Page No.# 1/7 vs Jogen Boro And Anr
2025 Latest Caselaw 1698 Gua

Gauhati High Court

Page No.# 1/7 vs Jogen Boro And Anr on 3 January, 2025

                                                                          Page No.# 1/7

GAHC010228002024




                                                                   2025:GAU-AS:65

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

                                 Case No. : Crl.Pet./1340/2024

            KANAK BORO
            S/O LATE BABU RAM BORO, VILL- KOHARTARI, LACHIMA RAMPUR, P.S.-
            MUKALMUA, DIST-NALBARI



            VERSUS

            JOGEN BORO AND ANR
            S/O LATE RAGHU BORO, R/O VILL- BORGHOPA, P.S.-SARTHEBARI, DIST-
            BARPETA, ASSAM

            2:THE STATE OF ASSAM
             REPRESENTED BY THE PUBLIC PROSECUTOR
            ASSA

Advocate for the Petitioner   : MR. S K TALUKDAR, T R OVUNG,MR. A SAYED,MS. S T
BOKTH

Advocate for the Respondent : PP, ASSAM, MR. SURAJIT DAS, AMICUS CURIAE (R-1)
                                                                         Page No.# 2/7

                               BEFORE
                HONOURABLE MRS. JUSTICE MITALI THAKURIA

                                     ORDER

03.01.2025 Heard Mr. S. K. Talukdar, learned counsel for the petitioner. Also heard Mr. B. Sharma, learned Additional Public Prosecutor for the State respondent No.2 and Mr. S. Das, learned Amicus Curiae representing the respondent No.1.

2. This application is filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the impugned Order dated 18.09.2024 passed by the learned Special Judge, POCSO, Kamrup (M), Guwahati, in Petition No. 906/2024, whereby the prayer of the petitioner/defence to recall P.W. Nos. 1 and 2 for further cross-examination in Sessions Case No. 208/2020 under Section 6 of the POCSO Act, 2012, was rejected.

3. Mr. Talukdar, learned counsel for the petitioner, has submitted that initially, the charge was framed on 01.11.2021 against the present petitioner under Section 376 of the IPC read with Section 4 of the POCSO Act. Thereafter, P.W. Nos. 1 and 2 were cross-examined on 18.08.2022 and 14.03.2023, respectively, and accordingly, the charge was altered on 14.03.2023, after the cross- examination of P.W.2, and the charge was re-framed under Section 6 of the POCSO Act against the petitioner. However, on 14.03.2023, the learned Special Judge made an observation that both the learned Special Public Prosecutor and the learned defence counsel did not want to re-examine the witnesses. Subsequently, a petition was filed by the defence to re-cross-examine P.W. Nos. 1 and 2, but vide order dated 18.09.2024, the prayer of the defence was rejected, with an observation that no attempt was made to identify the omissions, nor there was any explanation as to how these omissions would have Page No.# 3/7

affected the fairness of the trial or will caused prejudice to the accused/petitioner.

4. He further submitted that it is a fact that on the day of the alteration of the charge under Section 6 of the POCSO Act, the engaged defence counsel did not wanted to re-cross-examine P.W. Nos. 1 and 2. However, after analyzing the evidence, it is found that prejudice may be caused to the petitioner if the vital witnesses, i.e., P.W. Nos. 1 and 2, are not cross-examined by the defence. He also submitted that under Section 217 of the Cr.P.C., there is a specific provision for recalling witnesses when the charge is altered, and the Court can suo motu also recall the witnesses if it deems fit.

5. He further submitted that Sections 4 and 6 of the POCSO Act are distinct and separate offences, and the punishments prescribed under said Sections are also different. In the case of conviction under Section 6 of the POCSO Act, the minimum punishment prescribed is 20 years, whereas, under Section 4 of the POCSO Act, the punishment may be up to 10 years. The cross-examination conducted by the defence counsel upon the P.W. Nos. 1 and 2 was prior to the alteration of the charge and thus, cross evidence was confined only to the offence related to Section 4 of the POCSO Act. Therefore, the rejection of the defence's prayer to re-cross-examine P.W. Nos. 1 and 2 would cause serious prejudice to the petitioner.

6. He further submitted that in a case under the POCSO Act, unlike the IPC, there is a presumption under Sections 29 and 30 of the Act that the accused is guilty of the offence or has the culpable mental state to commit the offence unless the contrary is proved by the defence. If the accused petitioner is not allowed to cross-examine the most vital witnesses, i.e., P.W. Nos. 1 and 2, the petitioner will not be in a position to rebut the presumption. Accordingly, he Page No.# 4/7

submits that the petitioner should be allowed to cross-examine P.W. Nos. 1 and 2 after the alteration of the charge from Section 4 to Section 6 of the POCSO Act.

7. In this context, Mr. Sharma, learned Additional Public Prosecutor, has submitted that the petition filed by the accused/petitioner before the learned Special Judge was under Section 311 of the Cr. P.C. and that there is no plea taken by the petitioner regarding the alteration of charge, nor there is any prayer made in the petition to cross-examine P.W. Nos. 1 and 2 in compliance with the provision under Section 217 of the Cr. P.C. The petition was made solely under Section 311 of the Cr. P.C., wherein, without any disclosure of the questions to be put to P.W. Nos. 1 and 2, the only ground taken is that the defence counsel inadvertently omitted to ask some relevant questions to the prosecution witnesses during cross-examination. Accordingly, he submits that the learned Trial Court rightly passed the order, and no irregularity committed by the said Court that warrants interference.

