GAUHATI HIGH COURT ISSUES ORDER ON AKASH DAS AND 2 ORS. V/S THE STATE OF ASSAM AND ANR

GUWAHATI, India, Oct. 21 -- Gauhati High Court issued the following order on Sept. 22:

1. Heard Mr. R. Chetri, learned counsel for the petitioners. Also heard Mr. M. P. Goswami, learned Additional Public Prosecutor for the State respondent as well as Mr. S. K. Sarkar, learned counsel appearing for the respondent No. 2.

2. This criminal revision petition has been registered on filing of an application under Sections 397/401 of the Code of Criminal Procedure, 1973 by the petitioners, namely, 1. Akash Das, 2. Sri Madhob Das and 3. Sri Amar Das impugning the order dated 26.09.2023, whereby the application filed by the present petitioners for recalling the victim girl and the Investigating Officer under Section 311 of the Code of Criminal Procedure, 1973, for the purpose of their re-cross examination was rejected by the Trial Court. The present petitioners are facing trial before the learned Special Judge, Jorhat for charges under Section 376DA of the Indian Penal Code read with Section 6 of the POCSO Act, 2012. In the said appeal, almost all the prosecution witnesses except the Medical Officer have already been examined.

3. On 05.07.2023, the present petitioners had filed an application under Section 311 of the Code of Criminal Procedure, 1973, before the Trial Court for recalling the PW-1 i.e., the victim girl and PW-9 for the purpose of re-cross examination. It is stated in their applications that the engaged counsel for the petitioners before the Trial Court had failed to ask certain questions to PW-1 at the time of cross-examination as well as some questions were also not asked to PW-9, i.e., Investigating Officer, at the time of cross-examination, and it was submitted before the Trial Court that for just decision of the case, the prayer of the petitioners for recalling the above-noted witnesses was necessary. The reason stated for failure on the part of the engaged counsel of the petitioner in not questioning the said witness when they had appeared was mentioned as due to bona fide mistake and oversight. The said petition filed by the petitioners was registered as Petition No. 1066/2023. The Public Prosecutor before the Trial Court had opposed the prayer for recalling of the witnesses and by order dated 26.09.2023, which has been impugned in this revision petition, the Trial Court had rejected the prayer for recalling of the said witnesses.

4. Mr. R Chetri, the learned counsel for the petitioner has submitted that the petitioners who were facing trial before the Court of learned Special Judge, Jorhat in Special Case No. 209/2022 would be highly prejudiced if the impugned order is not interfered with and the petitioners are not afforded an opportunity to re-cross examine the victim girl and the Investigating Officer. He submits that due to bona fide mistake and due to inadvertence, the earlier engaged counsel before the Trial Court had failed to put some relevant questions and it would cause grave injustice to them if the said witnesses are not recalled. He also submits that the Trial Court had wrongly ignored the ratio of this Court in the case of "Ajit Kumar Nath and Others -Vs- State of Tripura" reported in "2010 GLT (Crl.) 693", which was relied upon by the petitioners' counsel while pressing the application under Section 311 of the Code of Criminal Procedure, 1973 before the Trial Court. He submits that in the said case, this Court has laid down that the accused persons are entitled to further cross-examination of prosecution witnesses if due to mistake some questions could not be asked which were necessary for defence and for the ends of the justice.

5. On the other hand, Mr. S. K. Sarkar, learned counsel for the respondent No. 2 has submitted that the Trial Court has rightly rejected the prayer for recalling of the witnesses under Section 311 of the Code of Criminal Procedure, 1973.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=tuqye3PhFs%2BBDn75ghiOpFmyOHjNnly%2FZP2SKAC2yk6v95UHKGsEoykoQCdpLONf&caseno=Crl.Rev.P./513/2023&cCode=1&cino=GAHC010268042023&state_code=6&appFlag=)

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