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"14. 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 find 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 in 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, at least 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".
"15. It is certainly quite arguable that Section 162 Criminal Procedure Code does, 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

12 apeal586.17 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".

"16.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 prohibition 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 Section 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".

11. In Pulukuri Kottaya and others..vs..Emperor, AIR (34) 1947 Privy Council 1967 the decision authored by Sir John Beaumont considered the provisions of section 162(1) of the Code of Criminal Procedure 1898 which provision reads thus:

"162. (1) No statement made by any person to a police-officer in the course of an investigation under this Chapter shall, if reduced into writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police-diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investigation at the time when such statement was made: