Gaurav Upadhyay vs The State Of Assam And Anr
2025 Latest Caselaw 5238 Gua

Gauhati High Court

Gaurav Upadhyay vs The State Of Assam And Anr on 12 June, 2025

                                                                          Page No.# 1/7

GAHC010106612025




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

                                Case No. : I.A.(Crl.)/625/2025

            GAURAV UPADHYAY
            S/O LATE SHYAM SUNDAR UPADHYA R/O GOVT. QUARTER NO. B-II/ZONE
            -II, ASSAM POLICE HOUSING COMPLEX, ULUBARI-781007, GUWAHATI,
            ASSAM



            VERSUS

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

            2:SMTI. LEENA DOLEY
            W/O LATE NILOTPAL LAHON

            PERMANENT RESIDENT OF HOUSE NO. 54
            BELTOLA COLLEGE ROAD
            BELTOLA
            KAMRUP (M)
            AND CURRENTLY RESIDING IN THE OFFICIAL RESIDENT OF
            SUPERINTENDENT OF POLICE
            HAILAKANDI-78815

Advocate for the Petitioner   : MR. A AHMED, MR. M A CHOUDHURY,U U KHAN,MR A
AHMED

Advocate for the Respondent : PP, ASSAM, MS. G GOSWAMI (R-2),MR H K NATH (R-2),MR J
BORAH(R-2)
                                                                       Page No.# 2/7


           Linked Case : Crl.Pet./1517/2024

          GAURAV UPADHYAYA
          S/O LATE SHYAM SUNDAR UPADHYA
          R/O GOVT. QUARTER NO. B-II/ZONE -II
          ASSAM POLICE HOUSING COMPLEX
          ULUBARI-781007
          GUWAHATI
          ASSAM


           VERSUS

          THE STATE OF ASSAM AND ANR.
          REPRESENTED BY THE PP
          ASSAM

          2:SMTI. LEENA DOLEY
          W/O LATE NILOTPAL LAHON

          PERMANENT RESIDENT OF HOUSE NO. 54
          BELTOLA COLLEGE ROAD
          BELTOLA
          KAMRUP (M)
          AND CURRENTLY RESIDING IN THE OFFICIAL RESIDENT OF
          SUPERINTENDENT OF POLICE
          HAILAKANDI-788151
          ------------
          Advocate for : MR. A AHMED
          Advocate for : PP
          ASSAM appearing for THE STATE OF ASSAM AND ANR.



                                 BEFORE
               HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

                                          ORDER

Date : 12.06.2025

1. Heard Mr. A. Ahmed, the learned counsel for the applicant. Also heard Mr. J. Borah, the learned counsel for the respondent No.2 as well as Mr. K. Baishya, the learned Additional Public Prosecutor for the State respondent.

2. This Interlocutory Application has been filed for modification of order Page No.# 3/7

dated 12.03.2024 passed by this Court in Criminal Petition No. 1517/2025.

3. It is pertinent to mention herein that the petitioner had earlier approached this Court by filing a Criminal Petition under Section 528 of BNSS, 2023 read with Article 227 of the Constitution of India, impugning the order dated 06.11.2024, passed by the learned Special Judge, Karbi Anglong, Diphu, in the POCSO Case No. 37/2021, whereby it had rejected the prayer of the petitioner to furnish the list of statements, documents, material objects and exhibits not relied upon by the Investigating Officer at the time of filing the charge sheet.

4. The said Criminal Petition was disposed of by this Court by order dated 12.03.2025, whereby the prayer of the petitioner was allowed and the impugned order was interfered with.

5. It was directed that the list of statements, documents, material objects and exhibits, which were not relied upon by the Investigating Officer at the time of filing the charge sheet shall be furnished to the Trial Court by the Investigating Officer and thereafter, the Trial Court shall furnish this address to the petitioner on 08.04.2025.

6. Now, the petitioner has approached this Court by filing the present Interlocutory Application, inter-alia, stating that though, (as directed by this Court) the list has been provided, in which names of 13 witnesses are mentioned, whose statements were not relied upon by the Investigating Officer, however, the petitioner is not aware about as to what statements were made by those 13 witnesses, therefore, the petitioner has prayed for allowing him to inspect the said statement of the witnesses before the Trial Court.

7. The learned counsel for the petitioner has further submitted that if on inspecting the statements of those 13 witnesses, the petitioner finds that they Page No.# 4/7

may be of any assistance to his defence, he would be filing an appropriate application under Section 91 of Code of Criminal Procedure, 1973/Section 94 of BNSS, 2023 before the Trial Court. Hence, he prays for modifying the order dated 12.03.2025 passed in Criminal Petition No. 1517/2024 to the extent of allowing the petitioner to inspect those statements of the 13 witnesses, which has not been relied upon by the Investigating Officer.

