Page No.# 1/8 GAHC010143502026 2026:GAU-AS:11669 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1016/2026 JITU BHUYAN S/O JABBAR BHUYAN R/O VILL. SEUJNAGAR ISLAMPATTY, P.S. SADAR DISTRICT NAGAON, ASSAM PRESENTLY RESIDING AT VILL. BOHA BARJARI, P.S. MAYANG DISTRICT -MORIGAON, ASSAM VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM 2:SHAHID ALOM S/O ABDUL AZIZ R/O BORBALI P.S. MURAJAR DISTRICT HOJAI ASSA Advocate for the Petitioner : MR. T K DAS, Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN ORDER 17.08.2026 Heard Mr. T.K. Das, learned counsel for the petitioner and Mr. P. Borthakur, learned Additional Public Prosecutor for the State respondent. Page No.# 2/8 2. In this petition, under Section 528 of the BNSS, the petitioner has challenged the order dated 11.03.2025, passed by the learned Additional Chief Judicial Magistrate, Hojai, in NI Case No. 08/2022 and also the order dated 25.11.2025, passed by the learned Sessions Judge, Hojai, in Criminal Revision Case No. 07/2025. 3. It is to be noted here that vide impugned order dated 11.03.2025, the learned Additional Chief Judicial Magistrate, Hojai, had rejected the petition filed by the petitioner herein for re-calling the PW1, who was examined as the complainant (respondent No. 2 herein) and vide impugned order dated 25.11.2025, the learned Sessions Judge, Hojai, had affirmed the order, dated 11.03.2025, passed by the learned Additional Chief Judicial Magistrate, Hojai. 4. Mr. Das, learned counsel for the petitioner, submits that the petitioner is the accused in NI Case No. 08/2022, pending before the court of learned Additional Chief Judicial Magistrate, Hojai, wherein the complainant was examined as PW1. Mr. Das further submits that the erstwhile counsel of the petitioner had put only two questions to the PW1 in the cross-examination and subsequently, another set of counsel was engaged and the new set of counsel has suggested for re-calling PW1 for further cross-examination as the previous counsel did not cross-examine the witness properly, and to that effect one application was filed before the learned Trial Court and the same was dismissed vide order dated 11.03.2025, and the said order was challenged in Criminal Revision Case No. 07/2025, but the learned Sessions Judge had affirmed the order of the learned Trial Court, vide order dated 25.11.2025. 4.1. Mr. 4.1. Mr. Das also submits that the impugned orders passed by the learned Trial Court and also by the learned Sessions Court, suffers from irregularity as well as illegality and unless the petitioner is allowed to cross-examine the Page No.# 3/8 witness again, serious prejudice will be caused to him. And therefore, he has contended to allow this petition. 5. Per contra, Mr. Borthakur, learned Addl. P.P. has vehemently opposed the petition. According to him change of counsel is a ground to recall the witness which had already been cross-examined by the petitioner herein and that filling up of lacunae is not the object of recalling a witness. Therefore, he has contended to dismiss the petition. 6. Having heard the submissions of learned counsel for both the parties this court has carefully gone through petition and the documents placed on record, including the impugned order dated 25.11.2025, so passed by the learned Sessions Judge, in Criminal Revision Case No. 07/2025, and the order dated 11.03.2025, so passed by the learned Trial Court. 7. It appears that the learned trial court, relying upon a decision of Hon’ble Suprme Court in the case of Ravinder Verma @ Minu Vs State of Haryana and the Other, reported in 2019 0 Supreme (P and H) 2744, held that “In this case, the accused already got opportunity to cross-examine PW1. There is also nothing in the record which would show that the accused any way was not in a position to properly cross examine PW1. Allowing the petition of the accused person will cause prejudice to the complainant side and shall also lead to delay of the process.” Thereafter it had dismissed the petition. 8. It also appears that the learned Sessions Judge, relying upon following decisions of Hon’ble Supreme Court in Amar Nath vs State of Hariyana, reported in 1977 (4) SCC 137 as well as the case of Madhu Limaye vs State of Maharashtra, reported in 1977 (4) SCC 551 and also in the case Page No.# 4/8 of Sethuraman vs Rajamanickam, reported in 2009 (5) SCC 153, held that in case of an interlocutory order revision under Section 397(2) of the CrPC correspondence to Section 438(2) of BNSS is barred and that an orders passed under Section 311 of the CrPC are interlocutory in nature and as such, revision of such orders are barred under Section 397(2) of the CrPC. Thereafter, it had dismissed the petition being filed under Section 438/440 of the BNSS, as not maintainable. 9. Having heard the submissions of learned counsel for both the parties this Court has carefully gone through the petition and the documents place on the record and also perused the impugned order and also the cross-examination of the P.W.1 and the relevant provisions of law and the decisions relied upon by both the learned Courts below. 10. In Mohd. Hussain Zulfikar Ali Vs. State (Government of NCT of Delhi), reported in (2012) 2 SCC 584, Hon'ble Supreme Court had deliberated on the issue of a right to a fair trial, particularly, in the context of cross-examination (or the absence of it due to unavailability of counsel) held as under:- “13. It will, thus, be seen that the trial court did not think it proper to appoint any counsel to defend the appellant-accused, when the counsel engaged by him did not appear at the commencement of the trial nor at the time of recording of the evidence of the prosecution witnesses. The accused did not have the aid of the counsel in any real sense, although, he was as much entitled to such aid during the period of trial. The record indicates, as I have already noticed, that the appointment of the learned counsel and her appearance during the last stages of the trial was rather pro forma than active. It cannot seriously Page No.