Page No.# 1/8 GAHC010141542017 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C)/5740/2017 MOINUL HOQUE S/O. LT. AKHLU MIYA, VILL. MARJONG PATHER, P.S. MURAJHAR, DIST. HOJAI ASSAM. VERSUS THE UNION OF INDIA and 3 ORS. REP. BY THE MINISTRY OF HOME AFFAIRS, NEW DELHI. 2:THE STATE OF ASSAM REP. BY THE COMM. and SECY. TO THE GOVT. OF ASSAM HOME DEPTT. DISPUR GUWAHATI-781006. 3:THE DEPUTY COMMISSIONER HOJAI DIST. HOJAI ASSAM. 4:THE SUPERINTENDENT OF POLICE B HOJAI ASSAM Advocate for the Petitioner : MR.H R A CHOUDHURY, MR.A MATIN,MR.J M SULAIMAN,MRS.H AHMED Advocate for the Respondent : , ASSTT.S.G.I.,GA, ASSAM Page No.# 2/8 Linked Case : WP(C)/5746/2017 NURUL HOQUE S/O LATE AKHLU MIYA VILLAGE-MARJONG PATHER PS-MURAJHAR DIST. HOJAI ASSAM VERSUS THE UNION OF INDIA and 3 ORS. REP. BY THE MINISTRY OF HOME AFFAIRS NEW DELHI 2:THE STATE OF ASSAM REP. BY THE COMMISSIONER and SECRETARY TO THE GOVT.OF ASSAM HOME DEPTT. DISPUR GUWAHATI-781006 3:THE DEPUTY COMMISSIONER HOJAI DIST. HOJAI ASSAM 4:THE SUPERINTENDENT OF POLICE B HOJAI ASSAM ------------ Advocate for : MR.J M SULAIMAN Advocate for : GA ASSAM appearing for THE UNION OF INDIA and 3 ORS. BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER Date : 14-08-2025 (K.R. Surana, J) Heard Mr. A.M. Ahmed, learned counsel for the petitioners as well as Mr. Page No.# 3/8 G. Sarma, learned standing counsel for the Foreigner’s Tribunal and Mr. H. Kuli, learned counsel on behalf of Mr. A.I. Ali, learned standing counsel for the Election Commission and Mr. M.R. Adhikari, learned CGC. 2. The petitioner in WP(C) 5740/2017 is Moinul Hoque and the petitioner in WP(C) 5746/2017 is Nurul Hoque. By filing these two separate writ petitions, the petitioners above named have assailed the common opinion dated 29.06.2017, passed by the learned Member, Foreigner’s Tribunal, Nagaon No.7th at Lanka, in connection with F.T./L/case no. 229/2015, arising out of IM(D)T Case No. 2259/04 as well as FT/L Case No. 246/2015, arising out of IM(D)/T Case No. 1442/04 by which the said petitioners were declared to be a foreigner of post 25.03.1971, who had illegally entered into the territory of India (Assam) after the said date. 3. In view of the nature of order proposed to be passed, the facts of both the cases have not been referred to for the purpose of maintaining gravity in the order. It would suffice to mention that as per the impugned opinion dated 29.06.2017, six references were stated to have been made by the Superintendent of Police (Border), Hojai which were registered by the learned Foreigner’s Tribunal, Hojai, Shankardev Nagar as F.T./H/662/2012 in respect of Md. Moinul Hoque, the petitioner in WP(C) 5740/2017 and F.T./H/610/2012 was registered in respect of Md. Nurul Hoque, the petitioner in WP(C) 5746/2017. In course of time as per the order dated 07.10.2015, all the six reference cases were transferred for disposal to the learned Foreigners Tribunal, Nagaon No.7th at Lanka and these two cases as referred above were registered. 4. From the perusal of the TCR received from the said learned Tribunal, it is observed that vide order dated 26.06.2015, it has been recorded that the Page No.# 4/8 opposite party, i.e., the petitioners had filed written evidence without document and another date was fixed for cross-examination of the proceedees. The records of FT/L/ Case No.229 of 2015 reveals that the said evidence-on-affidavit filed on 26.06.2015 were in respect of six Foreigner’s Tribunal proceedees wherein FT Case Nos. being 2061/2012, 602/2012, 2053/2012, 610/12, 660/12 and 657/12. On re-registration of the proceedees before the Foreigner’s Tribunal, Nagaon No.7th at Lanka. The evidence-on- affidavit by Moinul Hoque, appearing in the records of FT/L/ Case No. 229/2015 is a common evidence in six proceedings being Case Nos. FT/L/229/15, 233/15, 246/15, 227/15, 228/15 and 232/15. One Somir Uddin, was examined as DW-2 in connection with two proceedings being Case Nos. FT/L/233/15 and 229/15, etc. and one Shoid Ullah was examined as DW-3 in the said two proceedings of Case Nos.FT/L/233/15 and 229/15, etc. 5. However there is no corresponding order of acceptance of the second set of evidence-on-affidavit by the said three witnesses in the six proceedings referred hereinbefore specifically in the order sheet of FT/L Case No.229/15 and FT/L Case No.227/15. However, as per the order dated 23.01.2017, the learned Tribunal in the absence of the Govt. Pleader has put certain queries to the said three witnesses which are recorded in the last page of the evidence-on-affidavit filed on 18.07.2016. 6. In the records of FT/L/ Case No.227/2015, an evidence-on- affidavit of one Habibun Nessa is available and she was examined as DW-3, the said evidence-on-affidavit appears to have been filed on 06.03.2017. However, in the corresponding order passed on 06.03.2017, the learned Tribunal has recorded in the proceedings of FT/L/ Case No.227/2015 that- “the OPs are present today. Page No.# 5/8 One Sahid Ullah, S/o. Lt. Late Sikandar Ali is present today and deposited his statement as DW-3. Evidence resumed on request.” 7. In the said record, as per the order dated 28.03.2017, it is recorded that-“the Govt. Gaonburah is present and deposited his statement which is accordingly recorded. Evidence is closed.” 8. As stated hereinbefore the evidence of Gaonburah is not available in the record of FT/L/ Case No. 227/2015, but is available in the records of F.T./L/ Case No. 233/15. 