ORDER J.N. Takru, J. - This revision by the State of UP is directed against the judgment and order of the learned Addl. District Magistrate (J) Agra, whereby he refused to set aside in revision the order of discharge passed in favour of the opposite parties by a learned 1st class Magistrate of that place. 2. It appears that the police sent up 24 persons to stand their trial Under Sections 147, 323 and 379 IPC for mobbing the car of the High Commissioner of Nigeria and depriving his chauffeur of his wrist watch and cash. The learned Magistrate after going through the documents referred to in Section 173 Code of Criminal Procedure and the case diary held that, while there was sufficient evidence to proceed against seven of those persons, there was no evidence on the basis of which a charge could be framed against the opposite-parties and he therefore ordered their discharge. The State went up in revision against that order to the lower revisional court and when, it failed to get redress there, it preferred the present revision. 3. In order to appreciate the contention of the Learned Counsel for the State, it is necessary to state the facts and circumstances on which the order of discharge is grounded. It appears that soon after the incident, referred to above, the SO of the circle concerned came to hear about it and he left at once for the spot. When he reached there the opposite parties who had been apprehended earlier, were made over to his custody and the Nigerian High Commissioner and his chauffeur identified them before him as the culprits. It further appears that the Nigerian High Commissioner and his chauffeur were not called at the test identification parade held in connection with the identification of the culprits. The learned Magistrate took the view that as the identification of the opposite-parties by the Nigerian High Commissioner and his chauffeur before the SO was hit by Section 162 Code of Criminal Procedure it could not avail the prosecution for establishing the complicity of the opposite-parties in the incident in question and further that is those two persons were not called to identify the opposite-parties in jail, there was no evidence against them on the basis of which a charge or charges could be framed against them and he therefore ordered their discharge. 4. 4. On behalf of the State a two-fold contention was advanced in support of this revision. The first contention was that the identification of the opposite parties by the Nigerian; High Commissioner and his chauffeur as the culprits before the SO was not hit by the provisions of Section 162 Code of Criminal Procedure. His second contention was that, even if it were hit, the learned Magistrate could is till not pass the order of discharge as, those witnesses would have proved the complicity of the opposite-parties by identifying them at the trial. After hearing the Learned Counsel I am satisfied the while the first contention is not sound, the second contention is well-founded; with the result that this revision must succeed. I shall, therefore, deal with those contentions ad seriatim. 5. Now so far as the first contention is concerned the record; shows that soon after the occurrence, the SO of the circle concerned received information about it, whereupon he left at once for the scene when he got there both the Nigerian High Commissioner and his chauffeur pointed out the opposite-parties--who as stated above had been apprehended earlierto him as some of the culprits who were responsible for that incident. The pointing out of the opposite-parties as the culprits to the Investigating Officer is alone sufficient to attract the provisions of Section 162 Code of Criminal Procedure. Since it was tantamount to a statement made by them to a police officer in the course of the investigation see Ram Kishan Mithanlal Sharma and Ors. v. State of Bombay AIR 1955 S.C. 144 : 1955 AWR (Supp) 41. The Learned Counsel for the State, however, contended that as the pointing out of the opposite parties as the culprits by the Nigerian High Commissioner and his chauffeur to the SO was done before the latter had commenced the investigation it was not hit by Section 162 Code of Criminal Procedure. I do not agree for the simple reason that as soon as that officer heard about the incident and left for the spot he must have done so for collecting evidence concerning that incident, and for taking measures for the discovery and arrest of the offenders. I do not agree for the simple reason that as soon as that officer heard about the incident and left for the spot he must have done so for collecting evidence concerning that incident, and for taking measures for the discovery and arrest of the offenders. I am, therefore, satisfied that the pointing out of the opposite parties as the culprits by the Nigerian High Commissioner and his chauffeur to the SO whether coupled with any statement or not, was hit by Section 162 Code of Criminal Procedure. Thus the first contention of the Learned Counsel fails and is rejected. 6. Coming to the second contention the first thing to be noted is that while it is no doubt true that the act of identification in the circumstances mentioned above whether accompanied by any statement or not was hit by Section 162 Code of Criminal Procedure, the Supreme Court in Ram Kishan Mithan Lal Sharma and Ors. v. State of Bombay (supra) cited earlier in another connection, has also laid down that the aforesaid rule is subject to one exception viz. that, it does not exclude the evidence which the identifier himself may have to give in regard to his mental act of identification by way of corroboration of his identification of the accused at the trial. The courts below were therefore not right in holding that merely because the Nigerian High Commissioner and his chauffeur did not participate in the test identification there was no evidence to prove the participation of the opposite parties in the crime. They overlooked the fact that both those persons could do that at the trial and that they had been cited in the calendar of witnesses. 7. Before parting with this case, I might also mention that the view taken by the courts below as to the effect of not putting up the arrested persons for identification where the latter do not claim it, is wrong for in the recent case of State of U.P. Vs. Neel Kanth and Another, AIR 1967 All 447 this Court has expressed the view that the failure to put up arrested persons for identification, where the accused themselves do not claim identification, is not fatal to the prosecution case. Thus in either view of the matter the judgments and orders of the learned Magistrate and the lower appellate court cannot be sustained. Thus in either view of the matter the judgments and orders of the learned Magistrate and the lower appellate court cannot be sustained. I, therefore, set them aside and remand the case to the learned Magistrate, with the direction that he shall (sic) (after) framing the appropriate charge proceed to deal with it in accordance with law and the observations made above.