IMPORTANT POINT
The court established that previous statements made by witnesses during police investigations can only be used for contradiction at the first opportunity, and recalling witnesses to fill evidentiary gaps is not permissible.

ORDER :

(A. Badharudeen, J.) :

This Criminal Miscellaneous case has been filed under Section 482 of the Code of Criminal Procedure by the sole accused in S.C No.373/2022 on the files of the Special Court, Devikulam for the trial of offences under the Protection of Children from Sexual Offences Act, (for short, POCSO Act) challenging Annexure-VI order, whereby the learned Special Judge dismissed an application filed by the petitioner/accused to recall and re-examine PW2.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the order impugned and the decisions placed by the learned counsel for the petitioner while canvassing interference in Annexure-VI order.

3. To be on the facts of this case, the prosecution alleges commission of offences punishable under Sections 354, IPC read with 7 and 8 of the POCSO Act, by the accused, as born out from Annexure-VI order. In this matter evidence was completed. Thereafter, the petitioner herein filed C.M.P No.191/2023 under Section 311 Cr.P.C with prayer to recall PW2 for the purpose of confronting the 164 statement recorded in the present crime and also another statement recorded during the investigation of another Crime No. 341/2022 of Santhanpara Police Station.

4. The prosecution side opposed the application and accordingly the learned Special Judge dismissed the application holding that a previous statement in another crime could not be used for the purpose of Section 145 of the Evidence Act. It was further found that the 164 statement of PW2 was marked during the examination of PW2 without any objection and without subjecting PW2 to contradict the same. Therefore another opportunity for the said purpose by recalling PW2 is unwarranted.

5. While challenging the order, the learned counsel for the petitioner argued that the finding entered by the Special Court in Paragraph No.7 that previous statement in another crime could not be used to contradict a witness during his cross examination is an illegality. In this connection he has placed two decisions:-

The first decision placed is Tasildar Singh and Another vs. State of UP [(1959) KHC 577] with reference to Paragraph Nos.16 and 17. The same reads as under:-

16. The object of the main section as the history of its legislation shows and the decided cases indicate is to impose a general bar against the use of statement made before the police and the enacting clause in clear terms says that no statement made by any person to a police officer or any record thereof, or any part of such statement or record, be used for any purpose. The words are clear and unambiguous. The proviso engrafts an exception on the general prohibition and that is, the said statement in writing may be used to contradict a witness in the manner provided by S.145 of the Evidence Act. We have already noticed from the history of the section that the enacting clause was mainly intended to protect the interests of accused. At the state of investigation, statements of witnesses are taken in a haphazard manner. The police officer in the course of his investigation finds himself more often in the midst of an excited crowd and babel of voices raised all round. In such an atmosphere, unlike that in a Court of Law, he is expected to hear the statements of witnesses and record separately the statement of each one of them. Generally he records only a summary of the statements which appear to him to be relevant. These statements are, therefore, only a summary of what a witness says and very often perfunctory. Indeed, in view of the aforesaid facts, there is a statutory prohibition against police officers taking the signature of the person making the statement, indicating thereby that the statement is not intended to be binding on the witness or an assurance by him that it is a correct statement.

17. At the same time, it being the earliest record of the statement of a witness soon after the incident, any contradiction found therein would be