Case BriefsSupreme Court

Supreme Court: In a big relief to Alt News Co-founder and fact checker Mohammed Zubair, the 3-judge bench of Dr. DY Chandrachud*, Surya Kant and AS Bopanna, JJ has directed that Zubair will continue to remain enlarged on bail, subject to his filing a personal release bond in the amount of Rs 20,000 with respect to 6 FIRs filed against him at various places. The Court observed that,

“The criminal law and its processes ought not to be instrumentalized as a tool of harassment.”

Most of the FIRs implicate offences (Sections 153A, 295A and 298 IPC and Section 67 IT Act) which are punishable for up to three years’ imprisonment. It has been alleged that Zubair has hurt religious feelings through his tweets. It is also important note that certain dormant FIRs from 2021 were activated as certain new FIRs were registered.

The 6 FIRs filed in Ghaziabad, Chandauli, Lakhimpur, Sitapur, Hathras have also been transferred from the Uttar Pradesh Police to the Special Cell of the Delhi Police, thereby disbanding the SIT formed by the Director General of Police, Uttar Pradesh on 10 July 2022. If any other related FIR is filed against Zubair then the same will also be transferred to the Special Cell of the Delhi Police and Zubair shall be entitled to the order of interim bail.

As far as the FIR registered at Muzaffarnagar is concerned wherein the charge-sheet under Section 173 of the Code of Criminal Procedure 1973 has been filed, the Court transferred the proceedings to the Chief Judicial Magistrate, Patiala House Courts and directed the matter is to be taken up from the stage that has reached before the earlier Court. The petitioner has been enlarged on bail. The order enlarging the petitioner on bail shall continue to remain in force.

Criminal Justice system being used as a tool of harassment

Unhappy with the acts of the Police in the case, the Court went on to observed that the machinery of criminal justice has been relentlessly employed against Zubair.

Despite the fact that the same tweets allegedly gave rise to similar offences in the diverse FIRs mentioned above, the petitioner was subjected to multiple investigations across the country. Consequently, he would be required to hire multiple advocates across districts, file multiple applications for bail, travel to multiple districts spanning two states for the purposes of investigation, and defend himself before multiple courts, all with respect to substantially the same alleged cause of action.”

Resultantly, the Court noticed that Zubair has been trapped in a vicious cycle of the criminal process where the process has itself become the punishment.

The Court, hence, observed that,

“The Arrest is not meant to be and must not be used as a punitive tool because it results in one of the gravest possible consequences emanating from criminal law: the loss of personal liberty. Individuals must not be punished solely on the basis of allegations, and without a fair trial. When the power to arrest is exercised without application of mind and without due regard to the law, it amounts to an abuse of power.”

Stating that the Police Officers are expected to apply their mind to the case before them, the Court said that the criminal law and its processes ought not to be instrumentalized as a tool of harassment. Section 41 of the CrPC as well as the safeguards in criminal law exist in recognition of the reality that any criminal proceeding almost inevitably involves the might of the state, with unlimited resources at its disposal, against a lone individual.

Gag order directing Zubair not to tweet unwarranted

When the State of Uttar Pradesh attempted to persuade this Court that the petitioner must be barred from tweeting when he is on bail, the Court held that merely because the complaints filed against the petitioner arise from posts that were made by him on a social media platform, a blanket anticipatory order preventing him from tweeting cannot be made.

“A blanket order directing the petitioner to not express his opinion – an opinion that he is rightfully entitled to hold as an active participating citizen – would be disproportionate to the purpose of imposing conditions on bail. The imposition of such a condition would tantamount to a gag order against the petitioner. Gag orders have a chilling effect on the freedom of speech.”

Noticing that Zubair is a journalist who is the co-founder of a fact checking website and he uses Twitter as a medium of communication to dispel false news and misinformation in this age of morphed images, clickbait, and tailored videos, the Court held that passing an order restricting him from posting on social media would amount to an unjustified violation of the freedom of speech and expression, and the freedom to practice his profession.

The observations came after it was noted that the bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed.

[Mohammed Zubair v. State of NCT of Delhi, 2022 SCC OnLine SC 897, order dated 20.07.2022]

For Petitioner(s): Advocates Vrinda Grover, Soutik Banerjee, Mannat Tipnis, Devika Tulsiani and Aakarsh Kamra

For Respondent(s): AAG Garima Prashad, Advocates Adarsh Upadhyay, Harsh Mishra, Aman Pathak

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On the Victim's Right to Participation
Op EdsOP. ED.

Through its judgment in Rekha Murarka v. State of W.B.,1 the Supreme Court of India has attempted to strike a balance between the victim’s right to participation and the rights of the accused. The judgment is at once a cause of celebration as well as a cause of concern. Whereas on the one hand, the Supreme Court has closed a legal door on the victim’s participation, on the other hand it has opened up a significant avenue. Overall, the judgment undoubtedly furthers the ambiguity in the position of the victim’s right to participate in our criminal justice system. This post attempts to objectively uncover this ambiguity, if not resolve it.

Summarily, the Court has refused the right of a private counsel engaged by the victim to cross-examine the witness or to make oral arguments in general. Its interpretation is based on a conjoined reading of Sections 24(8)2 and 301(2)3 of the Code of Criminal Procedure, 1973 (CrPC). The Court proffers that the term “assist” used in Section 24(8) CrPC cannot be so interpreted as to mean a conduct of prosecution by the private counsel. The task of prosecution remains suited to a Public Prosecutor alone.

The Court’s reasoning can be faulted on several grounds. Firstly, the Court assumes that the right of the victim’s counsel to participate in the trial is a zero-sum game between the Prosecutor and the counsel. It extends the assumption to an extremity by implying that any oral arguments or cross-examination of witnesses would tantamount to taking over the prosecution itself. In its reasoning, the Court does not take into account the numerous other permutations and combinations of victim participation that exist between the victim having no say at all and the victim’s counsel taking over the function of the Prosecutor. As the procedure in the International Criminal Court, however, goes on to show, the concerns of the victims can be taken into account by the court at several stages of the trial without any prejudice to either the accused or the prosecutor’s discharge of his functions.

Secondly, the instances cited by the Court in support of its reasoning highlight the abovementioned assumption. The Court holds that the victim’s counsel cannot be allowed to make oral arguments or cross-examine victims because it may lead to a weakening of the prosecution’s case; or that the trial may devolve into a vindictive battle between the counsel of the victim and the accused; or the victim’s advocate may not be experienced enough to advocate on the victim’s behalf. These hypotheticals betray the Court’s lack of faith in the victim’s advocate. The Court does not envision the role of the victim’s counsel to be one based on cooperation and collaboration in securing justice, but instead assumes that the victim’s advocate would necessarily be petty and “vindictive”.

Thirdly and corollary to the above, the judgment displays the faith of the Court in the office of Public Prosecutor and indeed, the same is well placed to a large extent. The Court should not, however, have ignored the plight of the victim in the process. It was with the intention to secure a greater say for the victim that Section 2(wa)4 and Section 24(8) proviso5 CrPC were introduced within our criminal justice system. Irrespective of the faith of the Court, the prosecution cannot be substituted for a private counsel that works to secure the interests of the victim. The statutory promise of Section 301(2) CrPC in allowing written arguments after the closing of evidence is hardly enough to secure effective participation of the victim. From this perspective, the judgment is a setback to the cause of securing justice for the victims.  

Fourthly, even if we were to agree with the reasoning that allowing oral arguments or cross-examination will tantamount to the prosecution being overtaken by the victim’s counsel, it is certainly not unheard of or completely impermissible within the scheme of our criminal justice system. Whereas Section 301(2) CrPC is applicable to “any court”, Section 3026 allows for the prosecution to be conducted by any person or a pleader engaged by such person with the permission of the Magistrate’s Court. Principally speaking, it is dichotomous that such prosecution prejudicially affects the right of the accused in a Court of Session but has no such adverse effects on the rights of the accused in a Magistrate’s Court.

Despite the abovementioned flaws, a careful perusal of the final paragraphs of the judgment illuminates an oscillation from regression to progression. In Zahira Habibulla H. Sheikh v. State of Gujarat7 the Court had held that where the prosecuting agency or the Prosecutor was not acting in the requisite manner, the use of Section 311 CrPC8 to summon material witnesses and to examine them was warranted by the courts. In the impugned case, the court extended this principle, by granting the victim’s counsel the right to channel their questions and arguments through the court under Section 311 CrPC and Section 165 of the Evidence Act9 (IEA). In this respect, the Court remarks that:

11.5. …if the victim’s counsel finds that the Public Prosecutor has not examined a witness properly and not incorporated his suggestions either, he may bring certain questions to the notice of the court. If the Judge finds merit in them, he may take action accordingly by invoking his powers under Section 311 CrPC or Section 165 of the Evidence Act, 1872.10

In Rekha Murarka case11, the Supreme Court has given a judicial stamp of approval to this earlier decision. To an extent, the judgment unsettles the jurisprudence established by the case of Mohanlal Shamji Soni v. Union of India,12 that the Court should not use Section 311 CrPC to fill a lacuna left by the prosecution.

More importantly, however, this change in the jurisprudence of Section 311 CrPC is bound to have far-reaching implications for victim justice generally. Under the previous scheme of victim participation, the only avenue available for the victim’s counsel to participate in the proceedings was under Section 301(2) CrPC wherein the counsel could make only written statements after the closing of evidence. Section 311 CrPC, on the other hand, can be invoked by the court at any stage of the inquiry, trial or other proceeding under CrPC. By extension, the Supreme Court has now expressly permitted the victim’s counsel to request the court to invoke Section 311 CrPC and summon/examine material witnesses at any of the stages mentioned above.

There are a plethora of decisions13 of the Supreme Court casting a duty upon the courts for invoking Section 311 CrPC to secure justice; however, the manifest permission to use Section 311 CrPC in order to secure victim justice is certainly a breath of fresh air. If the same translates into practice, this development has the potential to secure an unprecedented victory for the victim’s advocates. For the above to have an effective impact on securing victim’s participation, however, much publication and dissemination of this precedent is required. 

* Assistant Professor of Law, Rajiv Gandhi National University of Law, Punjab, BA LLB (Hons.), LLM  (Criminal Law and Constitutional Law). Author can be reached at <>.

Op EdsOP. ED.


Identity may be thought of as a quality of a thing or a person. In an instance where the court must know the identity of any person or thing which would substantially help in adjudicating upon a case, then every fact which establishes such identity becomes relevant. With the development of law, police use visual, scientific, audio, etc. modes for obtaining identification of suspects. Indeed, there is no restriction on facts to be given in court to establish the identity in question, but their admissibility may vary. This paper focuses on the study of witness evidence that are admissible in proving the identity of a suspect and problems which may curtail the admissibility of such shreds of evidence.

Significance of identification evidence

The two questions which hold great importance in criminal trials are: whether the offence that is alleged was committed and if yes, then who committed it. Talking particularly about the questions pertaining to identity may come up in two ways—

  1. A person’s identity with an ascertained person.
  2. A person’s identity as the doer of a particular act.

When a person’s identity with an ascertained person is in issue then it may be proved and disproved presumptively by similarity or dissimilarity of characteristics like weight, size, hair, voice, etc[1].

The identity of a person or thing is necessary to prove relevant facts of the case and the identification test is not a substantive piece of evidence. It provides a kind of assurance to the investigating agency and the court that they are proceeding in the right direction. The same was held by the court in Musheer Khan v. State of M.P.[2].

There is this notion that witnesses are the best sources of extracting reliable evidence because of the assumptions that if a person sees someone commit a crime especially a stranger he or she would not forget the accused face or appearance because the person witnessed an unusual event and it is a human tendency to remember such things somewhere in the back of their minds which was not normal to them. Also, Bentham said “witnesses are the eyes and ears of justice”, this makes the role of a witness of paramount importance in the justice delivery system.

