Page No.# 1/7 GAHC010268042023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Rev.P./513/2023 AKASH DAS AND 2 ORS. S/O DALIM DAS R/O MIRIGAON P.S. BORHOLLA DIST. JORHAT, ASSAM 2: SRI MADHOB DAS S/O RUPAM DAS R/O BORHOLLA P.O. URANGIAL P.S. BORHAOLLA DIST. JORHAT ASSAM 3: SRI AMAR DAS S/O BABUL DAS R/O MIRI GAON BORHOLLA P.S. BORHOLLA DIST. JORHAT ASSA VERSUS THE STATE OF ASSAM AND ANR REP. BY THE PP, GOVT. OF ASSAM 2:SRI SANJIB KHANIKAR S/O LATE HEMA KHANIKAR R/O VILL- IKARANI GAON P.S. BORHOLLA DIST. JORHAT ASSA Advocate for the Petitioner : MR. R CHETRI, MR N MILI,MR N BARMAN Page No.# 2/7 Advocate for the Respondent : PP, ASSAM, MS R KALITA (R-2),MRS V L BHATTACHARJEE,MR S K SARKAR (R-2) BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA For the Appellant : Mr. R. Chetri, Advocate For the Respondents : Mr. M. P. Goswami, Addl. PP : S. K. Sarkar, Advocate (for respondent No. 2) Date of Judgment : 22.09.2025 JUDGMENT & ORDER (CAV) 1. Heard Mr. R. Chetri, learned counsel for the petitioners. Also heard Mr. M. P. Goswami, learned Additional Public Prosecutor for the State respondent as well as Mr. S. K. Sarkar, learned counsel appearing for the respondent No. 2. 2. This criminal revision petition has been registered on filing of an application under Sections 397/401 of the Code of Criminal Procedure, 1973 by the petitioners, namely, 1. Akash Das, 2. Sri Madhob Das and 3. Sri Amar Das impugning the order dated 26.09.2023, whereby the application filed by the present petitioners for recalling the victim girl and the Investigating Officer under Section 311 of the Code of Criminal Procedure, 1973, for the purpose of their re-cross examination was rejected by the Trial Court. The present petitioners are facing trial before the learned Special Judge, Jorhat for charges Page No.# 3/7 under Section 376DA of the Indian Penal Code read with Section 6 of the POCSO Act, 2012. In the said appeal, almost all the prosecution witnesses except the Medical Officer have already been examined. 3. On 05.07.2023, the present petitioners had filed an application under Section 311 of the Code of Criminal Procedure, 1973, before the Trial Court for recalling the PW-1 i.e., the victim girl and PW-9 for the purpose of re-cross examination. It is stated in their applications that the engaged counsel for the petitioners before the Trial Court had failed to ask certain questions to PW-1 at the time of cross-examination as well as some questions were also not asked to PW-9, i.e., Investigating Officer, at the time of cross-examination, and it was submitted before the Trial Court that for just decision of the case, the prayer of the petitioners for recalling the above-noted witnesses was necessary. The reason stated for failure on the part of the engaged counsel of the petitioner in not questioning the said witness when they had appeared was mentioned as due to bona fide mistake and oversight. The said petition filed by the petitioners was registered as Petition No. 1066/2023. The Public Prosecutor before the Trial Court had opposed the prayer for recalling of the witnesses and by order dated 26.09.2023, which has been impugned in this revision petition, the Trial Court had rejected the prayer for recalling of the said witnesses. 4. Mr. R Chetri, the learned counsel for the petitioner has submitted that the petitioners who were facing trial before the Court of learned Special Judge, Jorhat in Special Case No. 209/2022 would be highly prejudiced if the impugned order is not interfered with and the petitioners are not afforded an opportunity to re-cross examine the victim girl and the Investigating Officer. He submits that due to bona fide mistake and due to inadvertence, the earlier engaged counsel before the Trial Court had failed to put some relevant questions and it would Page No.# 4/7 cause grave injustice to them if the said witnesses are not recalled. He also submits that the Trial Court had wrongly ignored the ratio of this Court in the case of “Ajit Kumar Nath and Others –Vs- State of Tripura” reported in “2010 GLT (Crl.) 693”, which was relied upon by the petitioners' counsel while pressing the application under Section 311 of the Code of Criminal Procedure, 1973 before the Trial Court. He submits that in the said case, this Court has laid down that the accused persons are entitled to further cross-examination of prosecution witnesses if due to mistake some questions could not be asked which were necessary for defence and for the ends of the justice. 5. On the other hand, Mr. S. K. Sarkar, learned counsel for the respondent No. 2 has submitted that the Trial Court has rightly rejected the prayer for recalling of the witnesses under Section 311 of the Code of Criminal Procedure, 1973. He submits that in the impugned order Trial Court has specifically stated that the case which is relied upon by the petitioners i.e., Ajit Kumar Nath and Others –Vs- State of Tripura” (supra) is distinguishable from the case in hand in as much as in the said case it was the Public Prosecutor who had prayed for recalling of the witnesses for re-examination and only when such re-examination is allowed the accused were allowed to do the re-cross examination. He also submits that the victim girl, who was examined as PW-1, was sought to be recalled after examination of almost all the witnesses except one which is only done for the purpose of causing intentional delay. He further submits that in view of the bar of Section 33(5) of the POCSO Act, 2012, which cast a duty upon the Trial Court to ensure that trial witness need not to be called repeatedly to testify in the court, the Trial Court has rightly rejected the prayer for re-cross examination of PW-1 and PW-9. 