JUDGMENT Mr. M. Jeyapaul, J.:- Accused Sukhvinder alias Shoki, Vinod alias Jitender alias Dhilla and Chander Hass alias Hans Ram alias Hansa were convicted and sentenced as follows:- CHARGE SENTENCE Under Section 302/34 IPC The accused Sukhvinder alias Shoki, Vinod alias Jitender, Chander Hass alias Hans Ram alias Hansa were sentenced to undergo R.I. for life and to pay fine of Rs.10,000/- each. Under Section 365/34 IPC The accused Sukhvinder alias Shoki, Vinod alias Jitender alias Dhilla, Chander Hass alias Hans Ram alias Hansa were further sentenced to undergo R.I. for five years and to pay a fine of Rs.2000/- each. In default of payment of fine to further undergo R.I. for six months each. Under Section 392/34 IPC The accused Sukhvinder alias Shoki, Vinod alias Jitender alias Dhilla, Chander Hass alias Hans Ram alias Hansa were further sentenced to undergo R.I. for seven years and to pay fine of Rs.3000/- each. In default of payment of fine to further undergo R.I. for six months. Under Section 397/34 IPC The accused Sukhvinder alias Shoki, Vinod alias Jitender alias Dhilla, Chander Hass alias Hans Ram alias Hansa were further sentenced to undergo R.I. for ten years and to pay fine of Rs.5000/- each. In default of payment of fine to further undergo R.I. for one year each. Under Section 307/34 IPC The accused Sukhvinder alias Shoki, Vinod alias Jitender alias Dhilla, Chander Hass alias Hans Ram alias Hansa were further sentenced undergo R.I. for five years and to fine of Rs.2000/- each. In default of payment of fine to further undergo R.I. for six months each. Under Section 25 of the Arms Act The accused Sukhvinder alias Shoki, Vinod alias Jitender alias Dhilla, Chander Hass alias Hans Ram alias Hansa were further sentenced to undergo R.I. for three years and to pay fine of Rs.1000/- each. In default of payment of fine to further undergo R.I for three months each. Under Section 27(2) of the Arms The accused Sukhvinder alias Shoki, Vinod alias Jitender alias Dhilla, Chander Hass alias Hans Ram alias Hansa were sentenced to undergo R.I. for seven years and to pay fine of Rs.2000/- each. In default of payment of fine to further undergo R.I. for six months each. 2. Aggrieved by the conviction and sentence recorded by the trial Court the above accused have preferred the present appeal. In default of payment of fine to further undergo R.I. for six months each. 2. Aggrieved by the conviction and sentence recorded by the trial Court the above accused have preferred the present appeal. It is noticed that accused accused Anil died even before he was arrested by the police in connection with this case. 3. The case in brief of the prosecution is that on 09.12.2004 PW5 Abhey Ram, PW6 Baljit Singh and PW7 Sunil had gone to attend a marriage party at village Bawania in a maruti Zen car bearing Registration No.HR-5G/3843 driven by Vinod Kumar PW8. Baljit Singh PW6 was sitting on front seat by the side of Vinod Kumar PW8. Abhey Ram PW5 and PW7 Sunil were sitting on the rear seat. When they reached near a canal, a Maruti car bearing registration No.HR- 26E/6003 came from behind. The occupants of the Maruti car stopped the Zen Maruti car. Three persons alighted from the Maruti car bearing Registration No. HR-26E/6003. One of them pushed the driver of the Zen car and took the driver seat and started driving the Zen car. The other two persons sat on the rear seat. They pointed pistol to the occupants of the Zen car. They were asked to see downwards and were threatened with dire consequences. PW5 Abhey Ram asked the abductors to take all their belongings. The abductors again threatened them. The Maruti car followed them. After covering a distance of 2-3 Kms., they turned towards village Akoda on a kacha path. They reached near a tubewell. One pick-up vehicle was parked there. The Maruti car hit upon the pick-up vehicle. The Zen car entangled in the sand. PW3 Umrao Singh complainant, PW4 Ajit Singh injured, Uttam Singh (since deceased) and Moti Lal PW9 were sitting on the tubewell. They were enjoying Hooka. The driver of the Maruti car approached them for help for pushing the cars. PW4 Ajit Singh along with his brother Uttam Singh (since deceased) and Moti Lal PW9 reached at the spot to help them and started pushing the Maruti car. Three persons alighted from the Zen car. Abhey Ram PW5 told Ajit Singh PW4 and others that they were kidnapped. One of the abductors fired at Abhey Ram PW5. The abductors started running. Uttam Singh chased them. The assailants fired at Uttam Singh and the pellet hit in his shoulder. Three persons alighted from the Zen car. Abhey Ram PW5 told Ajit Singh PW4 and others that they were kidnapped. One of the abductors fired at Abhey Ram PW5. The abductors started running. Uttam Singh chased them. The assailants fired at Uttam Singh and the pellet hit in his shoulder. PW4 Ajit Singh and Uttam Singh (since deceased) overpowered two assailants, but when they raised alarm, their two companions came and fired at Uttam Singh and PW4 Ajit Singh. PW4 Ajit Singh suffered four firearm injuries. Uttam Singh also suffered 4-5 firearm injuries. The occurrence was witnessed by PW3 Umrao, PW6 Baljit Singh, PW7 Sunil and PW8 Vinod Kumar. PW4 Abhey Ram and Uttam were taken by Moti Lal PW9 and Sukhbir to CHC Mahendergarh where Uttam Singh was declared “brought dead”. PW4 Ajit Singh was referred to PGIMS Rohtak after first aid. Later on, PW5 Abhey Ram was also taken to CHC Mahendergarh and after first aid he was referred to PGIMS Rohtak. 