ORDER : Whether a witness/victim can be re-called under Section 348 of the Bharatiya Nagarik Suraksha Sanhita, 2023('B.N.S.S', for short), read with Section 149 of the Bharatiya Sakshya Adhiniyam, 2023 ('B.S.A', for short), to confront her with a 'subsequent' statement, so as to test her veracity, is the question which surfaces for consideration in the first two Crl.M.Cs. The other two Crl.M.Cs challenge the Orders dismissing the petitioners' application (Annexure-A5) seeking certified copies of the deposition of PW1/victim, as also, her statements under Section 161 Cr.P.C in two other Sessions Cases, which, according to the petitioners, are connected with the Sessions Case in question. 2. The factual matrix: Petitioners in Crl.M.C No.2006/2025 and 2216/2025 are the respective accused person in S.C Nos.366/2024 and463/2024, both of the Fast Track Special Court, Adoor. In S.C No.366/2024 (Crl.M.C No.2006/2025), the offences alleged are under Sections 450, 376(1), 376(2)(n), 354 and 354 A of the Penal Code; and Sections 4(1) read with Section 3(a), Section 6 read with Section 5(1), Section 8 read with Section 7, Section 10 read with Section 9(1), Section 12 read with Section 11(iii), 11(v) and 11(vi) and Section 15 of the Protection of Children from Sexual Offences Act, 2012 ('POCSO Act', for short) and further under Section 67 B(b) and 67 B(e) of the Information Technology Act. Similarly, the offences in S.C No.463/2024 (Crl.M.C No.2216 of 2025) are under Sections 451 and 354 A of the Penal Code; and Section 8 read with Section 7 and Section 12 read with Section 11(iv) of the POCSO Act. In S.C No.366/2024, the defacto complainant/victim was examined as PW1 on 07.01.2025; whereas she was examined in S.C No.463/2024, as PW1 on 03.01.2025. In both cases, the witness was examined, at length, in cross as well and discharged. Thereafter, the same defacto complainant/victim was examined as a witness in S.C No.331/2024 and S.C No.162/2024 on 10.01.2025 and 18.01.2025 respectively, in which cases the accused persons were different. In those cases (S.C Nos.331/2024 and 162/2024), the defacto complainant/PW1 turned hostile to the prosecution and deposed that she had no acquaintance with the accused persons therein, with the result, the respective accused persons were acquitted by separate judgments of the same Fast Track Special Court, Adoor. In those cases (S.C Nos.331/2024 and 162/2024), the defacto complainant/PW1 turned hostile to the prosecution and deposed that she had no acquaintance with the accused persons therein, with the result, the respective accused persons were acquitted by separate judgments of the same Fast Track Special Court, Adoor. The petitioners herein (accused persons in S.C Nos.366/2024 and 463/2024) filed applications seeking issuance of certified copy of the deposition of the victim/PW1, as also, the statement under Section 161, Cr.P.C of the victim, in S.C Nos.331/2024 and 162/2024. The applications were rejected on the premise that the petitioner is a stranger and that issuance of copies would offend the privacy of the victim guaranteed under Article 21 of the Constitution. Those Orders are under challenge in the present Crl.M.C Nos.2232/2025 and 2233/2025. The petitioners herein also filed Criminal Miscellaneous Petitions in the subject Sessions Case Nos.366/2024 and 463/2024 seeking to recall PW1 to impeach her credibility and to bring materials before the trial court, pertaining to the reliability of PW1, as a witness. The respective applications filed in the two Sessions Cases were dismissed, vide Orders produced at Annexure-A8 in both the Crl.M.Cs, relying upon the judgments of the Hon'ble Supreme Court in Mishrilal and Others v. State of M.P and Others [ 2005 (10) SCC 701 ] and Hanuman Ram v. State of Rajasthan and Others [ 2008 (15) SCC 652 ] and also harping on Section 33(5) of the POCSO Act. Annexure-A8 Orders in both the Crl.M.Cs are under challenge. 3. Heard Sri.Manu Ramachandran , learned counsel for the petitioners; Sri.C.N.Prabhakaran , learned Senior Public Prosecutor, Sri.Sanal P.Raj , learned Public Prosecutor and Sri.E.C.Bineesh , learned Public Prosecutor. Having regard to the significance of the issue as to whether the accused has got a right to impeach the credibility of a witness by relying on a 'subsequent' statement, in contra-distinction with a previous statement, this Court appointed Sri.K.K.Dheerendrakrishnan as Amicus Curiae. Heard the Amicus as well. 4. Learned counsel for the petitioners submitted that the right to cross-examine a witness envisaged under Section 138 of the Indian Evidence Act is further enlarged in its scope by virtue of Section 146 therein (presently Section 149 of the BSA). Heard the Amicus as well. 4. Learned counsel for the petitioners submitted that the right to cross-examine a witness envisaged under Section 138 of the Indian Evidence Act is further enlarged in its scope by virtue of Section 146 therein (presently Section 149 of the BSA). Learned counsel emphatically submitted on the significance of cross-examination, pin-pointing that it is the sole tool in the hands of the defence to prove the falsity of the prosecution version, as also, to prove the innocence of the accused. On facts, learned counsel would point out that the Sessions Cases afore-referred are not to be treated as separate, distinct and independent from each other; instead, they are inter-connected, since the same sprouts from a common F.I.R. The allegation is that, as many as twenty persons have committed penetrative sexual assault on a minor girl, which continued so as to constitute the offence of rape, after she attained majority. The cases were split up only for the purpose and convenience of trial and separate charge sheets were filed accordingly. However, learned counsel would point out that the victim is common and the place of occurrence and the mode of perpetration of the crime etc. are all, more or less, similar and that her statement under Section 164 Cr.P.C. is also common. Therefore, the matter should not be adjudged on the premise that the evidence adduced in a different case is sought to be introduced in the subject cases, but the underlying interconnection has to be borne in mind while approaching the issue. Learned counsel would point out that there is hardly three days' difference between the date of examination of the defacto complainant/victim/PW1 in the subject S.C No.366/2024 (Crl.M.C No.2006/2025) and the date of examination in S.C No.331/2024. There, the accused is A8, going by the rank mentioned in the F.I.R. From that date, the victim/defacto complainant was examined in S.C. No.162/2024 within eight days, wherein the accused is A13, going by the rank shown in the F.I.R. The evidence tendered in S.C Nos.331/2024 and 162/2024 will certainly qualify as statements made by the witness in, more or less, connected matters and therefore, the petitioners in both the instant Crl.M.Cs (S.C. Nos.366/2024 and 463/2024) have a right to confront the witness/defacto complainant with such statement, so as to impeach her veracity. Learned counsel would point out that the same witness/victim had gone to the extent of saying that she has no acquaintance with the accused persons in those crimes, whereas her statements under Sections 161 and 164 of the Cr.P.C would clearly tend to incriminate the said accused. If this aspect is legally brought in evidence by recalling the witness, the same, for sure, will impeach the veracity of the witness. Such an opportunity cannot be, and should not be, denied only for the reason that such statements/depositions are 'subsequent' to the date on which evidence were adduced in the subject Sessions Cases namely S.C Nos.366/2024 and 463/2024. Learned counsel would submit that while Section 145 of the Evidence Act specifically refers to previous statements alone, there is no such bar insofar as Section 146 is concerned, wherein a party is at liberty to bring in any material/statement, previous or subsequent, so as to impeach the credibility of the witnesses. Learned counsel relied upon the judgment of the Hon'ble Supreme Court in Arvind Singh v. State of Maharashtra [ 2021 (11) SCC 1 ] to contend that the production of the judgments in the other Sessions Cases, wherein the witnesses have turned hostile, by itself, will not serve the purpose, unless the witness is given an opportunity to explain her conduct. Learned counsel relied upon the observations of the Supreme Court in paragraph no.65 in this regard. On the point that the scope of cross-examination under Section 138 is substantially enlarged by the enabling provision under Section 146, learned counsel relied upon Rajinder Pershad (Dead) by Lrs. v. Darshana Devi (Smt) [ 2001 (7) SCC 69 ] . The findings in paragraph no.4 was pressed into service. This judgment also reinforce the proposition that, if the correctness of a statement is to be disputed by a party, then, opportunity should be given to explain such statement. On the significance of cross-examination and the scheme of Section 145 to 155 of the Evidence Act, learned counsel placed heavy reliance upon the judgment of a learned Single Judge of the Gujarat High Court (J.B.Pardiwala, J., as his Lordship then was) in Prashant Maheshbhai Pandya v. State of Gujarat [2016 CriLJ 303]. On the significance of cross-examination and the scheme of Section 145 to 155 of the Evidence Act, learned counsel placed heavy reliance