Abdul Gafur Vs the Union of India and 5 Ors.

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GAHC010047872025

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2025:GAU-AS:2585-DB

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

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Case No. : WP(C)/1327/2025

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ABDUL GAFUR

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S/O- LATE MAGBAR FAKIR @ MAKBUL FAKIR @ MAGBAR ALI @ MAGBAR @ MAGBUL, VILLAGE- NONKE PUB-KAZIA (N. C. PUB -KAZIA), P. S. BHANGNAMARI, DISTRICT- NALBARI, ASSAM

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VERSUS

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THE UNION OF INDIA AND 5 ORS REPRESENTED BY THE SECRETARY TO THE GOVT. OF INDIA, MINISTRY OF HOME AFFAIRS, SHASTRI BHAWAN, TILOK MARG, NEW DELHI- 1.

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2:THE STATE OF ASSAM REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM MINISTRY OF HOME DEPARTMENT DISPUR GUWAHATI- 6.

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3:THE DISTRICT COMMISSIONER KAMRUP METRO ASSAM PIN- 781036.

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4:THE SUPERINTENDENT OF POLICE (BORDER) KAMRUP METRO ASSAM PIN- 781001. 5:ELECTION COMMISSION OF INDIA NEW DELHI- 1.

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6:THE STATE CO-ORIDINATOR

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NRC ASSAM BHANGAGARH GUWAHATI -05

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Advocate for the Petitioner : MR. A R SIKDAR, MR J HUSSAIN,MR L HUSSAIN

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Advocate for the Respondent : DY.S.G.I., GA, ASSAM,SC, NRC,SC, F.T,SC, ECI

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA HONOURABLE MRS. JUSTICE MALASRI NANDI

ORDER

10.03.2025

(K.R. Surana, J)

Heard Mr. A.R. Sikdar, learned for the petitioner. Also heard Ms. A. Gayan, learned CGC; Mr. J. Payeng, learned standing counsel for the FT matters and NRC; Mr. M. Islam, learned counsel, on behalf of Mr. A.I. Ali, learned counsel for ECI; and Mr. P. Sarmah, learned Additional Senior Govt. Advocate for the State respondent.

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The case of the petitioner, in brief is that the petitioner is suspected to be a foreigner of post 25.03.1971 series and accordingly, F.T. Case No. 434/2015 has been registered against him, which was being tried before the learned Member, Foreigners Tribunal No.2^nd Kamrup (Metro), Guwahati. The said learned Tribunal had passed an opinion dated 01.08.2018 declaring the petitioner to be foreigner of post 25.03.1971. Accordingly, challenging the said opinion, the petitioner had approached this Court by filing WP(C) 5911/2018. This Court by an order dated 26.11.2024, passed in WP(C) 5911/2018, allowed the writ petition and the said opinion dated 01.08.2018 was set aside and the matter was remanded back before the said learned Tribunal for a fresh

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opinion.

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The petitioner had appeared before the learned Tribunal and had produced the certified copy of the order dated 26.11.2024, passed by this Court in WP(C) 5911/2018. The matter was taken up by the said learned Tribunal on 01.02.2025 and the said learned Tribunal, by an order dated 01.02.2025, fixed the case for cross-examination for defence witnesses on 07.03.2025. The said order dated 01.02.2025, passed by the learned Member, Foreigners’ Tribunal No.2^nd , Kamrup (Metro), Guwahati has been assailed in this writ petition filed under Section 226 of the Constitution of India on the ground that without any prayer by the State, the Tribunal had suo motu fixed the matter for crossexamination of defence witnesses on 07.03.2025.

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The learned counsel for the petitioner has submitted that the learned Tribunal could have asked questions to the witnesses present or the Tribunal could have called for the witnesses to put questions as provided for under Section 165 of the Evidence Act, corresponding to Section 168 of the Bharatiya Saksha Adhiniyam, 2023. However, in the absence of any prayer made by the State, the Foreigners Tribunal is not empowered to suo motu cross-examine a defence witness.

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The learned standing counsel for the F.T. matters has submitted that as the matter was remanded back for a fresh opinion by the learned Tribunal, perhaps the intention of the Tribunal was to allow the State to cross-examine the defence witness and accordingly, he has submitted in support of the impugned order.

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The order dated 01.02.2025 passed by the said learned Tribunal is extracted below :-

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“Today Case is fixed for necessary order.

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Opposite party absent with steps. Hon’ble High Court has set aside opinion dated 01.08.2018 and directed Tribunal for fresh opinion.

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Considering Hon’ble High Court direction passed on 26.11.2024 in WP(C) No.5911/2018. Case is fixed for cross-examination of defense witnesses on 07.03.2025.”

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From the contents of the order dated 01.02.2025, it is seen that the learned Tribunal has not recorded the presence of the Government Pleader/ Assistant Government Pleader or any other State counsel for F.T. matters. The said order also does not reveal that any petition was filed by the State to crossexamine the defence witnesses. As per the procedure prescribed under the Foreigners (Tribunals) Order, 1964, the Tribunal is suo motu not empowered to cross-examine the witness. However, the Tribunal would always have power to put questions in accordance with the prescription of Section 165 of the Evidence Act, 1872 corresponding to Section 168 of the Bharatiya Saksha Adhiniyam, 2023.

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The cross-examination part of the proceedings stands in a different pedestal than examination by the Court/ Tribunal.

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Under the aforesaid circumstances, the Court is of the considered opinion that the order dated 01.02.2025, by which the learned Member, Foreigners Tribunal No.2^nd , Kamrup (Metro), Guwahati has fixed the case for cross-examination of defence witnesses on 07.03.2025, is not found sustainable on facts and as well as law. Accordingly, Court is inclined to set aside the said order dated 01.02.2025.

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However, the Court is inclined to provide that in the event the Tribunal is of the considered opinion that it was required to put certain queries to the defence witnesses, it would have liberty to do so. However, such examination

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shall not be liable to be recorded as cross-examination by the State.

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As the date of 07.03.2025, has already elapsed, the petitioner is directed to appear before the said learned Tribunal on the next date fixed without requirement of any fresh notice to be issued and/ or served on the petitioner. On such appearance the petitioner shall produce the certified copy of the order, and await further instructions from the said learned Tribunal.

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As the matter has been disposed of at the “Motion Stage” without issuance of any notice on the respondents, the Court is inclined to provide that in the event the respondents have good grounds to defend the impugned order, they are granted liberty to move this Court for recalling of this order and to be given an opportunity of being heard.

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JUDGE JUDGE

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Comparing Assistant

Abdul Gafur v. the Union of India and 5 Ors.

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