4. On the same day, ASI Chander Bhan PW18 received a telephonic message from Mahabir Singh resident of village Adalpur that there was an incident of firing and that two vehicles were left stranded at the tubewell of his brother Umrao PW3. Thereupon ASI Chander Bhan PW18 along with other police officials reached at the spot and came to know that Ajit Singh PW4 and Uttam Singh (since deceased) sons of Umrao suffered injuries in firing and had been shifted to CHC Mahendergarh. He reached at CHC Mahendergarh and came to know that Uttam Singh had already died and Ajit Singh PW4 had been referred to PGIMS Rohtak. He did not find any eyewitness to the occurrence at CHC Mahendergarh. He again went to the spot and came to know that Abhey Ram PW5 also suffered injuries in the occurrence and had been shifted to CHC Mahendergarh by Umrao PW3 and Moti Lal PW9. He got back to CHC Mahendergarh where Umrao PW3 met him and made statement Ex.P4. He also collected rukka and MLR of Abhey Ram PW5. He sent rukka Ex.P4 with his endorsement Ex.P4/A to SHO Police Station Mahendergarh. Formal FIR No.360 dated 10.12.2004 under sections 302, 307, 394, 365, 34 IPC and 25/54/59 of the Arms Act was registered by ASI Bijender Singh PW23. On the same day Ajit Singh PW4 and Abhey Ram PW5 were medico-legally examined by Dr. He sent rukka Ex.P4 with his endorsement Ex.P4/A to SHO Police Station Mahendergarh. Formal FIR No.360 dated 10.12.2004 under sections 302, 307, 394, 365, 34 IPC and 25/54/59 of the Arms Act was registered by ASI Bijender Singh PW23. On the same day Ajit Singh PW4 and Abhey Ram PW5 were medico-legally examined by Dr. Karan Singh PW14 at CHC Mahendergarh. 5. On 10.12.2004 PW38 Basant Pal SI/SHO, Police Station Mahendergarh reached at the spot in the area of village Adalpur. ASI Bir Singh with other police officials was already present at the spot. DSP Om Parkash also reached there. Thereafter, Dr. Kulvinder Singh from Crime Branch with his team reached at the spot. They inspected the spot. SI Balwan Singh lifted chance prints from back glasses of Maruti car bearing Registration No.HR26E/6003 and Zen car bearing Registration No. HR-05G/3843. Both the cars were taken in police custody. One trousers and one shirt found in the Maruti car were taken in police custody. He also lifted blood-stained earth from the spot and took in custody. Seat covers of both the cars were also stained with blood. The same were also taken in police custody. One country made pistol was found lying in the field with two live and one missed cartridges. They were parceled and taken in custody. One empty cartridge was also recovered from the spot. The same was also parcelled and taken in police custody. 6. On the same day, ASI Chander Bhan PW18 prepared inquest report under Section 174 Cr.P.C. Dr. Surender Yadav PW15 conducted autopsy on the dead body of Uttam Singh. He recovered one bullet from the dead-body. He handed over clothes of the deceased, parcel containing bullet and copy of PMR to HC Raj Singh who on return handed over the same to Basant Pal PW38. He prepared rough site-plan reflecting the place of recovery. On return to the police station, the case property was deposited with the MHC of the police station. 7. On 30.04.2005 SI Mahavir Singh SHO Police Station Kharkhoda PW30 arrested accused Sukhvinder @ Shoki and Vinod @ Dhilla in connection with the case in FIR No.68 dated 30.04.2005 under Sections 148, 149, 253, 333, 307 IPC and 25 of the Arms Act, Police Station Kharkhoda. On personal search of accused Sukhvinder @ Shoki, one pistol of 315 bore with two live cartridges was recovered. On personal search of accused Sukhvinder @ Shoki, one pistol of 315 bore with two live cartridges was recovered. On 02.05.2005 accused Sukhvinder @ Shoki made confessional statement about his involvement in many cases including the present case Ex.PS/1. On the same day, accused Vinod @ Dhilla also made confessional statement Ex.PS. 8. On 27.05.2005 both accused Sukhvinder @ Shoki and Vinod @ Dhilla were produced on production warrants in the court of Sub Divisional Judicial Magistrate, Mahendergarh. SI Shish Ram PW2 made an application in the court of Sub Divisional judicial Magistrate Mahendergarh for permission to join accused Sukhvinder @ Shoki and Vinod @ Dhilla in investigation and after permission they were joined in investigation. They were taken on police remand. On 28.05.2005 accused Vinod @ Dhilla made disclosure statement Ex.PK and accused Sukhvinder @ Shoki made disclosure statement Ex.PL. 9. On 01.08.2006, accused Hansa @ Chander Hass was produced on production warrant before the Sub Divisional Judicial Magistrate Mahendergarh. On the same day, ASI Om Parkash PW21 joined accused Hansa @ Chander Hass in investigation with the permission of the Sub Divisional Judicial Magistrate Mahendergarh and on interrogation, the accused made confessional statement Ex.PBB. On the same day, he made an application for test identification parade of the accused. The accused agreed to participate in the test identification parade. On the same day, accused was produced before PW33 O.P. Godara, Tehsildar Mahendergarh. He conducted test identification parade and in the test identification parade Umrao PW3 identified accused Hansa @ Chander Hass as one of the assailants. 10. After completion of investigation challan was prepared and presented in the Court for putting the accused on trial. 11. As many as 39 witnesses were examined on the side of the prosecution. 12. When the accused were examined under Section 313 Cr.P.C. they pleaded that a person namely Anil son of Sultan, resident of village Salimpur Majra, Police Station Sonepat, who was also an accused in the present case came along with his co-villager Rajender son of Ram Diya and attacked the police party attached to police station Kharkhoda, District Sonepat. In that incident, HC Kaptan Singh was injured and a case under Section 307 IPC was registered in the police station Kharkhoda. Anil died in a police encounter and his co-accused Rajender wrongly named the accused herein as coaccused in that case. In that incident, HC Kaptan Singh was injured and a case under Section 307 IPC was registered in the police station Kharkhoda. Anil died in a police encounter and his co-accused Rajender wrongly named the accused herein as coaccused in that case. Thereafter, the police personnel attached to police station Kharkhoda became annoyed and they were implicated falsely in some untraced cases including the present case. They have no concern with the commission of the offence. The witnesses have deposed falsely against them at the instance of the police. 