Gauhati High Court
Page No.# 1/7 vs The State Of Assam And Anr on 14 November, 2025
Page No.# 1/7
GAHC010109712024
2025:GAU-AS:15797
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./224/2024
MOFIDUL ISLAM
S/O ABU TAHER MANDAL, R/O SIJUBARI (BIHARI BASTI), P.O. AND P.S.-
HATIGAON, GUWAHATI-781038
VERSUS
THE STATE OF ASSAM AND ANR.
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
2:MD. AJAJ
S/O SAMIULLAH
VILL- SIJUBARI
BIHARIBASTI
P.S.-HATIGAON
GUWAHATI-
DIST- KAMRUP (M)
ASSA
Advocate for the Petitioner : DR. T KALITA, MR P K DAS,MR A RAZZAK,MR. V K
CHANDAK
Advocate for the Respondent : PP, ASSAM, MR. SARFRAZ NAWAZ, AMICUS CURIAE (R-2)
Page No.# 2/7
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
14.11.2025
1. Heard Mr. T. Kalita, the learned counsel for the petitioner. Also heard Mr. P. Borthakur, the learned Additional Public Prosecutor appearing for the State of Assam, as well as Mr. Safaraz Nawaz, the learned Amicus Curiae for respondent No. 2.
2. This application under Sections 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 read with Article 227 of the Constitution of India has been filed by the petitioner, namely, Mofidul Islam, impugning the order dated 16.05.2024, passed by the court of the learned Special Judge (POCSO), Kamrup (M), Guwahati in Sessions Case No. 39/2019 whereby, the prayer made by the present petitioner under Section 311 of the Code of Criminal Procedure, 1973 for recalling the PW- 1 (victim girl) for further cross examination was rejected by the trial court.
3. The fact relevant for consideration of instant revision petition is that the petitioner is facing a trial for charges under Section 376/448 of the Indian Penal Code, 1860 read with Section 8 of the POCSO Act, 2012 in Sessions Case No. 39/2019, which is pending before the court of the learned Special Judge (POCSO), Kamrup (M), at Guwahati.
4. During the course of the trial, prosecution side has already examined 6(six) prosecution witnesses, including the victim girl as PW-1, the informant as PW-2 and the Investigating Officer as PW-6. The statement of the petitioner (as accused) has already been recorded under Page No.# 3/7 Section 313 of the Code of Criminal Procedure, 1973 and the aforesaid case is fixed for argument before the trial court tomorrow, i.e. on 15.11.2025.
5. The learned counsel for the petitioner has submitted that on the day of argument, which was originally fixed before the trial court, the petitioner filed an adjournment application on the ground that he intends to engage another counsel for final argument and as such the said adjournment was allowed.
6. After engagement of the new counsel, while preparing the case for argument, he found that the victim girl (PW-1) was not cross- examined as regards certain contradictions and omissions made by her in her testimony before the trial court as PW-1 vis-a-vis her statement made before police and learned Magistrate under Section 161 and 164 of the Code of Criminal Procedure, 1973 respectively. Therefore, an application was filed by the petitioner under Section 311 of the Code of Criminal Procedure, 1973 for recalling the PW-1 for further cross-examination. However, by the impugned order said prayer was rejected by the trial court.
7. The learned counsel for the petitioner has submitted that since the entire prosecution case rest mainly upon the testimony of the victim girl as PW-1, hence, unless the material contradictions and omissions by PW-1 are brought on record, the petitioner would be highly prejudiced.
8. The learned counsel for the petitioner further submits that the trial court, by the impugned order had on mere technical ground rejected Page No.# 4/7 the prayer of the petitioner for recalling PW-1 which has caused great prejudice to the petitioner.
9. He submits that as the plea taken by the petitioner itself shows that the examination of the victim girl is necessary for the end of justice. Hence, the interest of justice and fair play requires that the victim girl, who has not been put any question about material contradictions and omissions made by her in her testimony, may be recalled for the purpose of cross-examination. He submits that on failure on the part of the counsel for the petitioner to put relevant questions regarding material contradictions and omissions on the part of the victim girl, it was the duty of the trial court to draw the attention of the counsel to this aspect. In support of his submissions, the learned counsel for the petitioner has cited a ruling of the High Court of Gujarat in the case of " State of Gujarat and others Vs. Hiralal Devji and others " reported in "AIR 1964 Guj
261."