# 5/8 be doubted at this late date that the right of cross- examination is included in the right of an accused in a criminal case, to confront the witnesses against him not only on facts but also to discredit the witness by showing that his testimony-in-chief was untrue and unbiased.” 10.1. The purpose of cross-examination of a witness has been succinctly explained by the Constitution Bench of this Court in Kartar Singh vs. State of Punjab reported in (1994) 3 SCC 569 as under:- "278. Section 137 of the Evidence Act defines what cross- examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in-chief, the objects of which are: (1) to destroy or weaken the evidentiary value of the witness of his adversary; (2) to elicit facts in favour of the cross- examining lawyer's client from the mouth of the witness of the adversary party; (3) to show that the witness is unworthy of belief by impeaching the credit of the said witness; And the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character." 10.2. The aforesaid view is reiterated by this Court in Jayendra Vishnu Page No.# 6/8 Thakur vs. State of Maharashtra reported in (2009) 7 SCC 104, as under: "24. A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination-in-chief, cross-examination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to cross-examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. If an exception is to be carved out, the statute must say so expressly or the same must be capable of being inferred by necessary implication. There are statutes like the Extradition Act, 1962 which excludes taking of evidence vis-à-vis opinion." 11. It also to be noted here that under Section 311 of the Code of Criminal Procedure, 1973, (348 of BNSS), any court may, at any stage of inquiry, trial or other proceeding: (i) Summon any person as a witness, or (ii) Examine any person in attendance though not summoned, or (iii) Recall and re-examine any person already examined, Further, the court shall do so if the evidence appears to it to be essential to the just decision of the case. The power under Section 311 CrPC (348 of the BNSS), is wide but must be exercised judiciously, with great caution and circumspection, and only for strong and valid reasons. It is meant to prevent failure of justice and to ensure a just decision not to fill lacunae in a Page No.# 7/8 party’s case, allow a second opportunity after inadequate cross-examination, or reopen settled evidence as a matter of course. The application must be bona fide. The court must consider the stage of the trial, possible prejudice/hardship to the witness, delay, and the overall interest of justice (including the victim’s and society’s interests. Successive or belated applications (especially at the fag end of the trial or after Section 313 CrPC statement) are generally discouraged. Reference in this context can be made to following decisions of Hon’ble Supreme Court:- (i) State (NCT of Delhi) vs. Shiv Kumar Yadav, reported in (2016) 2 SCC 402; (ii) Rajaram Prasad Yadav vs. State of Bihar, reported in (2013) 14 SCC 461; (iii) Ratanlal vs. Prahlad Jat, reported in (2017) 9 SCC 340; and (iv) Swapan Kumar Chatterjee vs. CBI, reported in (2019) 14 SCC 328. 12. It is also well settled in the case of State (NCT of Delhi) vs. Shiv Kumar Yadav, reported in (2016) 2 SCC 402, that mere change of counsel cannot be a ground to recall the witnesses. It is normally to be presumed that the counsel conducting the case, especially one chosen by the party, is competent. Allowing recall merely because a new counsel wants to adopt a different strategy or feels the earlier cross-examination was inadequate, would have serious consequences for the criminal justice system, lead to endless trials, and cause undue hardship to witnesses, particularly victims in sensitive cases. Allegations of incompetence of previous counsel cannot be lightly accepted, Page No.# 8/8 especially when made behind the back of that counsel and without specific, tangible reasons showing how the fair trial has suffered. 13. In the instant case going through the record this Court finds that the petitioner herein was given ample opportunity to cross-examine the P.W.1 and he had also availed the same. Having availed the opportunity now he again cannot insist upon recalling the PW1, solely on the ground that the earlier counsel was changed and he did not put some question to the PW1. Further, it appears that except the change of counsel, the learned counsel for the petitioner herein has failed to assign any good reason as to why re-calling of the PW1 is necessary. 13.1. It is the categorical finding of learned trial court that for mere change of counsel the witness cannot be recalled since he has already been cross- examined and allowing to recall the witness would not only cause prejudice to the complainant side but also it would cause delay in trial. While this finding is tested on the touchstone of the principles laid down in the cases discussed herein above, this Court finds that the impugned order suffers from no infirmity or illegality requiring any interference of this Court. It is well settled that the object of Section 311 of the CrPC (348 of the BNSS) is not to fill up lacuna in a party’s case or to allow a second chance after inadequate cross- examination. 14. In the result, this Court finds no merit in this petition and accordingly, the same stands dismissed. JUDGE Comparing Assistant