Allowed

Bharat Gohain v. the State of Assam and Anr.

Gauhati HC3 Dec 2019Crl.Pet./1393/2019

Case brief

AI extract

What is this about?

The Gauhati High Court set aside an order rejecting a prayer for further cross-examination of witnesses under Section 311 CrPC. The court held that to ensure complete justice, the petitioner accused should be allowed to cross-examine the security guard and investigating officer who were not adequately cross-examined earlier due to oversight.

What did the court decide?

Set aside the impugned order dated 01.10.2019 and directed the petitioner to be granted an opportunity to further cross-examine PWs 6 and 15.

Bharat Gohain Vs the State of Assam and Anr. — Civil Procedure and Limitation | Gauhati HC (2019)

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GAHC010287702019

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

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Case No. : Crl.Pet. 1393/2019

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1:BHARAT GOHAIN

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S/O BHIM SINGH GOHAIN, R/O HATIJAN GAON, P.S.-DOOMDOOMA, DISTTINSUKIA, ASSAM

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VERSUS

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1:THE STATE OF ASSAM AND ANR. REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

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2:SANJEEB GHOSH BISWAS S/O LATE KISHAN GHOSH BISWAS R/O SBI BORHAPJAN P.S.-DOOMDOOMA DIST-TINSUKIA ASSAM PIN-78615

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Advocate for the Petitioner : MR. S ISLAM

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Advocate for the Respondent : PP, ASSAM

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BEFORE

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HONOURABLE MR. JUSTICE AJIT BORTHAKUR

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ORDER

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Date : 03-12-2019

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Heard Mr. S. Islam, learned counsel for the petitioner as well as Mr. B.J. Dutta, learned Additional Public Prosecutor, Assam appearing for the State/ respondent No. 1.

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This petition under Section 482 Cr.P.C., filed by the petitioner Sri Bharat Gohain, who is

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arrayed as an accused in Sessions Case No. 181 (T)/2015 of the Court of learned Additional Sessions Judge (F.T.C.- 2), Tinsukia, is preferred for setting aside and quashing the order, dated 01.10.2019 passed therein.

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The petitioner/accused filed petition No. 1936/19 dated 09.08.2019 in the Court of learned Additional Sessions Judge, at Tinsukia under Section 311 Cr.P.C. praying for allowing further examination of P.W. 6, Sri Padma Kanta Handique and P.W. 15, Sri Nageswar Kalita on the ground that some very important aspects of the case were omitted to be asked to the said witnesses for clarification resulting in failure of justice.

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By the impugned order dated 01.10.2019, after hearing the learned counsel for both the sides and perusal of the case record, the learned Court rejected the prayer on the ground that he had got ample opportunity to cross-examine them and if such a petition is allowed, then, the case will run for infinite time.

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Mr. B.J. Dutta, learned Additional Public Prosecutor submits that the petitioner/accused had got sufficient opportunity to cross-examine the said two witnesses and as such, in the interest of expeditious disposal of the case no further opportunity may be granted to the petitioner to crossexamine them under Section 311 Cr.P.C.

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Section 311 Cr.P.C. reads as follows-

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“ 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 reexamine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case.”

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In Godrej Pacific Tech. Limited Vs. Computer Joint India Limited, reported in (2008) 11 SCC 108, the Apex Court succinctly explained the very object of Section 311 Cr.P.C. as extracted hereinbelow-

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“29. The object of Section 311 is to bring on record evidence not only from the point of view of the accused and the prosecution but also from the point of view of the orderly society. If a witness called by the court gives evidence against the complainant, he should be allowed an opportunity to cross-examine. The right to cross-examine a witness who is called by a court arises not under the provisions of Section 311, but under the Evidence Act which gives a party the right to cross-examine a witness who is not his own witness. Since a witness summoned by the court could not be termed a

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witness of any particular party, the court should give the right of cross-examination to the complainant. These aspects were highlighted in Jamatraj Kewalji Govani v. State of Maharashtra”

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On perusal of the evidence of P.W. 6 and P.W. 15 recorded in the aforenoted case, it appears that P.W. 6 is a security guard of S.B.I., Borhapjan and P.W. 15 was the Investigating Officer in the case. The occurrence had taken place at State Bank of India, Borhapjan Branch. The petitioner cross-examined P.W. 6 briefly, whereas the cross-examination in respect of P.W. 15 was declined. The petitioner contended that his earlier engaged counsel omitted to put certain relevant questions relating to their evidence-in-chief. The aforesaid facts came to his knowledge only after obtaining certified copy of the evidence on 05.08.2019.

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Therefore, this Court is of the view that to do away with complete justice, cross-examination of P.Ws 6 and 15 ought to have been allowed on relevant aspects of the case from the angle of the defence case, if any, as prayed for.

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On hearing the learned counsel for both the sides and consideration of the averments made in the petition, which is supported by an affidavit and also appreciation of the contentions made in the petition No. 1936/19 along with the evidence of P.Ws 6 and 15, for ends justice, the impugned order dated 01.10.2019 passed in Sessions Case No. 181 (T)/2015 of the Court of learned Additional Sessions Judge, F.T.C.- 2, Tinsukia is hereby set aside with a direction to grant opportunity to the petitioner/accused to further examine/cross-examine the P.Ws 6 and 15.

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The petitioner/accused shall appear before the learned Court below on 12.12.2019.

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With the above directions, the petition stands disposed of at the motion stage itself.

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JUDGE

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Comparing Assistant

Bharat Gohain v. the State of Assam and Anr.

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Bharat Gohain v. the State of Assam and Anr.

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