Judgment : Kalyan Rai Surana, J. Heard Ms. S. Das, learned counsel appearing for the petitioner. Also heard Mr. A. K. Dutta, learned CGC, appearing on behalf of the Union of India; Mr. A. I. Ali, learned Standing Counsel for the ECI, Ms. R. B. Bora, learned Junior Government Advocate, Assam, and Mr. G. Sarma, learned Standing Counsel for the FT, Border matters and NRC. 2. By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the opinion dated 29.06.2019, passed by the learned Member, Foreigners’ Tribunal No. (1st ), Morigaon, Assam, in Case No. F.T. (D) 01/2008, corresponding to Police Reference D/N Case No. 1262/97, dated 07.12.1997, by which the petitioner, namely, Musstt. Momina Khatun was declared to be a foreigner of the post-1971 stream. 3. The record reveals that the petitioner suffered an opinion dated 07.09.2018, in the same proceedings, and the said opinion dated 07.09.2018 was put to challenge before this Court by filing W.P.(C) No. 7803/2018, and this Court by order dated 13.02.2019, remanded the matter back to the said learned Tribunal, directing the said learned Tribunal to subject DW-2 for cross-examination. 4. On remand, DW-2, namely, Godram Medhi, In-Charge Gaonburah of Village-Shilbheta, appeared before the learned Tribunal for his cross-examination, on 20.05.2019. 5. From the record, it appears that on 20.05.2019, the learned Tribunal has recorded the following order: “D.W.2 closed. The case is kept reserved for Judgment.” 6. The record of proceedings discloses that the cross-examination of DW-2 has been recorded under Section 165 of the Evidence Act, 1872, which is found to be overwritten with Section 137. However, it is not very clear as to whether Section 165 is overwritten over Section 137 or Section 137 is overwritten over Section 165. The record of cross-examination on 20.05.2019 indicate cross- examination of DW-2. However, in Paragraph-3 of the impugned opinion dated 29.06.2019, the learned Tribunal has recorded as follows:- “In the absence of the Govt. Pleader, this Tribunal examined the DW-2, namely, Godram Medhi, who is a Govt. Gaonbura of Village-Shilbheta, on 20.05.2019, under Section 165 of the Indian Evidence Act, 1872, in pursuance to the Hon’ble High Court, dated 13.02.2019, in WP(C) No. 7803/2018.” 7. It will be appropriate to quote paragraph-9 of the order dated 13.02.2019, passed by this Court in WP(C) No. 7803/2018, as under:- “9. Gaonbura of Village-Shilbheta, on 20.05.2019, under Section 165 of the Indian Evidence Act, 1872, in pursuance to the Hon’ble High Court, dated 13.02.2019, in WP(C) No. 7803/2018.” 7. It will be appropriate to quote paragraph-9 of the order dated 13.02.2019, passed by this Court in WP(C) No. 7803/2018, as under:- “9. For the purpose, we deem it appropriate that if the DW-2 is subjected to cross-examination by the State authorities in order to arrive at a detailed examination as regards the correctness of his statement that the father of the petitioner is Talebali Moral and his mother is Jaigun Nessa whose name appeared in the voter list of 1965 relating to village Basundara. For the purpose, we remand the matter back to the Foreigners’ Tribunal No. 1 st , Morigaon for a cross-examination of DW-2 so that a detailed verification be made on the correctness and the veracity of the statement that he had made in his evidence that the petitioner is the daughter of Taleb Ali and Jaigun Nessa whose name appeared in the voter list of 1966 of Basundara.” 8. As the part record of that proceedings dated 20.05.2019 disclose cross- examination of DW-2, irrespective of use of Section 137 and/or Section 165 of the Evidence Act, the use of the term -‘Cross examination of D.W.2’, is found written before the cross-examination of the said D.W.2 and, therefore, it vitiates the proceeding. 9. The learned Tribunal would have power under Section 165 of the Evidence Act, to put questions to the witnesses, but the learned Tribunal cannot act as the prosecution to cross-examine the witnesses produced by the proceedee. The order sheet is not very clear as to whether the DW-2 was cross-examined or questioned under Section 165/137 of the Evidence Act, and moreover, there has been overwriting or overlapping of Section 165 with Section 137 of the Evidence Act in the deposition sheet at Page 19 of the Tribunal’s records. 10. Use of the term, “cross-examination” in the proceedings of 20.05.2019, when by the order dated 13.02.2019, passed in WP(C) No. 7803/2018, this Court had directed that D.W.2 be subjected to cross-examination by the State, this Court is of the considered opinion that the matter calls for a remand for fresh recording of cross-examination of DW-2. 11. 10. Use of the term, “cross-examination” in the proceedings of 20.05.2019, when by the order dated 13.02.2019, passed in WP(C) No. 7803/2018, this Court had directed that D.W.2 be subjected to cross-examination by the State, this Court is of the considered opinion that the matter calls for a remand for fresh recording of cross-examination of DW-2. 11. In order to facilitate cross-examination of D.W.2 by the State, the opinion dated 29.06.2016, passed by the learned Member, Foreigners’ Tribunal No. (1st ), Morigaon, Assam, in Case No. F.T. (D) 01/2008, corresponding to Police Reference D/N Case No. 1262/97, dated 07.12.1997, is set aside. The recording of cross-examination by the learned Tribunal also stands expunged. 12. From the above, it appears that the direction was that D.W.2 be subjected to cross-examination by the State authorities. Accordingly, the learned Tribunal is directed to issue notice on DW-2 for his appearance on a date to be fixed by the learned Tribunal and on appearance of DW-2, the learned Tribunal is required to comply with the directions contained in paragraph-9 of the order 13.02.2019, passed in WP(C) No. 7803/2018. 13. The petitioner who is duly represented by her counsel, is directed to appear before the learned Member, Foreigners’ Tribunal No. (1st ), Morigaon, Assam, on 30.05.2026, and shall produce a certified copy of this order and wait for further orders that would be passed by the said learned Tribunal. The learned Tribunal shall make an endeavour to dispose of the proceeding within the time prescribed under Order 3 (14) of the Foreigners’ (Tribunals) Order, 1964. 14. The Registry shall send back the Tribunal records as expeditiously as possible. 15. The learned Standing Counsel for the FT, Border matters and NRC, shall transmit a copy of this order to the Home and Political Department for their record. 16. The writ petition stands allowed to the extent as indicated above. 17. The parties are left to bear their own cost(s).