10. On the other hand, the learned Additional Public Prosecutor has submitted that there is no infirmity in the impugned order. He further submits that the victim girl was only four years old when the alleged offence was committed in the year 1917 and she was six years of age when she was examined as PW-1. He submits that in his application under 311 of the Code of Criminal Procedure, 1973 filed before the trial court, no justified reason has been shown requiring recalling of the minor victim for further cross examination. He submits that the trial court correctly, in view of Section 33 (5) of the POCSO Act, 2012 which cast a duty on the trial court to ensure that a child is not called repeatedly to testify in the court, Page No.# 5/7 has correctly rejected the prayer of the petitioner for recalling her for further cross examination.
11. Mr. S. Nawaz, the learned Amicus Curiae, has raised a preliminary objection that the impugned order is an interlocutory order, hence, the revision under Section 397/401 of the Code of Criminal Procedure, 1973 is barred. He, however, fairly submits that, this court in the interest of justice can treat an application under Section 397of the Code of Criminal Procedure, 1973 as a petition under Section 482 of the Code of Criminal Procedure, 1973. In support of his submissions, he has cited a ruling of the Apex Court in the case of "Sethuraman Vs. Rajamanickam"
reported in "(2009) 5 SCC 153."
12. He further submits that the impugned order of the trial court suffers from no illegality or infirmity, in as much as the petitioner has only indicated in his application that while cross examining the PW-1 (victim girl), the defence counsel could not take necessary defence due to inadvertence. However, in the application under Section 311 of the Code of Criminal Procedure, 1973, the petitioner has not specifically stated as to on what material points the victim girl(PW-1) requires to be further cross- examined and how he would be prejudiced.
13. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record.
14. It appears that the Apex Court, in the case of Sethuraman Vs. Rajamanickam" (supra) has held that an order passed by the trial court rejecting an application under Section 311 of the Code of Criminal Page No.# 6/7 Procedure, 1973 is clearly an interlocutory application, therefore, revision under Sections 397/401 of the Code of Criminal Procedure, 1973 is barred. However, this court instead of dismissing the instant revision petition on that count, is inclined to treat it as an application under Section 482 of the Code of Criminal Procedure, 1973 and decide the contentions raised by the learned counsel for the petitioner on merit.
15. It appears that in the Sessions Case No. 39/2019, the recording of evidence of the prosecuting side has been closed long back. It also appears that the petitioner has also been examined under Section 313 of the Code of Criminal Procedure, 1973 way back on 23.04.2024. During his examination by the trial court, the petitioner never raised any plea that the victim girl could not be properly cross-examined. Moreover, though, during hearing of this revision application, the learned counsel for the petitioner has submitted that the victim girl could not be questioned on material contradictions and omissions, however, no such plea was taken by the petitioner in his application under Section 311 of the Code of Criminal Procedure, 1973.
16. On bare perusal of the application filed by the petitioner under Section 311 of the Code of Criminal Procedure, 1973, it is apparent that in paragraph No. 4 of the said petition, the only ground taken by the petitioner was that though the learned counsel for the petitioner was appraised of the defence to be taken by him during the trial, however, due to some inadvertent error same could not be taken. Further, in paragraph No. 6 of the said petition, it has been stated that if the petitioner is not allowed to defend his case properly by cross-examining the PW-1 on Page No.# 7/7 material points, he would suffer irreparable loss and injustice. Nowhere in the said petition is there any whisper regarding requirement of further cross-examination for bringing on recordthe material contradictions and omissions in the testimony of the victim girl.
17. Though there is no dispute on the legal proposition that under Section 311 of the Code of Criminal Procedure, 1973, the trial court has the power to recall and re-examine any person if his or her evidence appears to be essential for a just decision of the case, however, this power may not be exercised casually on mere filing of an application by the accused/petitioner. For invoking the powers under Section 311 of the Code of Criminal Procedure, 1973, the petitioner has to show valid grounds for the same. By merely filing a vague application, without specifically stating the grounds, the petitioner is not accepted to get an order for recall and re-examination of a minor rape victim. Moreso, in the light of the statutory prescription contained in Section 33(5) of the POCSO Act, 2012. This court is of the considered opinion that the trial court has taken all these aspects into consideration while passing the impugned order. This court, therefore, finds no infirmity or illegality in the impugned order to justify any interference in the same in exercise of its inherent powers.
18. For the aforesaid reasons, this revision petition is dismissed.
JUDGE Comparing Assistant