Though identification evidence is potentially unreliable and merely corroborative in nature, errors in recording them or cases of mistaken identity though in good faith can lead to effects like wrong convictions which can prove to be extremely serious for the defendants and his/her family also many times. For a long time misidentifications have bedeviled our justice system and continue to, with a rate of 52% wrongful convictions every year as a consequence of it. So, the testimonies and identification evidence made by a witness must be dealt with utmost sensitivity as they play a vital role in deciding a matter and delivering judgment. Any false or wrong identification made on part of the witness becomes a gateway to the wrongful conviction of an innocent for the crime which that person to all intents and purposes didn’t commit. It is of paramount importance for the Judge to check and weigh the credibility and accuracy of such identification evidence given by the witnesses along with keeping a check that the evidentiary standards are maintained to avoid a miscarriage of justice.

Many times, it becomes difficult to identify the accused as the crimes are committed under the cover of darkness. In such cases, the identity of a person or thing and commission of a crime can be established using circumstantial evidence[3]. In cases where the guilt gets established by circumstances in such cases, the identification of the accused either in court or through test identification parade is not a sine qua non[4].

Under Indian law

Section 9 of the Evidence Act, 1872 deals with the facts which establish the identity of anything or person.

As per the section, all these facts are relevant[5]

  1. One’s which are necessary to explain a fact in issue or relevant fact.
  2. Which are required to introduce any fact in issue or relevant fact.
  3. That support the inference suggested by a fact in issue or relevant fact[6].
  4. Which rebut any or all conjectures made by a fact in issue or relevant fact[7].
  5. Which establish the identity of a person or a thing whose identity is relevant.
  6. Which fix the time or place at which the facts in issue or relevant fact happened[8].
  7. Establish the relations of parties between whom any such fact was transacted.

These facts are not otherwise admissible as far as they are necessary for the purpose pointed out in each category[9]. These facts sometimes give strength to the evidence given by one side and sometimes break the force of evidence given by the adverse side. These are explanatory pieces of evidence that are not relevant in themselves and the effect of these may not be affirmative in all cases, still, they prove to be substantial for corroboration of other shreds of evidence.

As we know that our criminal law stands on the saying “innocent until proven guilty” and this principle makes it mandatory for the prosecution to establish the evidence beyond reasonable doubt for the conviction to take place. The cases which rely on identification evidence tend to fail even if there exist any room for misidentification to occur because then the probative value of such evidence slump down[10].

There are various modes of identification—

  1. Photofits

Photofit is a reconstructed picture of a person what in layman terms we know to be a sketch of the face of a person or an attempted description of someone[11]. This technique is basically used as an attempt to reproduce the face of the suspects soon after the crime takes place so that the witness can let out whatever he can recall from the incident which he witnessed. It is claimed by Psychologist Ebbinghaus in “forgetting curve” that–

if attempts are made to recall and rehearse information then it can become a part of long-term memory otherwise at its first stage the information forms a part of our short-term memory which tends to fade away over a period of time[12].

The chances of misidentification increase with the increase in the time interval between the crime and identification exercise. In Reg. v. Cook (Christopher) the appeal that a photofit was not a written statement that could come under the purview of the rule against hearsay was dismissed and the photofit evidence was held to be admissible by virtue[13].

  1. Identification by photographs

Identification by photograph is another method used specifically at the investigation stage. It was held by the Supreme Court that there is no legal provision which states that identification by photograph is not admissible. In fact, it becomes a substantive piece of evidence when such identification is made in the Court[14]. Moreover, according to the court, identification by photograph must take place of test identification[15]. It is to be noted that in cases where the witness lays out some identifying features of the accused the course of action to be adopted by the investigating officer should be the one where the witness is shown more than one photograph of the suspect if available to draw out a confirmation as to the identity of the accused[16].

  1. Video and voice identification

Identification of the accused by the witness through video recording is admissible. In the case of D. Gopalakrishnan v. Sadanand Naik[17], it was said by the court that where there is the availability of video recording through which the witness can testify the identity of the accused then the photographs of the suspects should not be shown before such identification.

On the other hand, identification by voice is a bit risky in criminal trials particularly where the witness is not acquainted with the suspect and there are fine variations in overtones.[18] Many a time the legality of the orders passed by courts directing the accused to furnish the sample of his or her voice as a part of the identification process has been challenged. This question particularly was dealt with by the Law Commission of India in its 87th Report[19] on the Identification of Prisoners Act, 1920[20] when on the realisation of the fact that there is no legal provision in Indian laws, the necessity to amend Section 5[21] of the Act of 1920 was suggested which would empower the courts to direct the accused to give a sample of his voice. The controversy was finally settled by the Supreme Court in Ritesh Sinha v. State of U.P.[22], invoking its plenary power under Article 142[23] of the Constitution of India through the process of judicial interpretation the court under the cover of Section 54-A of the Criminal Procedure Code, 1973[24] engrafted the power on the Magistrate to pass orders directing the voice samples to be furnished by the accused or the suspect whenever in the case, the witness is capable of confirming the identity of the accused on the basis of voice recognition[25].

  1. Test identification parade

One of the most popular and widely used methods of identification of witness is the identification parade. Test identification parade is one where the witness who claims to have seen the culprit at the time of occurrence is to identify the accused from the midst of suspects without any aid or other source. These are meant to test the veracity of the witness and the capability to identify unknown persons. Test identification parade should be conducted at the earliest possible so as to eliminate the chance of the accused being shown to witness prior to the identification parade which might otherwise affect the memory of the witness along with the credibility of the evidence to be sought.

Test identification parade belongs to the investigation stage and there is no provision in the Code of Criminal Procedure, 1973[26] under which the accused can claim it as a matter of right or makes it mandatory for the investigating officer or agency to hold an identification parade[27]. In Ramanathan v. State of T.N.[28] the Supreme Court explained the utility of the evidence created by test identification parade (TIP). The Court said that the purpose behind holding a test identification parade by placing suspects in a line up so that the witness of the incident could recall the features in sufficient details and to find out who is the perpetrator of the crime.

It is not a substantive piece of evidence rather is used for the purpose of corroboration and to strengthen the trustworthiness of substantive evidence of a witness in the Court[29].The parades come under the purview of Section 164[30] of the Code of Criminal Procedure, 1973[31].

Delay or failure in holding the TIP does not by itself render the evidence inadmissible or unacceptable but affects the credibility and weight attached to such identification[32]. The Supreme Court held that the identification by witness of the accused for the first time in the court is worthless till the time it is not tested prior by test identification parade[33]. But this view was changed later on in Ravi Kapur v. State of Rajasthan[34] it was held that court identification is itself a good identification in the eye of the law, it depends on the facts and circumstances of each case and is not necessary that it must be preceded by test identification parade.

Procedure for test identification which is generally followed is

  1. Test identification parade is conducted by the Magistrate.
  2. Such parades are conducted in special rooms with one side view glass where on one side of it the suspects are lined up and on the other side the witness and Magistrate.
  3. The witness and Magistrate must not be on the side where they are not visible to the suspects. The main reason behind this is the protection of the witness and also to avoid any kind of influence or threat which could compel the witness to make false identification.
  4. Also, the attire of the suspects must be changed every time a witness is called to identify the accused among them.
  5. The Magistrate must prepare, certify and carry multiple copies of TIP reports[35].

With the development of technology and sophisticated computer systems countries like Britain nowadays use VIPER (video identification parade electronic recording) as a replacement for live parades where a line up of 15-second clips are shown in a sequence which starts with the person’s front face and then slowly turning to show left and right profiles[36]. There is a dire necessity to introduce such a system in India as well.


Though there are many ways to set up accused identity, the admissibility and credibility of such identification evidence given by a witness need to be weighed, especially in cases where the case of prosecution solely depends on such identification evidence. Therefore these evidences are a paradox in themselves because the memory of the witness can be easily flawed due to factors like duress or stress after witnessing a crime, influence from accused, family or acquaintance, and lapse of time, etc. and this affects the quality and credibility of such evidences making them hopelessly unreliable. Research tells that the memory of the witness of the accused appearance may remain in short memory for a brief period of time which can be easily lost. Also, the chances of memory for face getting affected and altered are substantial, particularly in situations where the eyewitness receives any misleading information through any source. Therefore these evidences are merely corroborative and not substantive in nature because their credibility and accuracy remain in question which prevents them from being the sole basis of conviction of the accused. Still, the importance of the identification evidence given by witness cannot be ignored completely while adjudicating upon a case. Steps should be taken by the courts to understand the subjectivity of the question involved, carefully weigh the identification evidence and accordingly apply legal principles[37].

3rd year student, BA LLB, Delhi Metropolitan Education affiliated with GGSIP University, e-mail:

[1] Irshad v. State of Rajasthan, 2004 SCC OnLine Raj 474

[2] (2010) 2 SCC 748

[3] Prakash v. State of Karnataka, (2014) 12 SCC 133 : (2014) 6 SCC (Cri) 642

[4] Visveswaran v. State, (2003) 6 SCC 73 : 2003 SCC (Cri) 1270

[5] The Evidence Act, 1872, S. 9

[6] Shantanu Chakrak, S. 9 of the Evidence Act, 1872, Shareyouressays (25-3-2021, 12.02 a.m.), <>.)

[7] SRD Law Notes (22-3-2021, 16.00), <>.

[8] Tan Shoo May, Visual Identification: Recognition and Identification, Law of Evidence (23-3-2021, 11.10 a.m.), <>.

[9] Batuk Lal, The Law of Evidence, 129 (22nd Edn., Central Law Agency, 2018).

[10] Riya Sharma, The Eyewitness Enigma: A Paradox in the Law of Evidence, The Criminal Law Blog, National Law University, Jodhpur (23-3-2021, 17.31),  <>.

[11] Reg. v. Cook (Christopher), (1987) 2 WLR 775

[12] Siegen K. Chou, What is the Curve of Forgetting? 45(2) The American Journal of Psychology 348 (1933).

[13] (1987) 2 WLR 775

[14] Umar Abdul Sakoor Sorathia v. Narcotic Control Bureau, (2000) 1 SCC 138

[15] Laxmi Raj Shetty v. State of T.N., (1988) 3 SCC 319

[16] D. Gopalakrishnan v. Sadanand Naik, (2005) 1 SCC 85

[17] (2005) 1 SCC 85

[18] Dola v. State of Odisha, (2018) 18 SCC 695

[19] <>.

[20] Law Commission of India, 87th Report on the Identification of Prisoners Act, 1920,(1980) 

[21] <>.

[22] (2019) 8 SCC 1, para 27

[23] <>.

[24] <>.

[25] P.N. Prakash, Sanjay S. Jain and Sharath Chandran, The Legality of Voice Exemplars: An Opportunity Missed: Ritesh Sinha v. State of U.P., (2021) 1 SCC J-73 

[26] <>.

[27] Malkhansingh v. State of M.P., (2003) 5 SCC 746

[28] (1978) 3 SCC 86 at pp. 1211-1212

[29] Ram Babu v. State of U.P., (2010) 5 SCC 63; Vijay v. State of M.P., (2010) 8 SCC 191, 199

[30] <>.

[31] Sarvesh Kumar Shahi, Rules and Principles of Identification under Criminal Justice System, SCC OnLine (25-3-2021, 13.00), <>.

[32] Shyamal Ghosh v. State of W.B.,  (2012) 7 SCC 646

[33] V.C. Shukla v. State (Delhi Admn.), (1980) 2 SCC 665 at p. 1396

[34] (2012) 9 SCC 284

[35] Murugasamy v. State, 2017 SCC OnLine Mad 37658

[36] Sarvesh Kumar Shahi, Rules and Principles of Identification under Criminal Justice System, at p. 6, SCC OnLine (25-3-2021, 13.00), <>..

[37] Riya Sharma, The Eyewitness Enigma: A Paradox in the Law of Evidence, The Criminal Law Blog, National Law University, Jodhpur (23-3-2021, 17.31), at p. 3  <>.

