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2025 DIGILAW 1380 (GAU)

Mizanur Bhuyan, S/o Malek Bhuyan v. Jiabun Nesa

2025-08-19

MANISH CHOUDHURY

body2025
ORDER : MANISH CHOUDHURY, J. Heard Mr. A. