Page No.# 1/5 GAHC010200772019 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/6142/2019 HASU ALI S/O LT. BABAR ALI SHEIKH, VILL. JABERIKUCHI, P.S. MANGALDAI, DIST. DARRANG, ASSAM, PIN-784125 VERSUS THE UNION OF INDIA AND 6 ORS. REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, NEW DELHI-1 2:THE ELECTION COMMISSIONER OF INDIA NEW DELHI-1 3:THE STATE OF ASSAM REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-6 4:THE ASSAM CO-ORDINATOR OF NRC BHANGAGARH ASSAM GHY-5 5:THE DEPUTY COMMISSIONER DARRANG ASSAM PIN-784116 6:THE SUPERINTENDENT OF POLICE (B) DARRANG ASSAM PIN-784116 Page No.# 2/5 7:THE OFFICER IN CHARGE MANGALDAI POLICE STATION DIST. DARRANG ASSAM PIN-78412 Advocate for the Petitioner : MR. M U MAHMUD, MS F N ZAMAN,MS. R AHMED,MR S ISLAM Advocate for the Respondent : ASSTT.S.G.I., SC, ECI,SC, NRC,SC, F.T BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date : 31-03-2026 (K.R. Surana, J) Heard Mr. M.U. Ahmed, learned counsel for the petitioner as well as Mr. J. Payeng, learned standing counsel for the Foreigners Tribunal and NRC, Mr. A.I. Ali, learned standing counsel for the Election Commission of India, Ms. B. Sharma, learned CGC, and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 24.07.2018 passed by the learned Member, Foreigners Tribunal (1st), Mangaldai in Case No. 54/15 corresponding to F.T. 524/15, by which the petitioner was declared as an illegal migrant of post 25.03.1971 stream. 3. In view of the nature of order proposed to be passed, there is no necessity to discuss the pleadings and evidence on record. It would suffice to mention that the petitioner examined only himself as DW-1 and had exhibited 5(five) documents which were marked as Ext.1, Ext.2, Ext.4, Ext.6 and Ext.7. It Page No.# 3/5 may be stated that a photocopy of the NRC legacy data was not marked as exhibit but was referred to as Annexure-C. Moreover, a Gaon Burah certificate that is available on record, was marked as Annexure-E. 4. On a perusal of the records, it is noted that on 05.07.2018, the petitioner was present before the learned Tribunal and the learned Tribunal had recorded cross-examination of the petitioner, Hasu Ali, as DW-1. However, the Tribunal’s records do not disclose the presence of the Govt. Pleader for the purpose of cross-examination. Moreover, in the impugned opinion, the Govt. Advocate representing the State is stated as ‘none’. 5. Therefore, the Court is of the considered opinion that if the cross- examination was not conducted by the Govt. Pleader/ Govt. Advocate, though the Tribunal has the power to ask questions, which would be referable to powers under section 165 of the Evidence Act, 1872, but the Tribunal would have no authority to cross-examine the witness present. Accordingly, the Court is of the considered opinion that the recording of the cross-examination of the petitioner as DW-1 by the learned Tribunal would vitiate the proceedings. 6. The learned standing counsel for the FT and Border matters has supported the impugned opinion by submitting that the cross-examination of the DW-1 was not discussed in the impugned opinion and therefore, the same would not prejudice the petitioner. 7. Be that as it may, in the considered opinion of the Court, it is not for the Tribunal to conduct cross-examination of the witnesses present. Therefore, the cross-examination of DW-1 instead of such examination being recorded as Court questions/ queries is found to vitiate the entire proceedings. Accordingly, the Court is inclined to expunge the cross-examination of DW-1 which was Page No.# 4/5 conducted by the learned Tribunal on 05.07.2018. Resultantly, the impugned opinion dated 24.07.2018 passed by the learned Member, Foreigners Tribunal (1st), Mangaldai in Case No. 54/15 corresponding to F.T. 524/15, is also found vitiated and is hereby set aside. The matter is remanded back to the said learned Tribunal for being taken up from the stage of cross-examination of DW- 1. It is again clarified that the learned Tribunal can always ask questions under section 165 of the Evidence Act, 1872. 8. The learned Tribunal, under section 168 of the Bharatiya Nagarik Suraksha Sanhita, 2023, can examine a witness, but the Govt. Advocate representing the State has the right to cross-examination of the DW-1. Thereafter, the learned Tribunal shall pass a fresh opinion on the basis of the materials available on record. 9. The petitioner, namely, Hasu Ali, who is duly represented by his learned counsel, is directed to appear before the learned Member, Foreigners Tribunal (1st), Mangaldai on or before 06.05.2026, and by producing a certified copy of this order shall be ready for his cross-examination and/or examination by the learned Tribunal, as the case may be. In the event, the petitioner fails to appear before the said learned Tribunal on the date fixed, it would be open to the learned Tribunal to treat the petitioner as absent on call and shall proceed to pass such appropriate order(s) as may be deemed fit and proper. 10. The Registry shall send back the records expeditiously along with a copy of the order to be made a part of the record by the said learned Tribunal. 11. The learned standing counsel for the FT and Border matters shall transmit a copy of this order to the Home and Political (B) Department so as to enable the authorities in the said Department to circulate the copy of this order Page No.# 5/5 to all the Foreigners Tribunal to bring it to their respective notice so that in the event the Govt. Advocate is not present it is not open to the Foreigners Tribunal to cross-examine witnesses, but the learned Tribunals would have power under section 168 of the BNSS, 2023 to put questions to the witnesses as deemed appropriate. 12. This writ petition stands partly allowed to the extent as indicated above. JUDGE JUDGE Comparing Assistant