upon the judgment of a learned Single Judge of the Gujarat High Court (J.B.Pardiwala, J., as his Lordship then was) in Prashant Maheshbhai Pandya v. State of Gujarat [2016 CriLJ 303]. Shailendra Kumar v. State of Bihar And Others [ 2002 (1) SCC 655 ] was relied upon to highlight the powers under Section 311 Cr.P.C as one of very wide amplitude and the negligence or laches, if any, (though learned counsel would submit that there was no negligence or laches in the instant facts) should not be fatal and justice should be served by examining such witnesses at any stage. On the point that the bar under Section 33(5) of the POCSO Act is not absolute, learned counsel relied upon two judgments of learned Single Judges of this Court in Vineeth v. State of Kerala [2022 KHC 8065] and Jerin Joy v. State of Kerala [ 2024 (4) KHC 188 ] . The learned counsel would conclude his argument by submitting that an opportunity has to be given to the petitioners/accused persons to let in the evidence, which would surely speak of the credibility of the main prosecution witness PW1/victim, leave alone the purpose for which such evidence can be used, which question can be relegated for consideration later. 5. Per contra, this application was seriously opposed by the learned Public Prosecutor. It was submitted that the Evidence Act does not contemplate any provision, so as to make use of the 'subsequent statement' of a witness, either for the purpose of confronting/contradicting the witness, or for the purpose of impeaching his or her veracity/credibility. Learned Public Prosecutor would submit that the impugned Annexure-A8 Orders in Crl.M.C. Nos.2006/2025 and 2216/2025 are self speaking, which warrants no interference. 6. Sri.K.K.Dheerendrakrishnan, learned Amicus, would submit at the threshold that the issue is not any more res integra and that the same stands covered by a judgment of the Hon'ble Supreme Court in the year 2005, which is reiterated by the Hon'ble Supreme Court in the year 2008. Learned counsel invited the attention of this Court to Mishrilal (supra). The facts were more or less similar, as recorded in paragraph 5 of the judgment, to which my attention was invited. Learned counsel invited the attention of this Court to Mishrilal (supra). The facts were more or less similar, as recorded in paragraph 5 of the judgment, to which my attention was invited. In that case, PW2 was examined in chief and cross finally on 31.07.1991. In respect of the same incident, some of the accused persons were minors, whose cases were tried by the Juvenile Court. PW2 was also examined as a witness before the Juvenile Court, where he gave evidence to the effect that he is not aware of the persons, who attacked him. Based on this evidence, PW2 was recalled in the main matter and confronted with the evidence he gave before the Juvenile Court. Consequently, the accused persons were acquitted of the charge under Section 307 of the Penal Code. Frowning upon the procedure adopted by the learned Sessions Judge, the Hon'ble Supreme Court held that witness should not have been recalled and re-examined to deny the evidence that he had already given and that a witness could be confronted only with a previous statement made by him. Mishrilal (supra) was quoted with approval by a subsequent bench of the Hon'ble Supreme Court in Hanuman Ram (supra). In that case, the facts are again, similar. Respondents 2 and 3 therein were facing trial for offences, inter alia, under Section 302 of the Penal Code. Two witnesses PW5 and PW3 were examined in chief and cross on 07.06.2006. There also, one among the accused was a minor and was accordingly tried before the Juvenile Court. PW3 was examined as a witness before the Juvenile Court on 09.01.2007, wherein, he did not support the prosecution version. PW5 was examined before the Juvenile Court sometime in November, 2006. In the main matter, an application under Section 311 Cr.P.C was filed to recall PW3 and PW5, which was dismissed by the trial court, but allowed by the High Court. The observations and findings in Mishrilal (supra) in paragraph nos.5 and 6 were quoted with approval by the Hon'ble Supreme Court and held that the High Court ought not have allowed the application to recall the witness under Section 311 of the Code and the same was accordingly set aside. The observations and findings in Mishrilal (supra) in paragraph nos.5 and 6 were quoted with approval by the Hon'ble Supreme Court and held that the High Court ought not have allowed the application to recall the witness under Section 311 of the Code and the same was accordingly set aside. Based on these two judgments, learned Amicus would submit that Annexure-A8 Orders in Crl.M.C. Nos.2006/2025 and 2216/2025 are perfectly in order, wherein the learned Sessions Judge has rightly placed reliance upon Mishrilal (supra) and Hanuman Ram (supra). Learned Amicus would also canvass the position that a statement made by the witness, subsequent to his examination in chief and cross in the main matter, cannot be put to use, going by the scheme of the Evidence Act. Learned counsel also pointed out that, insofar as Section 145 of the Evidence Act is concerned, the requirement is not only with respect to that of a previous statement, but also that the fact in issue in the previous statement, as also, in the case being tried should be the same, which requirement is not met in the facts at hand. It was submitted that though the F.I.R is common, separate and distinct offences have been committed by different persons and the trial of each case has to be dealt with separately. According to the learned Amicus, the fact that the witness had deposed that she had no acquaintance with the accused in one particular case will not, and cannot, make her version suspect in another case, where she had correctly identified the accused and narrated the incident. 7. Having heard the learned counsel for the respective parties and the learned Amicus, this Court finds little merit in the instant Crl.M.Cs. I am in complete agreement with the submissions made by the learned Amicus, insofar as the issue at hand is concerned. Chapter X of the Evidence Act deals with the examination of witnesses and Section 137 speaks of examination-in-chief, cross-examination and re-examination. I am in complete agreement with the submissions made by the learned Amicus, insofar as the issue at hand is concerned. Chapter X of the Evidence Act deals with the examination of witnesses and Section 137 speaks of examination-in-chief, cross-examination and re-examination. Section 145 specifically deals with cross-examination as to previous statements in writing, which is extracted here below: “145.Cross-examination as to previous statements in writing.- A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him." 8. Section 146, on which much emphasis has been laid by the learned counsel for the petitioners, provides thus: “ 146. Questions lawful in cross-examination. - When a witness is cross-examined, he may, in addition to the questions hereinbefore referred to, be asked any questions which tend - (1) to test his veracity, (2)to discover who he is and what is his position in life, or (3)to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture: [Provided that in a prosecution for an offence under section 376, [section 376-A, section 367-AB, section 376-B, section 376-C, section 376-D, section 376-DA, section 376-DB] or section 376-E of the Indian Penal Code (45 of 1860) or for attempt to commit any such offence, where the question of consent is an issue, it shall not be permissible to adduce evidence or to put questions in the crossexamination of the victim as to the general immoral character, or previous sexual experience, of such victim with any person for proving such consent or the quality of consent.]” 9. Sections 147 to 149 deals with the powers of the Court to regulate the questions put in cross-examination. Section 155 specifically deals with impeaching the credit of a witness. The same is also extracted here below: “155. Sections 147 to 149 deals with the powers of the Court to regulate the questions put in cross-examination. Section 155 specifically deals with impeaching the credit of a witness. The same is also extracted here below: “155. Impeaching credit of witness.- The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:- (1)by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit; (2) by proof that the witness has been bribed, or has [accepted] the offer of a bribe, or has received any other corrupt inducement to give his evidence; (3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted; [***] Explanation. - A witness declaring another witness to be unworthy of credit may not, upon his examination-in-chief, give reasons for his belief, but he may be asked his reasons in cross- examination, and the answers which he gives cannot be contradicted, though, if they are false, he may afterwards be charged with giving false evidence.” 