Page No.# 1/14 vs The State Of Assam And Anr
2025 Latest Caselaw 7583 Gua

Gauhati High Court

Page No.# 1/14 vs The State Of Assam And Anr on 24 September, 2025

                                                                        Page No.# 1/14

GAHC010009912023




                                                                  2025:GAU-AS:13456

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

                                Case No. : Crl.Pet./36/2023

            RAMAKANTA DEURI
            S/O- LATE SARUFUL DEWRI, R/O- VILL- NA DOLOIBARI, P.O-
            CHABUKDHARA, P.S- MIKIRBHETA, DIST- MORIGAON, ASSAM, PIN-
            712413



            VERSUS

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

            2:SIJAY DEWRI
             S/O- LATE RAISING DEWRI
             R/O- VILL- DOMAL
             P.O- EJARBARI
             P.S- DHOROMTUL
             DIST- MORIGAON
            ASSAM
             PIN- 78210

Advocate for the Petitioner   : MR. A SARMA, MR. P DUTTA,MS G SWAMI,MR. M
HUSSAIN,MR. K KALITA

Advocate for the Respondent : PP, ASSAM,
                                                                             Page No.# 2/14


                                 BEFORE
                HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

                                       JUDGMENT

Date : 24-09-2025

1. This matter is specially assigned to this Bench by Hon'ble the Chief Justice in terms of the direction of the Hon'ble Apex Court in Ashwini Kumar Upadhyay Vs. Union of India reported in 2023 SCC Online SC 1463 as the petitioner herein is a sitting Member of Assam Legislative Assembly.

2. Heard Mr. R Dey, learned counsel for the petitioner. Also heard Mr. K Gogoi, learned Public Prosecutor, appearing for respondent No.1. None appears for the respondent No.2, though notices were duly served. The State of Assam is only a formal party; however, Mr. K Gogoi, learned Public Prosecutor, Assam, rendered assistance to this court on questions of law as requested by this court.

3. The present application under section 482 of the Cr.P.C., 1973, is filed assailing an order dated 15.10.2022, passed in CR Case No.386/2018, under section 120(B)/406/34 IPC read with section 8 of the Assam Fiscal Responsibility and Budget Management Act, 2005.

4. The respondent No.2 preferred a complaint before the Court of learned CJM, Morigaon on 22.06.2018, which was registered and numbered as CR case No.386/2018. The case was transferred to the court of learned SDJM, Morigaon, for trial.

5. The petitioner appeared before the Trial Court on receipt Page No.# 3/14

of the summons, and the trial proceeded.

6. The complainant examined as many as three witnesses. They were cross-examined by the defence and were discharged.

7. Thereafter, a petition registered as petition No.1285/2022 was filed by the complainant under section 311 of Cr.P.C, with a prayer to call two additional witnesses. Accordingly, by an order dated 27.05.2022, the learned Trial Court permitted to examine the said witnesses. Such an order is not under challenge.

8. These two witnesses were examined as PW-4 & PW-5 on 02.06.2022 and 28.07.2022, respectively.

9. Thereafter, on 20.08.2022, the statements of the accused were recorded under section 313 Cr. P.C.; the accused declined to adduce evidence, and accordingly, the matter was fixed for arguments on 26.08.2022.

10. Thereafter, on two consecutive dates, the complainant sought an adjournment, which the learned trial Court granted. Accordingly, the matter was fixed for arguments on 17.09.2022. On the said date, the complainant filed another application under section 311 Cr.P.C. with a prayer to summon four more witnesses and also to recall PW-5 for re-examination. On the said date, the counsel for the accused filed a written argument in the complaint.

11. Subsequently, the accused filed a written objection in the petition filed by the complainant under Section 311 Cr.P.C.

12. After hearing the parties, by the impugned order dated 15.10.2022, the learned trial court permitted the accused to recall PW-5 and permitted the complainant to call three witnesses, Page No.# 4/14

namely, the Sculpture, the Accountant of Tiwa Autonomous Council, Morigaon and the Deputy Director of Archaeology Department, Assam, however, rejected the prayer to examine the Branch Manager, Assam Gramin Vikash Bank, Morigaon as witness.

