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1. Admitted. Public Prosecutor takes notice. Heard.

2. Challenge is made in this revision against the order passed by the learned Additional Sessions Judge, Kottayam in M.P. 95 of 2002 in S.C. 241 of 2000 on the file of that court. Crl.M.P. has been filed seeking permission of the Court to use the statement of PW1 alleged to be recorded by A.S.I, of Police one P.K. Balakrishnan "on 27.2.1996 under Section 161 Cr.P.C. for contradicting PW1 under Section 162 Cr.P.C. in the manner provided by Section 145 of the Indian Evidence Act, 1972".

10. It is also worthwhile to extract the relevant observations made by the Supreme Court in Raghunandan v. State of U.P. (1974 SCC (Cr1.) 355).

"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 Ss. 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 is intended for the benefit of the defence, it could also he 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.

16. We are inclined to accept the argument of the appellant that the language of 5. 162, Criminal Procedure Code though wide, is not explicitor specific, enough to extend the prohibition to the use of the wide and special powers of ins 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."