Case BriefsHigh Courts

Allahabad High Court: Ajay Bhanot, J., while allowing the present petition, on e-bail applications, said, “The process of law cannot move at a bullock cart pace in the age of information technology. Institutions have to upgrade with the latest technological developments. Fruits of technology have to be put in the service of the people. In the legal process technology can play a critical role in effectuating the fundamental rights of the citizens in particular, and in upholding the process of law in general.”

Amendments to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, made in the year 2016, brought an alteration in the practice and procedure for hearing of bail applications. Present petition has been moved to seek directions in remedy of certain anomalies as pointed out by the petitioners, including, inconsistencies in the procedure for hearing of bail applications and bail appeals, uncertainty in the period of maturation of bail applications and bail appeals, and deferment of hearing of bail applications or bail appeals under the Act for undefined periods.


  1. What is the agency and mode for service of notice of bail applications/bail appeal upon the victim under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act?
  2. What is the time period for maturation of a bail application/bail appeal before the High Court which implements the mandate of the Act (as amended from time to time) and agrees with the requirements of constitutional liberties?


On Right to Bail

Court placed reliance on the case of Gudikanti Narasimhulu v. Public Prosecutor High Court of Andhra Pradesh, (1978) 1 SCC 240, “Bail or jail?” — at the pre-trial or post-conviction stage — belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process”

Emperor v. H.L. Hutchinson, 1931 SCC OnLine All 14, “The principle to be deduced from Sections 496 and 497 of the Criminal Procedure Code, therefore, is that grant of bail is the rule and refusal is the exception. That this must be so is not at all difficult to see. An accused person is presumed under the law to be innocent till his guilt is proved. As a presumably innocent person he is entitled to freedom and every opportunity to look after his own case. It goes without saying that an accused person, if he enjoys freedom, will be in a much better position to look after his case and to properly defend himself than if he were in custody”

Reinforcing the connection between the concept of liberty and the process of criminal law, the Supreme Court in Arnab Manoranjan Goswami v. State of Maharashtra, 2020 SCC OnLine 964, said, “Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally, it is the duty of courts across the spectrum – the district judiciary, the High Courts and the Supreme Court – to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum – the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment.”

Highlighting provisions for bail in High Court Rules

“Bail applications have to be processed expeditiously and placed before the court for hearing in a reasonable and definite time frame. The procedure for processing the bail application needs to be consistent, and the time period for hearing of the bail application has to be certain.

A bail processual framework violates fundamental rights and personal liberties of an accused guaranteed under Articles 14 and 21 of the Constitution of India in the following situations:

  1. Provisions with an unreasonably large time for maturation of a bail application;
  2. Procedures where the time period for hearing of a bail application is undefined;
  3. Practices causing indefinite deferment of hearing of a bail application.
  4. Failure of police authorities to provide timely instructions to the Government Advocate before the hearing of bail application.”

Court further reproduced the process of maturation of a bail application as contained in Rule 18 of Chapter 18 of the Allahabad High Court Rules.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989: Relevant Provisions and Discussion

“The Constitution of India asserts the equality of all its citizens. However, the founding fathers were equally conscious of inequalities which blight our society. Many sections of our society are downtrodden and oppressed because of historical reasons. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (as amended from time to time), is a recognition of the fact of inequalities in our society; and a reflection of the resolve to do equal justice.”

Citing relevant provisions, Court observed,

“Section 15A(3) has two limbs: The first is the nomination of the agency to inform the victim about such proceedings under the Act before the Court. The second limb provides for ‘reasonable, accurate and timely notice’ of any criminal proceedings including a bail application/bail appeal to the victim or his dependent. Section 15(A) 3 visualizes some elements of process of maturation of bail, for being placed before the Court. However, it does not disclose any time frame for the same.”

With respect to the word ‘shall’ as added by the legislature, Court referred to the case of Dilip Kumar Sharma v. State of MP, (1976) 1 SCC 560, wherein the Supreme Court said, “It is well settled that such a penal provision must be strictly construed ; that is to say, in the absence of clear compelling language the provision should not be given a wider interpretation and no case should be held to fall within which does not come within the reasonable interpretation of the statute. If two construction are possible upon the language of the statute, the Court must choose the one which is consistent with good sense and fairness and eschew the other which makes the operation unduly oppressive, unjust or unreasonable, or which would lead to strange, inconsistent results or otherwise introduce an element of bewildering uncertainty and practical inconvenience in the working of the statute.” The position which thus emerges is that under the Act the State Government or Special Public Prosecutor is nominated as the sole agency with the exclusive statutory duty to inform the victim about the bail proceedings. Any practice to create an intermediate agency or alternative method for service of notice upon the victim should be avoided.

Directions issued

  1. The notice of the bail application or bail appeal under the Act shall be served upon the Government Advocate before 12:00 PM of any working day.
  2. The State Government shall ensure that service of notice of the bail application or bail appeal is effected upon the victim not later than 96 hours after the receipt of the said notice.
  3. The victim will be entitled to 72 hours after the receipt of notice of bail.
  4. Save in exceptional circumstances which are accepted by the Court, the bail application or bail appeal under the Act shall be placed before the Court immediately after the expiry of 168 hours or 7 days from the time of service of notice of bail application or bail appeal upon the Government Advocate as aforesaid.
  5. The report of the service of notice of bail application or bail appeal shall be submitted by the State authority before the court showing due compliance of the provisions of Section 15(3) of the Act.
  6. In case the counsel for the applicant does not move the bail application or bail appeal as per the current procedure to enable it to be placed before the Court 7 days after the initial service of notice, this procedure shall be followed. The applicant or his or her counsel shall give 96 hours of notice to the Government Advocate as to the exact date on which such application is intended to be moved. The State shall thereafter cause such notice to be served again upon the victim so as to enable him to have “accurate, notice of the proposed bail application”.
  7. During this period of 7 days notice of the bail application under the Act, the police authorities shall ensure that appropriate instructions are available with the Government Advocates to assist the Court at the hearing of the bail application or bail appeal.
  8. The SSP/DCP/SP (in districts where there is no post of SSP) of the concerned district shall be the nodal officer, who shall supervise the staff charged with the duty of actually serving the notice upon the victim and to provide instructions and relevant material to the Government Advocate on the bail application. In case, there is default on part of such official, the SSP/DCP/SP of the concerned district shall take immediate action in accordance with law against such erring official.
  9. Before parting the Court cannot but take notice of the fact that we live in the age of information technology. The process of law cannot move at a bullock cart pace in the age of information technology. Institutions have to upgrade with the latest technological developments. Fruits of technology have to be put in the service of the people. In the legal process technology can play a critical role in effectuating the fundamental rights of the citizens in particular, and in upholding the process of law in general. The State Government and the Bar are stakeholders in the matter. On behalf of the State, it has been submitted that the office of the Government Advocate does not have the infrastructure and trained personnel to accept and process e-notices of bail applications.
  10. Accordingly, the State Government is directed to ensure that requisite infrastructure and trained personnel in the High Court (Office of Government Advocate), as well as in police stations are available to process the traffic of notices by e-mail. The bail application/ bail appeal may be served upon the Government Advocate by e-mail. In case the notice is fully accurate and contains all the relevant annexures, the said service by e-mail shall be sufficient service upon the State.
  11. In the event of service of notice of bail application or bail appeal upon Government Advocate by e-mail, the time limit for effecting service of the said notice by the State upon the victim shall be 72 hours and not 96 hours. The bail application in such cases shall be placed before the Court in 144 hours or 6 days.
  12. The option of e-filing of notice of bail applications/ bail appeals under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, shall be made effective w.e.f. 01-05-2021.


While allowing the present petition, Court made significant observations upon objective of Bail and the undue delay caused in granting the same under SC/ST (Prevention of Atrocities) Act.[Ajeet Chaudhary v. State of UP, 2021 SCC OnLine All 17, decided on 11-01-2021]

Sakshi Shukla, Editorial Assistant has put this story together

Op EdsOP. ED.


Sentencing in any country is provided for serving the purpose of crime reduction and punishing the offenders. It is of immense importance that sentencing procedures in the countries are laid down in a manner that helps in the reduction of crime. The sentencing system in UK is governed by the Coroners and Justice Act, 2009 (“the Act”). The system provides for a guiding principle for the judiciary in order to ascertain the quantum of punishment as regards to the specific offence.

Recently, the Sentencing Council of UK has issued a new set of general guidelines in addition to the offence-specific guidelines. These general guidelines came into effect on October 1, 2019, and would apply to the organisations and the adult individuals above 18 years of age in cases of sentencing offences for which there exist no offence specific guidelines. The General Guidelines replaces the “seriousness” guidelines published by the Security Council. The General Guidelines are more subjective and provides for a structural approach to sentencing. As opposed to the seriousness guidelines, the new amendment provides for the expanded explanations with regard to the mitigating and aggravating factors. It also provides additional information relating to the imposition of fines.

The article provides an analysis on the  General Guidelines, 2019 published by the Sentencing Council in the United Kingdom for providing a more structural and transparent approach towards sentencing of the offences not provided under the Act and for providing additional explanations and guidance with regards to the offences mentioned in the Act.


In English Courts more power was given to the Judges in cases of sentencing the offenders. In order to address this issue, the Sentencing Advisory Panel (SAP) was established in the year 1998 for advising the Criminal Division on the issues that ought to be addressed which primarily included –

  • Need for limiting the judicial discretion in sentencing in such a manner that the discretion is limited to such extent that it is parlance with the common principles and standards.
  • Formulation of the sentencing guidelines was the most suitable way for structuring the discretion exercised by the judiciary.
  • The Court of Appeal alone was not equipped to frame the guidelines hence it required the expertise and participation of specialist experienced in the field of criminal justice system.[1]

Pursuant to such discussions, 5 years later, the Sentencing Guidelines Council (SGC) was established in consonance with Section 167 of the Criminal Justice Act, 2003. Both SGC and SAP worked simultaneously in drafting the guidelines wherein the SAP provided its advice and recommendations and the SGC issued guidelines taking into account the advice of SAP. However, because of the complicated and cumbersome structure of the two bodies, the Sentencing Commission Working Group (SCWG) reviewed the existing structure and simplified it by way of certain amendments the result of which led to the replacement of SAP and SGC with the Sentencing Council and the formation of the Coroners and Justice Act, 2009[2]. The new legislation created was incorporated with a view to promote effective development and dissemination of the definitive guidelines.


  • Rigid and flexible nature: The guidelines are rigid in the sense that it constrains the courts from sentencing outside the specific range as laid down in the guidelines. However, the courts have the discretionary power to deviate from the specific range whenever required, in the interest of justice thus making it flexible.
  • Comprehensive guidelines providing for offence-specific as well as generic guidelines: Apart from the offence-specific guidelines for punishment, the guidelines also provide for general guidelines where the specific offence is not mentioned and the factors that ought to be taken into account by the courts while sentencing the offender.
  • Transparency: The guidelines provide transparency in the process of sentencing by inculcating provisions that ensure certainty in sentencing as regards to the offences committed by the offender.


  • To achieve uniformity

The guideline system in UK achieves uniformity in sentencing guidelines by providing for a series of steps[3] that ought to be followed by the courts when sentencing the offender, while it also grants discretion to the courts in cases of need.

  • Proportionality of punishment/improving administration of criminal justice

The guidelines provide for the nature and the category of offence and the punishment for sentencing proportional to the offence committed depending upon the nature and seriousness of the offence.

  • Promoting the confidence of public[4]

It promotes the confidence of the people as it provides definitive guidelines for the offence-specific punishment as well as the general guidelines where the offence is not specifically mentioned thus making the tenure of punishments more certain.

  • Providing guidance to the courts

Apart from the offence-specific guidelines the general guidelines issued by the Sentencing Council helps in guiding the judiciary as to the factors and situations that ought to be taken into account and the quantum for sentencing in the presence of such factors.