13. Thereafter, pursuant to the impugned order, the PW-5 was present before the Court for his re-examination, and he was re- examined. However, during the proceedings, it came to the notice of the Magistrate that PW-5 was deposing from an RTI document in his possession, without the court's knowledge or permission. The counsel for the present petitioner/accused objected to the recording of PW-5's examination for that reason. Accordingly, further reexamination of PW-5 was reserved. The accused persons filed a petition registered as Pet. No.3935/2022 for expunging the statements recorded during the reexamination of PW-5. Accordingly, the matter was adjourned. A copy of the deposition of the PW-5 on re-examination was furnished to the learned counsel for the accused. On 05.12.2022, the petition filed by the accused (Pet No.3935/2022) was rejected, and the case was fixed on 12.12.2022 for re-examination of PW-5. In the meantime, this court passed an order on 23.01.2023 in the present petition staying the impugned order dated 15.10.2022.

14. Mr. R Dey, learned counsel for the petitioner, argues that by allowing such successive applications to recall witnesses, the learned Trial court had exceeded its jurisdiction since from the facts of the case it is clear that the re-examination of PW-5 was earlier allowed. Thus, the complainant is trying to fill up the lacuna in this case, Page No.# 5/14

which the learned Court did not consider.

15. It is the further contention Mr. Dey that once the accused has already been examined under section 313 Cr. P.C., allowing prosecution to recall witnesses shall cause serious prejudice and disadvantage to the accused. According to the learned counsel, the application in the present case is filed to fill up the inherent weakness. When the complainant realized that he had committed a mistake by not exhibiting and proving the documents during the re- examination of PW-5, he became aware of the error; he then filed an application under Section 311 to fill the lacuna.

16. According to Mr. Dey. through the evidence of PW-5 and the proposed witness i.e., the sculpture and the officer of Archaeology Department, the complainant is trying to make out a new case that the Statue has been constructed by the Archaeological Department of Assam whereas, the original allegation disclosed in the complaint is to the effect that the Statue was to be built by the Construction Committee under Tiwa Autonomous Council of which the accused petitioner was the Chairman but same was not constructed and the money siphoned off. Such a new case is inconsistent with the original complaint. However, the learned Trial Court failed to take note of this vital aspect and mechanically allowed the application.

17. In support of the aforesaid contentions, Mr. Dey, places reliance on the judgment of the Hon'ble Apex Court in Swapan Kr. Chatterjee Vs. Central Bureau of Investigation reported in 2019 (14) SCC 328, Natasha Singh Vs. CBI reported in 2013 (5) SCC 741, Mir Mohd. Omar & Ors Vs. state of W.B reported in 1989 (4) Page No.# 6/14

SCC 436. Mr. Dey further places reliance on different judgments of High Courts reported in Bimal Krishna Tripathy Vs. State of Orissa reported in 2005 (4) Crimes 625, B.D. Goel Vs. Ebrahim Haji Husen Sanghani & Ors, reported in 2001 Crl.L.J 450 & Cheeku Singh Vs. State of Rajasthan reported in 1998 Crl.L.J 950.

18. Mr. K Gogoi, learned Public Prosecutor, Assam, submits that the power under section 311 Cr.P.C, though of the widest amplitude, is not unbridled. According to him, the provisions have two limbs:

the discretionary part, which allows the court to summon or recall any witness at any stage of any enquiry, trial, or other proceeding. The other limb, according to Mr. Gogoi is a mandatory part, i.e., the court shall summon or recall witnesses, if the evidence appears essential for a just decision of the case. He also submits that the guiding consideration is the advancement of justice and the discovery of truth, not the advantage of one party over the other.

19. I have given anxious consideration to the arguments advanced by the learned counsel for both parties and also perused the materials available on record, including the Trial Court Records.

20. From the judgments cited by the learned counsel for the petitioner as well as from a reading of section 311 Cr.P.C, there is no doubt in the mind of the Court that law is firmly settled that section 311 Cr.P.C vest the court with the broadest possible power to summon any person as a witness or recall and re-examine any person already examined, at any stage of enquiry, trial or other proceeding, if such evidence appears to be essential to the just decision of the case. The guiding consideration is the advancement Page No.# 7/14

of justice and the discovery of truth, not the advantage of one party over the other.

21. The expression "any person" in section 311 Cr. P.C. is of the widest amplitude. However, the court must remain vigilant to ensure that such power is not misused to unduly protract proceedings or cause prejudice to the accused.

22. Such power cannot also be exercised to fill up the lacuna. The distinction between "lacuna" and "gap in evidence" has been authoritatively settled by the Apex Court in Rajendra Prasad Vs. Narcotic Cell reported in 1999 6 SCC 110. The Hon'ble Apex Court explained that a "lacuna" is an inherent weakness or a vital defect in the prosecution case which cannot be cured. If the evidence is genuinely necessary for a just adjudication, its belated summoning cannot be treated as filling a lacuna. On the other hand, where an attempt is made to rectify its contradictions or omissions exposed in the cross-examination, it would amount to filling lacunae which the law does not permit.

