Page No.# 1/7 GAHC010273912024 2025:GAU-AS:3505 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1575/2024 SRI MON BAHADUR LIMBU S/O LATE UJAN LIMBU, RESIDENT OF VILLAGE NO. 1 NAPATIA, PS CHENGCHUP CHARIALI, DIST TINSUKIA, ASSAM 786158 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BYPP ASSA M 2:SRI KUSUM LOHAR W/O SRI RAM BAHADUR LOHAR RESIDENT OF NO. 1 NAPATIA GAON PS CHENGCHUP CHARIALI DIST TINSUKIA ASSA Advocate for the Petitioner : MR. A K GUPTA, MR. R K MAHANTA,MR. R S MISHRA Advocate for the Respondent : PP, ASSAM, MR. SARFRAZ NAWAZ, AMICUS CURIAE (R-2) BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA ORDER Date : 26-03-2025 Page No.# 2/7 Heard Mr. A.K. Gupta, learned counsel for the petitioner. Also heard Mr. K.K. Das, the learned Addl. PP appearing for the State respondent no.1 and Mr. S. Nawaz, the learned Amicus Curiae on behalf of respondent no. 2. 2. This is an application u/s 528 of BNSS, 2023 R/W Section 442 of the said Code against the order dated 10.12.2024 passed by learned Additional Sessions Judge-cum-Special Judge (POCSO), Tinsukia in POCSO, Case No. 48/2024 whereby the petition No. 1460/2024 was filed u/s 311 Cr.PC R/W Section 138 of the Indian Evidence Act was rejected. 3. It is submitted by Mr. Gupta, the learned counsel for the petitioner that the present accused/petitioner was forwarded on 10.04.2024 and on the same day he was sent to jail hazoit and on subsequent dates also he was never physically produced before the learned Special Judge. The charges were also framed against him without his physical presence. However, he was produced through VC. The charge was accordingly framed, read over and explained to him. Evidence of all the witnesses were recorded and on all these occasions he was never produced before the Court below and during the period of evidence he was produced through VC. Further Mr. Gupta submitted that while recording the statement of the accused/petitioner u/s 313 Cr.PC he was not produced before the learned Special Judge and through VC only questionnaires were put to him and on the next date the counter signature of the jailer was put i.e. on 30.10.2024 wherein the petitioner also put his signature. Further, he submitted that during the entire trial proceeding three Legal Aid Counsels were engaged and as the petitioner is not acquainted with any other languages except Nepali, the Legal Aid Counsel never visited to jail to meet him or to get instructions from him. From the cross-examination of vital witnesses, it is also seen that some of the important questionnaires were not put to the witnesses at the time Page No.# 3/7 of cross-examination by the engaged counsel inadvertently. 4. On 03.12.2024 only when the relatives of the accused handed-over the brief to the present Advocate, he visited to Tinsukia Jail and then only he came to know that the earlier engaged counsel never visited to jail to meet him and to take instructions while cross-examining the PWs. He further submitted that during the interaction he also found that the true description of the PO is not brought on record that there was a village meeting on the said concocted allegation which was held on 09.05.2024. More so, the age of the victim, the place of occurrence etc. were also not put to the witnesses while cross- examining them by the earlier engaged counsel. As the accused all along remained in the jail hazoit and he was never produced physically before the learned Sessions Judge, the engaged counsel also did not get any opportunity to interact with the accused/petitioner who is only acquainted with Nepali language. 5. Mr. Gupta further submitted that the allegation brought in the case is very serious in nature. As such for fair and just trial of the case, an opportunity should be given to the accused. However, he submitted that presently he is not insisting for any de novo trial but the vital witnesses to the prosecution i.e. PW- 1, PW-2, PW-3 and PW-5 further needed to be cross-examined to bring the actual truth of the case. 6. He further submitted that the accused/petitioner filed a petition before the learned Special Judge but vide order dated 10.12.2024, that has been rejected with an observation that the accused was duly represented by the engaged defence counsel and on each and every date he was produced through VC and considering the circumstances of this case, the petition filed u/s 311 Cr.PC was rejected by the learned Special Judge (POCSO), Tinsukia. Page No.# 4/7 7. Mr. Gupta further submitted that the Court has the power to summon or re- examine witnesses at any stage of the case, if it is required for the just decision of the case and also for the ends of justice. Further, he submitted that if the prayer of the petitioner is not allowed to further cross-examine the vital witnesses i.e. PW-1, PW-2, PW-3 and PW-5, prejudice will be caused to the petitioner. However, no prejudice will be caused to the State/respondent if the petitioner is allowed with one chance to cross-examine the PWs. In this context he also relied on a decision of Hon’ble Supreme Court reported in AIR 2013 Supreme Court 3081 basically relied on some guidelines provided in the said judgment. “Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. The Court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity or reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.” 8. Mr. Das, the learned Additional Public Prosecutor submitted in this regard that all the PWs were duly cross-examined by the learned defence counsel and the present petition is being filed only to fill up the lacuna which cannot be allowed under the garb of the petition u/s 311 Cr.PC. Further submitted that no ground has been brought as to how prejudice would be caused to the petitioner. Accordingly, he raised objection and submitted that at this stage the petition Page No.# 5/7 filed u/s 311 Cr.PC cannot be considered and the learned Special Judge had rightly passed the order rejecting the prayer in re-cross-examination of the PWs. 9. Mr. Nawaz, the learned Amicus Curiae appearing on behalf of respondent no. 2 also submitted that the accused can be produced through VC and there is no legal bar and that during the entire trial it is also seen that the Legal Aid Counsel were duly represented accused/petitioner and the PWs were also duly cross-examined by the engaged Legal Aid Counsel. Further, he submitted that 311 Cr.PC can be entertained and allowed at any stage of the case, if it is required for the just decision of the case. But, here in the instant case it is seen that there is no specification of any question which was to be put to the PWs. Accordingly, he also raised objection and submitted that allowing the present petition at this stage will delay the disposal of the case which is registered under Section 6 of the POCSO Act. 10. After hearing the submissions made by the learned counsels for both sides, I have perused the case record and the annexures filed along with the petition. It is a fact that the petitioner filed a petition praying for recalling P.W.1, P.W.-2, PW-3 and P.W.-5 after the closure of the evidence of the P.Ws. However, as per Section 311 of the Cr.P.C., the petition can be allowed for recalling or re- examining witnesses at any stage, if it is found essential for the just decision of the case. However, it appears that the learned Court below, passed the order with the observation that the petition was filed only to delay the disposal of the case and also observed that the PWs were duly cross-examined by the engaged defence counsel. Nevertheless, it cannot be denied that a petition under Section 311 cannot be allowed solely to fill up the lacuna of the case of the prosecution. In rejecting such a prayer, it must be examined whether there is any inherent weakness or latent gap in the prosecution's case. No party in trial can close the Page No.# 6/7 case before correcting errors. 11. The Hon’ble Apex Court in the case of Rajendra Prasad vs. Narcotic Cell, reported in (1999) 6 SCC 110, has held in paragraphs 8 and 9 as under: “8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trail of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No parry in a trial can before-closed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better. 9. The very same decision Mohanlal Shamiji Soni v. Union of India, (supra) which cautioned against filling up lacuna has also laid down the ratio thus : "It is therefore clear that the Criminal Court has ample power to summon any person as a witness or recall and re-examined any such person even if the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation, and fair play and good sense appear to be the only safe guides and that only the requirements of justice command the examination of any person which would depend on the facts and circumstances of each case.” 12. In the case of Zahira Habibullah Sheikh & Anr. vs. The State of Gujrat & others, reported in (2006) 3 SCC 374, the same view was also expressed the same view, in paragraph 27, which read as follows: “Para-27; The object underlying Section 311 of the Code is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the Section merely because the evidence supports the case for the prosecution and not that of the accused. The section is a general section which applies to all proceedings, enquiries and trials under the Code and empowers Magistrate to issue summons to any witness at any stage of such proceedings, trial or enquiry. In Section Page No.# 7/7 311 the significant expression that occurs is "at any stage of inquiry or trial or other proceeding under this Code". It is, however, to be borne in mind that whereas the section confers a very wide power on the Court on summoning witnesses, the discretion conferred is to be exercised judiciously, as the wider the power the greater is the necessity for application of judicial mind.” 13. In the instant case, it is seen that the prayer of the petitioner to further cross-examine the vital witnesses i.e. PW-1, PW-2, PW-3 and PW-5 is found to be relevant. Accordingly, the petitioner’s prayer cannot be regarded solely as an attempt to fill up the lacuna. 14. In view of the above discussion, I find it appropriate to re-examine PW-1, PW-2, PW-3 and PW-5. Accordingly, I find sufficient merit in this petition, which warrants the interference of this Court in the order dated 10.12.2024 passed by learned Additional Sessions Judge-cum-Special Judge (POCSO), Tinsukia in POCSO, Case No. 48/2024 whereby the petition No. 1460/2024 was filed u/s 311 Cr.PC R/W Section 138 of the Indian Evidence Act was rejected. The same is hereby set aside. 15. Consequently, the petitioner is directed to appear before the learned Court below along with a petition for the re-examination of P.W.-1, P.W.-2, P.W.-3 and P.W.-5, and the learned Trial Court shall give the petitioner an opportunity to re- examine P.W.-1, P.W.-2, P.W.-3 and P.W.-5 and shall fix a date accordingly. 16. With above observation, this petition stands disposed of. JUDGE Comparing Assistant