Page No.# 1/5 GAHC010184842026 2026:GAU-AS:12599 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1201/2026 ROFUL ALI ALIAS RAHUL ALI S/O FAKAR UDDIN, VILL. ADHALABHETI, P.S. BHURAGAON, DIST. MORIGAON, ASSAM -782105 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM. 2:IMAMUJ JAMAN (INFORMANT) S/O LATE HAFIJUDDIN VILL. ADHALABHETI P.S.BHURAGAON DIST. MORIGAON ASSAM -78210 Advocate for the Petitioner : DARAK ULLAH, MS A HUSSAIN,SABRISH AHMED,S K PODDAR Advocate for the Respondent : PP, ASSAM, BEFORE HON’BLE MRS. JUSTICE SHAMIMA JAHAN ORDER 31.08.2026 Heard Mr S K Poddar, learned counsel for the petitioner and Mr B Sarma, learned Additional Public Prosecutor for the State of Assam. Page No.# 2/5 2. By this application under Section 528, read with Section 438 and 442 of the BNSS, 2023, the petitioner has prayed for quashing and setting aside of the order dated 12.08.2026, passed by the learned Special Judge (POCSO), Morigaon, in POCSO Case No. 65/2024, registered under Sections 365/376(3) of the IPC, read with Section 4 of the POCSO Act. By the said order dated 12.08.2026, the prayer of the petitioner to recall the victim as well as the informant for further cross-examination was rejected. It is noticed that the petitioner has submitted an application before the Court of Special Judge (POCSO), Morigaon, Assam, in POCSO Case No. 65/2024, culling out the proposed questions that he requires to put for further cross-examination of the victim. By the said application, the petitioner has also narrated the questions to be put to the father of the victim in his further cross-examination. The learned Trial Court, however, by order dated 12.08.2026, had held that the victim was examined and cross-examined 1 to 2 years ago and that the trial is at the stage of conclusion. It was also held that under Section 33(5) of the POCSO Act, repeated recalling of child witness for the purpose of testifying before the Court is discouraged, as the child will be subjected to unnecessary hardship. On the said grounds, the Special Court had rejected the prayer of the petitioner. 3. The instant case is taken up for disposal at the motion stage itself, in view Page No.# 3/5 of the fact that issuing notice and the other procedures would take long and during that period, the trial would be over and the instant case would become infructuous. This Court has compared the questions that the petitioner is proposing to put in the further cross-examination of the victim, with the statement that the victim had already made during her examination-in-chief, and cross-examination and it is found that most of the questions proposed to be put by the petitioner are found to be answered by the victim in her examination. However, few questions are not dealt with by her in her examination-in-chief. It is provided under Section 348 of the BNSS, 2023 (Section 311 of the CrPC) that any Court at any stage of enquiry, trial or other proceedings can summon any person as a witness or recall and re-examine any person already examined, if such evidence to be given by the said witness appears to be essential to the just decision of the case. In a criminal case, the evidence put by the prosecution as well as the defence has to be considered equally and that every attempt should be made to reach to a just decision of a case. However, Section 33(5) of the POCSO Act cannot also be lost sight of, by this Court, which provides that repeated calling of a child witness should be discouraged as she would face unnecessary hardship. It is also seen that the victim had admitted that there was a love relationship between her and the petitioner and the father of the victim had also stated in his examination that his daughter told him that there Page No.# 4/5 was a relationship and that she will not do such acts in future and the father had stated in his cross-examination that he will give his daughter in marriage to the petitioner when she reaches the marriageable age. 4. In view of the facts and circumstances of the present case, this Court, therefore, allows the petition by directing that the learned Special Judge (POCSO), Morigaon, would recall the victim, i.e., PW-1 and the father of the victim, i.e. PW-2 for further cross-examination by the petitioner. However, it is directed that the petitioner will not put any harassing question upon PW- 1/victim which would cause unnecessary hardship to the victim. The Court is also directed to allow further cross-examination in the chamber, after complying with the necessary procedures. However, it is seen that the victim had already answered to certain questions, which are put up by the petitioner in his petition. It is directed that only those questions, which were not answered by the victim in her previous examination, should be put to her and the same should be only for the just decision of the case, and if the Trial Court finds that certain questions are not for the just decision of the case, it will not allow the petitioner to put the same to the victim. It is further directed that the further cross- examination of the victim should be allowed only one single day and the cost of transportation for bringing the victim to the Court premises would be paid by Page No.# 5/5 the petitioner. Further, it is directed that no adjournment should be taken by the accused’s side and that the victim will be examined on the same day and should be discharged. Same would be applicable in respect of PW-2, i.e., the father of the victim. 5. The order dated 12.08.2026, is as such, set aside and quashed. 6. With this observation, this Criminal Petition stands disposed of. JUDGE Comparing Assistant