23. It is equally well settled that section 311 Cr.P.C cannot be invoked to alter the fundamental substratum of the prosecution case. While the truth must be elicited, the court cannot permit a party to present an entirely new case under the guise of additional evidence. Summoning a witness who changes the complexion of the case, introduces a fresh story or contradicts the original complaint amounts to misuse of the provisions of section 311 Cr.P.C.

24. Thus, an application under section 311 Cr. P.C. can be filed at any stage; however, when such an application is filed at a highly Page No.# 8/14

belated stage, such as after the recording of the accused's statement under section 313 Cr. P.C., the court must exercise stricter scrutiny. By this stage, the prosecution has ordinarily clothed its evidence and the defence has disclosed its stand. Introducing a new witness or evidence after examination of the accused under section 313 Cr. P.C., the same, in a given fact, may disturb the balance of trial and prejudice the accused. Therefore, the court must consider whether such a belated exercise is truly for discovering the truth or merely to fill in gaps.

25. Having considered the legal position let this Court now deal with the present case.

26. A scrutiny of the complaint petition goes to show that it is the case of the complainant that the accused petitioner was the Chief Executive Member of Tiwa Autonomous Council and was the president of the Construction Committee for installing a statue of King Jungal Bolohu at Jongal Bolohu Fishery complex; however, no statue was installed in the proposed site. Being surprised, the complainant sought information under the Right to Information Act, 2005 and on receipt of such information the petitioner could learn that the Construction Committee committed financial irregularities. According to the complainant, it was learnt from the reply so received, that Rs.28.20 Lacs (Rupees Twenty Eight Lacs Twenty Thousand) was released to the Construction Committee on 11.06.2014; the responsibility of creation of statue was given to one Biren Singha (proposed witness) as per approved model plan/estimate, and said Biren Singha was to make the sculpture at Page No.# 9/14

the cost of Rs.25,67,000.00 (Rupees Twenty Five Lacs Sixty Seven thousand). Accordingly, the Construction Committee paid him an amount of Rs.7,70,100.00, (Rupees Seven Lacs Seventy Thousand One Hundred), however, the said statue has not been constructed. Instead, the accused No.1/petitioner had withdrawn an amount of Rs.21,60,000.00. It was further alleged that in the year 2012-13, another amount of Rs.36,00,000.00 (Thirty Six Lacs) was sanctioned to install the statue. Still, the accused No. 1 diverted the funds to another head without the approval of the General Council of the Tiwa Autonomous Council.

27. To substantiate these allegations, the accused examined three prosecution witnesses. As recorded hereinabove, by an order dated 27.05.2022, the learned trial court allowed the first application filed under section 311 Cr. P.C. to summon additional witnesses, PW- 4 and PW-5. What is seen from such recorded evidence is the prosecution had made suggestions that the Statute was constructed and is standing in the site identified.

28. The PW-5, in his cross-examination, deposed that the Government of Assam in the Archaeological Department had constructed the statue of Jungal Bolohu at the place in question at a cost of Rs.1 crore and was not constructed by the Tiwa Autonomous Council. He also stated that the accused person had withdrawn an amount of Rs.28,20,000.00 from Assam Gramin Vikash Bank, however, he has not submitted any proof before the court. This witness, however, deposed that the aforesaid statement is based on information received through an RTI application. During cross-

Page No.# 10/14

examination, he admitted that he had not submitted any document to the Court as proof that the Assam Government had constructed the statue, but he had such evidence with him.

29. Based on such deposition, the application under 311 Cr.P.C was filed to bring on record the RTI application dated 06.06.2022 filed by PW-5 and the reply thereto dated 13.06.2022 and to prove the same through PW-5. And the other four witnesses.

30. The PW-5 was indeed initially examined and cross-examined and this witness deposed based on the RTI reply received on his RTI application. Accordingly, he was confronted in cross-examination as regards the source of his statement, to which he replied that it is based on information received under the RTI Act. Therefore, a question arises whether allowing such a document to prove shall amount to filling up the gap, or it is required for just a decision and whether such a deposition can be said to be a new case.

31. The primary allegation raised in the complaint is that although money was duly sanctioned for the construction of the statue, Accused No. 1 misappropriated the amount and failed to construct the statue. It is also the specific case of the complainant that an agreement was entered with Biren Singha (the proposed witness), however, he was paid only an amount of Rs.7,70,000.00. Therefore, in the considered opinion of this court, the evidence of this witness is genuinely necessary for a just decision. Similar is the case in respect of the accountant of Tiwa Autonomous Council, since the allegation is that, without starting the construction, the entire amount was withdrawn from the account maintained in Assam Page No.# 11/14

Gramin Vikash Bank.