Nature of Guidelines

The general guidelines issued by the Sentencing Council contains overarching principles that are in conjunction with the offence-specific guidelines. These guidelines are in addition to the offence-specific guidelines and its applicability would not only extend to sentencing for those offences where there is no offence-specific guideline for sentencing but also in cases of offence-specific guidelines. For example,  in a case where an offence of money-laundering is committed by an organisation, then apart from the sentencing guidelines of money laundering,  the general guidelines, if applicable can also be applied in conjunction with the offence-specific guidelines. A relevant example, in this case, would be the increase in sentence by the court in lieu of the applicability of the aggravating factor mentioned in the general guidelines of making financial gain from the commission of offence i.e. money-laundering in this case.

Structural Approach

These guidelines provide for a clear structure that is supposed to be followed by the Judges while determining sentences for the offences not specified under the guidelines laying down the determinative sentencing for the category of offences.

The structure provides for ten stages to be considered by the judiciary while determining the sentencing that is to be given to the offender.

The ten stages consist of:

1) Stage 1- Provisional Sentencing:

In cases where there is no offence-specific guideline, the general guidelines provides for a stepped approach ­that ought to be applied, wherever possible, to reach a provisional sentence. The approach takes into account the following and make the adjustments or differences accordingly for granting a fair punishment:

  • the maximum and the minimum sentence provided for the offence,
  • stare decisis of the courts of appeal,
  • offence-specific sentencing guidelines for analogous offences.

Further, the gravity and the seriousness of the offence is to be calculated by assessing the culpability of the offender and the harm that is caused due to offending. While considering the above the courts should also take into account the purpose of sentencing as against the offence committed by the offender while determining the sentence.

2) Stage 2 – Aggravating and Mitigating Factors :

Aggravating and mitigating factors calls for the court to take into account all the circumstances that may help in determining the seriousness of the offence or reflecting the personal mitigation. The guidelines provides for fine ranges as well as the guidelines for the custodian and community sentencing along with the explanations of the circumstances and the factors that should be taking into account by the courts while determining the quantum of the fine and/or sentencing for the wrongdoer. Additionally, to make the sentencing guidelines more certain, the Sentencing Council also drafted a list of aggravating and mitigating factors according to their seriousness which shall help the court in inferring the proportional sentence.

3) Stage 3 talks about the consideration of the factors and the rules of law[5] in force that calls upon a reduction in sentence by virtue of the assistance provided to the prosecutor/investigator.

4) Stage 4 talks about the reduction in sentence for those pleading guilty in accordance with the offence-specific guideline on the reduction in sentence for guilty plea and Section 74 of the Code that provides provision for discounting sentences to those providing assistance to the prosecutor.

5) This stage deals with the dangerousness of the offence. The guidelines provide that if the offence committed is listed under Schedules 18, 19 and/or 19 of the Criminal Justice Act, 2003 then the courts should pay special attention to the criteria contained under Chapter 6, Part 10 of the Sentencing Act for imposing extended sentences under the provisions[6] of the Act.

6) Stage 6 calls for a special custodian sentence to be imposed by the court for the offenders of particular concern. According to this, in cases where the offence is enlisted in Schedule 13 of the Sentencing Act and the court does not provide life imprisonment or extension of the sentence, but imposes imprisonment, the term of the sentence must be equivalent to the aggregate custodial term and a further 1 year sentence as per Section 265 and Section 278[7] for which the offender is subjected to a licence.

7) Stage 7 deals with Totality Principle. According to this principle, where the offender is to be sentenced for more than one offence or where the offender is already serving a sentence then the total sentencing is to ascertained by the court in accordance with the Totality guidelines as well as the guideline for the offences taken into consideration so as to provide fair and proportionate punishment to the offender.

8) Stage 8 deals with the compensation and ancillary orders. According to this the courts need to consider which orders are to be passed considering the gravity of the offence committed. Further, it guides the courts by providing a list of offences and the passing of the relevant order in lieu of a specific offence committed by the offender. In case of serious offences like those involving firearm or offensive weapons the court should consider the provisions laid down under the Serious Crime Act, 2007 for imposing the Crime Prevention Order.

9) Stage 9 provides for the positive duty on the part of the courts to specify the reasoning for the sentencing imposed in accordance with Section 52 of the Act.

10) Stage 10 lays down that the courts must consider if credit is to be given to the offender in lieu of the time spent on bail on account of the provisions contained in the Criminal Justice Act[8] and the Sentencing Act[9].


In order to remove any sort of economic benefit that may arise from the imposition of fine levied on the offender, the guidelines requires the courts to foresee all the financial records of the offender.

As per the guidelines, the court while deciding the fine to be levied on the offender, should pay regards to Section 164 of the Criminal Justice Act, 2003. According to Section 164, the fine should be proportional to the crime committed and should also reflect the seriousness of the offence committed. It should not be cheaper to offend than to comply with the law, that is to say that the fine should be determined fairly and in a proportionate manner so that it justifies the object of the punishment and deters the offender from committing such offences or gain any financial benefit in lieu of such commission of offence.

In cases where the fines are imposed on the organisations, the courts should ensure that the fine is proportional to the gravity of the offence and the quantum of fine should have a real deterrence effect on the shareholders to refrain from committing any act against the law. The fine imposed must be quantified in a manner so as to obligate the shareholders to comply with the provisions of law.


The wording of the sentencing guidelines in the Act is directive in nature.  Section 59(1) of the Coroners and Justice Act, 2009  imposes a positive duty on the courts which must follow the sentencing range as enlisted in the guidelines while paying due regard that the justice is served.[10] Therefore, the guidelines focus the attention of the judiciary on the importance of guidelines, yet also allows the courts to exercise discretion to impose a fit sentence.


Sentencing Guidelines in India

Sentencing guidelines in India are covered in IPC and the provisions of the Criminal Procedure Code. Criminal law procedures governing sentencing are laid down under Sections 235, 248, 325, 360, 361 of the Code which are scattered throughout the Code.

These provisions provide for broad powers to the Court. For Instance, in the case of an offence of murder, IPC provides for the punishment of life imprisonment or death along with the liability of fine. The guiding principle for determining the punishment was provided by the judiciary in Jagmohan Singh v. State of U.P.[11] wherein it was held that a balanced approach of considering the aggravating and mitigating factors should be considered while deciding on the question of capital punishment. However, in the other case[12], the judiciary stressed that the sentence of life imprisonment is granted for the offence of murder. The courts should depart from this rule only in cases of exceptional circumstances to serve the ends of justice. This approach was criticised in Sangeet v. State of Haryana[13], wherein the judiciary stated that the approach in Bacchan Singh case[14] has taken a backseat and needs a fresh review for determining the issue of weightage to be given to aggravating and mitigating factors surrounding the crime and the criminal.

There is no law or straightjacket formula for ascertaining the quantum of punishment with regards to sentencing in India. Though, the courts have stressed upon a number of principle that ought to be taken into account while sentencing the accused. The principle includes proportionality, deterrence, rehabilitation, etc[15]. However, the judiciary cannot be obliged to follow these principles as they are not absolute rules[16]  thus giving wide powers to the judiciary for ascertaining the sentencing of an accused. Such wide powers often leads to the abuse of the process of law and to some extent conflicts with the separation of powers process.


There is no uniform approach for sentencing in India. A trite law or guidelines that balances and specifies the consideration to be paid as to the aggravating, as well as the mitigating factors involved in the commission of a crime, would help the judiciary in giving the proportional punishment to the accused. Further, it will also be in parlance with the common law countries from where we have borrowed most of the laws.

  • Uncertainty of sentencing: The punishment and sentencing for the offences is scattered under different provisions of IPC. The provisions provide for the minimum and/or maximum punishment for the offences. However, the gap between these two ranges gives ample discretion to the Judges for determining the punishment in cases where the sentencing range is available and wide discretion in cases where the range is not available for e.g. in cases of theft where no maximum punishment is laid down. It thus leads to uncertainty in the sentencing as some of the Judges are lenient while the others are harsh in their approach. Hence, there is no certainty or predictability in the quantum of punishment and sentencing that could be granted to the offender. The same was also recognised by Malimath Committee in the year 2003[17] which was reasserted by the Madhav Menon Committee suggesting the need for a statutory framework for sentencing guidelines in India[18].
  • Because of the absence of any law regulating sentencing, India has seen a surge in appeals. One of the reasons for doing so is the wide discretion given to the Judges[19], therefore the party appealing is of the view that the Judge might have had a prejudiced view in pronouncing the judgment as regards to the aspect of sentencing.
  • Affects the fundamental rights of the offender: Indian Constitution guarantees the right to equality to all the citizens. However, in the absence of sentencing guidelines, the Judges may pass judgments where in the case of similar facts the consequences might differ thus affecting the offender’s right to equality which guarantees that all are treated equally before the law as well as the right to speedy trial guaranteed under Article 21 of the Constitution as the appeal in surge of seeking remedy from the higher courts often results in piling up of the cases of appeal till the actual date of hearing.

Therefore, a proper system for sentencing guidelines will help in ensuring consistency and provision of justice thus promoting public’s confidence on the legislature and judiciary.

Takeaway from UK: Author’s suggestions

After analysing the General Guidelines published by the Securities Council the author is of the view that India could utilise certain positive pointers from these guidelines in improving the sentencing system and the criminal legislation in India.

  • Compilation of the sentencing procedures contained in CrPC into one chapter

The Code of Criminal Procedure, 1973, does not contain any specific chapter on sentencing. The procedure relating to sentencing is scattered under different provisions contained in the Code which includes 484 sections, 2 Schedules and 56 Forms. It would be beneficial if all the provisions are collected in a single chapter similar to Part 4 as provided under the Coroners and Justice Act.

  • Preparation of General Guidelines in conjunction with the offences and penalties already laid down under IPC and CrPC

The Indian legislation system can borrow some of the provisions as contained under the General Guidelines, 2019 issued by the Sentencing Council as per the needs of the society in India. The centralised guidelines would help the judiciary in the determination of the sentencing punishment for those offences where there is no range limit provided for sentencing.

  • Preparation of a Table for certain offences as against the commission of offence

The General Guidelines as stated above should be accompanied with the table containing the list of offences along with three columns each containing the range of minimum and maximum fine as well as the sentencing punishment that can be levied on the offender.

The preparation of the offence-specific table should be made by a special committee chaired by a person specialised in criminal law taking into account the precedents relating to the sentencing, the seriousness of the offence committed, aggravating and mitigating factors involved in the commissioning of the offence.

  • Appointment of a Committee on a permanent basis

One of the most interesting feature that could be noticed in the Coroners and Justice Act  is the establishment of the Sentencing Council which is offered with multiple responsibilities including the introduction of  new guidelines, checking if the guidelines are meeting the purpose for which they were enacted, etc. Similarly, India could establish an ad hoc committee as discussed in the earlier point on a permanent basis which could be entrusted with the tasks similar to those like the Sentencing Council.


Thus it can be concluded that the guideline system in UK provides for a foolproof system of sentencing for guiding the courts in determining the punishment to be granted to the offender. Such guidelines, if implemented in India will prove to be very useful, as till date, the courts have to rely on precedents which also differ depending on the discretion of the Judge and the presence of other aggravating and mitigating factors surrounding the offence.

Further, in the absence of the provisions for a specific offence there exists no general guidelines in our legislative system for adopting of a uniform approach in sentencing the offender. Therefore, in light of the above analysis and suggestions, the author concludes that a hybrid system of sentencing in India is the need of the hour and the existing sentencing guidelines in UK should be appreciated in the formation of the sentencing guidelines in India as the approach followed in UK is more accustomed to the Indian society and the legislations in India are increasingly premised on the laws borrowed from the common law countries.

*5th Year, BBA LLB (Hons.), Symbiosis Law School, Pune.