13. The trial Court having relied upon the evidence of PW5 to PW8 who were the abductees and PW3, PW4, PW9 and PW33 in the background of the medical evidence on record returned a verdict of conviction as against the accused as stated supra. 14. The learned counsel appearing for the appellants would vehemently submit that PW5 to PW8 the alleged abductees turned hostile to the case of the prosecution. PW3, PW4 and PW9 also could not attribute specific overt act to the individual accused. The identification parade allegedly conducted by PW33 O.P. Godara, Tehsildar Bawal does not inspire confidence. There was no recovery effected at the instances of the accused based on their disclosure statements. There was no test identification parade conducted to identify accused Sukhvinder and Vinod, as they had expressed their unwillingness to participate in the test identification parade. It is their submission that there is virtually no evidence as against the accused appellants and that, therefore, they are entitled to acquittal. 15. We heard the submission made by the learned Assistant Advocate General appearing for the State of Haryana supporting the verdict of conviction and sentence passed by the trial Court as against the accused appellants. 16. PW5 Abhay Ram was the injured witness. He along with the other occupants of the Maruti Zen car namely PW6 Baljit Singh and PW7 Sunil and PW8 Vinod Kumar has categorically deposed that PW5 to PW8 were abducted by three persons. One of the abductors fired at PW5 Abhay Ram and crippled him and as a result of which PW5 Abhay Ram lay on the field, hearing the fire shots given by the assailants to PW4 Ajit Singh and the deceased Uttam Singh the sons of PW3 who chased them. One of the abductors fired at PW5 Abhay Ram and crippled him and as a result of which PW5 Abhay Ram lay on the field, hearing the fire shots given by the assailants to PW4 Ajit Singh and the deceased Uttam Singh the sons of PW3 who chased them. The testimony of PW5 to PW8 would go to establish that they were in fact abducted by the abductors and fire shots were given by the abductors not only to PW5 Abhay Ram but also to PW 4 Ajit Singh and the deceased Uttam Singh. PW5 Abhay Ram had sustained gun shot injury as per the evidence given by PW14 Dr. Karan Singh in the background of the MLR Ex.PB. The testimony of the injured witness PW5 Abhay Ram was completely corroborated by the evidence of PW6 to PW8 who were abductees. 17. PW 3 was the complainant and father of the deceased Uttam Singh and PW4 injured Ajit Singh. He has categorically deposed before the Court that his sons Uttam Singh and Ajit Singh along with PW9 Moti Lal proceeded to the car which had hit upon the pick-up vehicle owned by him. All the three assailants were found with pistols in their hands. One had fired at Abhay Singh. Uttam Singh caught hold of one of the assailants but one of the remaining assailants fired at Uttam Singh which hit on his right shoulder. Uttam Singh and Ajit Singh gave a chase to them and they caught hold of two assailants but the assailant who was not caught hold of by Uttam Singh and Ajit Singh fired a shot at Uttam Singh and Ajit Singh with his revolver and as a result of which both of them sustained injuries. Uttam Singh succumbed to the injuries but unfortunately PW4 Ajit Singh survived the gun shot injuries he sustained. It was his categoric version that all the accused who were present in Court along with another person were the assailants in the crime. In other words PW3 Umrao Singh identified all the three accused appellants in the open Court. 18. PW33 O.P. Godara, Tehsildar had conducted test identification parade associating accused appellant Chander Hass. It was his categoric version that all the accused who were present in Court along with another person were the assailants in the crime. In other words PW3 Umrao Singh identified all the three accused appellants in the open Court. 18. PW33 O.P. Godara, Tehsildar had conducted test identification parade associating accused appellant Chander Hass. But PW 35 S.I. Om Parkash has unambiguously admitted that in the Court room of the Tehsildar, two police officials, Chander Hass and complainant PW3 Umrao were kept for sometime and thereafter they were produced before the Tehsildar for conducting the test identification parade. PW3 O.P. Godara, Tehsildar could not reveal the name and address of the persons who were joined in the test identification parade. We are not happy with the manner in which the test identification parade was conducted by PW33 O.P. Godara, Tehsildar. We feel constrained to observe that O.P. Godara, Tehsildar was not aware of the legal procedures to be adhered to for conducting the test identification parade. PW35 also was not aware of the importance and significance of conducting the test identification parade associating a witness who should not have been afforded with any opportunity to see the accused who was arrested. At any rate, we find that the test identification parade conducted by PW33 does not inspire confidence. We hasten to observe that it is only the identification made by the eye witness concerned in the open Court that is substantial evidence. 19. PW3 could not only identify accused Chander Hass alias Hans Ram alias Hansa but could also identify the other two accused appellants during the course of trial as the assailants who committed the crime at the scene of occurrence. 