[Cites 2, Cited by 0]
Gauhati High Court
Hasu Ali vs The Union Of India And 6 Ors on 31 March, 2026
Author: K.R. Surana
Bench: Kalyan Rai Surana
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GAHC010200772019
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/6142/2019
HASU ALI
S/O LT. BABAR ALI SHEIKH, VILL. JABERIKUCHI, P.S. MANGALDAI, DIST.
DARRANG, ASSAM, PIN-784125
VERSUS
THE UNION OF INDIA AND 6 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME
AFFAIRS, NEW DELHI-1
2:THE ELECTION COMMISSIONER OF INDIA
NEW DELHI-1
3:THE STATE OF ASSAM
REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
HOME DEPTT. DISPUR
GUWAHATI-6
4:THE ASSAM CO-ORDINATOR OF NRC
BHANGAGARH
ASSAM
GHY-5
5:THE DEPUTY COMMISSIONER
DARRANG
ASSAM
PIN-784116
6:THE SUPERINTENDENT OF POLICE (B)
DARRANG
ASSAM
PIN-784116
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7:THE OFFICER IN CHARGE
MANGALDAI POLICE STATION
DIST. DARRANG
ASSAM
PIN-78412
Advocate for the Petitioner : MR. M U MAHMUD, MS F N ZAMAN,MS. R AHMED,MR S
ISLAM
Advocate for the Respondent : ASSTT.S.G.I., SC, ECI,SC, NRC,SC, F.T
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 31-03-2026
(K.R. Surana, J)
Heard Mr. M.U. Ahmed, learned counsel for the petitioner as well as Mr. J.
Payeng, learned standing counsel for the Foreigners Tribunal and NRC, Mr. A.I.
Ali, learned standing counsel for the Election Commission of India, Ms. B.
Sharma, learned CGC, and Mr. P. Sarmah, learned Addl. Senior Govt. Advocate.
2. By filing this writ petition under Article 226 of the Constitution of
India, the petitioner has assailed the opinion dated 24.07.2018 passed by the
learned Member, Foreigners Tribunal (1st), Mangaldai in Case No. 54/15
corresponding to F.T. 524/15, by which the petitioner was declared as an illegal
migrant of post 25.03.1971 stream.
3. In view of the nature of order proposed to be passed, there is no
necessity to discuss the pleadings and evidence on record. It would suffice to
mention that the petitioner examined only himself as DW-1 and had exhibited
5(five) documents which were marked as Ext.1, Ext.2, Ext.4, Ext.6 and Ext.7. It
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may be stated that a photocopy of the NRC legacy data was not marked as
exhibit but was referred to as Annexure-C. Moreover, a Gaon Burah certificate
that is available on record, was marked as Annexure-E.
4. On a perusal of the records, it is noted that on 05.07.2018, the
petitioner was present before the learned Tribunal and the learned Tribunal had
recorded cross-examination of the petitioner, Hasu Ali, as DW-1. However, the
Tribunal's records do not disclose the presence of the Govt. Pleader for the
purpose of cross-examination. Moreover, in the impugned opinion, the Govt.
Advocate representing the State is stated as 'none'.
5. Therefore, the Court is of the considered opinion that if the cross-
examination was not conducted by the Govt. Pleader/ Govt. Advocate, though
the Tribunal has the power to ask questions, which would be referable to
powers under section 165 of the Evidence Act, 1872, but the Tribunal would
have no authority to cross-examine the witness present. Accordingly, the Court
is of the considered opinion that the recording of the cross-examination of the
petitioner as DW-1 by the learned Tribunal would vitiate the proceedings.
6. The learned standing counsel for the FT and Border matters has
supported the impugned opinion by submitting that the cross-examination of
the DW-1 was not discussed in the impugned opinion and therefore, the same
would not prejudice the petitioner.
7. Be that as it may, in the considered opinion of the Court, it is not for
the Tribunal to conduct cross-examination of the witnesses present. Therefore,
the cross-examination of DW-1 instead of such examination being recorded as
Court questions/ queries is found to vitiate the entire proceedings. Accordingly,
the Court is inclined to expunge the cross-examination of DW-1 which was
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conducted by the learned Tribunal on 05.07.2018. Resultantly, the impugned
opinion dated 24.07.2018 passed by the learned Member, Foreigners Tribunal
(1st), Mangaldai in Case No. 54/15 corresponding to F.T. 524/15, is also found
vitiated and is hereby set aside. The matter is remanded back to the said
learned Tribunal for being taken up from the stage of cross-examination of DW-
1. It is again clarified that the learned Tribunal can always ask questions under
section 165 of the Evidence Act, 1872.
8. The learned Tribunal, under section 168 of the Bharatiya Nagarik
Suraksha Sanhita, 2023, can examine a witness, but the Govt. Advocate
representing the State has the right to cross-examination of the DW-1.
Thereafter, the learned Tribunal shall pass a fresh opinion on the basis of the
materials available on record.
9. The petitioner, namely, Hasu Ali, who is duly represented by his
learned counsel, is directed to appear before the learned Member, Foreigners
Tribunal (1st), Mangaldai on or before 06.05.2026, and by producing a certified
copy of this order shall be ready for his cross-examination and/or examination
by the learned Tribunal, as the case may be. In the event, the petitioner fails to
appear before the said learned Tribunal on the date fixed, it would be open to
the learned Tribunal to treat the petitioner as absent on call and shall proceed
to pass such appropriate order(s) as may be deemed fit and proper.
10. The Registry shall send back the records expeditiously along with a
copy of the order to be made a part of the record by the said learned Tribunal.
11. The learned standing counsel for the FT and Border matters shall
transmit a copy of this order to the Home and Political (B) Department so as to
enable the authorities in the said Department to circulate the copy of this order
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to all the Foreigners Tribunal to bring it to their respective notice so that in the
event the Govt. Advocate is not present it is not open to the Foreigners Tribunal
to cross-examine witnesses, but the learned Tribunals would have power under
section 168 of the BNSS, 2023 to put questions to the witnesses as deemed
appropriate.
12. This writ petition stands partly allowed to the extent as indicated
above.
JUDGE JUDGE
Comparing Assistant
