In the labyrinth of criminal trials, where justice hangs in the balance, the identification of an accused emerges as a pivotal facet. Test Identification Parades (“TIP”) are a crucial mechanism among the multifarious methods employed during the investigation process. Governed by Section 9 of the Indian Evidence Act, 1872 and Section 54A of the Code of Criminal Procedure, 1973 (“CrPC“), these parades facilitate the identification of suspects by eyewitnesses, playing an instrumental role in shaping the trajectory of criminal proceedings.

As per NCRB CII Report 2021, there has been an increase of 15.6% in crimes as compared to 2019, suggesting that crime rates in India have been escalating at an alarming pace. In the pursuit of effective criminal justice delivery, identifying suspects becomes paramount. However, this imperative process is not without its complexities. While seeking the truth, it is essential to tread carefully to ensure that the accused is not coerced into providing self-incriminating evidence, a concern addressed by the constitutional safeguard encapsulated in Article 20(3) of the Indian Constitution.This blog embarks on an in-depth exploration of Section 54A of the CrPC and Test Identification Parades under Section 9 of the Indian Evidence Act, unravelling their intricacies within the framework of Article 20(3). In doing so, the author navigates the delicate balance between the exigencies of criminal investigations and the constitutional right designed to protect individuals from self-incrimination.

Under Section 9 of the Indian Evidence Act, facts which introduce or explain a necessary fact in the issue are considered relevant facts, and test identification parades come within this ambit since they explain a necessary fact. Section 54A of CrPC deals with the identification of suspects by eyewitnesses. Moreover, the aforesaid section stipulates that in case the person identifying the accused is a mentally or physically disabled person, then the Test Identification Parade should be under the supervision of a Judicial Magistrate. Whereas, in the case of the suspect who has to undergo such identification and if such suspect is mentally or physically disabled, then such identification has to be compulsorily video graphed.

A Test Identification Parade is usually required in cases wherein the identity of the accused is unknown. When the criminal act was done to the victim, the accused’s body structure, height, and other personal features were visible. Based on these features, the victims can reasonably deduce the identity of the accused. Contrarily, if the victims/witnesses know the accused, then in such circumstances, a Test Identification parade is not necessary.

In the case of Ramanbhai Naranbhai Patel v. State of Gujarat, it was held that the credibility of the Test Identification Parade varies from case to case. The veracity of the Test Identification Parade is based on certain key facts such as the time of the day when the act was committed, the occurrence place, and the number of accused.

In the case of Amitbhikamsingh Thakur v. State of Maharashtra, the Apex Court held that the refusal of the accused to participate in the Test Identification Parade can be purported with the guilt of the accused only in such cases wherein the trial court can exercise its discretion taking into consideration the facts and circumstances of such case. Additionally, such an inference can be drawn from the existence of corroborative evidence.

Recently, in the case of Rajesh v. State of Haryana, the Supreme Court summarised the position with respect to TIP in India, ruling that test identification parades are predicated on witnesses without prior knowledge of the accused. Test identification parades are only useful as supporting evidence. The purpose of the Test Identification parade is to assist law enforcement agencies in identifying the accused and to test the witness’s memory based upon their first encounter with the accused. In addition, the Test Identification Parade is only used to determine the veracity of the witnesses, who can then be called eyewitnesses to the offences in question. Lastly, the Test Identification Parade should be conducted as soon as possible. Although, in certain cases where it is not possible to do it without any delay owing to facts beyond the control, the delay can be condoned.

Article 20(3) of the Constitution of India mandates that no accused should be compelled to be a witness. For the application of this article, initially, the individual in question is alleged to have committed a crime. Subsequently, this individual is obligated to provide testimony that may implicate themselves. Lastly, there is a necessity to compel the person to self-incriminate.

The Supreme Court in the case of M.P. Sharma v. Satish Chandra, held that any affirmative intentional action that provides evidence can be considered testimony. The compulsion associated with testimony implies a form of influence that elicits the person’s affirmative and intentional evidential actions, contrasting with their passive stance of remaining silent or submissive.

This position was further discussed in the case of State of Bombay v. Kathi Kalu Oghad, wherein the court established the necessity to demonstrate that an individual was coerced into providing a statement that could potentially implicate them. Compulsion, in this context, refers to physical, tangible actions such as beating, threats, or the unlawful confinement of a spouse, parent, or child, rather than psychological state. Article 20(3) does not come into play if an individual confesses without any form of inducement or threat.

In the case of Nandini Satpathy v. P.L. Dani, wherein it was affirmed that Article 20(3) aims to safeguard the accused from undue police harassment, and the right against self-incrimination is equally applicable to both witnesses and accused individuals. This protection extends to every stage involving the provision of information. The privilege granted by Article 20(3) is invoked during police investigations when information is extracted. The right to remain silent is not restricted to the specific case under examination; it also encompasses other pending matters that could potentially incriminate the individual. The court clarified that this protection can also be utilised by a suspect. Additionally, the court enlarged the scope of “compulsion” to include psychological aspects such as psychic torture, atmospheric pressure, environmental coercion tiring interrogative prolixity, overbearing and intimidatory methods.

The contours of Article 20(3) of the Constitution of India from the perspective of Test Identification Parade were tested in the case of Peare Lal Show v. The State, wherein the court relied on Holt v. United States, the Supreme Court of US, while interpreting the 5th Amendment of the American Constitution which is similar to Article 20(3) of the Constitution of India, held that objection by an accused for his identification would imply that it prevents the jury from visually comparing a prisoner with a photograph as evidence. Additionally, the extent to which a court might compel a person to display themselves need not be considered here. When a person is exhibited, whether voluntarily or by order, and even if the order is deemed excessive, the evidence remains admissible if it is material for the case at hand.

While it can be stated that an accused may be compelled to participate in a test identification parade, this compulsion does not entail any affirmative intentional evidentiary act on their part. Attending or being compelled to exhibit their body at such a parade does not constitute an evidentiary act until another party identifies it.

The identification by a witness is not an act performed by the accused, even though their body is displayed for this purpose. The compelled attendance at a test identification parade is discarded from the final evidence and, by itself, cannot be considered as providing any intentional and affirmative evidentiary act.

The Supreme Court of India recently addressed this issue of whether TIPs are in violation of Article 20(3), in the case of Mukesh Singh v. The State (NCT of Delhi), the court endorsed the Calcutta High Court’s decision in Peare Lal Show v. The State, holding that they are not in violation of the constitutional safeguard. The court further, clarified that the Test Identification Parade (TIP) is a crucial part of the investigation process, emphasizing the statutory authority of the investigating agency. Importantly, there is no provision allowing the accused to request participation in a test identification parade. In summary, the challenge under Article 20(3) is valid only when eyewitnesses have prior knowledge of the accused, and the trial court heavily relies on the Test Identification Parade as substantial evidence for conviction.

In unravelling the legal tapestry surrounding Test Identification Parades, it is evident that these procedures are indispensable tools for establishing the identity of an accused. Striking a balance between investigative imperatives and constitutional safeguards, the courts emphasize the need for a case-specific approach, recognizing the variable credibility of TIPs. The nuanced position on the refusal to participate in a TIP underscores the importance of corroborative evidence and judicial discretion. Ultimately, as we navigate the complexities of TIPs, the overarching goal remains the pursuit of justice within the bounds of a fair and transparent legal system.