10. In the scheme of the Evidence Act, a perusal of Section 145, as also, Section 155(3) would establish, beyond the pale of any doubt, that the statements, which can be used for the purpose of contradiction under Section 145, as also, for impeaching the credit of the witness under Section 155(3), both, are former/previous statements. The same is the situation in Section 157, which permits use of former statements to corroborate a later testimony as to the same fact. There is no whisper, whatsoever, about the use of a 'subsequent statement', in the sense that a statement given after tendering substantive evidence before the Court. Now, the question is whether a subsequent statement can be pressed into service within the scope of Section 146 of the Evidence Act, when a witness is cross-examined to test his veracity. Section 146, of course, contain a reference that the questions, which can be put under Section 146, are in addition to the questions referred to in the previous Sections. Under Section 146, three purposes are envisaged. The first is questions, which tend to test the veracity of the witness. Section 146, of course, contain a reference that the questions, which can be put under Section 146, are in addition to the questions referred to in the previous Sections. Under Section 146, three purposes are envisaged. The first is questions, which tend to test the veracity of the witness. The second is to discover, who the witness is and what is his position in life; and the third, to shake his credit by injuring his character, even though the answers to the questions put might tend to criminate him. 11. Primarily, this Court notice that it is impossible to put a subsequent statement to a witness, unless he is recalled by resorting to Section 311 Cr.P.C. Any and every statement, which is legally permissible and thitherto available as on the date of cross-examination, can be put to the witness in accordance with the enabling provisions of the Evidence Act. However, the Evidence Act does not provide for the use of any subsequent statement made after tendering evidence in the case, obviously for the reason that the same is not contemplated by the statute makers. Even when the use of former statements is restricted and circumscribed in the manner provided in the Evidence Act, it cannot be thought of or contemplated that subsequent statements can be permitted to be put to use by a party, dehors the conspicuous absence of an enabling provision in the Evidence Act. When the use of previous statements itself is regulated by the provision contained in Section 145, it does not stand to reason to bring within the sweep of Section 146, the use of subsequent statement made by the witness. In the instant case, it is relevant to note that the purpose of recall is not to put certain questions - so as to test the veracity of the witness - which were omitted to be put during cross-examination. Instead, the purpose specifically is to put the subsequent statement of the witness, so as to impeach her veracity and to shake her credit. Insofar as impeaching the credit of the witness, Section 155(3) again specify, as one among the mode, the use of proof of former statements. Instead, the purpose specifically is to put the subsequent statement of the witness, so as to impeach her veracity and to shake her credit. Insofar as impeaching the credit of the witness, Section 155(3) again specify, as one among the mode, the use of proof of former statements. Petitioners' contention that once the recall of witness sought for is allowed, then the statements/ depositions sought to be put will not remain 'subsequent statements' is only an answer for the sake of it, unworthy of any merit or substance. That apart, the power under Section 311 is essentially a power of the court to recall or re-examine a witness, if his/her evidence appears to be essential for a just decision of the case, which parameter is also not satisfied in the instant facts. It is worthwhile to notice that the petitioners herein, in substance, seek to invoke the power of the Public Prosecutor in S.C Nos.331/2024 and 162/2024 in terms of Section 145 of the Evidence Act, to contradict the witness/victim on the basis of her former statement. Such a right cannot be conceded to the petitioners, who are accused persons in different crimes altogether, which is the subject matter of two different Sessions Cases. Therefore, this court is of the opinion that the instant relief sought for by the petitioners in the respective Crl.M.Cs to recall PW1/victim/defacto complainant, so as to enable further cross-examination by impeaching her credibility on the strength of subsequent statements is not well founded in law. 12. As rightly pointed out by the learned Amicus, the issue is not res integra. The legal position has already been examined by the Hon'ble Supreme Court in Mishrilal (supra) and Hanuman Ram (supra). In Mishrilal (supra), the following are the findings of the Hon'ble Supreme Court: “6. In our opinion, the procedure adopted by the Sessions Judge was not strictly in accordance with law. Once the witness was examined-in-chief and