Crl.Pet./1255/2026 of SUBHANKAR DEY AND 2 ORS. Vs PINKY SAHU DEY on 9 September 2026

ORDER

10.09.2026 Heard Mr. R. Phukan, learned counsel for the petitioners.

2. In this petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, the petitioners have challenged the order, dated 16.05.2026, passed by the learned Judicial Magistrate First Class, Kamrup(M), Guwahati, in Misc.(D.V.) Case No.98/2020. It is to be noted here that vide impugned order dated 16.05.2026, the learned Trial Court has closed the cross-examination of the witnesses of the respondent herein by the petitioners and without giving them an opportunity to adduce evidence in support of their case on account of absence of the petitioners herein, and fixed the case on 16.06.2026 for argument.

3. Mr. Phukan, learned counsel for the petitioners, submits that the petitioners herein are the respondents in Misc.(D.V.) Case No.98/2020 and they were appearing regularly before the learned Trial Court. Then, referring to an order of the learned Trial Court dated 10.03.2025, he submits that vide said order, the learned Trial Court has fixed the case for evidence on 22.04.2025 and thereafter, the case record could not be traced out by the learned Trial Court and ultimately the case record was put up on 17.01.2026 and the next date was fixed on 27.02.2026 and thereafter, on 10.04.2026 and lastly, the learned Trial Court had fixed the matter on 16.05.2026 for necessary order/cross-examination of PW-2. Then on 16.05.2026, the learned Trial Court considering the absence of the respondents/petitioners herein and also considering long pendency of the case, has closed the cross-examination of the witnesses of the respondent herein by the petitioners herein and fixed the matter on 16.06.2026 for argument.

4. Mr. Phukan also submits that the petitioners are not willing to cross-examine the witnesses of the respondent herein, but they may be allowed to adduce evidence in support of their case, otherwise the petitioners will suffer serious prejudice.

5. Having heard the submission of Mr. Phukan, this Court has carefully gone through the petition and the documents placed on record and also perused the impugned order dated 16.05.2026, and also the orders dated 10.03.2025, 17.01.2026, 27.02.2026 and 10.04.2026.

6. It appears that though vide order dated 10.03.2025, the learned Trial Court has fixed the matter on 22.04.2025, yet, the record was not put up on that day i.e. 22.04.2025 as the case record could not be traced out and in fact, the record was put up on 17.01.2026. Then vide order dated 17.01.2026 the next date was fixed on 27.02.2026 for necessary order. Then on 27.02.2026 the learned Trial Court had observed that both the parties are absent without any step and fixed the case on 10.04.2026 for necessary order and on 10.04.2026, the respondents/petitioners herein remained absent without any step, but the petitioner/respondent herein is present and thereafter, fixed the matter on 16.05.2026 for necessary order/cross-examination of PW-2. Thereafter, vide impugned order dated 16.05.2026, the learned Trial Court has closed the cross-examination of the witnesses of the respondents/petitioners herein and fixed the matter on 16.06.2026.

7. It is the categorical contention of Mr. Phukan, learned counsel for the petitioners that the petitioners herein lost the track of the case, as after 10.03.2025 the record was only put up on 17.01.2026 and thereafter, on 27.02.2026 and thereafter, on 10.04.2026 and thereafter, on 16.05.2026 and the engaged counsel of the respondents/petitioners herein had not informed the petitioners herein about the dates fixed by the learned Trial Court.

8. Accordingly, taking note of the aforementioned facts and circumstances on the record and also considering the submission of Mr. Phukan, learned counsel for the petitioners, this Court is of the view that even if the petitioners were barred from cross- examining the witnesses of the respondent herein, they should have been given an opportunity to adduce their evidence. As a fair opportunity to defend their case has been denied to the petitioners, on such count, the right to fair trial of the petitioners herein appears to be violated. Therefore, the impugned order dated 16.05.2026 is liable to be interfered with and accordingly, the same stands set aside and quashed. The learned Trial Court is directed to afford an opportunity to the petitioners herein to adduce their evidence before fixing the case for arguments.

9. In terms of above, this criminal petition stands disposed of at the motion stage itself. Comparing Assistant Sd/- Robin Phukan JUDGE