6. On the other hand, Mr. M. P. Goswami, learned Additional Public Page No.# 5/7 Prosecutor, apart from reiterating the submissions of learned counsel for the respondent No. 2 as regards correct application of Section 33(5) of the POCSO Act, 2012 by the Trial Court, has submitted that there was an intentional delay in making a prayer for re-examination of the victim girl when she was examined as PW-1, however, the prayer for re-cross examination was made after examination of PW-9. He also raised the question of maintainability of the present criminal revision petition under Section 397(2) of the Code of Criminal Procedure, 1973 which bars a revision against an interlocutory order. He submits that an order rejecting an application for recalling the witnesses under Section 311 of the Code of Criminal Procedure, 1973 is an interlocutory order and, therefore, the bar of section 397(2) of Code of Criminal Procedure, 1973 is applicable to the instant case. In support of his submission, he has cited the ruling of the High Court of Calcutta in the case of “Mahima Management Services Pvt. Limited –Vs- Creative Property Developers Private Limited and Anr.” reported in “2024 SCC OnLine Cal 939” as well the rulings of the Apex Court, in the case of “Sethuraman –Vs- Rajamanickam” reported in “(2009) 5 SCC 153” as well as “Girish Kumar Suneja –Vs- Central Bureau of Investigation” reported in “(2017) 14 SCC 809”. 7. I have considered the submissions made by the learned counsel for both the sides and have gone through the scanned copy of the case record of Special Case No. 209/2022. I have also gone through the rulings cited by the learned counsel for both the sides. 8. Though, the learned Additional Public Prosecutor has raised a preliminary objection regarding maintainability of this revision petition on the ground that it has been directed against an interlocutory order, however, even if we assume for the time being that the application is maintainable, still there is Page No.# 6/7 no dispute on the legal proposition that revisional power of this Court belongs to the supervisory jurisdiction of this Court. While exercising revisional power, this Court has to confine to the legality and propriety of the finding as to whether the Court against the order of which the petitioner has approached before this Court has kept within the bounds of its jurisdiction including the question as to whether the Court has failed to exercise the jurisdiction vested in it. 9. The only plea taken by the petitioner impugning the order by which the prayer for recalling the victim girl and Investigating Officer for the purpose of further cross-examination was rejected, is that the engaged counsel for the defence due to bona fide mistake and oversight did not cross-examine the said witnesses on certain points. There is a statutory prescription under the Section 33(5) of the Protection of Children from Sexual Offences Act, 2012 to the effect that special Court shall ensure that the child is not called repeatedly to testify in the Court. This provision is not without any purpose, it protects the child from exposing him to the unfamiliar and unreceptive environment during cross- examination. 10. In the instant case, the victim girl and the Investigating Officer were cross-examined at length and thereafter they were discharged and now merely on the plea that due to bona fide mistake and oversight, the defence side could not cross-examine the said witnesses on some point if the witnesses are called again for the purpose of cross-examination there may be no end to that process. There is no provision for re-cross examination of the witnesses. Though, there is no bar for the Court to allow such re-cross examination, however for that some extraordinary grounds have to be shown. Merely taking flimsy pleas like inadvertence and bona fide mistakes are not enough to subject the witnesses who have already been cross-examined and discharged to be Page No.# 7/7 recalled again and for subjecting them to cross-examination. In the case of victim, the provisions of Section 33(5) also put a duty on the Trial Court not to recall the victim for examination on flimsy ground. The Trial court has justified its order of rejecting the prayer for recalling the witnesses with reasonable grounds and this Court finds no irregularity or illegality in the impugned order passed by the Trial Court and as such this Court is of considered opinion that this revision petition lacks merit justifying any interference by this Court with the impugned order. 11. The instant criminal revision petition is accordingly dismissed. 12. Send a copy of this order to the Trial Court. JUDGE Comparing Assistant