cross-examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him. Once the witness was examined-in-chief and cross-examined fully, such witness should not have been recalled and re-examined to deny the evidence he had already given before the court, even though that witness had given an inconsistent statement before any other court or forum subsequently. A witness could be confronted only with a previous statement made by him. At the time of examination of PW 2 Mokam Singh on 6-2-1991, there was no such previous statement and the defence counsel did not confront him with any statement alleged to have been made previously. This witness must have given some other version before the Juvenile Court for extraneous reasons and he should not have been given a further opportunity at a later stage to completely efface the evidence already given by him under oath. ….” (underlined for emphasis) The same has been quoted with approval in Hanuman Ram (supra). 13. This Court also takes stock of a Bench decision of the Allahabad High Court in Tahir v. State of U.P [2000 CRI LJ 1342]. There, the precise issue was with respect to the use of a subsequent statement and what was considered by the Division Bench was a reference made by a learned Single Judge, on the basis of an earlier decision which held that a witness can be recalled for further cross-examination in the light of his subsequent affidavit. The factual premise was that evidence have been adduced by three prosecution witnesses PW1, PW2 and PW5 supporting the prosecution. Subsequently, an application was filed before the trial court at the instance of the accused persons, pointing out that three eye witnesses have filed affidavits denying the prosecution version and seeking to recall the witnesses for further cross-examination, in the light of the subsequent affidavits. Earlier judgments in Sukhhan v. State [1988 All L.J 175] and Amar Pal v. State of U.P [1999 (38) A.C.C 515] were disagreed to by a learned Single Judge, which occasioned the reference. The reference was answered by the Division Bench as follows: “3. The Section provides that a witness may be cross-examined as to the previous statements made by him in writing or reduced into writing which are relevant to the matters in question. There is no other provision in the Indian Evidence Act permitting the cross-examination of a witness with regard to his statement made subsequent to his already concluded evidence recorded in Court. There is no other provision in the Indian Evidence Act permitting the cross-examination of a witness with regard to his statement made subsequent to his already concluded evidence recorded in Court. Legislature, in its wisdom, has restricted cross- examination of witness as regards his previous statement only for the purposes of contradiction. The object is to test veracity of the witness with regard to his statement subsequently made in the Court..... 4.xxx 5.xxx 6.xxx 7.xxx 8. If the witnesses are recalled subsequent to the conclusion of their evidence in Court at the behest of the accused on the basis of affidavits subsequently filed by them contradicting their previous statements made in court, it would be in violation of the provisions contained in S.145, Evidence Act. We are afraid that if such a course is permitted perhaps there may be no end of any trial. It can also not be overlooked that the witnesses can be forced under threats or tempted and won over under pressure or for monetary gains to file affidavits subsequent to the conclusion of their evidence in Court, contradicting their previous statements and it could be so even after the cases reach the appellate stage. We are of the view that such a course cannot be permitted....” 14. It is accordingly concluded that Annexure-A8 Orders in Crl.M.C.Nos.2006/2025 and 2216/2025 suffer from no infirmity or illegality and the same are hereby upheld. 15. As indicated earlier, Crl.M.C Nos.2232/2025 and 2233/2025 are consequential. There, the petitioners, who are accused person, sought for the copies of the deposition of PW1/victim in S.C Nos.331/2024 and 162/2024, along with her statements under Section 161 Cr.P.C. The same were dismissed holding that the petitioner is a stranger and issuance of copies would violate the right to privacy of the victim. The proposition made by the learned Sessions Judge cannot be held to be bad in law. That apart, these Crl.M.Cs have lost its significance in view of the dismissal of the first two Crl.M.Cs, i.e., 2006/2025 and 22162025. 16. In the circumstances, all the four Crl.M.Cs will stand dismissed. The interim orders will stand vacated. Appreciation galore to the sincere efforts taken by the learned Amicus in addressing the core issue involved in these Crl.M.Cs.