Goutam Kumar Borah vs The State Of Assam And 2 Ors
2025 Latest Caselaw 4838 Gua

Gauhati High Court

Goutam Kumar Borah vs The State Of Assam And 2 Ors on 20 May, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

                                                                       Page No.# 1/5

GAHC010178962019




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

                                 Case No. : Crl.Pet./928/2019

            GOUTAM KUMAR BORAH
            S/O LATE RAJENDRA NATH BORAH, POLY ROAD, PANIGAON, P.O.-
            ITACHALI, DIST-NAGAON, ASSAM-782003



            VERSUS

            THE STATE OF ASSAM AND 2 ORS.
            (NOTICE THROUGH THE PUBLIC PROSECUTOR, ASSAM)

            2:NITYA SUNDER SAIKIA
             S/O SRI NANDESWAR SAIKIA
             R/O POLY ROAD
             PANIGAON
             P.O.-ITACHALI
             P.S.-SADAR (NAGAON)
             DIST-NAGAON
            ASSAM
             PIN-782003

            3:SIDHARTHA KUMAR SAIKIA
             S/O SRI NANDESWAR SAIKIA
             R/O POLY ROAD
             PANIGAON
             P.O.-ITACHALI
             P.S.-SADAR (NAGAON)
             DIST-NAGAON
            ASSAM
             PIN-78200

Advocate for the Petitioner   : MR. D P BORAH, Shri DK Bagchi

Advocate for the Respondent : PP, ASSAM, MR A SHARMA
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                                   :: BEFORE ::
                 HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                    O R D E R

20.05.2025

Heard Mr. D.K. Bagchi, the learned counsel appearing for the petitioner. Also heard Mr. K. Baishya, the learned Addl. Public Prosecutor, Assam representing the State (Respondent No.1) as well as Mr. A. Sharma, learned counsel appearing for the Respondent Nos.2 & 3.

2. This is an application under Section 482 of the Code of Criminal Procedure challenging the order dated 13.12.2018 passed by the learned Judicial Magistrate First Class, Nagaon in C.R. Case No.3998/2011.

3. The petitioner filed the C.R. Case No.3998/2011 under Sections 294/323/341 and 506 of the Indian Penal Code read with Section 34 of the said Code. During the hearing of the case before the trial court on multiple occasions, the petitioner filed applications before the trial court alleging that outside the court, he was threatened by the accused of the said case. The court also warned the accused of the case not to indulge in such acts.

4. Thereafter, the petitioner being the complainant filed an application before the court below praying for recalling one witness for further examination. The trial court did not pass any order upon that petition and the accused were examined under Section 313 of the CrPC. The case was posted on 13.12.2018 for hearing the arguments.

5. The petitioner filed a revision petition being Criminal Revision No.58(N)/2018 Page No.# 3/5

before the learned Sessions Judge, Nagaon. The learned Sessions Judge dismissed the revision petition.

6. I have considered the submissions of the learned counsel of both sides.

7. The law regarding recalling of witnesses under Section 311 of the Code of Criminal Procedure has been settled by the Hon'ble Supreme Court in Rajaram Prasad Yadav v. State of Bihar, (2013) 14 SCC 461. The relevant paragraphs of the said judgment are quoted as under:

"17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 CrPC read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts:

17.1. Whether the court is right in thinking that the new evidence is needed by it?

Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case?

17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated. 17.3. If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person.

17.4. The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.

17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.

17.6. The wide discretionary power should be exercised judiciously and not arbitrarily. 17.7. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.

17.8. The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision.

17.9. The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered. 17.10. Exigency of the situation, fair play and good sense should be the safeguard, while exercising the discretion. The court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court Page No.# 4/5

should be magnanimous in permitting such mistakes to be rectified. 17.11. The court should be conscious of the position that after all the trial is basically for the prisoners and the court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results. 17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.

17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.

17.14. The power under Section 311 CrPC must therefore, be invoked by the court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right."

8. This Court is of the opinion that the case of the present petitioner is not supported by any law of the land. Allowing the prayer to recall witnesses would mean allowing the petitioner to fill up the lacunae in the evidence.

9. Regarding the exercise of power under Section 482 of the CrPC, the guidelines have been laid down by the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal, AIR 1992 SC 604. Paragraph 102 of the judgment reads as under:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an Page No.# 5/5

investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

10. This Court is of the opinion that the case of the petitioner does not come within the law laid down in Bhajan Lal (supra) nor does it cover by Rajaram Prasad Yadav (supra).

11. Under the aforesaid premised reasons, the Criminal Petition is found to be devoid of merit and stands dismissed and disposed of accordingly.

JUDGE

Comparing Assistant