8. Mr. Das, learned Amicus Curiae, has also submitted that the petition was not made for further cross-examination of P.W. Nos. 1 and 2 after the alteration of charge, and that the order passed by the learned Trial Court, as well as the alteration of charge, was not challenged and has already attained its finality. He also submitted that there was no error or mistake while rejecting the prayer made by the defence counsel under Section 311 of the Cr. P.C.

9. In this context, Mr. Talukdar, learned counsel for the petitioner, has submitted that this is a petition under Section 528 of the BNSS, wherein this court has the inherent power to pass any order necessary to give effect to any order, prevent the abuse of process of any court, and to secure the ends of justice. He further submitted that it is an admitted fact that due to an Page No.# 5/7

inadvertent mistake of the learned defence counsel, the prayer for re-calling P.W. Nos. 1 and 2 was not made; however, that cannot be a ground for rejecting the prayer. In support of his submission, he relies on the decision passed by the Hon'ble Supreme Court in the case of Rajendra Prasad v. Narcotic Cell, reported in (1999) 6 SCC 110, and emphasized paragraph No. 8 of the said judgment, which reads as follows:

"8. Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trail of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No parry in a trial can before-closed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better."

10. Hearing the submissions made by the learned counsels for both sides, I have perused the case record and the annexures filed along with the petition. It is a fact that initially the charge was framed against the petitioner under Section 4 of the POCSO Act. Subsequently, after the examination of P.W.2, the learned Special Judge altered the charge to Section 6 of the POCSO Act, with an observation that neither the learned Special Public Prosecutor nor the learned defence counsel wanted to re-call the evidence of the P.Ws that had been previously recorded. Thereafter, the petitioner filed a petition under Section 311 of the Cr. P.C. for the re-cross-examination of P.Ws 1 and 2, on the ground that, due to inadvertence, the learned defence counsel had omitted to put some relevant questions to the P.Ws. However, the petition did not elaborate the questions to be asked to the P.Ws nor provided any explanation as to how the Page No.# 6/7

accused/petitioner would be prejudiced if the P.Ws were not re-cross-examined. Accordingly, the learned Trial Court passed an order rejecting the prayer made under Section 311 of the Cr. P.C. Further, it is also seen that the petition did not disclose about the alteration of the charge from Section 4 to Section 6 of the POCSO Act, which is admittedly a graver charge. The learned Trial Court, therefore, rightly passed the order rejecting the prayer for re-cross-examination of the P.Ws under Section 311 of the Cr. P.C. But, at the same time, it cannot be denied that it is the right of both the prosecution and the defence to re-examine or cross-examine the P.Ws following an alteration of the charge, as provided under Section 217 of the Cr. P.C.

11. For ready reference, Section 217 of Cr. P.C. reads as under:

"Whenever a charge is altered or added to by the Court after the commencement of the trial, the prosecutor and the accused shall be allowed--

(a). To recall or re-summon, and examine with reference to such alteration or addition, any witness who may have been examined, unless the Court, for reasons to be recorded in writing, considers that the prosecutor or the accused, as the case may be, desires to recall or re-examine such witness for the purpose of vexation or delay or for defeating the ends of justice;

(b). Also to call any further witness whom the Court may think to be material."

12. However, the prayer for re-calling the witnesses may also be rejected if it is considered that the recall or re-examination of such witnesses is sought solely for the purpose of vexation, delay, or defeating the ends of justice, as provided under the said section. In the present case, however, it is observed that after the alteration of the charge, an opportunity was given to both the learned Special Public Prosecutor and the learned defence counsel to recall the P.Ws, as Page No.# 7/7

reflected in the order, but they did not want to recall the witnesses, and accordingly, the order of rejection was passed.

13. Thus, it is apparent that the order passed by the learned Trial Court, rejecting the defence's prayer for recalling P.Ws 1 and 2 under Section 311 of the Cr. P.C., does not suffer from any infirmity or irregularity. However, due to the ignorance or negligence of the defence counsel, the right of the parties, i.e. both prosecution and defence cannot be denied to re-examine witnesses after alteration of the charge, especially when the charge is altered to a graver section. Thus, this Court by exercising its inherent power under Section 528 of the BNSS, it is of the opinion that one opportunity should be given to the present petitioner for the further cross-examination of P.Ws 1 and 2.

14. In view of the above discussion, I find it appropriate to reexamine P.W Nos. 1 and 2. Accordingly, the order dated 18.09.2024 passed by the learned Special Judge, POCSO, Kamrup (M), Guwahati in Petition No.906/2024, stands set aside. Consequently, the petitioner is directed to appear before the learned Court below along with a petition for the re-cross examination of P.W Nos. 1 and 2, and the learned Trial Court shall give the petitioner an opportunity to re-cross examine P.W Nos. 1 and 2 and shall fix a date accordingly.

15. With above observation this petition stands disposed of.

JUDGE

Comparing Assistant