Dimbeswar Bezbaruah vs The State Of Assam And Anr
2022 Latest Caselaw 1426 Gua

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GAHC010076762022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                Case No. : Crl.Rev.P./177/2022

            DIMBESWAR BEZBARUAH
            S/O SRI BABUL BEZBARUAH
            R/O VILL- BORAKHAT
            P.S. TANGLA, DIST. UDALGURI, ASSAM



            VERSUS

            THE STATE OF ASSAM AND ANR.
            REP. BY THE PP, ASSAM

            2:SRI DINESWAR SAHARIA
             S/O LATE BUDDHI RAM SAHARIA
            R/O VIL- BHUYAKHAT
            P.S. KALAIGAON
            DIST. UDALGURI
            ASSAM
            PIN-78452

Advocate for the Petitioner   : MR. A CHAUDHURY

Advocate for the Respondent : PP, ASSAM




                                   BEFORE
                  HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                          ORDER

Date : 29.04.2022.

Heard Mr. B.K. Mahajan, learned counsel for the petitioner. Also Page No.# 2/3

heard Mr. D. Das, learned Additional Public Prosecutor for the State. This is an application under Section 397/401 of the Code of Criminal Procedure, whereby the order dated 11.04.2022 passed by the ld. Sessions Judge, Udalguri in Sessions case No. 112(D-U)/14 is put to challenge.

The petitioner along with some persons are facing trial before the court below for allegedly committed the offences under Sections 143/447/325/302 of the IPC.

The argument was heard but the judgment could not be pronounced because of some of the accused persons were absent in the court at that stage. The present petitioner filed an application under Section 311 of the Code of Criminal Procedure praying for permission to cross-examine the PWs 5 and 7 and that petition was rejected by the court below for two reasons. The first reason is that the case is in the stage of pronouncement of judgment and the second reason is that the petition under Section 311 of the Code of Criminal Procedure was filed at the belated stage.

Mr. Mahanta submitted that these two witnesses in their statements under Section 161 of Code of Criminal Procedure never mentioned the present petitioner's name but mentioned his name by the other witnesses who were examined by the prosecution side. Accordingly, Mr. Mahajan submits that there is no cross-examination on that point and that is why he prays for cross-examination of the said PWs as mentioned above.

I have given my anxious consideration to the submissions made by the learned counsel for both sides.

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Section 311 empowers the court to recall any witness for examination or cross-examination etc. at any stage of the trial. Here in this case, judgment has not been pronounced yet, so that case is still in the stage of trial.

A court of law is to administer justice to the litigants by offering them sufficient opportunity of being heard. Now, this Court is of the opinion that refusal on the part of the court below to recall the PWs 5 and 7, amounts to denial of providing the opportunity of being heard. Therefore, the impugned order refusing to recall the PWs 5 and 7 for further cross-examination by the petitioner is bad in law.

Accordingly, the impugned order dated 11.04.2022 is set aside. The court below is directed to recall the PWs 5 and 7 for cross- examination by the present petitioner and after that the court shall dispose of the matter in accordance with law.

JUDGE

Comparing Assistant