Gauhati High Court
Abu Bakkar Siddique @ Md. Abubakkar Ali vs The State Of Assam on 16 August, 2022
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GAHC010159772022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Rev.P./411/2022
ABU BAKKAR SIDDIQUE @ MD. ABUBAKKAR ALI
S/O LATE MOKSHED ALI
VILL- CHAMPUPARA
P.S. CHHAYGAON
DIST. KAMRUP, ASSAM
VERSUS
THE STATE OF ASSAM
REP. BY THE LEARNED PP, ASSAM
Advocate for the Petitioner : MR. J. Hussain
Advocate for the Respondent : Mr. K. K. Parasar, Addl. PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ROBIN PHUKAN
ORDER
16.08.2022 Heard Mr. J. Hussain, learned counsel for the petitioner. Also heard Mr. K. K. Parasar, learned Additional Public Prosecutor for the State respondent.
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2. Legality, propriety and correctness of the order dated 09.06.2022, passed by the learned Special Judge, POCSO, Kamrup, Amingaon, in Special POCSO Case No. 05/2015, is challenged in this revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure.
3. It is to be noted here that vide impugned order dated 09.06.2022, the learned Court below has dismissed the petition filed by the petitioner praying for allowing him to adduce defence evidence.
4. The factual background, leading to filing of the present petition, is briefly stated as under:
"The petitioner- Abu Bakkar Siddique @ Md. Abubakkar Ali has been standing trial in the Court of learned Special Judge, POCSO, Kamrup, Amingaon, under Sections 4 & 8 of the POCSO Act. The learned Court below, after closing the prosecution evidence, has examined him under Section 313 of the Code of Criminal Procedure and thereafter, the petitioner desired to adduce defence evidence and accordingly, the learned Court below has fixed 10.05.2022 for adducing defence evidence. But, on that day, the petitioner could not adduce defence evidence and prayed for another opportunity to adduce defence evidence, but, the learned Court below rejected the same."
5. Being aggrieved, the petitioner approached this Court by filing the present petition on the following grounds:
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(i) That the evidence for the defence side was closed without affording reasonable opportunity to adduce evidence in his defence;
(ii) That, the petitioner wished to examined the mother of the victim boy, who was suffering from illness on that day, and therefore, could not appeared before the learned Court below and to that effect, one petition, which is annexed with the petition as Annexure-4, along with one medical certificate, which is enclosed at page No. 28 of the petition, but the learned Court below, without considering the same dismissed the petition;
(iii) That, the case is serious in nature and unless the petitioner is afforded an opportunity to adduce defence evidence, he would be prejudice thereby;
And therefore, it is contended to allow this petition.
6. Mr. J. Hussain, learned counsel for the petitioner, submits that only one opportunity to adduce defence evidence may be afforded to the petitioner as the charges framed against him is serious in nature or otherwise grave prejudice will be caused to him and therefore, it is contended to allow the petition.
7. On the other hand, Mr. K. K. Parasar, learned Additional Public Prosecutor, submits that the learned Court below has afforded ample opportunity to the petitioner to adduce evidence in his defence, but he failed to avail the same and Page No.# 4/5 therefore, it is contended to dismiss the same.
8. It is to be mentioned here that fair trial is the main object of criminal procedure, and it is the duty of the court to ensure that such fairness is not hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society, and therefore, fair trial includes the grant of fair and proper opportunities to the person concerned, and the same must be ensured as this is a constitutional, as well as a human right. Thus, under no circumstances can a person's right to fair trial be jeopardised. Adducing evidence in support of the defence is a valuable right. Denial of such right would amount to the denial of a fair trial. Thus, it is essential that the rules of procedure that have been designed to ensure justice are scrupulously followed, and the court must be zealous in ensuring that there is no breach of the same. Reference in this context can be made to the decision of Hon'ble Supreme Court in Talab Haji Hussain Vs. Madhukar Purshottam Mondkarand, reported in AIR 1958 SC 376.
9. Here in this case, the charges framed against the petitioner are serious in nature. Besides, on 09.06.2022, he failed to produce the witness on account of illness of the witness concerned and to that effect, he filed one petition before the learned Court below along with one medical certificate, issued by Goroimari C.H.C. indicating that the witness was suffering from diarrhea and vomiting. But the same had failed to evoke any positive response from the learned Court below.
10. In view of above and also in view of the law laid down by the Hon'ble Page No.# 5/5 Supreme Court in the case law discussed herein above, this Court is of the view that end of justice would be meted out if the petitioner is afforded another opportunity of adducing evidence in his defence. Accordingly, the petition stands allowed. The impugned order dated 09.06.2022, passed by the learned Special Judge, POCSO, Kamrup, Amingaon, in Special POCSO Case No. 05/2015, stands set aside and quashed as the same fails to withstand the test of legality, propriety and correctness. It is provided that the learned Court below shall afford one more opportunity to the petitioner to adduce evidence in his defence.
11. In terms of above, this revision petition stands disposed of at this motion stage itself.
JUDGE Comparing Assistant