Judgment 1. The petitioner seeks quashing of the order dated 18-10-2001 (Annexure P5) passed by Shri R. C. Godara, Additional Sessions Judge, Chandigarh, dismissing the application dated 3-9-2001 (Annexure-P4) filed by the petitioner seeking direction to the prosecution to hold identification parade for identifying the petitioner by the three eye-witnesses in the case titled State V/s. Raju Gurung bearing FIR No. 73 dated 13-4-2001 registered under Ss. 308 and 506, I.P.C. with Police Station, Sector 19, Chandigarh but at the time of submission of report under S. 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) offence under S. 304, I.P.C. was added. 2. For the purpose of adjudication of the present petition, a few facts need to be noticed. The present case was registered on the statement of Sitla Parshad resident of village Ramapur, Police Station Amethi, District Amethi (U.P.), who on the date of occurrence was residing in Kothi No. 536, Sector 18-B, Chandigarh. On 13-4-2001, he was present at his Tea Stall located near New Public School, Sector 18, Chandigarh. At about 2.30 p.m., he had gone to purchase Bidi from Cigarette Bidi Vendor, Vijay Kumar, who sits on the edge of the road near the Verka Booth, Sector 18-A, Chandigarh. While he was in the process of purchasing bundle of Bidi, accused-Raju, who was working in House No. 303, Sector 9, Chandigarh came there. He often used to come to Sector 18-A. He also purchased a packet of Chutki from Vijay Kumar, Vendor, who demanded Re. 1/- from Raju, Raju replied that he did not have any change, upon which the vendor told him that either he should pay Rs.1.00 or should return the packet of Chutki. Thereafter Raju caught throat of Vijay and threw him on the ground. He further gave fist blow on his mouth, belly and head and also gave blow with legs on his belly. Because of the injuries caused, blood started coming out of Vijay Kumars mouth and thereafter he fainted. Sitla Parshad separated them. While leaving Raju gave a threat to Vijay Kumar that he would get his shop shifted and would kill him. Thereafter, Sitla Parshad had stopped a vehicle and taken Vijay Kumar to General Hospital Sector 16, Chandigarh. Sub-Inspector Tarsem Lal recorded the statement of Sitla Parshad which led to the registration of the case. Sitla Parshad separated them. While leaving Raju gave a threat to Vijay Kumar that he would get his shop shifted and would kill him. Thereafter, Sitla Parshad had stopped a vehicle and taken Vijay Kumar to General Hospital Sector 16, Chandigarh. Sub-Inspector Tarsem Lal recorded the statement of Sitla Parshad which led to the registration of the case. On the same day at 4.00 p.m. Daily Dairy Report No. 27 dated 13-4-2001 was registered. During the investigation of the case, statements of Suresh Kumar and Ram Sewak were also recorded. The accused was arrested on the same day. Thereafter, on completion of the investigation the report was submitted and at present the case is pending trial before the Court of Shri R. C. Godara, Additional Sessions Judge, Chandigarh. 3. On 3-9-2001, the petitioner had filed an application in the Court of Additional Sessions Judge, Chandigarh seeking direction for holding of test identification parade. The grounds which impelled him to file the application are that he had been falsely named in this case on suspicion for the crime mainly on the ground that he was one of the Nepali boys who were playing volley ball in the ground near Veerka Dairy in Sector 18-A, Chandigarh where other Nepali boys were also playing with him. Though prosecution had cited three eye-witnesses, namely, Sitla Parshad, Suresh Kumar and Ram Sewak but all of them had stated that they could identify the assailant if he was produced before them and in spite of that, yet the identification parade was held by the Police during the investigation of the case. According to the applicant though identification of the accused in Court is of no value and the petitioner being a poor person, for the larger interest of justice identification parade of the accused by the aforesaid eye-witnesses be ordered to be held. 4. This application was opposed from the side of the State because Sitla Parshad, who lodged the FIR had specifically named the petitioner-accused therein and for that reason there was no necessity to hold identification parade. Additionally, it was submitted that as the case was fixed for trial, there was no justification to accept the application of the petitioner. 5. 4. This application was opposed from the side of the State because Sitla Parshad, who lodged the FIR had specifically named the petitioner-accused therein and for that reason there was no necessity to hold identification parade. Additionally, it was submitted that as the case was fixed for trial, there was no justification to accept the application of the petitioner. 5. The learned Additional Sessions Judge, Chandigarh, dismissed the application on four grounds, namely, that the application had been moved at the belated stage, that it should have been filed before the committing Magistrate, that accused had been appearing in Court without his face muffled for a long time and that a specific report had been lodged by Sitla Parshad against the accused and for that reason there is no need to hold identification parade at this stage. 6. Provisions of S. 9 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) provide that the fact which establishes the identity of anything or person whose identity is relevant, are relevant in so far as necessary for that purpose. The identification proceeding being in the nature of test no provision for holding it is to be found in the Code or even in the Act. However, at what stage identification parade should be conducted has come for consideration before the Apex Court in various cases. 