20. PW4 Ajit Singh is yet another injured witness in this case. PW14 Dr. Karan Singh who medico legally examined PW4 has spoken to four gun shot injuries received by Ajit Singh based on the medico legal report Ex.PA already issued by him. Therefore, the evidence of PW4 Ajit Singh cannot be simply brushed aside. He having thoroughly corroborated the evidence of PW3 has stated that the accused who were present in the Court were the assailants who participated in the occurrence. Therefore, the evidence of PW4 Ajit Singh cannot be simply brushed aside. He having thoroughly corroborated the evidence of PW3 has stated that the accused who were present in the Court were the assailants who participated in the occurrence. He had gone a step further and stated that the accused who was found wearing a white shirt in the open Court was the person whom he captured and the second accused who was present in the Court was the person who was caught hold of by his deceased brother Uttam Singh. The trial Court should have scrupulously noted during the course of recording evidence the accused with those specific descriptions referred to by PW4. But at any rate we find that two accused who actually caught hold of by PW4 and the deceased Uttam Singh were clearly identified by PW4 in the open Court. In the background of the evidence of PW4, if we refer to the evidence of PW3, it would come to light that the third accused who did not fit in those specific descriptions was the person who shot at PW4 Ajit Singh and the deceased Uttam Singh to retrieve the other two accused who were in the tight grips of PW4 Ajit Singh and the deceased. 21. We find that the evidence of PW3 and PW4 clearly established that all the three accused who were the assailants in the scene of crime not only committed murder of Uttam Singh but also caused injury to PW4 Ajit Singh and PW5 Abhay Ram. 22. PW9 Moti Lal also has supported the case of the prosecution and lent corroboration thereby to the evidence of PW3 and PW4. He also would depose that out of the eight assailants three were present in the Court. In fact, he was ignorant of the fact that only the accused appellants along with deceased accused were the assailants and the remaining persons present at the scene of occurrence were none other than PW5 to PW8 who were in fact abductees. At any rate, we find that the evidence of PW9 cannot be ignored. 23. There is no reason for PW3, PW4 and PW9 to falsely implicate the accused appellants in the crime of murder and attempting to commit murder. 24. At any rate, we find that the evidence of PW9 cannot be ignored. 23. There is no reason for PW3, PW4 and PW9 to falsely implicate the accused appellants in the crime of murder and attempting to commit murder. 24. It is true that PW3 and PW9 could not specifically depose as to the exact overt act of each and every accused but we find that PW4 has attributed individual overt act to the accused appellants. 25. Of course, recovery could not be made from the accused appellants on the basis of disclosure statements they suffered. The reason being that accused Sukhvinder alias Shoki and Vinod alias Jitender alias Dhilla were arrested only on 27.5.2005 after a lapse of 5 ½ months and accused Chander Hass alias Hans Ram alias Hansa was arrested only on 1.8.2006 after a lapse of about 1 year and 7 ½ months. Therefore, non recovery of weapon of offence from the accused appellants for certain convincing reasons would not absolve the accused from the charges. The edifice of the case built by the prosecution on the basis of ocular testimony would not fall flat on the mere ground that no recovery was effected from the accused. 26. The occurrence had taken place at about 7.30 P.M. On account of the peak winter it would have been darker at that point of time. A fog would have been developed during the month of December. PW4 had galloped along with his deceased brother Uttam Singh to catch hold of two accused appellants. They infact caught hold of them. But to retrieve those accused from the clutches of PW4 and the deceased Uttam Singh, the other accused had shot at PW4 and the deceased. The above facts and circumstances would go to show that PW4 had an occasion to meet the accused at a very close length. 27. The occurrence witnessed by PW3, PW4 and PW9 was just near their tubewell. In fact they had come to see the Maruti car which hit upon their pick-up vehicle and render assistance. There was a shooting at that place aiming at PW5 Abhay Ram who was one of the abductees and thereafter there was a chase made my PW4 and the deceased Uttam Singh. In a short distance, they could catch hold of two accused which resulted in firing at them by the other accused. There was a shooting at that place aiming at PW5 Abhay Ram who was one of the abductees and thereafter there was a chase made my PW4 and the deceased Uttam Singh. In a short distance, they could catch hold of two accused which resulted in firing at them by the other accused. Under such circumstances PW3 and PW9 also could have witnessed the accused participating in the occurrence. Therefore, we have no hesitation to rely upon the evidence of PW3, PW4 and PW9 which is found to be natural, reliable and trustworthy. Further, their presence at the scene of occurrence was very well spoken to by PW5, PW6, PW7 and PW8 who turned hostile to the case of the prosecution as regards the identity of the accused for reasons best known to them. The hostility exhibited by PW5 to PW8 as regards the identity of the accused has of course damaged the case of the prosecution as regards the charges under Sections 392/34 and 397/34 IPC and the non recovery of the weapons from the accused has damaged the case of the prosecution as regards the charges under Section 25 and 27(2) of the Arms Act but the evidence of PW5 to PW8 would establish that there was an abduction committed by the accused appellants. The prosecution has also established beyond reasonable doubt that accused appellants have not only committed murder of Uttam Singh but also the offence of attempting to murder of PW4 and PW5. 