K. NARAYAN, J. ( 1 ) THIS is an application for bail by Prakash Dhobi and Kailash Dhobi sons of Pyare said to be involved under sections 147, 148, 307,302/149 and 506, I. P. C. registered at crime No. 117 of 93 P. S. Cantt. District Varanasi. ( 2 ) THE bail in this case is desired primarily on the ground that the applicants had claimed identification and the same has not been arranged and rather denied by the prosecution.- In this behalf observations are there in the order of the Sessions Judge refusing bail to the effect that the applicants had applied for getting them identified by the prosecution witnesses but the same was refused by the police station concerned with a report that it was not needed since the accused persons were named in the First Information Report. It also appears that during the pendency of the bail application before the Sessions Judge, again accused persons had applied for getting identification proceedings conducted and again the prosecution had avoided it. It is the effect of this refusal, which has to be considered in this bail application with some general principles of law. ( 3 ) IT appears from a perusal of order dated 54-93 of the Sessions Judge that decision of this Court reported in U. P. Criminal Cases 1992 page 196 in re: Babu Singh v. State were brought to his knowledge, amongst other decision but it is strange that the public prosecutor in the face of this judicial decision, again opposed the identification and still more strange is that the Sessions Judge accepted the contention. It is in these circumstances that I consider it necessary to elaborate further the law observed in the above mentioned decision, so that it may be followed by the courts below in proper perspective. I am afraid I feel constrained to say that the learned Sessions Judge has possibly avoided to understand the basic principles of criminal jurisprudence procedure and rights of the accused with the presumption of innocence and the principles for which identification proceedings are taken. ( 4 ) IT appears that the learned Sessions Judge has followed a simple impression that the identification proceedings are conducted for the pleasure of the prosecution when the accused are not named in the First Information Report. The real purpose behind the test identification proceedings is different. ( 4 ) IT appears that the learned Sessions Judge has followed a simple impression that the identification proceedings are conducted for the pleasure of the prosecution when the accused are not named in the First Information Report. The real purpose behind the test identification proceedings is different. When a person is not named in the First Information Report and is worked out by the police or by other agency it has to be seen whether the working out is correct or not and this can be done only at the earliest possible state by showing the person concerned to the witnesses. If this situation waits for the entire proceedings of enquiry and trial, the memory of the witnesses concerned may be lost. Further more, it has to be ascertained as to whether the person that has been worked out by the police through some other information, which are not admissible in evidence; for the limitations in the Evidence Act, it has to be tested through the identification proceedings. The identification itself is not a basic evidence in itself. The conduct of the witnesses in pointing out to the accused in parade about 10 other persons as his test as to whether he can really place him or not and this is only used as a matter of corroboration at the time of real trial when again the witness has to say that a particular individual pointed out by him in the court was present during occurrence. It is this statement in the court which is really admissible part of evidence while conduct of the witness during identification proceedings is only a corroboration to the above mentioned fact by showing that the man could be worked out even amongst 8 to 11 persons standing in the line up. If a witness identifies a person in the identification proceedings and is not later on examined in the court, the identification itself is not be read in evidence. ( 5 ) THIS conduct of pointing out to a person in a parade is relevant and that too only as a corroborate piece of evidence under section 9 of the Evidence Act, as it explains as well as introduces the fact of presence or otherwise of a particular person in the occurrence not known by name but by pointing out to the individual i. e. an in fact on memory. ( 6 ) THE above mentioned factors with reference to Section 9 of the evidence Act obtain conversely in the instant case and for that the real purpose of identification has to be explained. In the instant case, the accused applicants had claimed identification on the basis that the witnesses do not know them. What else can be the method for those applicants to collect and produce evidence for this negative fact except to claim identification proceedings? If the accused persons are produced in court, which they are bound to be at the time of hearing and the witnesses point them out that they know them, the accused would stand denied their right to challenge the testimony of the witnesses for the aspect that they do not know them. Once the accused are put in the dock the entire defence of the accused that they are now known to the witnesses stands lost. As the prosecution has to seek corroboration through the identification proceedings when the accused are not known to the