[1] Andrew Ashworth, Techniques for Reducing Sentence Disparity in Principled Sentencing: Readings on Theory and Policy (Andrew von Hirsch, Andrew Ashworth & Julian V Roberts eds) (Hart Publishing, 3rd Edn., 2009) at pp. 243 and 244.

[2] Julian V. Roberts, Sentencing Guidelines in England and Wales: Recent Developments and Emerging Issues (2013) 76(1) Law and Contemporary Problems 1 at 3.

[3] Section 125, Coroners and Justice Act, 2009

[4] Mike Hough and Jessica Jacobson, Creating a Sentencing Commission for England and Wales: An Opportunity to Address the Prisons Crisis, (2008).

[5] Sentencing Act, 2020. §74

[6] Sentencing Act, 2020. §226, §279,§283, §273.

[7] Sentencing Act, 2020.

[8] Criminal Justice Act, 2003, §240A.

[9] Sentencing Act, 2020, §325.

[10] Pina-Sánchez, J. and R. Linacre, Enhancing Consistency in Sentencing: Exploring the Effects of Guidelines in England and Wales, Journal of Quantitative Criminology 30, No. 4 (2014): 731-48. (Accessed on December 7, 2020)

[11] Jagmohan Singh v. State of U.P., (1973) 1 SCC 20

[12] Bachan Singh v. State of Punjab, (1980) 2 SCC 684, ¶165

[13] Sangeet  v. State of Haryana, (2013) 2 SCC 452, ¶29, ¶ 52-54.

[14] Bachan Singh v. State of Punjab, (1980) 2 SCC 684

[15] Soman v. State of Kerala, (2013) 11 SCC 382¶13;

State of M.P v. Bablu Natt, (2009) 2 SCC 272, ¶ 13.

[16] Rajendra Prahladrao Wasnik v. State of Maharashtra, (2019) 12 SCC 460, ¶ 5.

[17]Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System (March 2003) 

[18] Report of the Committee on Draft National Policy on Criminal Justice (July 2007)

[19] Jagmohan Singh v. State of Uttar Pradesh, (1973) 1 SCC 20

Op EdsOP. ED.

“Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws.[1]

Countries across the world acknowledge the crucial role of criminal machinery in maintaining law and order. Lawlessness mutilates the foundation of a country and disintegrates the innate feeling of security, which every citizen of a country must enjoy in order to live a productive life. Existence of effective criminal law and justice system, therefore, becomes imperative for a society, State and its citizens to thrive and prosper. States are considered as a protector of its citizens and an integral organ to ensure law and order. Such objects are ultimately sought to be achieved, inter alia, by means of an effective penal machinery and criminal justice system.

The  Supreme Court in Adu Ram v. Mukna[2], while recognising the importance of penal laws, observed, “[s]ecurity of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law.”

 Further, as per the Supreme  Court[3], “[t]he contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentences.”

There is no dearth of penal statutes in India dealing with several kinds of offences. Besides the commonly known  Penal Code, 1860, special enactments in form of the Prevention of Corruption Act, 1988; the Narcotic Drugs and Psychotropic Substances Act, 1985, etc., exist in statute books, dealing with a wide range of offences.

Significant amongst these penal laws are the provisions under the Maharashtra Control of Organised Crime Act, 1999[4] or commonly known as MCOCA. MCOCA is a State legislation, enacted by the State of Maharashtra to combat organised crime and terrorism. Under the ‘Statement of Objects and Reasons’ of the said enactment[5], it was, inter alia, observed, “existing legal framework i.e. the penal and procedural laws and the adjudicatory system were found to be rather inadequate to curb or control the menace of organised crime”. Accordingly, realising an imminent need of a special law with stringent and deterrent provisions; MCOCA was enacted in the year 1999. Being a State legislation, applicability of the provisions of the said enactment was initially confined to the State of Maharashtra. However, vide Notification[6] dated 02.01.2002, the Ministry of Home Affairs, Government of India, extended the provisions of MCOCA to the National Capital Territory of Delhi.

MCOCA penalises commission of an offence of organised crime and possession of unaccountable wealth on behalf of member of organised crime syndicate under Sections 3 and 4 thereof, respectively. The terms organised crime and organised crime syndicate[7], in turn, are defined under Sections 2(1)(e) and 2(1)(f) of MCOCA respectively. Under the said enactment organised crime is defined to mean,

“any continuing unlawful activity by an individual, singly or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence of threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency.”

The term, ‘continuing unlawful activity’ under Section 2(1)(d) of the said enactment is defined to mean an activity prohibited by law, for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more. Further, such activity must have been “undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent court within the preceding period of ten years and that court has taken cognizance of such offence.”

Therefore, a careful perusal of the provisions of Section 2(1)(d) of MCOCA would demonstrate that the impetus for invocation of the provisions of the said enactment is the continuing unlawful activity undertaken by a person singly or jointly as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent court within the preceding period of ten years and the court has taken cognizance of such offence.

Appreciating that organised crimes pose a serious threat to civil society, courts have time and again embarked on a rigorous exercise to expand the scope and application of provisions of MCOCA. Accordingly, activities/actions involving engagement of individuals and/ or members of organised crime syndicate, with a wide network, in ‘continuing unlawful activity’ for commission of offences such as human trafficking and prostitution[8]; rigging of examination[9]; etc., have been brought within  the ambits of the penal provisions under MCOCA. Simultaneously, several provisions of MCOCA have been subjected to strict scrutiny for their vires, especially in terms of the provisions of Articles 14 and 21 of the Constitution of India (“the Constitution”), before several judicial forums, from time to time. Illustratively, in State of Maharashtra v. Bharat Shanti Lal Shah[10], the Supreme Court, upheld the validity of the provisions of Sections 2(1)(d), (e) and (f) and Sections 3 and 4 of MCOCA.

Similarly, the High Court of Delhi[11] struck down the challenge to the provisions of Section 3(1)(ii) of MCOCA, on the ground that it prescribes a mandatory imposition of minimum fine, as violative of Articles 14 and 21 of the Constitution. As per the Court,

“[t]o subject convicts under the said Act to minimum fines appears to be completely justified, as the object appears to be to deter such offenders and to denude them of their ill-gotten wealth. The quantum of minimum fine also does not appear to be excessive in today’s context.”

Quite recently, the Supreme Court in State (NCT of Delhi) v. Brijesh Singh[12] dealt with the applicability of the provisions of MCOCA in light of the principles of ‘extra territoriality and territorial nexus’. The moot question before the Division Bench[13] of the Supreme Court in the said case was, ‘Whether the charge-sheets filed in the courts in other States can be considered to establish continuing unlawful activities in a State where the provisions of MCOCA were applicable[14]?’ In turn, the question revolved around the meaning of the words “competent court”, existing in Section 2(1)(d) of MCOCA. In this regard, the Court, at the outset, reiterated that an organised crime is not an activity restricted to a particular State and accordingly, held that a restrictive reading of the words “competent court”, under Section 2(1)(d) of MCOCA, would stultify the object of the Act. As per the Court,

“If members of an organised crime syndicate indulge in continuing unlawful activity across the country, it cannot by any stretch of imagination be said, that there is no nexus between the charge-sheets filed in courts in States other than Delhi and the offence under MCOCA registered in Delhi… We hold that “competent courts” in the definition of “continuing unlawful activity” is not restricted to courts in Delhi alone.”

However, it was cautioned by the Supreme Court that for  prosecution under MCOCA at Delhi[15], based on the charge-sheets filed before the courts in other States, commission of organised crime in Delhi is sine qua non and that,

“[i]n the absence of an organised crime being committed in Delhi, the accused cannot be prosecuted on the basis of charge-sheets filed outside Delhi.”

It was further clarified by the Court that under such circumstances, consideration of charge-sheets filed in other States is not for the purpose of prosecution of accused for an offence committed outside the State in a State to which the provisions of MCOCA are made applicable, rather, their use/reliance was restricted, “merely for the purpose of determining the antecedents of the respondents”. Such an accused, as per the Court, would still be liable to face trial in competent courts where the charge-sheets are filed.

It goes without saying that when crime enlarges its reach, it becomes imperative for criminal justice system to expand with equal vigour. It becomes equally vital for penal provisions to mould themselves to cater to the imminent need of society, so that the rising fangs of crime may be nipped in the bud. It is further universally recognised that with the change of social norms, values and needs, law, too, is required to be modified, amended and re-interpreted to meet the changing needs.

As per the Supreme Court[16], “Law is really a dynamic instrument fashioned by society for the purposes of achieving harmonious adjustment, human relations by elimination of social tensions and conflicts.”

 Provisions under MCOCA, unquestionably, are a major step in the direction of modernising and recasting penal provision for uprooting the evils of organised crime and to cause deterrence to members/individual engaging in crime syndicates for recurrent offences. Further, it goes without saying that any law, no matter how deterrent, is as efficient as is enforcement and implementation. Seen in this light, the judicial approach in dealing with the offences/offenders under MCOCA, clearly, demonstrates an attitude of impatience towards perpetrators of such offences and those actively associating themselves with such crime syndicates. The decisions of various Courts have further demonstrated that mere technicalities and literal interpretation of legal provisions have been deprecated by the Courts. In fact, the Courts have repeated clarified[17] that the applicability of the provisions under law[18] must depend on the object and purpose of the enactment. Clearly, there is no bending of laws to meet the ulterior designs of offenders; especially the provisions of MCOCA provide no respite to its violators, to perpetrate tyranny. Clearly, abiding by the remarks, once made by Montesquieu, “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”

*Managing Associate, L&L Partners Law Offices


[2](2005) 10 SCC 597

[3]State of M.P. v. Munna Choubey, (2005) 2 SCC 710

[4] Maharashtra Control of Organised Crime Act, 1999

[5] Refer also to State (NCT of Delhi) v. Brijesh Singh, (2017) 10 SCC 779


[7] Section 2(1)(f) of MCOCA, “organised crime syndicate” means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime;”

[8]Kamaljeet Singh v. State, 2008 SCC OnLine Del 110

[9]Mahipal Singh v. CBI, 2012 SCC OnLine Del 2983  [overruled on merits in Mahipal Singh v. CBI, (2014) 11 SCC 282]

[10](2008) 13 SCC 5

[11]Mohd. Irfan v. State of NCT of Delhi, 2018 SCC OnLine Del 13223

[12](2017) 10 SCC 779

[13] Two-Judges Bench comprising of  S.A. Bobde and  L. Nageswara Rao, JJ.

[14] In the instant case, the question/issue related to the fact whether the charge-sheets filed in States outside Delhi could be considered for initiating proceedings against the accused at Delhi, in terms of the provisions of MCOCA?

[15] In the instant case at Delhi. However, same principles apply to States (i.e. Bombay) where the provisions of MCOCA are made applicable

[16]B.P. Achala Anand v. S. Appi Reddy, (2005) 3 SCC 313

[17] Supreme Court in State (NCT of Delhi) v. Brijesh Singh, (2017) 10 SCC 779

observed, “…it is no more res integra that even a penal provision should be interpreted to advance the object which the legislature had in view [Murlidhar Meghraj Loya v. State of Maharashtra, (1976) 3 SCC 684, para 6 ].”

[18] Including that under MCOCA.

Op EdsOP. ED.


To obtain an identification of the suspect, police uses several modes like visual, audio, scientific and test identification parade. Although numerous jurisdictions have made improvements to their identification procedures in recent years, a large share of jurisdictions have still not made significant reforms. Although some courts have been making better use of the scientific findings on eyewitness identification, most courts are still using an approach that is largely unsupported by scientific findings. This paper focuses on the study of study of how eyewitness evidence is perceived in the criminal justice system. The paper highlights the relevancy and admissibility of identification of the accused in Court, having regard to the criminal burden of proof, the frailties of eyewitness identification evidence and the problems in the line-up procedures employed by the police.