28. For the forgoing reasons, we acquit the accused appellants for the offences under Sections 392/34 and 397/34 IPC and Sections 25 and 27 (2) of the Arms Act. Consequently, the conviction and sentence passed thereunder by the trial Court stands reversed but we confirm the conviction and sentence passed by the trial Court on the accused appellants for the offences under Sections 302/34, 365/34 and 307/34 IPC. Accordingly, the appeal is dismissed with the above modification of conviction and sentence recorded by the trial Court. 29. Let us now take up the other seminal facet of this appeal. 30. We noticed in the instant case that the investigating officer moved an application requesting for holding the Test Identification Parade concerning accused Sukhwinder @ Shoki and Vinod @ Jitender @ Dhilla. 29. Let us now take up the other seminal facet of this appeal. 30. We noticed in the instant case that the investigating officer moved an application requesting for holding the Test Identification Parade concerning accused Sukhwinder @ Shoki and Vinod @ Jitender @ Dhilla. But the learned Judicial Magistrate having scrupulously recorded the refusal of the accused to join the Test Identification Parade chose to decline the request made by the Investigating Officer to hold Test Identification Parade qua Sukhwinder and Vinod. 31. The Investigating Officer submitted yet another application to hold Test Identification Parade concerning accused Chander Hass @ Hans Ram @ Hansa. Learned Judicial Magistrate was pleased to direct the Tehsildar/Executive Magistrate to hold the Test Identification Parade as requested by the Investigating Officer. 32. The Instructions found in Vol.III Chapter 2 Part C of the Punjab and Haryana High Court Rules and Orders would read that in Districts in which the experiment of separation of Judiciary from the Executive was being tried, the work relating to holding of Identification Parade should be conducted by the Judicial Magistrate. 33. Section 54A of Code of Criminal Procedure, 1973 which was inserted by the Act 25 of 2005 w.e.f. 23.6.2006 would read that whenever an identification of an accused was considered necessary for the purpose of investigation of offence, the Court may on the request emanated from the Officer Incharge of the police Station direct the person so arrested to subject himself to identification by any person in such a manner as the Court may deem fit. 34. We are also conscious of the substitution of Section 54A Cr.P.C. by way of amendment by the State of Uttar Pradesh as per Uttar Pradesh Act, 1984, legalizing the holding of Test Identification Parade by an Executive Magistrate. We noticed that no such amendment had been introduced for substitution of the provision under Section 54A Cr.P.C., 1973 either by the State of Punjab or State of Haryana. 35. In the aforesaid scenario, the following three important questions emerged for determination:- 1. Whether the Judicial Magistrate can decline the request made by the Investigating Officer for holding Test Identification Parade concerning the accused on the ground that the accused concerned refused to participate in the Test Identification Parade. 2. 35. In the aforesaid scenario, the following three important questions emerged for determination:- 1. Whether the Judicial Magistrate can decline the request made by the Investigating Officer for holding Test Identification Parade concerning the accused on the ground that the accused concerned refused to participate in the Test Identification Parade. 2. Whether the Judicial Magistrate in the light of the aforesaid provisions of law and the Instructions issued under Punjab and Haryana High Court Rules and Orders can delegate the function of holding the Test Identification Parade to an Executive Magistrate. 3. Whether an adverse inference can be drawn in a situation where the accused refused to participate in the Test Identification Parade. 36. We felt it necessary to appoint Amicus Curiae to assist this Court to answer the above important questions which agitated our mind. Therefore, Sh.R.S.Cheema, learned Sr.Advocate and Sh.Vinod Ghai, learned Sr. Advocate were appointed by us as Amicus Curiae to assist us with reference to the above questions formulated by us. 37. We infact received able assistance not only from Sh.R.S.Cheema, learned Sr.Advocate and Sh.Vinod Ghai, learned Sr.Advocate, but also from Ms.Tanu Bedi, Mr.Mandeep Kaushik, Mr.Paras Talwar and Mr.Simrandeep S.Sandhu, learned Advocates. We place on record our appreciation for the assistance rendered by the above Senior Advocates and their aforementioned junior Advocates after an elaborate in-depth study made by them on the relevant subject. 38. Learned Senior Advocate Sh.R.S.Cheema would submit referring to Article 20(3) and 21 of the Constitution of India that the accused cannot be subjected to testimonial compulsion. Issuance of a direction by the learned Judicial Magistrate to go ahead with the Test Identification Parade despite the stout refusal made by accused to participate in the Test Identification Parade would amount to coercion enforced on the accused to expose him for the purpose of incriminating himself. Referring to the relevant provisions which permit the compulsion to perform certain acts by an accused, he would submit that there was no such compulsion adumbrated under Section 54A of Cr.P.C. In the absence of any specific provision in the enactment subjecting the accused to compulsion to participate in the Test Identification Parade, any direction issued to the accused to present himself in the Test Identification Parade would be directly hit by the provision under Article 20(3) of the Constitution of India. He would also vehemently submit that an innocent, meek and weak accused may expose his frailty to a witness who has embarked upon the process of identification and as a result of which he may be identified as one who committed the offence despite the fact that he was not involved in the crime. Therefore, he would submit that learned Judicial Magistrate shall refuse to direct an accused to participate therein, in case the accused refuses to participate in the Test Identification Parade. 