Gauhati High Court
Page No.# 1/7 vs The State Of Assam And Anr on 24 September, 2025
Page No.# 1/7
GAHC010115622025
2025:GAU-AS:13194
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./658/2025
SULEMAN ALI
S/O- ASHAN ALI.
R/O- VILL.- NAGABANDHA .
P.S.- LAHARIGHAT.
DIST.- MORIGAON, ASSAM.
VERSUS
THE STATE OF ASSAM AND ANR
REPRESENTED BY THE PP, ASSAM.
2:ABDUL KHALEQUE
S/O- LATE LASUM UDDIN.
R/O- VILL.- NAGABANDHA.
P.S. -LAHARIGHAT.
DIST.- MORIGAON
ASSAM
Advocate for the Petitioner : MR Z KAMAR, P D CHOUDHURY,MR S J CHOUDHURY,MR.
BISWAJIT TALUKDAR
Advocate for the Respondent : PP, ASSAM, MR. U CHOUDHURY (LEGAL AID COUNSEL FOR
R-2)
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BEFORE
HONOURABLE MRS. JUSTICE SHAMIMA JAHAN
ORDER
24.09.2025
This is an application filed under Section 528 read with Section 442 and
Section 438 of BNSS, 2023.
The instant petition is filed against the order dated 08.05.2025 passed by the
learned Addl. Sessions Judge-cum-Special Judge, POCSO, Morigaon in POCSO Case
No. 143/2024 by which the recalling of the victim for further examination was
rejected. It is noticed that the victim i.e., PW-1 was examined on 09.12.2024 and
was subjected to cross-examination on the same day. The cross-examination of the
said witness is reproduced below:-
"Cross by defence on behalf of the accused:-
The accused committed the incident with me in darkness.
The accused gave me Rs. 40/-.
It is not a fact that my parents tutored me to depose in the Court today.
It is not a fact that at the time of incident, the accused was in the weekly
market."
It is noticed that the said cross-examination was very short in nature and in
view of the same, the accused person had filed a petition under Section 348 of the
BNSS, 2023 for recalling of the said witness for further cross-examination. The said
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application was filed on 08.05.2025. It is stated in the said application that there
was some lapses while putting relevant questions to the said victim and certain
questions were formulated which were required to be put to the victim by recalling
the said witness. In the said application 13 number of questions were sought to be
put to the victim and they are with regard to the date of birth of the victim, the
medical treatment of the victim, accused giving money to the victim, the victim
statement before the Magistrate, some contradictions, the date of incident, any
related dispute which resulted in lodging of the instant case or any requirement of
interpreter etc.
The learned Special Judge, POCSO, Morigaon, Assam did not entertain the
said application mainly on the ground that the victim was already examined, cross-
examined and discharged. The learned Court further held that question regarding
mental state of the victim may not be put to her again and that other questions
which were mentioned in the said application may be put to other witnesses and
answers could have been obtained without questioning the victim. The learned
Special Judge had however given the finding that the prayer is made by defence
for re-examination and re-calling and that the power to re-examine any witness lies
only with the prosecution and on that count, the said application was rejected.
Against the said order, the present application has been preferred by the petitioner
for re-calling the witness for further cross-examination under Section 348 of the
BNSS, 2023.
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Mr. Z. Kamar, learned Legal Aid Counsel for the petitioner submits that the
finding recorded by the learned Sessions Judge that the power to re-examine lies
only with the prosecution is an incorrect proposition in law and the instant case
involves for re-calling the witness for further cross-examination. He as such
submits that the questions mentioned in the application for recalling the witness
would be required for the interest of justice and the same may be allowed.
Mr. U. Choudhury, learned Legal Aid Counsel for the respondent submits and
relies upon Section 33(5) of the POCSO Act, which provides that the Special Court
shall ensure that the child is not called repeatedly to testify in the Court. He as
such submits that calling the victim again by the Court would be in violation of the
said provision. He further submits that the questions mentioned in the application
filed for recalling of the witness may be put to the victim and that no further
questions may be put to her which would result in harassing her. He further
submits that since the victim was called for the second time before the Court, some
cost may be imposed upon the petitioner.
I have heard the counsels and have gone through the records. Section 348 of
the BNSS is quoted herein below:-
"311. Power to summon material witness, or examine person
present.--Any Court may, at any stage of any inquiry, trial or other proceeding
under this Code, summon any person as a witness, or examine any person in
attendance, though not summoned as a witness, or recall and re-examine any
person already examined; and the Court shall summon and examine or recall and
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re-examine any such person if his evidence appears to it to be essential to the just
decision of the case."
A bare perusal of the ingredients of 348 of the BNSS makes it crystal clear
that criminal Court has ample power to summon any person as a witness or recall
and re-examine such person even if the evidence on both the sides are closed and
the jurisdiction of the Court must obviously be dictated by exigency of the
situation, fair play and good sense. The Hon'ble Supreme Court in P. Sanjeeva Rao
Vs. State of AP, reported in (2012) 3 SCC (Crl) 1 had categorically held that Section
311 Cr.PC (348 of BNSS) is couched in the widest possible terms and calls for no
limitation as regard to the stage at which the powers of the Court would be
exercised or with regard to the manner in which it should be exercised.
In Hoffman Adreas Vs. Inspector of Customs, reported in (2000) 10 SCC 430,
the Hon'ble Apex Court had observed that even in case of change of counsels, the
Court can adopt a liberal view in recalling the witness for the interest of justice. It
was further observed that trial is after all for the prisoners and the Court should
afford every opportunity to them in the fairest manner possible.
The Hon'ble Supreme Court in yet another judgment delivered in Swapan
Kumar Chatterji Vs. CBI, reported in (2019) 14 SCC 328 had observed in the
following terms:
"It is well settled that the power conferred under Section 311 should be
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invoked by the court only to meet the ends of justice. The power is to be exercised
only for strong and valid reasons and it should be exercised with great caution and
circumspection. The court has wide power under this Section to even recall
witnesses for reexamination or further examination, necessary in the interest of
justice, but the same has to be exercised after taking into consideration the facts
and circumstances of each case. The power under this provision shall not be
exercised if the court is of the view that the application has been filed as an abuse
of the process of law............"
In the instant case, it is noticed that the cross-examination of the victim was
confined only to four (4) questions which are whether the incident was committed
in the darkness, whether the accused gave her money, whether her parents
tutored her and whether the accused person was in the market. Apart from the
same, no other questions were put to her. As such, in the interest of justice, it is
therefore directed that the victim may be recalled for further cross-examination on
a date to be fixed by the learned Court of Special Judge, Morigaon on the basis of
the convenience of the victim. It is further directed that apart from the questions
mentioned in the application, incidental questions may also be put to the victim but
without any harassment to the victim whatsoever. Further, it is desirable that the
petitioner may pay the expense of bringing the victim to the Court premises and
for going back to her residence after the examination.
Petition is allowed.
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In view of the same, the impugned order dated 08.05.2025 is set aside and
quashed.
JUDGE
Comparing Assistant
