Page No.# 1/3 GAHC010266962025 2026:GAU-AS:4611 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1519/2025 MD HANNAN SEIKH S/O.JULUM SEIKH, R/O.VILLAGEMAHENDRAPUR, PURBAPADA, P.O. P.S.- SUTI, PIN- 742201, DIST.-MURSIDABAD, WEST BENGAL.PRESENTLY RESIDING AT AMBARI, ..-CHARIALI, PIN- 784176,P.S. BISWANATH CHARIALI,DIST. BISWANATH, ASSAM. VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PP, ASSAM 2:LOKNATH BARMAN S/O LATE KAPILMANI BARMAN VILL- JOYPUR P.O. JOYPUR PIN-784176 P.S. BISWANATH CHARIALI DIST. BISWANATH ASSA Advocate for the Petitioner : MR. P BORDOLOI, MR. R K MAHANTA,MS M NIROLA Advocate for the Respondent : PP, ASSAM, MR. A BARUAH, AMICUS CURIAE (R-2) Page No.# 2/3 BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA ORDER Date : 31.03.2026 1. Heard Mr. P. Bordoloi, learned counsel for the petitioner. Also heard Mr. A. Baruah, learned Amicus Curiae appearing on behalf of respondent No.2. 2. This is an application filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 challenging the Order dated 24.09.2025, passed by the learned Special Judge, Biswanath, Biswanath Chariali in Special (POCSO) Case No.78/2024. 3. The petitioner is an accused before the Trial Court. He was in judicial custody while the trial was going on. Therefore, a Legal Aid Defence Counsel was appointed to defend him in the Court below. Some witnesses are already examined and after that the petitioner came out from jail on bail on 04.04.2025. He found that the learned Legal Aid Counsel did not cross-examine the matter in proper manner. According to him, some vital questions were not asked and, therefore, the petitioner filed an application before the Court below for recalling the prosecution witnesses, who are already examined. Learned Court below dismissed the petition filed under Section 348 of the BNSS, 2023. 4. The Trial Court held that the provision of law as laid down in Section 348 of the BNSS is need to enable the Court to arrive at a just decision. 5. Learned Amicus Curiae, on the other hand, objected to the prayer and submitted that mere change of counsel cannot be a ground for recalling witnesses. Page No.# 3/3 6. The learned Amicus Curiae has relied upon a Judgment of the Hon’ble Supreme Court that was delivered in “Ag Vs. Shiv Kumar Yadav & Anr. (2025) 12 SCC 333”. 7. I have considered the submissions made by the learned counsel for both sides. 8. Today, I have decided to agree with the learned counsel for the petitioner because the situation involved in the case is peculiar. The petitioner was on jail, he was defended by a Legal Aid Counsel. Now the petitioner has come out of jail and he wants to appoint one private lawyer. 9. Therefore, the petitioner should be given an adequate opportunity to cross- examine the prosecution witnesses. Therefore, the impugned order is set aside. 10. The trial Court is directed to recall all the prosecution witnesses except the victim girl for cross-examination by the present petitioner. 11. With the aforesaid direction this Criminal Petition stands disposed of. JUDGE Comparing Assistant