39. Learned Sr.Advocate Sh.R.S.Cheema would further submit that as per the instructions issued under Punjab and Haryana High Court Rules and Orders, learned Judicial Magistrate has no authority to delegate his function to hold the Test Identification Parade to an Executive Authority. It is his last submission that the reason for refusal to participate in the Test Identification Parade shall be elicited by learned Judicial Magistrate from the accused concerned and record the same. If the reasons assigned by the accused are not valid, the trial Court can very well draw adverse inference as against the refusal of the accused to participate in Test Identification Parade. 40. Sh.Vinod Ghai, learned Sr.Advocate differed from the view expressed by Sh.R.S.Cheema, learned Sr.Advocate as regards the first question whether the Judicial Magistrate could decline the request made by the Investigating Official for holding Test Identification Parade on the ground that the accused concerned refused to participate in the Test Identification Parade. Referring to the various decisions of the Hon’ble Supreme Court and a foreign decision, he would submit that directing an accused to compulsorily participate in the Test Identification Parade despite his refusal to do so would not amount to exposing the accused under duress to incriminate himself. Learned Judicial Magistrate cannot reject the proposal submitted by the Investigating Official for holding Test Identification Parade on the sole ground that the accused concerned refused to participate in the Test Identification Parade. 41. Let us now take up the first question as to whether the learned Judicial Magistrate can decline the request made by the investigating officer for holding Test Identification Parade concerning the accused on the ground that the accused concerned refused to participate in the Test Identification Parade. Let us straight-away refer to Article 20 and 21 of the Constitution of India. Let us straight-away refer to Article 20 and 21 of the Constitution of India. No person shall be deprived of his life or personal liberty except according to procedure established by law as per Article 21 of the Constitution of India. No person accused of any offence shall be compelled to be a witness against himself as per Article 20(3) of the Constitution of India. 42. The question that arises for determination in the above background is whether an accused figures as a witness against himself while participating in the Test Identification Parade as directed by learned Judicial Magistrate. To be a “witness” may be equivalent to “furnishing evidence” in the sense of making oral or written statements, but not in the larger sense of expression so as to include giving of thumb, palm, foot and finger impression or furnishing subsequent writing or exposing part of the body by an accused for the purpose of identification. The taking of impressions of parts of the body of an accused person very often becomes necessary to hold the investigation of a crime. In order to bring the evidence within the inhibition of Clause 3 of Article 20, it must be shown not only that the person making the statement was an accused at the time he made it and that it had a material bearing on the criminality of the maker of the statement but also that he was compelled to make the statement. Compulsion in the above context must mean what in law is called “Duress”. In the English dictionary of English Law by Earn Jowitt “Duress” is explained as follows:- “Duress is where a man is compelled to do an act by injury, beating or unlawful imprisonment or by threat of being killed” The compulsion in the above sense is physical objective act and not state of mind of person making the statement, except where the mind has been so conditioned by some extraneous process so as to render the making of the statement involuntary and therefore, extorted. Hence, the mere asking by a police officer investigating the crime against a certain individual to do a certain thing is not compulsion within the meaning of Article 20(3) of the Constitution of India. See, 11 Judges’ judgement of the Hon’ble Supreme Court in State of Bombay vs. Kathi Kalu Oghad, AIR 1961, Supreme Court 1808 (1). 43. Hence, the mere asking by a police officer investigating the crime against a certain individual to do a certain thing is not compulsion within the meaning of Article 20(3) of the Constitution of India. See, 11 Judges’ judgement of the Hon’ble Supreme Court in State of Bombay vs. Kathi Kalu Oghad, AIR 1961, Supreme Court 1808 (1). 43. It has been categorically held in the above judgement pronounced by the Hon’ble Supreme Court that exposing part of the body by an accused person for the purpose of identification would not amount to furnishing evidence in the capacity as a witness. 