7. In Ramkishan Mithanlal Sharma V/s. State of Bombay, AIR 1955 SC 104, it was observed in para 19 at page 113 as under:- "In order to resolve this conflict of opinion one has to examine the purpose of test identification parades. These parades are held by the police in the course of their investigation 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 in the offence. They are not held merely for the purpose of identifying property or persons irrespective of their connection with the offence. Whether the police officers interrogate the identifying witnesses or the Panch witnesses who are procured by the Police to do so, the identifying witnesses are explained the purpose of holding these parades and are asked to identify the properties which are the subject-matter of the offence or the persons who are concerned in the offence." 8. Whether the police officers interrogate the identifying witnesses or the Panch witnesses who are procured by the Police to do so, the identifying witnesses are explained the purpose of holding these parades and are asked to identify the properties which are the subject-matter of the offence or the persons who are concerned in the offence." 8. In Budhsen V/s. State of U.P., AIR 1970 SC 1321 : 1970 Cri LJ 1149, it was laid down by the Hon ble Supreme Court as under :- "The identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in Court. They do not constitute substantive evidence. These parades are essentially governed by S. 162 of the Code of Criminal Procedure." 9. Above two judgments clearly spell out that identification parade is required to be held during the investigation of the case. Therefore, as identification parade falls within the realm of investigation the necessary consequence which follows is that allowing the application of the accused at this stage would tantamount to taking a step in the direction of re-investigation of the case for the limited purpose of holding the identification parade so as to enable the above named two witnesses, Suresh Kumar and Ram Sewak, to fix the identity of the accused although this very question would be required to be determined by the Additional Sessions Judge before whom the case is fixed for trial. Section 173(8) of the Code, which is a departure from the earlier Code, has specifically vested the power of re-investigation with Courts permission. 10. Learned counsel for the petitioner placed reliance on Joginder Singh alias Naginder Singh V/s. Punjab State, (1973) 75 Pun LR 786 , wherein the facts were that the Chief Judicial Magistrate, Ludhiana had vide order dated 29-5-1973 declined the request of the petitioner in that case for holding of an identification parade. When the matter was taken in revision, the learned Additional Sessions Judge did not recommend the revision. When the matter was taken in revision, the learned Additional Sessions Judge did not recommend the revision. Dealing with the submissions made, the following observations were made "On behalf of the prosecution it has been submitted that since the accused was known to the prosecution witnesses, therefore, it was not necessary to hold an identification parade. I fail to understand how a request made on behalf of the accused person can be declined on a ground like this. Had it been within the powers of the police and the Magistracy, to control the defence evidence which the accused wanted to lead, then perhaps no person standing trial in a Criminal Court could get justice. This is a case in which the accused says that he has been wrongly involved in the case and the eye-witnesses cannot possibly identify him. The prosecution has come forth with the plea that identification need not be held because the prosecution witnesses already knew him. If the prosecution witnesses already knew the petitioner and they were unable to identify him in an identification parade, then there would be greater reason for discarding the testimony of such witnesses. Denial of this right to the petitioner tantamounts to stopping him from setting up a defence which he wants to set up in a criminal case. It is against the elementary principles of criminal law. The order passed by the learned Chief Judicial Magistrate cannot be allowed to stand. I, therefore, allow this petition and direct the learned trial Magistrate to have the identification parade of the accused conducted expeditiously preferably within fifteen days of the receipt of this order. The learned counsel for the petitioner requests that till such time as the identification parade is conducted, the petitioner should not be taken out of the jail. Let it be so done." 11. There cannot be any dispute with regard to the observations made in the above mentioned case. Though the facts do not expressly say that the request was made during the investigation of the case but the observations quoted above do indicate that no question was raised whether after the submission of challan, circumstances of the case warranted for holding the identification parade. Though the facts do not expressly say that the request was made during the investigation of the case but the observations quoted above do indicate that no question was raised whether after the submission of challan, circumstances of the case warranted for holding the identification parade. Therefore, from the judgment cited it cannot be said that the question came to be decided after the case was committed to the Court of Sessions and posted for trial as in the present case. 12. Further reference was made to Yashpal alleged to be Billu V/s. State of Haryana, (1993) 2 Rec Cri 400. The facts were the Yashpal alias Billu during the visit of Hon ble Mr. Justice Amarjeet Choudhary to District Jail, Rohtak had represented that he had been falsely named as accused along with other accused and moved an application. Annexure P-1, for holding an identification parade. Accepting the application, it