The issue of identification is one for you to decide as a question of fact”.[1]

Identification evidence is highly persuasive to triers of fact. There is an intuitive sense that when someone witnesses a stranger commit a crime, he or she should be able to remember that face. After all, we see and remember faces every day. However, more than four decades of research has revealed this assumption to be flawed, there is clear evidence that witnesses often struggle with accurately recognising the face of a stranger perpetrator[2]. Indeed, although eyewitness testimony can be an important and valuable form of evidence, eyewitness identification errors are a leading cause of wrongful convictions in many countries[3].

The evidence which requires particular attention is identification evidence, which resembles confession evidence in being, at the same time, both extremely compelling and potentially unreliable. Witnesses are frequently required to identify persons whom they have only seen fleetingly and often in confused circumstances. The identification of the perpetrator is often the only issue that needs to be determined in a criminal trial[4].

Mistaken identity may often occur in good faith, but the effects can be extremely serious for the defendant and, for this reason, there is an obvious need for caution in relation to such evidence. As with evidence of lies by the defendant, the hazards associated with identification evidence are addressed by means of a Judge’s direction, but there are additional safeguards which apply where the identification has been made by means of a formal procedure conducted under police supervision, such as an identification parade[5].

In its 1993 Report, the Royal Commission on Criminal Justice spoke of the compromise that has to be struck between crime control and due process values, so that “the risks of the innocent being convicted and the guilty being acquitted are as low as human fallibility allows”[6]. There are references to the need to strike a reasonable balance between the protection of a suspect’s rights and allowing the police the freedom to do their job throughout the Report, leaving the reader with the impression that if we could find this rather mystical balance, then all would be well.


‘Identification’ is the proof in a legal proceeding that a person, document, or other thing is that which is alleged to be. Identification is the evidence of identity[7]. Phipson states that “it is often important to establish the identity of a person who a witness testifies that he saw on a relevant occasion. Sometimes, the witness will testify that he had seen the person before, or even know the person well, and therefore recognised the person observed on the relevant occasion”.[8] The identity of a person can be established by the evidence of persons who know him[9].


Many times crimes are committed under the cover of darkness when none is able to identify the accused. The commission of crime, in those cases, can be proved by establishing the identity of accused. Identification evidence is seen to be inherently fragile. In Alexander v. R[10], Mason, J. stated that:

“Identification is notoriously uncertain. It depends upon so many variables. They include the difficulty one has in recognising on a subsequent occasion a person observed, perhaps fleetingly, on a former occasion; the extent of the opportunity for observation in a variety of circumstances; the vagaries of human perception and recollection; and the tendency of the mind to respond to suggestions, notably the tendency to substitute a photographic image once seen for a hazy recollection of the person initially observed.”

The identification evidence has for some time been regarded as potentially dangerous for the simple reason, that mistakes are easy to make where identification is concerned.[11] Before we notice the circumstances proving the case against the accused and establishing the identity beyond reasonable doubt, it has to be borne in mind that approach required to be adopted by courts in such cases has to be different. The cases are required to be dealt with utmost sensitivity. Further, the evidence is required to be appreciated having regard to the background of entire case and not in isolation.[12]

In another case[13], where the question was raised whether evidence is permitted even in absence of formal proof by the Executive Magistrate concerned? The Court held that the fact that the Executive Magistrate concerned did not prove the Test Identification Parade does not make it inadmissible.


In response to widespread concern over the problems posed by cases of mistaken identification, the Court of Appeal in R v. Turnbull[14] laid down important guidelines Judges in trials that involve disputed identification evidence.

Where the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence alleges to be mistaken, the Judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification(s). The  Judge should tell the jury that:

i. caution is required to avoid the risk of injustice;

ii. a witness who is honest may be wrong even if they are convinced they are right;

iii. a witness who is convincing may still be wrong;

iv. more than one witness may be wrong;

v. a witness who recognises the defendant, even when the witness knows the defendant very well, may be wrong.

The  Judge should direct the jury to examine the circumstances in which the identification by each witness can be made. Some of these circumstances may include:

i. the length of time the accused was observed by the witness;

ii. the distance the witness was from the accused;

iii. the state of the light;

iv. the length of time elapsed between the original observation and the subsequent identification to the police.


Section 9 of the  Evidence Act, 1872 is concerned with the admissibility of facts which are necessary to explain a fact in issue or relevant fact. The section deals with that kind of evidence which if considered separate and distinct from other evidence would be irrelevant; but if it is taken into consideration in connection with some other facts, proved in the case it explains and throws light upon them[15]. As per Section 9, facts which establish the identity of accused are relevant[16]. This section does not deal with testimonial identity. Circumstantial evidence of identity are dealt within this section[17].

Where the court has to know the identity of anything or any person, any fact which establishes such identity is relevant. Personal characteristics such as age, height, complexion, voice, handwriting, manner, dress, blood group, knowledge of particular people and other details of personal history are relevant facts[18].

Identification proceedings are facts which establish the identity of an accused person as the doer of a particular act, and would be relevant under Section 9; but only if evidence of such identification is given by the witness. On the question of the admissibility of the evidence, the Supreme Court[19] held that “if a Magistrate speaks of facts which establish the identity of anything, the said facts would be relevant within the meaning of Section 9 of the Evidence Act; but if the Magistrate seeks to prove statements of a person not recorded in compliance with the mandatory provisions of Section 164 CrPC, such part of the evidence, though it may be relevant within the meaning of Section 9 of the Evidence Act, will have to be excluded.”


In a case involves disputed identification evidence, and where the identity of the suspect is known to the police, various methods like finger/thumb impression, voice, digital, comparison of writing, identification parade by police are used for the purpose of establishing facts showing identity of accused and properties which are the subject-matter of alleged offence. All the modes are discussed broadly as follows:

(i) Test Identification Parade (popularly known as TIP)

One of the methods used for establishing the identity of a person as the doer of a particular act is by means of identification parades[20]. In a case which involves disputed identification evidence a parade must be held if the suspects ask for one and it is practicable to hold one. A parade may also be held if the officer in charge of the investigation considers that it would be useful, and the suspect consents. The main purpose of an identification parade is to confirm the identity of the accused and help the police in their investigation[21]. The utility of the evidence created by an identification parade was explained by the Supreme Court in  Ramanthan v. State of Tamil Nadu[22]. The Court opined that “Identification parades have been in common use for a very long time for the object of placing suspect in a line up with other persons for identification. It enables the investigating officer to ascertain whether the witnesses had really seen the perpetrator of the crime and test their capacity to identify him and thereby to fill the gap in the investigation regarding the identity of the culprit.”

(a) Procedure of TIP

A crime is reported to the police. Some description might have been given of the suspect. In any event, the police investigate and arrest a particular person as the culprit. Then the complainant is taken to the police station to identify him i.e. to pick him out of a group of persons of similar complexion and stature. If the complainant picks him out then the police know that the witness is telling the truth and also that they are on the right track.

The Magistrate conducting the Test Identification Parade (TIP) is directed to take two photocopies of TIP report under his direct supervision and after certifying the same, hand over one to I O with specific directions that contents of such report should not be divulged to any person till charge sheet under Section 173, CrPC is filed. Second photocopy shall be retained by the Magistrate as “confidential” record in a sealed cover for future requirements, if necessary[23].

To conduct the procedure in an appropriate manner, special rooms for conduct of Test Identification Parade in all the prisons in the State shall be made. Such rooms shall have one side view glass separating those lined up for parade, on one hand and witness and the Magistrate, on the other — Witness and Magistrate should not be visible to those who are lined up, but, suspect and dummies should be visible clearly to the witness and the Magistrate. Enclosure in which the suspect and dummies are lined up shall be illumined and should also have ante room for them to change their attire[24].

(b) Value of TIP

Evidence of Test Identification Parade is not substantive evidence whereas evidence given in the court, is. However, when a witness correctly identified the accused at the parade but not in court the evidence of the Magistrate, who conducted the test parade that the witness correctly identified the accused at the parade, supported by the remarks of the trial  Judge regarding the demeanour of the witness that he was frightened and was unable to recognise the accused at the trial, was sufficient to convict the accused[25].

Identification of the accused made in court, is substantive evidence, where as identification of the accused in test identification parade is though a primary evidence but not substantive and the  same can be used only to corroborate the identification of accused by the witness in court[26].

Further, it is pertinent to note that the holding of TI parade is not compulsory. Where the witnesses were well acquainted with the accused and the incident was also widely covered by media, it was held that non-holding of TI parade was not fatal to the prosecution case[27]. As to when an identification parade may be necessary was explained by the Supreme Court in Jadunath Singh v. State of U.P.,[28]  that “ Of course, if the prosecution fails to hold an identification parade on the plea that the witnesses already knew the accused well and it transpires in the court of trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case. It seems to us that if there is any doubt in the matter, the prosecution should hold an identification parade”.

In a case[29], where identification parade was held after an inordinate delay of about five weeks from the arrest of the accused, the explanation for the delay was not trustworthy. Plea as to the non-availability of a Magistrate in a city like Bombay though the investigating agency was not obliged to get the parade conducted from a specified Magistrate, was not accepted. It was held that the accused was entitled to benefit of doubt.

Thus, the identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact[30].

(ii) Video Identification

In the paper-based world, law assumes a process which is mutually understood and observed by all the parties. Almost without thinking, a four-part process takes place, involving acquisition, identification, evaluation and admission. When we try to apply this process to digital evidence, we see that we have a new set of problems[31]. Nowadays, in most countries live parades have now been largely replaced by video parades, an innovation that has been made possible by the development of sophisticated computer systems used to compile video images from a standardised database of moving video clips[32]. In Britain, two different IT systems are in widespread use to provide video identification: VIPER (Video Identification Parade Electronic Recording) and PROMAT (Profile Matching). Each system has its own database of images. VIPER lineups are prepared in a standardised format comprising approximately 15-second clips of each person shown in sequence one after another. The sequence starts with a head and shoulders shot of the person looking directly at the camera, who slowly turns their head to present a full right profile followed by a full left profile. Finally, the person returns to looking directly into the camera in a full-face pose. Each image is checked for quality control by the centralised National VIPER Bureau.

The relevancy of identification of the suspect by a witness who was not present at the scene of the crime, but knew the suspect and recognised him on video recording depends upon whether the witness needed for this purpose special skills and experience[33].

(iii) Visual/Eyewitness Identification

An eyewitness is one, who saw the act, fact or transaction to which he testifies. A witness is able to provide graphic account of the attack on the deceased can be accepted as eyewitness[34].  Identification of an accused in court by an eyewitness is a serious matter and the chances of false identification are very high[35].

In cases involving eyewitness identification evidence, the logical starting point is the integrity principle, which “states that the agents of law enforcement should not use, and the courts should not condone, methods of investigating crime that involve breaches of the rules”.[36] This promotes fairness to defendants and a moral consistency from the State: in responding to law-breaking the State should follow its own laws and rules.

Eyewitness evidence is usually the main type of evidence on which convictions are based[37]. There seems to be a general assumption by lay triers of fact that eyewitness testimony is one of the safest bases for any identification; there have certainly been convictions based on very weak visual-identification evidence[38]. In fact visual-identification evidence is often unreliable, and is therefore a potentially hazardous way of connecting a person to an offence. The classic example is where a witness testifies that he saw the offence being committed by a stranger some distance away, for a relatively short period of time, in far from ideal conditions. But it is not just such `fleeting glance’ identification evidence which can lead to miscarriages of justice.

The reliability of the witness’s opinion depends entirely on the reliability of the visible features of the first image which were actually seen and mentally recorded by him (which in turn depends on the extent to which he was paying attention, his physical and psychological powers of perception at that time and his memory) together with the reliability of his comparison of the stored image with the visible features of the second image.

