Page No.# 1/5 GAHC010120822015 2025:GAU-AS:1 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./732/2015 AKHIL GOGOI and 9 ORS S/O LT BALURAM GOGOI R/O NIZARAPAR, CHANDMARI, P.S. CHANDMARI, DIST. KAMRUP M, ASSAM. 2: SRI PRASANNA BORAH S/O INDRESWAR BORAH R/O NO. 1 BORPATHAR DHEMAJI DIST. DHEMAJI ASSAM. 3: SRI RUDRA KONWAR S/O LT. NANDESWAR KONWAR R/O NO. GOAL CHAPARI DHEMAJI DIST. DHEMAJI ASSAM. 4: SRI MUNINDRA DAS S/O GOMESWAR DAS R/O BORDOLONI DHEMAJI DIST. DHEMAJI ASSAM. 5: SRI MUHIM GOHAIN S/O LT. BHAGMON GOHAIN R/O GOAL CHAPARI DHEMAJI DIST. DHEMAJI ASSAM. 6: SRI DEBO GOGOI S/O KALIA GOGOI R/O BARBAM DIHINGIA GAON DHEMAJI DIST. DHEMAJI ASSAM. 7: SRI PROMOD CHUTIA S/O LT. SUNTI CHUTIA R/O BORPATHAR DHEMAJI DIST. DHEMAJI ASSAM. Page No.# 2/5 8: SRI KAMAL PAWE S/O TULI PAWE R/O SIMENMUKH KACHARINATH DHEMAJI DIST. DHEMAJI ASSAM. 9: SRI CHITRA MAZUMDAR S/O GANGA RAM MAZUMDAR R/O SIMENMUKH BHANGAPARA DHEMAJI DIST. DHEMAJI ASSAM. 10: SMTI. BABITA SAIKIA D/O SRI NITYA SAIKIA R/O BORPATHAR DHEMAJI DIST. DHEMAJI ASSAM VERSUS THE STATE OF ASSAM AND ANR 2:SHRI UNNAT KUMAR BARUAH S/O NOT KNOWN ADDRESS OFFICE OF THE DEPUTY COMMISSIONER DHEMAJI. DIST. DHEMAJI ASSAM Advocate for the Petitioner : MR.T DEURI, MR.K GOGOI,MR.S BORTHAKUR Advocate for the Respondent : , PP, ASSAM(R1), BEFORE HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY ORDER Date : 03.01.2025 1. Heard Mr. T Deuri, learned counsel for the petitioner. Also heard Mr. P Borthakur, learned Addl. PP, Assam. 2. The present criminal petition is filed assailing an order dated 28.08.2015, passed by the learned Judicial Magistrate First Page No.# 3/5 Class, Dhemaji in GR Case No.235/2011, whereby the prayer of the petitioner to lead defence evidence was rejected, primarily on the ground that the matter is pending since long and at the time of recording the statement of the accused under section 313 Cr.P.C., the accused did not propose to lead any defence witness. Accordingly, the matter was fixed for argument. At that stage, the accused filed an application to lead defence witness and by the impugned order, such prayer was rejected. 3. Thus, the aforesaid application has been rejected by the learned Magistrate primarily for the reason of delay and not making any prayer to lead defence evidence at an appropriate time i.e., at the time of recording of the statement of the accused under section 313 Cr.P.C. 4. In terms of section 233 Cr.P.C., in the event an accused is not acquitted after examination of prosecution witnesses, then the accused is required to call upon to enter his defence and adduce any evidence he may have in his support. Such procedure laid down is a very important part of a criminal trial inasmuch as, by incorporating such provision the legislature intended to provide an opportunity to the accused to defend. In the considered opinion of this court such purpose cannot be defeated nor can it be lost sight of by a trial court, more particularly, such right of the accused is a very valuable right. Apart from being a valuable right, such right is also a facet of fair trial inasmuch as fair trial includes fair and proper opportunity permitted under law to prove innocence. However, the learned trial court has failed to appreciate such important aspects and rejected Page No.# 4/5 the prayer on certain technicalities as recorded hereinabove. 5. There is no doubt in the mind of this court that the procedure prescribed under section 233 Cr.P.C has been enacted to ensure justice and fair trial and therefore, such procedure is required to be scrupulously followed. 6. This court at the same time cannot be unmindful of the fact that in certain cases when the accused takes delaying tactics to delay the trial and with a vexatious object files certain application belatedly, the court can very well reject such an application. However, in the considered opinion of this court, the present one is not such a case. In the case in hand, the 313 Cr.P.C statement of the accused was recorded on 27.05.2015 and the case was fixed for argument on 12.06.2015 and thereafter the matter was fixed on two dates i.e., 26.06.2015 and 10.07.2015. Thereafter on 27.07.2015, the application was filed for adducing defence evidence. The aforesaid delay, in the considered opinion of this court, cannot be termed as an exceptional situation to deprive the accused of a valuable right to defend by leading defence evidence. 7. In the considered opinion of this court, the adjournment taken by the defence on 12.06.2015, 26.06.2015 and 10.07.2015 cannot be the sole ground or reason for denying the accused its right to defence in the proceeding. 8. In view of the reasons recorded hereinabove, the present application stands allowed by setting aside and quashing the order dated 28.08.2015 passed in GR Case No.235/2010 by the learned JMFC, Dhemaji with a liberty to the accused to lead defence evidence Page No.# 5/5 subject to the condition that the defence will not take unnecessary adjournment and shall not delay the trial inasmuch as the prosecution was launched way back in the year 2011. 9. Further, it is made clear that this order shall not preclude the learned Magistrate once again to reject the prayer of the defence to lead the defence witnesses, if the defence does not complete their evidence within a period of three months from the appearance of the accused before the learned trial court below on 20.01.2025. 10. With the aforesaid observation and directions, the present criminal petition stands disposed of. JUDGE Comparing Assistant