witnesses, so is the case when the accused who has to show through identification proceedings that, in fact, the witnesses do not know them, the denial of this opportunity, generally may vitiate the trial. A valuable aspect of cross-examination shall stand lost, and nobody can say as to what would be the effect, of it on general consideration of evidence. ( 7 ) I will elaborate the aspect a little further even at the cost of possibility of miscarriage of justice in one case if it so happens. This test identification, may it be for state or on the demand of accused is more a form of cross examination which is admitted before the examination in chief itself as, it cannot wait till that time. The test is arranged before as it is a test when cannot be put on after the witness has once seen the accused. Pointing out to a person from a parade is a challenge to the memory and the fact of having seen the accused by the witness. Equal is the position when an accused says that he has not been seen by the witnesses. Pointing out to a person from a parade is a challenge to the memory and the fact of having seen the accused by the witness. Equal is the position when an accused says that he has not been seen by the witnesses. If this identification is refused at proper stage, the valuable question of cross-examination will be lost and though it may be that it may not in a particular case amount to mistria, the chances are more for it, and I fail to understand why the prosecution should take that risk at all. Specifically when it has to act as an independent and uninterested person. Before proceeding further I would like to refer para 107 of the Police Regulations, which reads as under: An investigating officer is not to regard himself as a mere clerk for the recording of statements. It is his duty to observe and to infer. In every case he must use his own expert observation of the scene of the offence and of the general circumstances to check the evidence of witnesses, and in cases in which the culprits are unknown, to determine the direction in which he shall took for them. He must study the methods of local offenders who are unknown to the police with a view to recognizing their handiwork, and he must be on his guard against accepting the suspicions of witness and complainants when they conflict with obvious inferences from facts. He must remember that it is his duty to find out the truth and not merely to obtain convictions. He must not prematurely commit himself to any view of the facts for or against any person, and though he need not go out of his way to hunt up evidence for the defence in a case in which he has satisfactory grounds for believing that an accused person is guilty, he must always give accused persons an opportunity of producing defence evidence before him, and must consider such evidence carefully if produced. Burglary investigations should be conducted in accordance with the special orders on the subject. T Emphasis mine. ( 8 ) I will refer to some more parts of the above case. It appears that the observations of the Sajjan Singh v. Emperor, were quoted with approval in the case State of UP. v. Jagnoo. Burglary investigations should be conducted in accordance with the special orders on the subject. T Emphasis mine. ( 8 ) I will refer to some more parts of the above case. It appears that the observations of the Sajjan Singh v. Emperor, were quoted with approval in the case State of UP. v. Jagnoo. The observations material for the present case were:if however the witnesses claim to have known the accused previously, while the accused himself denies this, the claim made by the witnesses cannot be used as a reason for refusing to allow their claim to be put to the only practical test of an identification parade. 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. This observation was of course disserted in A. I. R. 1948, Madras 113. I am afraid with profound respects to the Hontble brothers of Madras High Court, I find myself unable to agree with them. It may not be correct to say that identification belongs to police investigation and further the investigation in fact, as observed has to be fair and impartial. In fact, in my humble opinion, identification for either party is an opportunity of cross examination the relevancy of which is contained in Section 9 of the Evidence Act and for the very nature of it, it has to be arranged in a different manner that is before the examination in chief. Where the claim it, it is a basis of the defence and should not be denied. Even if the investigation is over, and charge sheet submitted, the evidence has not been over, and the defence, as of right should be allowed to challenge the witnesses assertion, and in the manner of identification proceeding. It will suffice to conclude this aspect by saying that the Supreme Court also hold that the fact that the Cr. P. C. had no provision enabling the accused to insist for identification parade is not material. I will also with some use reproduce the observations of a Division Bench of Calcutta High Court in a case reported in A. I. R. 1951 Calcutta. P. C. had no provision enabling the accused to insist for identification parade is not material. I will also with some use reproduce the observations of a Division Bench of Calcutta High Court in a case reported in A. I. R. 1951 Calcutta. 