Minhajul Hoque @ Minajul Hoque v. The State of Assam and Anr

ORDER

18.11.2024

Heard Mr. A. M. Ahmed, learned counsel for the petitioner. Also heard Mr. M. P. Goswami, learned Additional Public Prosecutor for the State respondent. This application is filed under Section 438 read with Section 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the impugned order dated

28.08.2024 passed by the learned Special Judge, Bongaigaon, Assam, in Special (POCSO) Case No. 16 (BNG) of 2019, arising out of Bongaigaon P.S. Case No. 344/2019, registered under Sections 294/506 of the IPC read with Section 12 of the POCSO Act, 2012, whereby petition No. 1836/2024 praying for an adjournment to produce the defence witnesses was rejected. Mr. Ahmed, learned counsel for the petitioner, has submitted that after recording the statement under Section 313 of the Cr.P.C., the accused/petitioner filed a petition praying to adduce defence witnesses before the court. Accordingly, the case was fixed for DWs on 03.11.2023. However, on 03.11.2023, the petitioner was absent, and an absent petition was filed, which was allowed, and the matter was fixed for 08.12.2023. Thereafter, on two or three occasions, adjournments were sought by the engaged counsel of the accused/petitioner, and the matter was subsequently fixed for

14.05.2024 for DWs. On that date, however, the Presiding Officer was on training, although the accused appeared along with DWs Hanif Ali and Mafizur Rahman. As a result, the DWs could not be examined. On the next date, i.e., 11.06.2024, one DW, Hanif Ali, was present, but the learned Special Judge was on leave, and therefore the DW could not be examined. However, the accused/petitioner failed to produce the DWs on two consecutive dates, i.e., 22.07.2024 and 28.08.2024, after which the prayer for adjournment was rejected by the learned Special Judge, and the case was Page No.# 3/3 fixed for arguments. He further submitted that there was no negligence on the part of the accused/petitioner and that due to the absence of the learned Special Judge, the DWs could not be examined. However, he admits that on 2-3 consecutive dates, the accused/petitioner could not produce the DWs. He further submits that, without any further adjournment, the accused/petitioner will produce the DWs and he accordingly prays that one more chance be given to the petitioner. On the other hand, Mr. Goswami, learned Additional Public Prosecutor, has submitted that from the order-sheet, it is evident that the case has been pending at the stage of DWs for a considerable time, and the petitioner has failed to produce the DWs despite taking consecutive adjournments. Considering the submissions made by the learned counsels for both sides, and other aspects of the case, and also considering the fact that on consecutive dates the DWs were present, but due to some inconvenience on the part of the learned Special Judge, they could not be examined, this Court is of the opinion that one more chance may be given to the petitioner to produce the DWs before the Court. It is further directed that on the next date fixed, the DWs should be produced before the Court, and no further adjournment will be granted to the petitioner. With the above observation, this petition stands allowed and disposed of. JUDGE Comparing Assistant

PageoNo.#o1/3 GAHC010234302024 ooooooo 2024:GAU-AS:11196 ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCrl.Rev.P./454/2024o MINHAJULoHOQUEo@oMINAJULoHOQUEo S/OoHANIFoALIo VILL-oBILASHPUR,oP.S.oDHALIGAONo DIST.oCHIRANG,oBTC,oASSAM-o783385 VERSUSo THEoSTATEoOFoASSAMoANDoANRo REPRESENTEDoBYoTHEoPP,oASSAM 2:SMTI.oANUoDEY oW/OoSRIoSHAMIRoDEYo VILL-oT.R.oPHUKANoROAD o WARDoNO.o2 o P.S.oANDoDIST.oBONGAIGAON oASSAM oPIN-78338o AdvocateoforotheoPetitionerooooo:oMR.oAoMoAHMED,oBoDASo AdvocateoforotheoRespondento:oPP,oASSAM,oo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/3 BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA