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Learned counsel for the' appellant submitted that the testimony of Jailal could not have been accepted by the High Court because Jailal had not been confronted with his previous statement before the police. He urged, relying upon Emperor v. Lal Mian (1), that, even if the statement of a witness, recorded by the Police during the investigation, cannot be used for "any purpose" other than the ones mentioned in Section 162 Criminal Procedure Code, yet this prohobition applies only to the parties to the proceedings and does not operate against the powers of the Court itself when it considers the testimony of a witness to be necessary. Although, the Trial Court considered Jailal's evidence important enough to examine him under Section 540 Criminal Procedure Code, yet it disabled itself from testing its worth by putting an alleged contradiction to the witness on a matter of some importance, in the case.

It is true that the ban, imposed by section 162 Criminal Procedure Code, against the use of a statement of a Witness recorded by the Police during investigation, appears sweeping and wide. But, at the same time, we and that the powers of the Court, under section 165 of the Evidence Act, to put any question to a witness, are also couched in very wide terms authorising the Judge "in order to discover or to obtain proper proof of relevant facts" to "ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant". The first proviso to section 165 Evidence Act, enacting that, despite the powers of the Court to put any question to a witness, the judgment must be based upon facts declared by the Act to be relevant, only serves to emphasize the width of the power of the Court to Question a witness. The second proviso is this section preserves the privileges of witnesses to refuse to answer certain questions and prohibits only questions which would be considered improper under section 148 and 149 of the Evidence Act. Statements of witnesses made to the police during the investigation do not fall under any prohibited category mentioned in Section 165 Evidence Act. If Section 162 Criminal Procedure Code was meant to be so wide in its sweep as the Trial Court thought it to be, it would make a further inroad upon the powers of the Judge to put Questions under Section 165 Evidence Act. If that was the correct position, atleast Section 162 Criminal Procedure Code would have said so explicitly. Section 165 of the Evidence Act was already there when section 162 Criminal Procedure Code was enacted. It is certainly quite arguable that Section 162 Criminal Procedure Code doer, amount to a prohibition against the use even by the Court of statements mentioned there. Nevertheless, the purpose of the prohibition of Section 162 Criminal Procedure Code being to prevent unfair use by the prosecution of statements made by witnesses to the Police during the course of investigation, while the proviso is intended for the benefit of the defence, it could also be urged that, in order to secure the ends of Justice, which all procedural law is meant to subserve, the prohibition, by taking into account its purpose and the mischief it was designed to prevent as well as its context, must be confined in its scope to the use by parties only to a proceeding of statements mentioned there.

We are inclined to accept the argument of the appellant that the language of Section 162 Criminal Procedure Code, though wide, is not explicit or specific enough to extend the prohibit on to the use of the wide and special powers of the Court to question a witness, expressly and explicitly given by Section 165 of the Indian Evidence Act in order to secure the ends of justice. We think that a narrow and restrictive construction put upon the prohibition in Sect on 162 Criminal Procedure Code, so as to confine the ambit of it to the use of statements by witnesses by parties only to a proceeding before the Court, would reconcile or harmonize the two provisions considered by us and also serve the ends of justice. Therefore, we hold that Section 162 Criminal Procedure Code does not impair the special powers of the Court under Section 165 Indian Evidence Act. Consequently, we think that the Trial Court could and should have itself made use of the statement made by Jailal during the course of the investigation. If that had been done, it is possible that it may have affected appraisal of evidence of other prosecution witnesses.