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. 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 of immense help to an accused to discredit the testimony of a witness making the 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 of immense help to an accused to discredit the testimony of a witness making the statement. The Section was, therefore, conceived in an attempt to find a happy 'via media', namely, while it enacts an absolute bar against the statement made before a police officer being used for any purpose whatsoever, it enables the accused to rely upon it for a limited purpose of contradicting a witness in the manner provided by S.145 of the Evidence Act by drawing his attention to parts of the statement intended for contradiction. It cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness. Shortly stated, there is a general bar against its use subject to a limited exception in the interest of the accused, and the exception cannot obviously be used to cross the bar. The second one placed is the decision of the Apex Court in State of Kerala vs. Babu and others [ (1999) 4 SCC 621 ] referring Paragraph No 11 as it reads as under :- 11. It is, therefore, seen that the object of the legislature throughout has been to exclude the statement of a witness made before the police during the investigation from being made use of at the trial for any purpose, and the amendments made from time to time were only intended to make clear the said object and to dispel the cloud cast on such intention. The Act of 1898 for the first time introduced an exception enabling the said statement reduced to writing to be used for impeaching the credit of the witness in the manner provided by the Evidence Act. As the phraseology of the exception lent scope to defeat the purpose of the legislature, by the Amendment Act of 1923, the section was redrafted defining the limits of the exception with precision so as to confine it only to contradict the witness in the manner provided under S.145 of the Evidence Act. As the phraseology of the exception lent scope to defeat the purpose of the legislature, by the Amendment Act of 1923, the section was redrafted defining the limits of the exception with precision so as to confine it only to contradict the witness in the manner provided under S.145 of the Evidence Act. If one could guess the intention of the legislature in framing the section in the manner it did in 1923, it would be apparent that it was to protect the accused against the user of the statements of witnesses made before the police during investigation at the trial presumably on the assumption that the said statements were not made under circumstances inspiring confidence. Both the section and the proviso intended to serve primarily the same purpose i.e., the interest of the accused. 6. The learned Public Prosecutor not disputed the legal position. Now the question crops up; is it permissibile to use previous statements recorded by a police officer in another crime to contradict a witness while examining him in a different crime? In answer to the query on the basisi of the settled law, obviously, the statements recorded during the enquiry and investigation would be termed as previous statements of the witnesses/makers of the satements and the same can be used for contradicting the makers, not only in the case where the statements were recorded, but also in any other case where the maker of the statements will be examined. The rationale is, as per proviso to Section 162 of the Code of Criminal Procedure read with Section 145 of the Evidence Act, the very object of enactment of Section 162 of the Code of Criminal Procedure and Section 145 of the Evidence Act is to create a right to the accused to make use of the previous statements of the witnesses for the purpose of contradiction and for impeaching the merit of the witnessess. 7. Here PW2 was sought to be recalled for two purposes. One is to contradict PW2 with her 164 statement in the instant crime and the second is to contradict her with the previous statement given in Crime No.341/2022. It is submitted by the learned Counsel for the petitioner that such a course of action is necessary to protect the interest of the accused. 8. One is to contradict PW2 with her 164 statement in the instant crime and the second is to contradict her with the previous statement given in Crime No.341/2022. It is submitted by the learned Counsel for the petitioner that such a course of action is necessary to protect the interest of the accused. 8. But the learned Public Prosecutor opposed the prayer contenting that the opportunity to use previous statement for the purpose provided under Section 145 of the Evidence Act is to be used at the first opportunity and prayer for doing the said execersises after recalling the witnesses is to fill up the lacuna in evidence and such a course of action could not be permitted even otherwise. 9. Being guided by the settled law as espoused, the right of the accused to use the previous statement in another crime and also to make use of statements recorded under Section 164 of Cr.P.C to contradict PW2 should have been used, when PW2 was cross examined on availing the first opportunity. Omission to do so, cannot be permitted to be filled up by recalling the witness, already examined, as the same would amount to fill up the lacuna in evidence and to cure the deliberate omission to cross examine the witness by using the earlier opportunity provided. Coming to the 164 statement, here the same is marked without objection and no contradiction put regarding the said statement, when PW2 was cross examined. Hence recall of PW2 for the said purpose cannot be allowed. As such no interference to Annexure-VI order is necessary. In view of the above discussion, this Crl.M.C must fail and is accordingly dismissed.