. Jais Muhammad in his statement also stated that Batula and the shoes were recovered from his house and that the Batula belonged to him and the shoes to his brother. 4. Jais Muhammad in his statement also stated that Batula and the shoes were recovered from his house and that the Batula belonged to him and the shoes to his brother. 4. The learned Sessions Judge after a consideration of the evidence on the record found that the offence u/s 396 I.P.C. was proved against the Appellants Shakoor and Jais Muhammad. He, therefore, convicted and sentenced them as stated above. He was, however, not satisfied that against the other accused the offence u/s 396 or u/s 412 I.P.C. had been established and consequently acquitted them. 5. It was not seriously disputed before me that a dacoity was committed at the house of Bhagelu on the night in question. It was contended that there was no satisfactory evidence that the Appellants were among the persons who had . committed this dacoity. 6. I shall first take up the case of the accused Jais Muhammad. This accused is a resident of village Sonpipti. The dacoity was committed in village Ahirawal. The evidence against this Appellant is of Bhagelu, Shamsullah Sardar and Kodai. Bhagelu and Shamsullah are brothers, being the sons of one Ujiyar. They both live together in the same house. Sardar is also a resident of the same village in which the dacoity was committed. The evidence of Kodai was not accepted by the learned Sessions Judge and so it is not necessary to consider it. It appears from the evidence of Bhagelu, Shamsullah and -Sardar that they saw the faces of the dacoits in the light of the electric torches and also burining hut and on account of this fact they were able to recognise the two Appellants who were known to them from before besides eight other persons mentioned in the report. It is therefore necessary to determine whether these three witnesses really knew Jais Mohd. from before and whether they had an opportunity of seeing his face and recognising him during the dacoity. Jais Muhammad stated that these witnesses did hot know him. It is therefore necessary to determine whether these three witnesses really knew Jais Mohd. from before and whether they had an opportunity of seeing his face and recognising him during the dacoity. Jais Muhammad stated that these witnesses did hot know him. It appears from a perusal of the record that an application was made on behalf of the two Appellants and several other accused that they were not known to the prosecution witnesses and that they might be put up for identification so as to test the veracity of the statements of the prosecution witnesses who alleged that they knew them and had, therefore, recognised them in the dacoity. This application was made on 2nd August 1952. The learned Magistrate before whom this application was made called for a report from the Prosecuting Inspector. He submitted his report on the same day. It may be mentioned here that the case was nor ready for hearing on 2nd August 1952 when the application was made as several accused were absconding and one of the accused was lodged in the Gorakhpur Jail and had not turned up. The learned Magistrate therefore separated the case of those accused who were absconding and fixed 11th August 1952 for the hearing of the case and it was for the first time on 11th August 1952 that the prosecution witnesses were summoned for 27th August 1952 and on that date the evidence of some of them was recorded. The report of the Prosecuting Inspector that the application had been made in order to delay the inquiry does not appear to be correct. There could be no doubt that if the learned Magistrate had allowed the application and had ordered the identification proceedings of the accused it would not have in any way delayed the hearing of the case. As already stated above, the application was made on 2nd August 1952 and the witnesses were summoned in the case for the first time for 27th August 1952. During this period the identification proceedings could have been easily held. They could have been held even before 11th August 1952. The attitude of the Prosecuting Inspector in opposing the application on behalf of the accused for their identification indicated that the prosecution itself was doubtful if the witnesses who had men loned the names of the accused persons would be able to identify them in jail. They could have been held even before 11th August 1952. The attitude of the Prosecuting Inspector in opposing the application on behalf of the accused for their identification indicated that the prosecution itself was doubtful if the witnesses who had men loned the names of the accused persons would be able to identify them in jail. I do not consider that any harm would have been done to the prosecution if the identification proceedings were held in jail as (sic) by the accused persons. If the prosecution witnesses knew the accused persons by name there would have been no difficulty at all for them in identifying those accused persons and that would have added strength to their case. It would also have satisfied the desire of the accused. In case the accused named would have been identified correctly by the witnesses who had named them it would not have been open to those accused to say that they were known to those witnesses because they themselves had requested for an identification alleging that they were not known to the witnesses who had named them. 7. It was argued on behalf of the State that the accused who had been named had no right to insist on identification proceedings as this was the exclusive right of the prosecution and if the prosecution did not want that the accused should be put up for identification it could not be compelled to bold the identification proceedings of such accused persons. In support of this contention reliance was placed on a single Judge decision of this Court reported in State v. Ghulam Muhiudnin 1951 A.L.J. 437. In support of this contention reliance was placed on a single Judge decision of this Court reported in State v. Ghulam Muhiudnin 1951 A.L.J. 437. It was held in this case that there was no provision in law under which an accused could ask the court or the court could direct the prosecution to first arrange for an identification parade before recording evidence of the prosecution witnesses and when at the commencement of, or during the course of, the trial, the accused informed the court that the prosecution witnesses had never seen him committing the crime and he was not even known to them, the court could, in its discretion, satisfy itself by asking the accused to stand among other persons present in court and then call upon the witnesses, who appear before the court, to identify the accused and make a note of the result on the record, but the accused had no right which he could claim or exercise at any stage of the trial. It was further held that the accused's right to cross examine and challenge the veracity of the witnesses in the manner provided by law, and further to contend that no reliance should be placed upon the witnesses, who were not 'called upon to identify him at proper time remains unaffected. It was also held that the main object of holding an identification parade, during investigation stage, was to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether ail or any of them could be cited as eye witnesses, of the crime, and that the identification parades were held in order to satisfy the investigating officer of the bona fides of the prosecution witnesses. 8. This decision at the most lays down that an accused person who has been named by the prosecution witnesses his got no right to claim his identification proceedings on the ground that the witnesses who had named him did not know him. There is nothing in the Code of Criminal Procedure which lays down that the prosecution alone has got an exclusive right to hold the identification proceedings, and that the accused has got no fight to apply for the same. There is nothing in the Code of Criminal Procedure which lays down that the prosecution alone has got an exclusive right to hold the identification proceedings, and that the accused has got no fight to apply for the same. Identification proceedings are held by the prosecution in order to verify the claim made by the prosecution witnesses that they can identify the accused in other words, to test the veracity of their statements. I fail to understand why the accused cannot claim identification proceedings if he says that the prosecution witnesses who have named him do not know him at ail and will not be able to identify him. This is one of the surest methods in which he can satisfy the court that the prosecution witnesses who alleged that they knew him and named him did not actually know him and therefore their statement was not correct. It also cannot be denied that after the case has already begun and the accused have appeared in court their identifications will be of no avail. If an identification proceeding is to be held it is to be held before he has appeared in court and the prosecution witnesses who named him had an opportunity of seeing him. Even if an accused person has got no right to claim identification he his certainly got a right to make a request to the court that his identification proceedings may be held and there is nothing in the Code of Criminal Procedure which deprives the courts of its power to order the identification proceedings of the accused if it thinks that it is necessary in the interest of justice to do so. The prosecution has no doubt a right to hold the identification proceeding of an accused person and when it is claimed by the accused himself the prosecution should not fight shy of it but should give its consent, if not for any other reason, merely to satisfy the demand of the accused, particularly when it is not going to harm them in any manner. The mere fact that the prosecution is unwilling to accede to the request of the accused and to hold the identification proceedings when there is ample time for doing so shows that the prosecution is itself doubtful that the witnesses will be able to identify the accused in the identification proceedings. 9. The mere fact that the prosecution is unwilling to accede to the request of the accused and to hold the identification proceedings when there is ample time for doing so shows that the prosecution is itself doubtful that the witnesses will be able to identify the accused in the identification proceedings. 9. In this connection I may refer to the case of AIR 1945 48 (Lahore) . In this case one Sajjan Singh was prosecuted for murder. He was named by several prosecution witnesses. His case was that none of the prosecution witnesses who had named him knew him. Before being sent up for trial he applied to the Magistrate to have the veracity of these witnesses tested by means of an identification parade. The application was sent first to police for report. The police reported that the statements of witnesses showed that they knew the accused from before and that the application had been made only for the purposes of delay. The learned Magistrate after a perusal of this report rejected the application. While dealing with this point their Lordships made the following observation: The application appears to have been made more than a week before the proceedings came up so that it should have been possible to arrange for a parade which would not involve any delay. The other reason given seems to be even less sound, if an accused person is already well-known to the witnesses, an identification parade would, of course, be only a waste of time. If, however, the witnesses claim to have known the accused previously, while the accused himself denies this, it is difficult to see how the claim made by the witnesses can be used as a reason for refusing to allow their claim to be put to the only practical test. Even if the denial of the accused is "false no harm is done, and the value of the evidence given by the witnesses may be increased. It is true that it is by no means uncommon for persons who have been absconding for a long time to claim an identification parade in the hope that their appearance may have changed sufficiently for them to escape recognition. Even so, this is not in itself a good ground for refusing to allow any sort of test to be carried out. Even so, this is not in itself a good ground for refusing to allow any sort of test to be carried out. It may be that the witnesses may not be able to identify a person whom they knew by sight owing to some change of appearance or even to weakness of memory, but this is only one of the facts along with many others, such as the length of time that has elapsed, which will have to be taken into consideration in determining whether the witnesses are tailing the truth or not. It has been necessary to refer to this matter at length because it seems to have become a regular practice for the police to oppose applications of this kind and for the Magistrate to reject them on some such grounds as those given above. 10. Their Lordships then referred to certain remarks of Dalip Singh, J. in Criminal Appeal No. 1227 of 1942 which were as follows: I would once again remind both Magistrates and police that they are not there merely to convict people on evidence mechanically recorded but they should take an intelligent interest in the case and endeavour to find out so far as is humanly possible what the truth of any particular case may be. 11. After discussing the evidence their Lordships allowed the appeal of Sajjan Singh and acquitted him. 12. In my opinion the refusal on the part of the prosecution and the learned Magistrate to hold the identification proceedings of the accused is a strong circumstance in favour of the accused and they can certainly take advantage of it. * * * * 13. (Their lordships after discussing the evidence gave the Appellants benefit of doubt acquitted them.)