44. When the accused undergoes narco analysis test, polygraphy test or brain electrical activation profile test/brain fingerprint test, he comes out with certain incriminating facts as against himself from his personal knowledge. The verbal responses articulated by an accused during the process of such tests would amount to oral statements emanated from his personal knowledge of the facts. Therefore, subjecting an accused to such tests for the purpose of drawing information from the personal knowledge of an accused against his will and pleasure would amount to testimonial compulsions and violative of Article 20(3) of the Constitution of India. See, Smt.Selvi and others vs. State of Karnataka, [2010(3) Law Herald (SC) 1969] : AIR 2010 SC 1974 . 45. Conducting DNA test is held to be not violative of Article 20(3) of the Constitution of India as subjecting an accused to give material sample of DNA would not amount to testimonial compulsion of an accused. No oral response is articulated by the accused exposing himself to self-incrimination during the course of Test Identification Parade. Therefore, the Test Identification Parade conducted with the compulsory association of an accused would not violate the spirit of Article 20(3) of the Constitution of India. 46. Compelling a person physically or morally to give evidence against himself for the purpose of extorting communications from him is prohibited, but not exclusion of his body as evidence when it is material to do so. See, Holt vs. United States, 218 U.S. 245(1910). 47. As per Section 5 & 6 of the Identification of Prisoner’s Act, 1920, a Magistrate has been empowered to order a person to be measured or photographed if he is satisfied that such an order is expedient for the purpose of investigation or proceeding under the Code of Criminal Procedure, 1989. See, Holt vs. United States, 218 U.S. 245(1910). 47. As per Section 5 & 6 of the Identification of Prisoner’s Act, 1920, a Magistrate has been empowered to order a person to be measured or photographed if he is satisfied that such an order is expedient for the purpose of investigation or proceeding under the Code of Criminal Procedure, 1989. The person so ordered shall allow his measurements or photograph to be taken. In case there is resistance to take measurement or photograph of the person concerned, it is lawful to use all means necessary to secure the taking of measurement or photograph. Even such a resistance from the side of the person so ordered is treated as an offence. 48. Under Section 53 Cr.P.C., 1973 it has been declared that a registered medical practitioner at the request of a police officer can lawfully examine the accused to ascertain the facts which may offer some evidence. If there is any resistance from the person arrested to such medical examination, some force reasonably necessary for that purpose can also be used. 49. Under Section 53A of the Cr.P.C., similar power in the case of a person accused of rape is contemplated. 50. The aforesaid provision of law specifically provides for use of force in a case where the accused person refuses to co-operate for such examinations. As rightly pointed by learned Sr.Advcoate Sh.R.S.Cheema, no such penal provision for resistance has been provided under Section 54A of Cr.P.C., 1973. But, in our considered view, the accused whose identity was part of the subject matter of investigation can be compelled in the same manner as contemplated under Section 53 of the Cr.P.C., 1973. 51. The accused may have a reasonable objection for holding the Test Identification Parade. He might have been shown to the witness concerned prior to the Test Identification Parade. His photograph might have been flashed in the newspapers or magazines prior to the Test Identification Parade. Under such circumstances, the accused concerned has every right to express his protest orally or in writing to the learned Judicial Magistrate who conducts the Test Identification Parade. The Judicial Magistrate is duty bound to record such objections raised by the accused concerned. Just because the accused has such reasonable objections, the Judicial Magistrate shall not decline the request made by investigating officer for holding the Test Identification Parade. 52. The Judicial Magistrate is duty bound to record such objections raised by the accused concerned. Just because the accused has such reasonable objections, the Judicial Magistrate shall not decline the request made by investigating officer for holding the Test Identification Parade. 52. In our considered view, directing the accused to compulsorily participate in the Test Identification Parade would not amount testimonial compulsion. The Judicial Magistrate shall not decline the request made by the investigating official to hold Test Identification Parade on the pretext that the accused has refused to participate in the Test Identification Parade. The statement made by learned senior counsel Sh.R.S.Cheema that holding of Test Identification Parade against the protest made by accused concerned may singularly affect the weak and meek does not appeal to us. An innocent person minds not the ceremonial procedure of conducting Test Identification Parade. There would be no occasion for a person not involved in the crime to shudder and tremble before the ordinary witness who stands before him for identification. 53. Let us now take up the next question whether the Judicial Magistrate in the light of the provision under Section 54A Cr.P.C., 1973 and the instructions issued under Punjab and Haryana High Court Rules and Orders can delegate the function of holding the Test Identification Parade to an Executive Authority. 54. A reading of Section 54A of Cr.P.C. as inserted by Act 25 of 2005 w.e.f. 23.6.2006 reveals that the investigating agency can seek identification of an accused by any other person or persons if the same is considered necessary for the purpose of investigation. The Court of competent jurisdiction may on the request of an Officer Incharge of a police station direct the person so arrested to subject himself to identification in such a manner as the Court may deem fit. 55. Section 53A of the Cr.P.C. provides a very wide discretion to the Magistrate to direct to hold the identification “in such a manner as the Court may deem fit”. 