4755, which has also been relied upon in the above said decision of the Supreme Court The fact that the witnesses have identified in Court the accused is of very little consequence of a prosecution under Section 384, Penal Code, when non of the witnesses know the accused from before, the corroborative evidence which is entitled to expect in cases of this nature, is the evidence of the witnesses having pointed the accused whom they identified in Court from the midst of other persons with whom they were mixed up at a test identification parade. The evidence of their having identified such persons at a test identification parade has no substantive value, but is very important corroboration of their evidence in Court. ( 9 ) IT is strange that the police generally act as mere prosecutor despite the fact that they have been desired by the above mentioned para not to act as such. There is clear cut direction amongst others for the investigating officer he must always give accused person an opportunity of producing defence evidence before him and must consider such evidence carefully if produced. He must remember that it is his duty to find out. he truth and not merely to obtain conviction. Both these principles have been given in para 107 in consonance with the principle that a sub inspector of police is primarily a public servant. He has to act as an independent person and not as a person interested putting noose around the neck of a particular individual irrespective of other facts. Any such interest shown by the investigating officer or any person concerned with the prosecution, will always bring bad name to the police and may render their testimony open to doubt. I will take leave here to say though of the place that the jurists of framing the Evidence Act, specially section 27 have shown lack of fact in the police though it is there in the English law. The police officials despite a direction in para 107 have been attempting to reduce that faith further instead of earning it by their good conduct. The police officials despite a direction in para 107 have been attempting to reduce that faith further instead of earning it by their good conduct. ( 10 ) THE contention of the defence for their identification with an allegation that they were not known to the witnesses is a part of their defence and if that part is denied, the trial in most of the cases is likely to be vitiated because, as already said above, once they are produced in court and directly or indirectly introduced to the witnesses, their defence stands lost. Of course the learned counsel for the State has referred me to the decision in Jadunathsingh another other v. State of U. P. , but a perusal of is decision as a whole simply indicates that the principle enunciated by the Supreme Court has in, the same as observed above though in peculiar facts of that case, it was held that the trial ,as not vitiated. The principle of law laid down in para 18 was as under:of course in the prosecution fails to hold identification on the plea that the witness already the accused well and it transpires course of the trial that the write did hot know the accused previous the prosecution would run the risk the losing its case. At the present stage, It is too early to think as to whether they really know the accused or not but the conduct of the or to police in arranging for the test identification will carry its own value and may give rise presumptions as purpose of test identification an no the obtained later on Further more, in para 20, the Supreme Court has observed: It appears to us that the reason given by the prosecutor in the report and the reason given by the district Magistrate judicial in to order directing that the identification requested for be not held were not valid. The reasons in the case before their Lordship were almost similar, that is, the chargesheet has already been submitted. If a charge sheet has been submitted, does it mean that the accused would either wait behind the bars till the trial is over or lose of his defence in the form that the witnesses do not know him. I think both the situations will be too much prejudicial to the accused persons. If a charge sheet has been submitted, does it mean that the accused would either wait behind the bars till the trial is over or lose of his defence in the form that the witnesses do not know him. I think both the situations will be too much prejudicial to the accused persons. It may be that in facts of the case, the Supreme Court did not consider the omission to be-material but naturally it was after consideration of the evidence led during the trial and where, in fact appellant had already lost method of challenging the prosecution witnesses through the identification proceedings. I need not go into all those details but the mere fact that the prosecution is feeling shy of getting the accused identified by the witnesses or to be more precise of getting the testimony of their witnesses challenged through identification proceedings before they are able to see the accused persons in the dock itself gives rise to an impression that for any reason the prosecution is not playing a fair play. ( 11 ) IN the circumstances, the applicants are entitled to bail. However, I would like to record that the observations made above, may not be considering as binding upon the Sessions Judge during trial and he shall be at liberty to appreciate evidence according to law in his own way. ( 12 ) LET the applicants be admitted to bail on each of them executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the Magistrate concerned. Application allowed. Applicants entitled to be released on bail. .