Page No.# 1/4 GAHC010077622025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./431/2025 JITU BAISHYA ALIAS RIJU S/O-SRI MADHAB BAISHYA R/O-LAUPARA, P. S. -TAMULPUR, DISTRICT- TAMULPUR PIN-781368 VERSUS THE STATE OF ASSAM REP BY THE PP, ASSAM Advocate for the Petitioner : MR P H KONWAR, P KHATANIAR,MR. D GOGOI Advocate for the Respondent : PP, ASSAM, :: BEFORE :: HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA O R D E R 30.04.2025 Heard Mr. D. Gogoi, the learned counsel appearing for the petitioner. Also heard Mr. P. Borthakur, the Addl. Public Prosecutor, Assam. Page No.# 2/4 2. This is an application under Section 528 of the BNSS, 2023 challenging the order dated 03.03.2025 passed by the learned Addl. Sessions Judge, Kamrup, Rangia in Sessions Case No.72/2015. 3. On 19.05.2012, an FIR was lodged wherein the informant has alleged that since 17.05.2012, his daughter, aged about 17 years, was missing and on 19.05.2012, the informant came to know that his daughter was lured and abducted and detained in the house of the present petitioner. 4. On conclusion of investigation, police field the charge sheet against the present petitioner alleging commission of offence under Section 366(A) of the Indian Penal Code. The trial also continued. 5. While the trial was going on, the petitioner filed an application on 01.02.2025, praying for re-examination of the informant and the victim girl. The reason for filing of this application under Section 311 of the Code of Criminal Procedure was that no questions were asked to the victim girl regarding her age on the day of occurrence. According to the petitioner, there are some other important questions that were not put to the said witnesses. 6. The learned trial court relied upon the decision of the Hon’ble Supreme Court that was delivered on State NCT of Delhi vs. Shiv Kumar Yadav, reported in (2016) 2 SCC 402 and held that a witness cannot be recalled under Section 311 of the CrPC clearly because of incompetency or change of counsel. The trial court also held that the petitioner wanted to fill up the lacunae. 7. I have given my anxious considerations to the submissions made by the learned counsel of both sides. 8. In Shiv Kumar Yadav (supra), the Supreme Court has as under: “29. We may now sum up our reasons for disapproving the view of the High Court in the present case: (i) The trial court and the High Court held that the accused had appointed counsel Page No.# 3/4 of his choice. He was facing trial in other cases also. The earlier counsel were given due opportunity and had duly conducted cross-examination. They were under no handicap; (ii) No finding could be recorded that the counsel appointed by the accused were incompetent particularly at the back of such counsel; (iii) Expeditious trial in a heinous offence as is alleged in the present case is in the interests of justice; (iv) The trial court as well as the High Court rejected the reasons for recall of the witnesses; (v) The Court has to keep in mind not only the need for giving fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed; (vi) Mere fact that the accused was in custody and that he will suffer by the delay could be no consideration for allowing recall of witnesses, particularly at the fag end of the trial; (vii) Mere change of counsel cannot be ground to recall the witnesses; (viii) There is no basis for holding that any prejudice will be caused to the accused unless the witnesses are recalled; (ix) The High Court has not rejected the reasons given by the trial court nor given any justification for permitting recall of the witnesses except for making general observations that recall was necessary for ensuring fair trial. This observation is contrary to the reasoning of the High Court in dealing with the grounds for recall i.e. denial of fair opportunity on account of incompetence of earlier counsel or on account of expeditious proceedings; (x) There is neither any patent error in the approach adopted by the trial court rejecting the prayer for recall nor any clear injustice if such prayer is not granted.” 9. In Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461, the Supreme Court has held as under: “17.4. The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case. 17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.” 10. Coming back to the case in hand, it appears that the learned trial court wrongly construed the direction of the Supreme Court that was delivered in Shiv Kumar Yadav (supra). The trial court has to keep in mind not only to give fair opportunity to the accused but also the need for ensuring that the victim of the crime is not unduly harassed. The court must hold that no prejudice will be caused to the accused unless Page No.# 4/4 the witnesses are recalled. The impugned order is bad in law because the approach adopted by the trial court in rejecting the prayer of the petitioner to recall the witnesses, is erroneous. 11. Therefore, the impugned order dated 03.03.2025 passed by the learned Addl. Sessions Judge, Kamrup, Rangia in Sessions Case No.72/2015 is set aside. 12. The trial court is directed to consider the matter afresh in the light of the law of the land. Both sides shall be heard before passing an order disposing of the Petition No.225/2025 dated 01.02.2025. With the aforesaid direction, the criminal petition is disposed of. JUDGE Comparing Assistant