Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Identification of the Arrested Person under Section 54 BNSS and the Test Identification Parade: Procedure, Safeguards and Evidentiary Value
Where the person who committed an offence is not known to the witness who saw it, the prosecution must at some point establish that the person in the dock is the person the witness saw. The identification is made in court, on oath, in the presence of the accused. But an identification made for the first time in a courtroom, months or years later, with the accused sitting in the only place an accused sits, is worth very little. The test identification parade exists to give that courtroom identification something to rest on.
Section 54 of the Bharatiya Nagarik Suraksha Sanhita, 2023 supplies the statutory power. It is short, it corresponds to section 54A of the Code of Criminal Procedure inserted in 2005, and it says nothing about how a parade is to be conducted. Almost the whole of the law on the subject is judicial, and the central proposition of that law is easily stated and constantly misapplied: the parade is not substantive evidence.
1. Section 54: the Statutory Power
Section 54, BNSS 2023 Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court having jurisdiction may, on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit. Provided that if the person identifying such person is mentally or physically disabled, such process of identification shall take place under the supervision of a Judicial Magistrate who shall take appropriate steps to ensure that such person identifies the person arrested using methods that person is comfortable with, and the process of identification shall be recorded by audio-video electronic means. |
1.1 The elements
- The person must have been arrested on a charge of committing an offence. The section does not apply to a suspect at large.
- Identification must be considered necessary for the purpose of investigation. Where the accused is already known to the witness, or where identity is not in issue, a parade serves no purpose and the section is not engaged.
- The request comes from the officer in charge of a police station, and the direction comes from the court having jurisdiction. The power is judicial, not executive.
- The court may direct the manner. The section leaves the mode entirely to the court, which is why the detailed practice is judicial and varies with the circumstances of the case.
1.2 The proviso, which is new
The proviso has no counterpart in section 54A of the CrPC and is one of the small but consequential additions the Sanhita has made. Where the person identifying is mentally or physically disabled, three requirements attach: the process takes place under the supervision of a Judicial Magistrate; the Magistrate takes appropriate steps to ensure that the identification is made by methods the person is comfortable with; and the process shall be recorded by audio-video electronic means.
The reason is evidentiary rather than merely humane. Where a witness communicates in a manner that a written record cannot capture, whether through an interpreter, a special educator, gesture or an assistive device, the written record of the parade is an unreliable account of what he in fact conveyed. The recording preserves the process itself, and the court can afterwards see what happened rather than reading someone else’s summary of it. The provision is of a piece with the proviso to section 176(1), which requires the statement of a disabled victim to be videographed.
2. The Test Identification Parade in Practice
Figure 1: The process from the need to the trial
The Sanhita prescribes no procedure, and the practice has been built by the courts and by the Criminal Rules of Practice framed by the High Courts under section 523. The requirements that have emerged are directed at a single object: to make sure that the witness picked the accused out because he recognised him, and not for any other reason.
Requirement | Why it exists |
|---|---|
The parade is conducted by a Judicial Magistrate, not by the police | The police know who the suspect is and have an interest in the outcome. An independent supervisor is the only guarantee that no signal was given |
The suspect is mixed with persons of similar age, build, height, complexion and dress | A parade in which the suspect is conspicuous is not a test of recognition at all |
The suspect is given the opportunity to change his position between witnesses | To remove the possibility that a witness was told where in the line to look |
Witnesses are called one at a time and kept apart afterwards | To prevent one witness from influencing another |
The witness must have had no prior opportunity to see the suspect in custody | A witness who has already seen the suspect in the lock-up, in the police station or in a photograph is identifying a memory of that occasion, not of the offence |
The parade is held as soon as possible after the arrest | Memory fades, and the risk of an intervening sighting grows with time |
The Magistrate records what each witness said, the features relied on, and any objection by the suspect | The record is what the court will later evaluate; a bare statement that identification was made is of little use |
The suspect may ask to be kept veiled where he alleges he has been shown to witnesses | A safeguard against the commonest objection to a parade |
⚠ The objection that defeats most parades The single most effective attack on a test identification parade is that the witness saw the suspect before it, whether in the police station, in the lock-up, in a photograph shown by the investigating officer, or in a media report. The burden of establishing that no such opportunity arose lies in practice on the prosecution, because the circumstances are within its knowledge. The Magistrate’s record should therefore show what steps were taken: that the suspect was kept veiled or apart, that the witnesses were kept away from the place of custody, and that they were asked and denied having seen him. Where the suspect has in fact been shown to the witness, the parade is worthless, and the identification in court that follows it carries little more weight. |
3. The Evidentiary Value of a Parade
Figure 2: Parade and courtroom identification compared
📖 Malkhansingh v. State of Madhya Pradesh, (2003) 5 SCC 746 Facts: The accused were identified by the prosecutrix in court. No test identification parade had been held during the investigation, and it was contended that in the absence of a parade the identification made for the first time in court could not be relied upon, and that the conviction was therefore unsustainable. Held: The Supreme Court held that a test identification parade is not substantive evidence. Its purpose is only to help the investigating agency ascertain whether the investigation is proceeding on the right lines, and to enable the prosecution to satisfy itself that the witness is capable of identifying the accused. The substantive evidence is the identification made in court. The failure to hold a parade does not make the evidence of identification in court inadmissible; it is a matter that goes to weight. Where the witness had ample opportunity to observe the accused, and the court is satisfied of the truthfulness and reliability of the identification, a conviction may rest on it even in the absence of a parade. The Court added that the identification in court is not to be rejected merely because the accused was in the dock. Ratio: The parade is an aid to the investigation and a means of corroboration. The identification made in court is the substantive evidence, and its absence of corroboration goes to weight and not to admissibility. |
📖 Dana Yadav alias Dahu v. State of Bihar, (2002) 7 SCC 295 Facts: The accused had been identified in court by witnesses, and questions arose as to the effect of the absence of a test identification parade, of delay in holding one, of the witnesses having had an opportunity to see the accused before it, and of identification made with reference to photographs. Held: The Court set out the principles governing identification evidence. A test identification parade held during the investigation has no substantive value and can only corroborate or contradict the identification in court. Delay in holding a parade, unless satisfactorily explained, detracts from its value. Where the witnesses had an opportunity to see the accused before the parade, it loses its worth altogether. The evidence of identification in court, if found to be trustworthy, can sustain a conviction even without a parade, but where identification is the only evidence connecting the accused with the offence, the court looks for corroboration, and the absence of a properly held parade then assumes significance. Identification by photograph is a weaker form and calls for caution. Ratio: The value of an identification depends on the opportunity the witness had to observe, on the absence of any intervening sighting, and on promptness. Where identification is the sole evidence, corroboration is looked for, and a properly held parade is the usual source of it. |
3.1 The propositions that follow
- A parade is not substantive evidence. It is conducted during the investigation, in the absence of the court, and is not evidence taken in the trial.
- Identification in court is the substantive evidence. It is given on oath, in the presence of the accused, and is subject to cross-examination.
- Failure to hold a parade does not make the court identification inadmissible. It goes to weight.
- Where the accused was already known to the witness, a parade is unnecessary, and its absence is of no consequence.
- Where identification is the only evidence against the accused, the court looks for corroboration, and the absence of a properly held parade is then a serious gap.
- Delay, a prior sighting, or a parade conducted by the police rather than a Magistrate, each reduce or destroy the value of the parade.
- The accused has no right to insist that a parade be held, and no right to refuse to take part in one; but an unexplained refusal may be taken into account against him, since the refusal deprives the prosecution of a test it was entitled to conduct.
4. Identification and the Law of Evidence
Section 54 is procedural: it confers the power to direct an identification. Whether the fact of an identification is relevant, and how it may be proved, is governed by the Bharatiya Sakshya Adhiniyam, 2023, under the provisions on facts necessary to explain or introduce a fact in issue, which correspond to section 9 of the Indian Evidence Act, 1872. Two consequences follow.
- The statement of the witness at the parade is a statement made to a Magistrate during the investigation. It is not substantive evidence of the identity of the offender, and is usable to corroborate or to contradict the witness when he is examined at the trial.
- The Magistrate who conducted the parade may be examined as a witness to prove the manner in which it was conducted and what was said. His record is the primary material, and its adequacy is what determines how much the parade is worth.
Form of identification | Character | Weight |
|---|---|---|
Identification in court by a witness who knew the accused before the offence | Substantive | Ordinarily strong; no parade is required |
Identification in court, corroborated by a properly held parade | Substantive, with corroboration | The strongest form where the accused was a stranger |
Identification in court, with no parade held | Substantive | Admissible; weight depends on the opportunity to observe and the reliability of the witness |
Identification in court, with a parade held after delay or after a prior sighting | Substantive, with the corroboration devalued | The parade adds little, and the court proceeds as if there were none |
Identification at the parade alone, the witness not being examined at the trial | Not substantive | Of no value as proof of identity |
Identification from a photograph | Not substantive | A weaker form, requiring caution, particularly where the photograph was shown before any parade |
Identification by a disabled witness under the proviso to section 54 | Substantive when repeated in court | The audio-video record of the process is what enables the court to assess it |
5. Identification of Things, and Related Provisions
A parade is most often thought of as a parade of persons, but the identification of property follows the same logic and the same safeguards. Where a witness is asked to identify a recovered article as the one stolen, the article should be mixed with similar articles, the witness should not have been shown it beforehand, and the process should be supervised. The evidentiary position is the same: the identification of the property in court is the substantive evidence, and the identification during the investigation corroborates it.
Provision | Relationship to identification |
|---|---|
Section 54 | The power to direct a person arrested to subject himself to identification, with the proviso for a disabled identifier |
Section 349 | The power of a Magistrate to order a person to give specimen signatures, handwriting, finger impressions or voice samples, provided he has been arrested in connection with the case. A different route to establishing identity, by comparison rather than recognition |
Section 51 | Medical examination, including DNA profiling, which establishes identity by scientific comparison |
Section 176(1), proviso | The statement of a disabled victim is recorded in the presence of an interpreter or special educator and is videographed, on the same reasoning as the proviso to section 54 |
Section 530 | Proceedings may be held in electronic mode, which is the general provision under which a recorded identification is capable of being placed before the court |
⚠ Three points on which candidates and practitioners go wrong The parade does not prove identity. It is a check on the reliability of a witness. A person is not convicted because he was picked out at a parade; he is convicted because a witness identified him in court and the court believed that witness. The absence of a parade is not fatal. It is a circumstance, and its weight depends on whether identification is the only evidence and whether the witness had a real opportunity to observe. The proviso to section 54 protects the identifier, not the accused. It applies where the person identifying is disabled, not where the person arrested is. It is easy to misread, and the misreading changes the provision entirely. |
6. Key Takeaways
The position stated shortly 1. Section 54 permits the court having jurisdiction, on the request of the officer in charge of a police station, to direct a person arrested to subject himself to identification, in such manner as the court thinks fit. 2. The section applies only where the person has been arrested and where identification is considered necessary for the purpose of investigation. 3. The proviso, which is new, applies where the person identifying is mentally or physically disabled: the process takes place under the supervision of a Judicial Magistrate, by methods the person is comfortable with, and shall be recorded by audio-video electronic means. 4. The Sanhita prescribes no procedure for a parade. The practice is judicial: conducted by a Magistrate, with the suspect mixed among similar persons, witnesses called one at a time, no prior opportunity to see the suspect, and a full record of what each witness said. 5. A test identification parade is not substantive evidence. Its purpose is to assure the investigating agency that the investigation is on the right lines and to allow the prosecution to test its witness: Malkhansingh. 6. The identification in court is the substantive evidence, and a conviction may rest on it even where no parade was held. 7. Delay in holding a parade, or a prior sighting of the suspect by the witness, destroys or greatly reduces its value; identification from a photograph is a weaker form requiring caution: Dana Yadav. 8. Where identification is the only evidence connecting the accused with the offence, the court looks for corroboration, and the absence of a properly held parade then matters. 9. The accused has no right to insist on a parade and no right to refuse to participate; an unexplained refusal may be taken into account against him. 10. Section 54 is procedural; the relevance of the fact of identification is governed by the Bharatiya Sakshya Adhiniyam, 2023, under the provisions corresponding to section 9 of the Indian Evidence Act, 1872. |
7. Frequently Asked Questions
What does section 54 of the BNSS provide?
That where a person is arrested and his identification by another person is considered necessary for the investigation, the court having jurisdiction may, on the request of the officer in charge of a police station, direct him to subject himself to identification in such manner as the court thinks fit.
Is a test identification parade substantive evidence?
No. It is conducted during the investigation and outside the court, and it is not evidence taken in the trial. It is used to corroborate or to contradict the identification made in court, which is the substantive evidence.
Can a conviction rest on identification in court alone?
Yes, where the court is satisfied of the truthfulness and reliability of the identification and the witness had adequate opportunity to observe the accused. The absence of a parade goes to weight, not to admissibility. But where identification is the only evidence against the accused, the court looks for corroboration.
Who conducts a test identification parade?
A Judicial Magistrate. A parade conducted by the police carries little weight, because the independence of the supervisor is the principal safeguard that makes the exercise meaningful.
What happens if the witness saw the accused before the parade?
The parade loses its value. A witness who has already seen the suspect in the lock-up, at the police station or in a photograph is identifying his memory of that occasion rather than of the offence, and the identification that follows carries correspondingly little weight.
Can an accused refuse to take part in an identification parade?
He has no right to refuse, and no right to insist that one be held. An unexplained refusal to participate may be taken into account against him, because it deprives the prosecution of a test it was entitled to conduct.
What is new in section 54 compared with the CrPC?
The proviso dealing with an identifier who is mentally or physically disabled. It requires the process to be conducted under the supervision of a Judicial Magistrate, by methods the person is comfortable with, and to be recorded by audio-video electronic means. Section 54A of the CrPC contained no such provision.
Related Topics
- Medical Examination under the BNSS, 2023: Sections 51, 52 and 53
- Rights of a Female Accused under the BNSS, 2023
- Arrest of Persons under the BNSS, 2023: Sections 35 to 62
- Audio-Video Electronic Means under the BNSS, 2023
- Specimen Signatures, Handwriting and Voice Samples: Section 349, BNSS
- BNS, BNSS and BSA: Their Interrelationship