If a magistrate has doubts about admitting a document on the memorandum of a test identification parade, he may summon the executive magistrate who conducted the identification parade as a witness, the Bombay High Court has observed.
The court was hearing a petition filed by a set of accused persons who had challenged an additional sessions judge’s order. The accused had filed an application before a Pune sessions court requesting the judge to summon the executive magistrate as a witness so that he could be cross-examined and the memorandum of the test identification parade be challenged.
The application was rejected by the sessions court. Directing that the executive magistrate should now be summoned as a prosecution witness or a court witness, Justice S S Jadhav observed that no court could presume that circumstances in which a test identification parade was held were beyond reasonable doubt.
“The court cannot be oblivious of the fact that it would be a hazardous situation in the eventuality that the memorandum of test identification parade is made admissible at the discretion of the trial court,” said Justice Jadhav. “In the present case, this court is of the opinion that a memorandum of test identification parade will not be a document as contemplated under the Indian Evidence Act,” said the court.
The petitioners face charges of cheating and are accused of having impersonated CBI officials while looting over Rs 21 lakh. During the investigation, the petitioners were subjected to an identification parade conducted by an executive magistrate.
The memorandum of the test identification parade forms part of the chargesheet against the accused. The sessions judge had invoked Sub-Section (1) of Section 291-A of CrPC, which contemplates that the document be admitted in evidence without examining the executive magistrate who is the maker of that document.
The counsel for the petitioners, meanwhile, submitted that the sessions judge had not taken into consideration Sub-Section (2) of Section 291 of CrPC that allows such examination of the magistrate pertaining to the contents of the document. “By virtue of subsection (2) of Section 291-A, it cannot be said that it is a negative legislation and that Section 291-A is designed to prevent the Magistrate who supervise the test identification parade, who is the cornerstone of the criminal trial, from being summoned to give evidence in court.