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It also seems to me that what was done or was stated by the persons who went to identify suspects at the test identification parade cannot be comprehended in the expression 'evidence' as occurring in Section 80 of the Act. That is clear from the provisions of Sections 3, 59, 60, 118 and 119 of the Act, which I have summarised earlier and which show that what is stated in Court and not what is stated at the investigation stage, is 'evidence' for the purposes of the Act. In AIR 1936 PC 253 (2), it was held by the Judicial Committee that when a Magistrate records a confession under Section 164, Cr. P. C., he is not acting as a Court. On the assumption that what a person appearing in Court as a witness, stated or pointed out at the identification parade earlier is a statement under Section 164, Cr. P. C., it must still be held that it was not evidence within the meaning of that word as used in Section 80 of the Act. I am also of the opinion that the proceedings of test identification parade in this case, which, admittedly were held during the investigation stage, were not 'judicial proceedings'. The expression 'judicial proceeding' has not been defined in the Act. It has, however, been defined in Section 4(m), Cr. P. C. as follows:

20. In AIR 1936 Pat 11, Varma and Rowland, JJ. held that even though statements under Section 164, Cr. P. C. were recorded during an investigation, oath could be administered to that maker of the statement.

21. For the reasons already given earlier in this judgment, with great respect, I am unable to agree with these decisions and it appears to me that the provisions of Section 80 of the Act are not attracted to the facts of this case.

22. Another reason for coming to the same conclusion is that the scheme of the Cr. P. C. is that whatever is done at the investigation stage is not taken to be a part of 'judicial proceedings'. In the present case, the identification parade took place during the investigation stage. Section 164, Cr. P. C. does not speak of proceedings but of 'Statements and confessions'. However, even if it be assumed that the identification parade in, this case was field under the provisions of Section 164, Cr. P. C., that would not make it a part of 'judicial proceedings'. That provision itself says that the statement or the confession is to be recorded in the course of an investigation under this Chapter'.

23. Even after a statement or confession, recorded under Section 164, Cr. P. C. has been formally proved, it will still not be substantive evidence and can be put to no other use than that of contradicting the deponent thereof under Section 145, or of corroborating him under Section 147 of the Act. (See AIR 1948 PC 38 and AIR 1949 PC 257). The same is the position of an identification memorandum which contains statements within the meaning of that word occurring in Section 164, Cr. P. C., of persons who had gone to identify the suspects at the test identification parade. (See Sarju Singh v. Emperor, AIR 1925 Oudh 726 and Lal Singh v. Emperor, AIR 1925 tan 19).

26. ILR 13 Mad 421, 3 Cri LJ 370 (Mad) (Supra), AIR 1959 Andh Pra 250 (Supra), 8 Bom LR 589 (Supra), 34 Cri LJ 469 : (AIR 1933 Lah 321) and ILR 22 All 115, support the proposition that a person making a false statement under Section 164, Cr. P. C. is guilty of perjury. We are not called upon in the instant case to decide as to whether a person making a false statement under Section 164, Cr. P. C. is guilty of perjury or not. In any case, I have already given my reasons for holding that a statement made under Section 164, Cr. P. C. is not 'evidence', is not made in a 'judicial proceeding' and is not given under oath. I am, therefore, unable to share the view taken in these cases.