32. The projection of PW-5 that the construction of the statue was sanctioned and completed by the Archaeological Department of Assam is an additional fact to the primary allegation of misappropriation of money, more particularly, in the backdrop of the defence suggestion/projection that the statue was already in place. Therefore, it cannot be said to be setting up an altogether new case under the guise of additional evidence or that summoning of PW-5 and exhibiting the RTI application and reply shall change the complexion of the case or that it introduces a fresh story or contradicts the original complaint. Therefore, in this count also, it cannot be said that the application filed under 311 Cr.P.C amounts to misuse of section 311 Cr.P.C.

33. Thus, from the aforesaid, what is seen is that the original case projection of the complainant was that the accused No.1 did not construct the statue, though money was sanctioned; however, through PW-5, it was projected that the statue was constructed from government funds and money already sanctioned for construction by the Tiwa Council was misappropriated. Thus, the allegation remains the same, i.e., the misappropriation of funds, rather than the construction of the statue. Such a projection cannot be said to be inconsistent with the original complaint. Thus, the present case, in the opinion of this Court, is not a case of alteration of the fundamental substratum of the prosecution case.

34. So far, relating to the Deputy Director of the Archaeological Department, he allegedly replied to the application of PW-5 filed Page No.# 12/14

under the RTI Act. Therefore, he is a necessary witness to find out the truth.

35. Calling of Shri Biren Singha, the sculpture and the accountant of Tiwa Autonomous Council as witnesses, relates to execution of the agreement between him and Tiwa Autonomous Council, etc, cannot be said to be a projection of a new case, since it is the specific case of the complainant that the agreement was entered, advance was paid but the statue was not built. Similar is the case in respect of the Accountant Tiwa Autonomous Council, as it is alleged in the complaint that the money sanctioned was withdrawn without spending the same for the purpose it was meant.

36. In the case in hand, after closer scrutiny of the application filed under section 311 Cr.P.C, this court is of the opinion that the proposed re-examination cannot be said to be for the purpose of curing any inherent weakness or a vital defect which cannot be cured inasmuch as the PW-5 has already deposed based on his RTI reply. What is required is to prove such a document. The same cannot be said to be an incurable defect resulting in prejudice to the accused, more particularly, when the accused shall have the right to cross-examine and challenge such a document.

37. Let this Court now deal with the delay in filing such an application and consecutive applications. As recorded herein above, an application under section 311 Cr. P.C. can be filed at any stage; however, when such an application is filed at a highly belated stage, such as after the recording of the accused's statement under section Page No.# 13/14

313 Cr. P.C., the court must exercise stricter scrutiny. Such a scrutiny must relate as to whether it is only for the filling of lacuna and /or to protract the litigation, and as to whether the same shall cause prejudice the accused for the reason, that by this stage, the prosecution has ordinarily clothed its evidence and the defence has disclosed its stand.

38. For the determination, as mentioned in the first part of judgment, such a delay cannot be a ground for interfering with the order of the learned Trial Court, when such witnesses are required for finding out the truth and for a just decision.

39. This court put on record here that, after a closure scrutiny of the order impugned, this Court has not found any perversity. The order conforms with the settled principle of law. It is true that, such an order could have been more elaborate, but this court shall not exercise its inherent power to upset such an order, only on that ground.

40. To conclude, in the considered opinion of this court, the evidence proposed is essential to the just decision of the case. When this court has concluded that the application filed under section 311 Cr.P.C cannot be said to be for the purpose to repair lacuna or contradictions exposed in the cross examination of PW-5 and that such application cannot be said to have been used to make out a new case inconsistent with the original allegation, the trial court shall not be powerless to allow such an application post recording of statement of the accused under section 313 Cr.P.C.

41. In the case in hand, for the reasons recorded hereinabove, Page No.# 14/14

introducing the witnesses after examination of the accused under section 313 Cr. P.C., the same, shall disturb the balance of trial and prejudice the accused. Therefore, when such a belated exercise is truly for discovering the truth, this Court don't think it a fit case to exercise it's inherent power to uphold the order impugned.

42. Accordingly, the present petition stands dismissed. The learned trial court is directed to proceed accordingly by issuing notice to the parties.

43. It is made clear that as the petitioner is a sitting Member of Assam Legislative Assembly, the learned Trial Magistrate shall take measures to expeditiously dispose of the case, in terms of direction issued by the Hon'ble Apex Court in Ashwini Kumar Upadhyay vs. Union of India (supra).

JUDGE

Comparing Assistant