8. On the other hand, the learned counsel for the informant, Mr. J. Borah has opposed the prayer of the petitioner on the ground that the Apex Court in the case of " Criminal trial guidelines regarding inadequacies and deficiencies in Criminal Trial Vs. State of Andhra Pradesh and Others" reported in (2021) 10 SCC 598, has observed that the accused is entitled to get only a list of the statements, documents and material objects which are not relied upon by the investigating officer and not the statements.

9. He submits that the said list has already been furnished to the petitioner in compliance with the order of this Court.

10. He submits that the aforementioned Judgment of the Apex Court itself clarifies that the petitioner is at liberty to seek appropriate orders under Section 91 of the Code of Criminal Procedure, 1973 (Section 94 of the BNSS, 2023) for production of any such statement during trial if he thinks it to be favourable to his defence.

11. He submits that the petitioner may move such an application before the Trial Court and this Court after passing of the order in Criminal Petition, whereby it allowed furnishing of only list has become functus officio.

12. He further submits that the order, the modification sought for by the petitioner is not in the nature of making rectification of clerical errors or Page No.# 5/7

arithmetical error.

13. He submits that allowing the Interlocutory Application of the petition would amount to altering the judgment passed in the Criminal Petition No. 1517/2024 and would be in violation of the statutory provision provided under Section 362 of the Code of Criminal Procedure, 1973 (Section 403 of the BNSS, 2023).

14. In support of his submissions, the learned counsel for the informant has relied on a ruling of the Apex court in the case of "Ashok Jain Vs. State of Uttar Pradesh and Another" reported in 2024 SCC online SC 367.

15. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available in the record.

16. On perusal of the record available before this Court, it appears that in the Criminal Petition No. 1517/2024, the petitioner has impugned the order dated 06.11.2024 passed by learned Special Judge, Karbi Anglong, Diphu, in the POCSO Case No. 37/2021, whereby the petition filed by the present petitioner praying of furnishing the list of statements, documents, material objects and exhibits not relied upon by the Investigating Officer at the time of filing the charge sheet was rejected.

17. It also appears that by the order dated 12.03.2025, passed in Criminal Petition No. 1517/2024, this Court has interfered with the impugned order dated 06.11.2024, passed by the learned Special Judge, Karbi Anglong, Diphu, in the POCSO Case No. 37/2021 and directed the Investigating Officer to furnish the list of statements. Documents, material objects and exhibits, which were not relied upon him by submitting the charge-sheet before the Trial Court and thereafter, the Trial Court was directed to furnish the said list to the petitioner.

18. It appears that the Investigating Officer has complied with the Page No.# 6/7

directions of this Court and furnished the list to the Trial Court on 23.04.2024 and thereafter, the said list was furnished to the petitioner.

19. The petitioner has now sought for modification of the said order dated 12.03.2024 passed in Criminal Petition No. 1517/2024.

20. Let us, at the very beginning, consider the objection raised by the learned counsel for the informant regarding maintainability of the present Interlocutory Application due to the bar provided under Section 403 of the BNSS, 2023. The said statutory provision provides for the following"

"403. Court not to alter judgment.

Save as otherwise provided by this Sanhita or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

21. On a bare perusal of the above statutory provision, it is apparent that when a Criminal Court has signed its final order disposing of the case, it shall not alter or review the same accept to correct clerical or an arithmetical error.

22. In the instant case modification sought for by the petitioner in Interlocutory Application, the order dated 12.03.2024 passed in Criminal Petition No. 1517/2024 cannot be regarded as a mere correction of a clerical arithmetical error. If the relief sought in this case the Interlocutory Application is granted, it would amount to altering, in the original order dated 12.03.2025, by which Criminal Petition No. 1517/2024 was disposed of.

23. Hence, this Court is of the considered opinion that the bar provided under Section 403 of the BNSS, 2023 is applicable in this case and the instant Interlocutory Application is not maintainable.

24. Otherwise also, in view of the observations made by the Apex Court in Page No.# 7/7

the case of "Criminal trial guidelines regarding inadequacies and deficiencies in Criminal Trial Vs. State of Andhra Pradesh and Others"

(Supra), the petitioner may approach the Trial Court for an appropriate order under Section 94 of the BNSS, 2023, if he is of the view that any of the statement mentioned in the list furnished by the Investigating Officer is required to be produced before the Trial Court for proper and just trial.

25. With the above observation, this Interlocutory Application is disposed of is dismissed as not maintainable.

JUDGE

Comparing Assistant