Identifying witnesses may focus on broad impressions or features which stimulate their own subjective preferences rather than on the multitude of specific physical details, so markedly different facial characteristics between the offender and the accused may go unnoticed while vague similarities may be given undue weight. The problem becomes even more acute when the identifying witness and the identified person (the offender) are from different racial groups or generations. Another problem, which may arise in a case of purported recognition, is that of `unconscious transference’ where the witness confuses the offender with a different person seen in some other context. Conversely, if the witness claims never to have seen the offender before, the reliability of his identification is likely to decrease with time as his memory fades[39]. the eyewitness may be honestly mistaken but sincerely convinced that his identification is correct. In R v. Fergus[40] for example, the sole prosecution witness was said to have felt an `invincible conviction in the correctness of his identification’ of the accused even though the witness had poor eyesight, did not take much notice of the offender’s face and first described the offender as 5′ 11” tall with a light complexion and stubble, when the accused was 5′ 7” tall, dark-skinned and had not yet started shaving.

The conventional forensic tool for revealing weaknesses in testimony is cross-examination, but where visual-identification evidence is concerned this tool may be singularly ineffective and, ironically, may indirectly buttress the witness’s testimony.

Alarmingly, research shows “that approximately 40% of eyewitness identifications are mistaken”.[41]” Further, “it is estimated there may be more than 10,000 people a year wrongfully convicted, most of whom were convicted as a result of mistaken identification.”[42] This has led many in the criminal justice system to finally realise what others concluded long ago: eyewitness identification evidence is “hopelessly unreliable.” Unreliability, in turn, leads to a dual problem: not only is an innocent person likely to be convicted, but the true perpetrator necessarily goes free, often to commit additional crimes.[43]

Despite its hopeless unreliability, eyewitness identification evidence has proven to be an extremely powerful tool for the prosecution. The reality is that jurors are “unduly receptive to identification evidence and are not sufficiently aware of its dangers.”[44] Nothing is more convincing to jurors than a live witness who takes an oath and confidently proclaims that he saw the defendant commit the crime. In fact, the level of confidence exhibited by an eyewitness has been found to be the most powerful predictor of guilty verdicts.

In a case, where it was not certain that the visual recognition of the appellants by the complainant on a fateful night was unhindered and unhampered especially when he was fired at first and allegedly saw the occurrence under stress of a threat, the court acquitted the appellants of the charge by extending them the benefit of doubt[45].

Thus, the appreciation of the evidence of eyewitness depends upon[46]:

– The accuracy of the witness’s original observation of the events which he described, and

– The correctness and extent of that he remember and his veracity.

(iv) Forensic Identification

When false eyewitness identifications and wrongful convictions are discovered, they are usually exposed through post conviction DNA testing. However, in the vast majority of criminal cases, DNA evidence has either been destroyed[47] or, more commonly, never even existed in the first place[48]. This, of course, poses a significant problem for the innocent defendant convicted based primarily on eyewitness evidence.

Erroneous eyewitness identifications have plagued our criminal justice system since its inception. When DNA evidence became a prevalent tool for law enforcement in the 1980s, not only did it assist prosecutors in obtaining convictions, but it also reopened prior convictions that were obtained based primarily on eyewitness testimony. Studies now reveal that erroneous eyewitness identifications “are the single greatest cause of wrongful convictions in the United States, and are responsible for more wrongful convictions than all other causes combined.”[49] In fact, in 80% of the first one hundred post conviction DNA exoneration, the underlying wrongful convictions were based primarily, if not solely, on false identifications.[50]

In these DNA exoneration cases, the DNA evidence proved to a scientific certainty that the defendant did not commit the crime charged and had been wrongfully convicted. But even today, most innocent defendants do not have the luxury of DNA evidence to prove their innocence. For example, in some cases the police do not collect or properly preserve the available DNA evidence.[51]

(v) Voice Identification

Voice itself may be an issue in a criminal case, inasmuch as it may itself be a personal characteristic upon which an identification of a criminal depends. It thus seems appropriate that we have in recent years seen the coining of the word ear-witness for the witness who heard, rather than saw[52], something:

In obscene phone calls, bomb hoaxes, ransom demands, hooded rape, robberies, muggings, or in crimes committed in darkness, the perpetrator’s voice may be the only definite piece of evidence available to aid police investigation and court conviction. That most research into witness testimony and identification has been conducted in the visual realm reflects the fact that most identification situations involve a witness using visual cues. The preponderance of such research serves to obscure the fact that in many instances both visual and verbal information is available and in many others only verbal cues exist. The awareness of the existence of the last two types of criminal situation dictates that research into human abilities to recognise voices should not be neglected but rather be rapidly pursued.[53]

With visual-identification evidence, however, there is the very real possibility of error on account of the circumstances surrounding the witness’s initial perception of the offender’s voice (and the medium through which it was heard), the witness’s ability to remember the way the offender spoke and, in particular, his ability accurately to compare the offender’s voice with that of the accused[54].

It was recognised by New Zealand’s Court of Appeal in R v. Waipouri[55],  that voice-identification evidence is generally less reliable than visual-identification evidence and that even greater caution is required when relying on it. In R v. Roberts[56] the Court of Appeal received expert evidence to the effect that a voice identification is more likely to be wrong than a visual identification, that ordinary people are as willing to rely on identification by ear-witnesses as they are on identification by eye-witnesses and that the identification of a stranger’s voice is a very difficult task, even if the opportunity to listen to the voice was relatively good. Accordingly, in cases where the prosecution is permitted to adduce such evidence the jury must be given a direction analogous to that established for visual-identification evidence in  R v. Turnbull[57] .

Further, by analogy with the position for visual-identification evidence where the jury compares a photographic image of the offender with the accused, the jury should be given an appropriate warning when they are asked to compare a recording of the offender’s voice with the accused’s voice[58].

In an Indian case[59], where the witnesses were not closely acquainted with the accused, they claimed to have identified him from his short replies such evidence was held to be unreliable. In another case[60], in a charge of conspiracy for murder, the voice of the accused was recognised by the witness as he demanded money and he was already acquainted with the voice from earlier time. The evidence was held to be relevant.

Recently, the Supreme Court in Dola  v. State of Odisha,[61] observed that it is true that the evidence about the identification of a person by the timbre of his voice depending upon subtle variations in the overtones when the person recognising is not familiar with the person recognised may be somewhat risky in a criminal trial.

(vi) Previous Identification

Where, in criminal proceedings, a witness gives evidence identifying the accused as the person who committed the offence charged, evidence of a previous identification of the accused by that witness may be given, either by the witness himself or by any other person who witnessed the previous identification[62], for example a police officer who conducted a formal identification procedure such as a video identification or an identification parade, as evidence of consistency[63].

R v. Christie[64], is the leading authority that when a witness gives evidence identifying the defendant as the offender, evidence may also be given that he has previously identified the accused. In principle, the previous identification could fall foul of three exclusionary rules – the hearsay rule, the rule against self-serving statements and the rule against non-expert opinion evidence.

Till date, no case has fully examined and explained the reasons for the admissibility of evidence about previous identifications. The most comprehensive examination was in Christie, but that is authority only for the proposition that the credibility of a witness who identifies the accused in court may be supported by evidence that he has identified him previously. It does not allow evidence of the prior identification unless the identifier gives evidence identifying the accused[65].

The Indian Supreme Court[66] observed that identification evidence of accused cannot be relied upon, especially when identification in court is not corroborated either by previous identification in identification parade or any other evidence, conviction of accused cannot be based upon it.


A statement identifying someone as the offender may be admissible as a dying declaration, or as a part of the res gestae, or as a previous inconsistent statement, provided the conditions for admissibility of evidence under those principles are satisfied. It is well settled that the substantive evidence is the evidence of identification in court and the test identification parade provides corroboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine[67].

In a recent judgment, the Court observed that test identification parade is not a substantive evidence. Its purpose is only to help the investigating agency ascertain as to whether the investigation in the case is heading in the right direction or not. There is no provision in CrPC which obliges the investigating agency to hold or confer a right on the accused to claim a test identification parade. Absence to hold it would not make inadmissible the evidence of identification in court[68].


Thus, where the prosecution case depends solely on the identification of a single witness, it is particularly important to give a general, clear and simple direction on burden and standard. However, concerning the admissibility of identification evidence, it has been found that although there may be rare occasions when it will be desirable to hold a voir dire (an investigation into the truth or admissibility of evidence), in general the  Judge should decide on the basis of the depositions, statements, and submissions of counsel. Finally, failure on the part of the police to observe the provisions may be taken into account by the court when deciding whether to exclude identification evidence when assessing the weight of such evidence.

* Assistant Professor, Law, KIIT School of Law, Prasanti Vihar, Patia, Bhubaneshwar – 751024; Email:

[1] R v. Donnini, [1973] VR 67.

[2]. Gary L. Wells & Nancy K. Steblay, “Eyewitness Identification Reforms: Are Suggestiveness -Induced Hits and Guesses True Hits?”, Journal of Applied Psychology, 799, 835–844 (2011).

[3]. Heather L. Price, “Judicial Discussion of Eyewitness Identification Evidence” 49 CJBS 209–220 (2017).

[4]. S v. Mdlongwa, 2010 (2) SACR 419 (SCA).

[5]. Chris Taylor, Law Express Evidence, (Pearson, Chennai, 4th Edn., 2009).

[6]. The Royal Commision on Criminal Justice Report (“The Runciman Report”) (1993 London: HMSO)

Cmnd 2263, 2.

[7]. S.R. Myneni, Law of Evidence 84 (Asia Law House, Hyderabad, 3rd  Edn., 2019).

[8]. Phipson, Phipson on Evidence (Sweet & Maxwell, Thomson Reuters, 17th  Edn. 2015).

[9]. Dr. Avtar Singh, Principles of The Law of Evidence  66 (Central Law Publications, Allahabad, 22nd  Edn., 2018).

[10]. (1981) 145 CLR 395 at 426.

[11]. Alan Taylor, Principles of Evidence, 139 (Cavendish Publishing Limited, London,  2nd  Edn,. 2007).

[12]. Visveswaran v. State,  (2003) 6 SCC 73

[13]. Shiv Murat Kol v. State of M.P.,  2018 SCC OnLine MP 336.

[14]. [1977] QB 224.

[15]. Monir, M. Textbook on the Law of Evidence 66 (Universal Law Publishing, Delhi, 11th Edn,. 2018).

[16]. Ram Babu v. State of Uttar Pradesh(2010) 5 SCC 63.

[17]. Batuk Lal, The Law of Evidence 73 (Central Law Agency, Allahabad) 19th Edn., 2012).

[18]. Ashok K. Jain, Law of Evidence 44 (Ascent Publications, New Delhi,  6th Edn,. 2015).

[19]. Deep Chand v. State of Rajasthan,  (1962) 1 SCR 662.

[20]. Vepa P. Sarathi, Law of Evidence 56 (Eastern Book Company, Lucknow, 6th Edn., 2008).

[21]. Gade Lakshmi Mangaraju v. State of A.P., (2001) 6 SCC 205.

[22](1978) 3 SCC 86 at page 96.

[23]. 2017 Cri LJ 5011.

[24]. Ibid.

[25]. Dana Yadav v. State of Bihar, (2002) 7 SCC 295.

[26].Ibid at page 301.

[27]. R. Shaji v. State of Kerala, (2013) 14 SCC 266.

[28].  (1970) 3 SCC 518.

[29].  (1999) 8 SCC 428.

[30]. Malkhan Singh v. State of M.P., (2003) 5 SCC 746.

[31]. Swati Mehta, “Cyber Forensics and Admissibility of Digital Evidence” (2011) 5 SCC J-54.

[32]. Amina Memon, “A Field Evaluation of the VIPER System: a New Technique for Eliciting Eyewitness Identification Evidence” 17 Psychology Crime & Law 711 (2011).

[33]. Jowett, Christian, 2002 NLJ 152: Current Law (Jan) 2003.

[34]. Vishnu Narayan Moger v. State of Karnataka, 1995 SCC OnLine Kar 291.

[35]. Glanville Williams, Proof of Guilt 630 (Harvard Law Review , 3rd Edn 1963).