56. A plain reading of the above provision gives an impression that the Court may delegate the power of holding Test Identification Parade to a third person. 55. Section 53A of the Cr.P.C. provides a very wide discretion to the Magistrate to direct to hold the identification “in such a manner as the Court may deem fit”. 56. A plain reading of the above provision gives an impression that the Court may delegate the power of holding Test Identification Parade to a third person. However, we find that the exercise of discretion by learned Judicial Magistrate has been regulated by relevant Punjab and Haryana High Court Rules and Orders incorporated in Vol.III Chapter 2 Part C which reads that in Districts in which the experiment of separation of Judiciary from the Executive was being tried, the work relating to holding of identification parade should be conducted only by the Judicial Magistrate. Therefore, in our considered view, the above relevant Rule makes it mandatory that the identification parade shall be conducted only by a Judicial Magistrate as the Judiciary has already been separated from the Executive. 57. In the instant case, we find that the Executive Magistrate has conducted the Test Identification Parade in an irregular fashion. We do not know whether the Executive Magistrate who conducted the Test Identification Parade in the instant case had a legal background. We are also not aware whether the Executive Magistrate was aware of the importance of conducting the Test Identification Parade. We cannot expect the Executive Magistrate to get himself sensitized to the legal nuances as regards the procedure to be compulsorily adhered to for conducting the Test Identification Parade. 58. The proceedings of the Test Identification Parade is admissible under Section 9 of the Evidence Act. The statements made by the witnesses during the course of Test Identification Parade are admissible both for the purpose of corroboration under Section 157 and 158 of the Evidence Act and for the purpose of contradiction under Section 145 ad 155 of the Evidence Act. A memorandum prepared by the Magistrate reflecting the Test Identification Parade conducted by him is admissible in evidence under Section 80 of the Evidence Act. 59. The Test Identification Parade can be made use of by the investigating agency to make sure that the suspect was the real accused. The witness who had seen the accused at the time of occurrence can also ascertain the fact whether the suspect was the real person who committed the crime. 59. The Test Identification Parade can be made use of by the investigating agency to make sure that the suspect was the real accused. The witness who had seen the accused at the time of occurrence can also ascertain the fact whether the suspect was the real person who committed the crime. When such is the importance of Test Identification Parade, it is not permissible to delegate the function of conducting Test Identification Parade by Judicial Magistrate to an Executive Magistrate. Further, as we have pointed out, Punjab and Haryana High Court Rules and Orders incorporated in Vol.III Chapter 2 Part C mandates holding of the identification parade only by the Judicial Magistrate. Henceforth, the Judicial Magistrates himself shall, without delegating such a function, hold the Test Identification Parade. 60. Let us now take up the last question whether adverse inference can be drawn in a situation where an accused refuses to participate in the Test Identification Parade. The accused has every right to register his protest for the proposed Test Identification Parade, but he cannot refuse to participate in the Test Identification Parade as directed by the Judicial Magistrate. 61. We have already held that the accused has no right to refuse to participate in the Test Identification Parade. The Judicial Magistrate has every authority to direct the accused to participate compulsorily in the Test Identification Parade. The protest, if any, raised by the accused shall be scrupulously recorded by the learned Judicial Magistrate who holds the Test Identification Parade. Learned Judicial Magistrate shall also elicit the reason for such a protest made by the accused and the same shall also be recorded so that the trial Court as well as the appellate forum shall have an opportunity to test the evidentiary value of the Test Identification Parade so conducted by learned Judicial Magistrate with the protest of the accused on certain grounds. Further, when the Judicial Magistrate can compulsorily direct the accused to participate in the Test Identification Parade despite his refusal to participate therein, the question of drawing adverse inference on account of the refusal on the part of the accused to participate in the Test Identification Parade does not arise for consideration. 62. Further, when the Judicial Magistrate can compulsorily direct the accused to participate in the Test Identification Parade despite his refusal to participate therein, the question of drawing adverse inference on account of the refusal on the part of the accused to participate in the Test Identification Parade does not arise for consideration. 62. Before parting with the case, we genuinely feel that a necessity has arisen to comprehensively reframe the relevant Rules of Punjab and Haryana High Court Rules and Orders to prescribe the mode and manner of holding the Test Identification Parade. Detailed guidelines in this regard will have to be incorporated therein. 63. A copy of the judgement may be circulated to all the Judicial Officers serving in the District Judiciary after obtaining necessary orders from Hon’ble the Chief Justice. ---------0.B.S.0------------ ———————————