9. In para-6 of the common opinion the learned Tribunal has recorded that in support of the case of the proceedees of OP/DW-1, their uncle namely, Md. Somir Uddin and their mother namely, Habibun Nessa were present before the Tribunal and gave their deposition as DW-2 and DW-3. 10. In para-7 of the said opinion there is a reference to the presence of the Govt. Gaonburha before the learned Tribunal. However, reference to his deposition is recorded without referring to the said witness as DW-4. It is also stated that in para-5 of the common opinion it has been recorded that in due course the OPs (thereby meaning six proceedees) has also filed their evidence- in-chief as DWs and produced and exhibited various documents. With the able assistance of the learned standing counsel for FT and Border matters, the records were thoroughly examined by the evidence-in-chief of all the six procedures were not to be found. The common evidence by Md. Moinul Hoque as DW-1 is found in the records relating to the proceedings of FT/L/ Case No. 229/2015. 11. It is surprising to note that there is no order in the records of FT/L/ Page No.# 6/8 Case No. 229/2015, FT/L/ Case No. 233/2015, FT/L/ Case No. 227/2015, FT/L/ Case No. 228/2015, FT/L/ Case No. 232/2015 and FT/L/ Case No. 246/2015, which are available, any order relating to all these four proceedings for taking up in total six nos. of proceedings together. Therefore, the procedure adopted by the learned Tribunal would not be four cases without any order and to have the proceedees file a common evidence-on-affidavit by Moinul Hoque could not amount to give a fair opportunity to all the six proceedees to give their evidence in the proceedings. 12. As already indicated above in regard to the order dated 23.01.2017 as referred above, the learned Tribunal has put certain queries to the witnesses. However, in para-9 of the impugned opinion, the queries put by the learned Tribunal have been appreciated as if they were cross-examined. It has been stated as follows; “the OPs in their cross deposed that their mother’s name as ….”. 13. In the said aspect the Court is of the considered opinion that once the Tribunal proposes to put questions to the witnesses, it partakes the character of “examination” as envisaged under section 165 of the Evidence Act, 1872. Thereafter, to treat the queries of the Tribunal as cross-examination would indicate that the Tribunal, by cross-examining the witnesses has dawned the character of counsel for the other side, which is not permissible or envisaged under any law. The Tribunal was not a prosecutor against the petitioners and therefore, the Tribunal could not have cross-examined the witnesses produced by the petitioners. However, the Tribunal would definitely have a right to put questions in the examination of witnesses as envisaged under section 165 of the Evidence Act, 1872 corresponding to section 168 of the Bhartiya Saksha Page No.# 7/8 Adhiniyam, 2023. 14. Therefore, the manner in which the proceedings were taken up by the learned Tribunal cannot be given any imprimatur of the Court and therefore, the manner in which the proceeding was taken up is found to have vitiated the common opinion dated 29.06.2017, passed by the learned Foreigners Tribunal, Nagaon Court No 7th at Lanka in FT/L/ Case No. 228/15, arising out of IM(D)T Case No. 2255/04, FT/L/ Case No. 229/15, arising out of IM(D)T Case no. 2259/04, FT/L/ Case No. 232/04, arising out of IM(D)T Case No. 2258/04, FT/L/ Case No. 233/15, arising out of IM(D)T Case No. 1440/04 and FT/L/ Case No. 246/15, arising out of IM(D)T Case No. 1442/04. 15. In so far as the proceedings of FT/L/ Case No. 229/2015- Md. Moinul Hoque and FT/L/ Case No. 233/2015- Md. Mainul Hoque is not found sustainable and that part of the opinion is set aside. 16. Resultantly, the proceedings of FT/L Case No. 229/2015 and FT/L/ Case No. 233/2015 are remanded back to the learned Member, Foreigner’s Tribunal, Nagaon No. 7th at Lanka for a fresh adjudication from the stage of filing of evidence-on-affidavit by the proceedees in those cases i.e. petitioners herein. 17. The Registry shall send back the records expeditiously. It may be stated that a total of 4 (four) records in two files has been sent to this Court. The first record is of FT/L/ Case No. 229/2015 and FT/L/ Case No. 233/2015 and the second file is of FT/L/ Case No. 227/2015 and FT/L/ Case No. 246/2015. All the above records shall be returned expeditiously. 18. The petitioners, being Moinul Hoque in WP(C) 5740/2017 and Nurul Hoque in WP(C) 5746/2017 are directed to appear before the said learned Page No.# 8/8 Tribunal not later than 15.09.2025 and shall submit their respective evidence- on-affidavit and also of such witnesses as they may examine. 19. It is further clarified that as this is an old matter, in the event the petitioners pray for a short accommodation, a reasonable time may be granted. However, the said learned Tribunal shall make an endeavor to dispose of the proceedings preferably within a period of 3 (three) months from the date of appearance of the petitioners. 20. It is expected that the said learned Tribunal shall take up the proceedings of the two petitioners separately and maintain separate records for the said two proceedings. 21. These petitions are partly allowed. 22. There shall be no order as to cost. JUDGE JUDGE Comparing Assistant