[36]. Ashworth, A., The Criminal Process: An Evaluative Study (1994 Oxford: Clarendon), 32; see also

Zuckerman, A.A.S., The Principles of Criminal Evidence (1989, Oxford: Clarendon).

[37]. Meintjes van der Walt L ” Judicial Understanding of the Reliability of Eyewitness Evidence: A Tale of Two Cases” PER / PELJ 2016(19).

[38]. R v. Mattan (Deceased) (1998) The Times 5.3.98 (97/6415/S2) (CA) and R v. Ross [1960] Crim LR 127 (CCA).

[39]. Raymond Emson, Evidence 360 (Palgrave Macmillan, 2nd Edn., 2004).

[40].  (1993) 98 Cr App R 313 (CA).

[41]. Amy Luria, “Showup Identifications: A Comprehensive Overview of the Problems and a Discussion of Necessary Changes” 86 Neb. L. Rev. 515, 516 (2008).

[42].  Suzannah B. Gambell, Comment, The Need to Revisit the Neil v. Biggers

Factors: Suppressing Unreliable Eyewitness Identifications, 6 WYO. L. REV. 189 (2006), at 190-91 [discussing Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony: Civil and Criminal? 4-1 (3rd Edn., 1997)].

[43]. Keith A. Findley, “Toward a New Paradigm of Criminal Justice: How the Innocence Movement Merges Crime Control and Due Process” 41 Tex. Tech L. Rev. 133 (2008).

[44]. Suzannah B. Gambell, Comment, “The Need to Revisit the Neil v. Biggers Factors: Suppressing Unreliable Eyewitness Identifications” 6 Wyo. L. Rev. 189 (2006).

[45]. Mian Sohail Ahmed v. State, (2019) SCC OnLine Pak SC 12.

[46]. Sir John Woodroff & Syed Amir Ali’s Law of Evidence 461. (Butterworths, Allahabad, 17 Edn., 2001).

[47]. Cynthia E. Jones, “The Right Remedy for the Wrongly Convicted: Judicial Sanctions for Destruction of DNA Evidence” 77 Fordham L. Rev. 2893 (2009). (Discussing how poor handling of evidence has resulted in premature destruction in thousands of cases, including in States in which laws have been enacted mandating evidence preservation.).

[48]. Barry Scheck, “Closing Remarks to Symposium, Thinking Outside the Box: Proposals for Change” 23 Cardozo L. Rev. 899 (2002).

[49]. State v. Dubose, 699 N.W.2d 582, 592 (Wis. 2005) (citing Gary L. Wells et al., “Eyewitness Identification Procedures: Recommendations for Lineups and Photo spreads” 22 Law & Hum. Behav. 603,605 (1998).

[50]. Calvin Ter Beek, “A Call for Precedential Heads: Why the Supreme Court’s Eyewitness Identification Jurisprudence is Anachronistic and Out-of-Step with Empirical Reality” 31 Law & Psychol. Rev. 21 (2007).

[51]. People v. Cress, 645 N.W.2d 669, 692 (Mich. Ct. App. 2002).

[52]. Bethany K. Dumas, “Voice Identification in a Criminal Law Context, American Speech”, 65 Duke University Press, 341-348 1990).

[53]. Ray Bull, “Earwitness Testimony” 39 Med. Sci. Law 120-127 (1999).

[54]. Supra note 3.

[55]. [1993] 2 NZLR 410.

[56].  [2000] Crim LR 183 (99/0458/X3).

[57]. [1976] 3 WLR 445 (R v. Hersey [1998] Crim LR 281 (CA), R v. Gummerson, [1999] Crim LR 680 (CA), R v. Chenia, [2003] 2 Cr App R 83 (CA)). .

[58]. Bulejcik v. R, (1996) 185 CLR 375 (HCA), R v.O’Doherty, [2003] 1 Cr App R 77 (NICA).

[59]. Inspector of Police v. Palanisamy,  (2008) 14 SCC 495.

[60]. Mohan Singh v. State of Bihar,  (2011) 9 SCC 272.

[61]. (2018) 18 SCC 695

[62]. For the difficulties which arise where the witness fails to identify the accused in court, having previously identified him outside court, see R v. Osbourne and R v. Virtue, [1973] QB 678, CA. 295 (See Ch 10).

[63]. R v. Burke and Kelly, (1847) 2 Cox CC.

[64]. [1914] AC 545.

[65]. Rosamund Reay, Evidence 311 (Old Bailey Press, 3rd Edn., 2001).

[66]. Dana Yadav v. State of Bihar, (2002) 7 SCC 295.

[67]. Malkhan Singh v. State of M.P., (2003) 5 SCC 746.

[68]. Raju Manjhi v. State of Bihar, (2019) 12 SCC 784.

Canada SC
Case BriefsForeign Courts

Supreme Court of Canada: Full Bench of Wagner CJ and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer J., rejected an appeal by the Crown against a trial court’s order granting a stay of charges in the case of a Sri Lankan man accused of murder, holding that undue delays in trial are unjust to the accused, the victims and the society as a whole. 

Mr Thanabalasingham was accused of murder in 2012 and his preliminary hearing lasted over a year. The trial was scheduled to be held in April, 2017, but shortly before it was to commence, the accused brought a motion for a stay of proceedings, claiming a violation of his rights under Section 11(b) of the Canadian Charter of Rights and Freedoms, which guarantees the right to be tried within a reasonable time. A stay of proceedings would mean that the trial would not proceed and there would be no further court action seeking a verdict, at least for the time being. The trial judge ordered the stay and the Court of Appeals upheld that order. The present case is the Crown’s appeal against it in the Supreme Court.

While Maude Payette, Richard Audet and Catherine Perreault represented the appellant, no one appeared for the respondent, who had been deported in 2017 after the trial court’s ruling. Louis Belleau and Antoine Grondin-Couture served as amicus curiae.

The Court held that the 30-month presumptive ceiling established in R v. Jordan [2016] 1 S.C.R. 631, which it considered the guiding framework in determining Section 11(b) infringements, had clearly been breached since there had been a delay of almost five years between the charge and the end of trial. It rejected the Crown’s argument claiming that the case fell under the transitional exceptional circumstance, stating that though most of the delay had accrued before the release of the guidelines in Jordan in 2016, the delay in this case had stemmed from the very systemic delay which the Court had intended to do away with while passing Jordan. Moreover, the present case, with its 43 month-delay, would have warranted a stay even under the previous framework established in R v Morin [1992] 1 S.C.R. 771, which set the limit between 14 to 18 months.

The Court emphasized repeatedly on its intention to change what it called “the culture of rampant and long-standing systemic delay — and complacency towards that delay — that had grown up in the Canadian criminal justice system,” and, consequently, dismissed the appeal. [Her Majesty v. Sivaloganathan  Thanabalasingham, 2020 SCC OnLine Can SC 1 , decided on 17-07-2020]

Hot Off The PressNews

As reported by Economic Times, the Ministry of Home Affairs in consultation with the Bureau of Police Research and Development is considering amendments to the criminal laws of the country. The laws under consideration for amendment are Penal Code, 1860, Code of Criminal Procedure, 1973 and Evidence Act, 1872.

Some of the proposals being looked at are:

  1. Diluting the right of appeal to avoid inordinate delays in certain cases, like the 2012 Nirbhaya gangrape case, where the convicts are using legal remedies to seek relief from capital punishment. A ministry official clarified that any amendments to CrPC or revision process would be legally examined as the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 confers to the Supreme Court the power to hear an appeal from any judgment, final order or sentence in a criminal proceeding of a high court for certain cases.
  2. Adopting certain features of the inquisitorial system which is followed in Germany and France to make the current adversarial system more effective. For example, in the inquisitorial system, the investigation is supervised by the judicial magistrate which leads to a higher rate of conviction
  3. Classifying crimes as blue-collar, white-collar, red-collar, green-collar and black-collar crimes under Penal Code, 1860 to equip the police to deal with complex dynamics of internal security.
  4. Setting up modus operandi bureaus at national and state levels to study the technique of crimes and mentality of criminals.
  5. Setting up of National Police University and Forensic Science University with affiliated colleges in every state. This was suggested by Home Minister, Amit Shah to create skilled manpower to tackle complex cases with advanced forensic capabilities instead of the use of third-degree and torture to solve cases.

A home ministry official said that the new laws should be in accordance with the democratic aspirations of people and provide speedy justice to women, children and weaker sections of society. Suggestions have been sought from all states and union territories, the official added.

[Source: Economic Times]

Case BriefsHigh Courts

Delhi High Court: Deciding an appeal filed by the State against acquittal of the accused for an offence under Section 354 of the Penal Code, the Bench of Sunita Gupta, J., reversed the acquittal and held that there is no legal impediment in convicting a person on the sole testimony of a single witness. In a case where an FIR was filed against the gym instructor and who despite the complainant’s refusal, forceably, in the garb of giving her a body massage pressed her thighs and touched her private parts, the accused was acquitted by the Metropolitan Magistrate on the ground that during the cross-examination of the complainant, it had come that  there was one more lady present inside the gym and that lady was not examined by prosecution. Since that lady was an independent witness, conviction could not be based on the solitary testimony of the complainant. The Public Prosecutor submitted that the trial court fell in error in acquitting the respondent solely on account of non-examination of one more lady who was alleged to be present in the gym and no reason was assigned as to why the testimony of the complainant should be disbelieved.

On the other hand, learned counsel for the respondent submitted that this appeal is against acquittal and, therefore, no interference is called for. It was further submitted that the prosecution case is based on solitary testimony of the complainant.

Rejecting the reasoning of the trial court and in the light of the above arguments, the Court held that the law under Section 134 of the Evidence Act, 1872 states that the Court may act on the testimony of a single witness on a condition that he is wholly reliable according to the wellsettled principle that evidence has to be weighed and not counted. The Court further held that non-investigation regarding presence of any other girl in the gym at the time of incident can be termed as lapse on the part of Investigating Officer however, the defect in the investigation cannot be a ground for acquittal and if primacy is given to such negligent investigation or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administrated would be destroyed. Thus, merely that some other girl was present in the gym, who was not examined by prosecution is not enough to draw an adverse inference against the prosecution. [State (NCT of Delhi) v. Pratap Singh, 2016 SCC OnLine Del 3207, 25 May 2016].

Case BriefsHigh Courts

Madras High Court– Expressing concern over the sordid state of affairs in the trial Courts in the State, the division bench of M.Jaichandren and S.Nagamuthu JJ., observed that when an unreasonable request for adjournment or unreasonable request to recall any witness is made and in the event, the trial Court turns down such request, the parties are advised to approach the High Court either under Section 482 CrPC or by way of revision, challenging the said order of the trial Court. The present case illustrates as to how the criminal justice delivery system could be taken for a ride by the unscrupulous men who are parties to the system.

In the instant case, the Court held that the Judge who had conducted the trial had demonstrably exhibited total indifference to his constitutional obligation to do speedy and real justice to the parties. He had allowed the witnesses to be dragged to Court and being harassed for many days. He did not record the reasons as to why the witnesses were again and again put in the witness box. He did not even record as to whether these witnesses were recalled at the instance of the accused or the prosecution. The learned Judge had only exhibited his ignorance in allowing the prosecutor to recall P.W.1 after several months to again examine the witness in chief examination when no new fact was in the hands of the learned public prosecutor to be introduced.

The Court further observed that fair investigation, fair and speedy trial and just verdict are the concomitants of right to life. Such right is not exclusive for the accused. The victim, their family members and the society at large are also entitled to have a fair trial and just verdict. The trial Court should ensure that both the accused and the witnesses, including the victims get a fair deal during trial and ultimately justice triumphs. The Court, after perusal of the facts and relevant case laws held that in order to maintain independence of the judiciary, the Judges should not allow any interference in their independent judicial thinking to do justice which is their Constitutional obligation. [Manikandan v. State, 2016 SCC OnLine Mad 2321, decided on 22.04.2016]