was ordered that "arrangements for identification parade be made/arranged if so permissible." This order was passed on 27-2-1992 while the FIR had been registered on 4-3-1990 with Police Station, Beri for offences under Ss. 302, 324 read with S. 34, IPC. Thereafter the petitioner moved an application, Annexure-P.2, before the Sessions Judge, Rohtak for appropriate direction for holding of an identification parade which was declined by him as per order dated 25-3-1992. Relying on the observations made in Joginder Singh V/s. The Punjab State, (1973) 7 Pun LR 786 and further noting the observations made in Jadunath Singh V/s. State of U.P., 1971 Cri LJ 305 , it was concluded that there was no legal bar to hold identification parade especially as the petitioner was claiming that Smt. Channo did not know him and he had been falsely named and further that the identification parade being permissible the Sessions Judge was bound to comply with the order dated 27-2-1992 passed by Hon ble Mr. Justice Amarjeet Choudhary. It is not clear from the facts of the above mentioned case as to what was the stage of this case when the order was passed in this regard. 13. Justice Amarjeet Choudhary. It is not clear from the facts of the above mentioned case as to what was the stage of this case when the order was passed in this regard. 13. In fairness to the counsel for the petitioner, he has also referred to Kanan V/s. State of Kerala, AIR 1979 SC 1127 , wherein it has been observed that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his powers of observations. 14. Reference was also made to Mohd. Iqbal M. Shaikh V/s. State of Maharashtra, 1998 (3) JT (SC) 135 , wherein it was observed that if the accused had been shown during the course of investigation, the so-called identification parade in Court is of no consequence and cannot form basis of conviction. 15. Reference was also made to Rajesh Govind Jagesha V/s. State of Maharashtra, 1999 (9) JT (SC) 1 wherein it was observed that "in cases where a person is alleged to have committed the offence and is not previously known to the witnesses, it is obligatory on the part of the investigating agency to hold identification parade for the purposes of enabling the witnesses to identify the person alleged to have committed the offence. The absence of test identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the Court regarding his involvement. Such a parade may not be necessary in a case where the accused person is arrested on the spot immediately after the occurrence. The evidence of identifying the accused person at the trial, for the first time, is from its very nature, inherently of a weak character. The test identification is considered as a safe rule of prudence for corroboration. Though the holding of the identification proceedings may not be substantive evidence, yet such proceedings are used for corroboration purposes in order to believe or not the involvement of the person brought before the Court for the commission of the crime. The holding of identification parade being a rule of prudence is required to be followed strictly in accordance with the settled position of law and expeditiously. The delay, if any, has to be explained satisfactorily by the prosecution." 16. The holding of identification parade being a rule of prudence is required to be followed strictly in accordance with the settled position of law and expeditiously. The delay, if any, has to be explained satisfactorily by the prosecution." 16. In the above mentioned cases what would be the effect of the witnesses identifying the accused who had not known the accused previously, the need for holding an identification parade during the investigation of the case and the effect of delay in holding such a parade have come under consideration. In the case in hand it is a premature stage to go into all these questions because so far no witness of the prosecution has been examined. In this case the question to be decided is whether under the facts and circumstances of the case the prayer made by the petitioner-accused had been wrongly rejected by the Additional Sessions Judge, Chandigarh as per order dated 18-10-2001. I have already noted that in the report lodged at the instance of Sitla Parshad he had clearly named the petitioner-accused as the assailant. He had also mentioned that the petitioner works at a place bearing House No. 303, Sector, 9, Chandigarh. He had also mentioned that the petitioner often used to come to Section 18-A, Chandigarh. Thus witness knew the accused previously. No doubt, both Suresh Kumar and Sewak Ram had stated that they could identify the Nepali boy if he comes across them. While stating the version as has come in the statement of Sitla Parshad they had not specifically named the petitioner-accused. Admittedly, during the stage of investigation as such prayer was made by the petitioner for holding the identification parade and it cannot be said that his prayer had been unfairly declined by the Magistrate. Again it is not case of the petitioner that even after the report under S. 173 of the Code was submitted to the Magistrate any request was made for holding that identification parade because that was a stage towards conclusion of the investigation of the case and even then the petitioner could have sought permission of the Court in terms of the requirement of S. 173(8) of the Code. Thereafter, the accused had been appearing in the Court after the case was committed to the Court of Sessions. Thereafter, the accused had been appearing in the Court after the case was committed to the Court of Sessions. Under the circumstances of the case the learned Additional Sessions Judge was fully justified in declining the prayer made on behalf of the petitioner-accused. 17. For the aforesaid reasons, there is no merit in the petition and the same is dismissed.