Page No. 1/3 GAHC010158482025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./868/2025 NAJIRUL ISLAM S/O- ABU BAKKAR SIDDIQUE. R/O- GOROIMARI, P.S.- ULUWANI, DIST.- NAGAON, ASSAM. VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP, ASSAM 2:ZAKIR HUSSAIN. S/O- LATE JAHURUDDIN R/O- GOROIMARI P.S.- ULUWANI DIST.- NAGAON ASSAM Advocate for the Petitioner : MS. G BORAH, MS. L. BORUAH,MS. M. DEKA Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY ORDER Date : 25.07.2025 Heard Ms. G. Borah, learned counsel for the petitioner and Mr. R.J. Baruah, learned Additional Public Prosecutor for the respondent no. 1, State of Assam. 2. This criminal petition under Section 528, Bharatiya Nagarik Suraksha Sanhita [BNSS], 2023 is preferred to allow the petitioner to cross-examine the victim on behalf of the Page No. 2/3 petitioner who is standing in the trial of Special [POCSO] Case no. 25[N]/2020, presently pending before the Court of learned Additional Sessions Judge-cum-Special Judge [POCSO], Nagaon [‘the Special Court’], as the sole accused. 3. The case, Special [POCSO] Case no. 25[N]/2020 arose out of a First Information Report [FIR] lodged by the father of the victim as the informant before the Officer In-Charge, Uluoni Police Station on 14.09.2019. In the FIR, the informant had inter-alia alleged commission of an offence under Section 4 of the Protection of Children from Sexual Offences [POCSO] Act. The FIR was registered under Section 4 of the POCSO Act read with Section 376, IPC. The consequent investigation resulted into a charge-sheet. On submission of the charge-sheet, the case had been registered as Special [POCSO] Case no. 25[N]/2020. After framing the charges, the trial has proceeded before the Court of learned Special Judge, [POCSO], Nagaon. 4. From the materials on record, it has emerged that the victim was examined as P.W.1 on 18.09.2023 and on the same date, the victim was cross-examined in detail by the defence. It has further emerged that the testimony of about twelve prosecution witnesses have already been recorded and the trial is at the last stage of recording evidence, as only the Investigation Officer [I.O.] is left to be examined. 5. A petition was moved at that stage on behalf of the accused before the learned Special Court seeking an order for re-examination of the victim and also to examine a Gaon Pradhan of Village – Volowamari, Police Station – Uluoni. The ground on which such further cross- examination of the victim and examination of the Gaon Pradhan has been sought for is a meeting stated to have been held on 18.06.2025 which the victim and the said Gaon Pradhan had attended. The contention of the petitioner is that in the said meeting, the victim had stated something which would indicate that there was some misunderstanding between the victim and the petitioner. 6. Section 137 of the Evidence Act has provided for only examination-in-chief, cross- examination and re-examination. Section 138 of the Evidence Act has provided for the order Page No. 3/3 of examinations. As per Section 138, witnesses shall be first examined-in-chief, then [if the adverse party so desire] cross-examined, then [if the party calling him so desires] re- examined. Section 138 has also provided about the scope and ambit of re-examination. As per Section 138, the re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the Court, introduced in re- examination, the adverse party may further cross-examine upon that matter. There is, thus, no provision for further cross-examination of a prosecution witness unless the prosecution side itself calls the witness for re-examination. 7. In so far as the examination of Gaon Pradhan of Village – Volowamari, Police Station – Uluoni is concerned, the said person is not a listed witness in the charge-sheet. As such, the prayer for his examination at this stage, does not appear to be in conformity with Section 137 and Section 138 of the Evidence Act. 8. The examination of the victim was over on 18.09.2023. On 18.09.2023, the defence had thoroughly cross-examined the victim. The meeting which was purportedly held on 18.06.2025, was not a matter which was investigated upon and which evidence does not appear to be one which is essential for the just decision of the case. The petitioner has the opportunity to adduce evidence of the Gaon Pradhan as a defence witness. 9. It is found that if any petition like the petition annexed herein as Annexure-3 was moved before the learned Special Court, there had to be a judicial order on it. But, no such order has been annexed to the petition. The averments made in Paragraph 7 of the instant petition cannot be appreciated in the absence of any material to support such averment. 10. Having found no merit, the criminal petition is dismissed for the afore-stated reasons. JUDGE Comparing Assistant