Shakti Kumar Bari v. The State of Assam and Anr

ORDER Date : 09.09.2024

1) Heard Mr. G. Uddin, learned counsel for the petitioner. Also heard Mr. P. Borthakur, learned Additional Public Prosecutor for the State of Assam. 2) This application under Section 528/529 of the BNSS, 2023 has been filed by the petitioner, namely, Shakti Kumar Bari impugning the Order dated

22.02.2024 passed by learned Judicial Magistrate First Class, Kamrup(Metro) in PRC Case No.541/2021. 3) Learned counsel for the petitioner has submitted that the present petitioner is facing a trial for charges under Sections 279/304A of the Indian Penal Code before the Court of learned Judicial Magistrate First Class, Kamrup(Metro). 4) It is submitted that the learned counsel for the petitioner that on

22.02.2024, the PRC Case No.541/2021 was fixed for examination of prosecution's witnesses. 5) On that day, the PW-1 was examined however, no counsel for the accused(the petitioner) turn up for cross-examining the PW-1 and, therefore, the trial court dispensed with the cross-examination of PW-1 and fixed the case for examination of remaining witnesses on the next date. 6) The learned counsel for the petitioner has submitted that on the day when the impugned order was passed i.e., on 22.02.2024, the petitioner was Page No.# 3/4 not present in the Court and he had filed an application to that effect. However, when PW-1 was examined, the counsel for the petitioner was also not found present in the Court. 7) The learned counsel for the petitioner submits that as the petitioner's counsel had some health issues, he could not appear before the Court to cross-examine the PW-1. 8) The learned counsel for the petitioner has submitted that thereafter on the next date fixed i.e., on 30.05.2024, the petitioner had filed an application for recalling the witnesses i.e., PW-1 for examination however, he was advised not to press the same and, therefore, the said application was not pressed by the counsel. 9) Learned counsel for the petitioner submits that if the PW-1 is not allowed to be cross-examined, the petitioner who is facing trial before the Court of learned Judicial Magistrate First Class, would be held to be prejudiced. 10) The learned counsel for the petitioner has also submitted that the PRC Case No.541/2021 is fixed for examination of further prosecution witnesses on

03.12.2024. 11) Considering the facts and circumstances of this case, this Court is of the considered opinion that unless the veracity of testimony of PW-1 is tested in cross-examination the petitioner may be prejudiced. The difficulty which the PW-1 may have to suffer, due to his re summoning may be compensated by paying adequate cost to him. 12) In view of the above, this Criminal Petition is disposed of with a direction that the PW-1 may be again summoned for the purpose of cross-examination by the learned Trial Court, subject to the condition that on the day when PW-1 appears before the Trial Court, the petitioner shall pay a cost of Rs.5,000/- to Page No.# 4/4 the PW-1 before cross-examining him. The payment of cost imposed would be condition precedent to the cross-examination of PW-1. 13) With above observations, this Criminal Petition stands disposed of. JUDGE Comparing Assistant

PageoNo.#o1/4 GAHC010180762024 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oCrl.Pet./1093/2024o SHAKTIoKUMARoBARIo S/OoSURYAKANTAoPRASADoBARI,o PERMANENToRESIDENToOFoVILL-oMADHOPUR,oP.S.oJAMUBAZAAR,oINoTHE DISTRICToOFoSIWANo(BIHAR). VERSUSo THEoSTATEoOFoASSAMoANDoANRo REPRESENTEDoBYoTHEoPP,oASSAM 2:SRIoPRABHAToKUMARoSHARMA oS/OoLATEoBIKESHWARoSHARMAo R/OoHOUSEoNOo27 oC/OoPRASANNAoSARMA oOPPOSITEoCASARIOoENCLAVEoJAIPUR oKHARGHULI oUZANBAZAR-o78100o AdvocateoforotheoPetitionerooooo:oGoUDDIN,oPoADHIKARI,PoSHARMAo AdvocateoforotheoRespondento:oPP,oASSAM,oo oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo Page No.# 2/4 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA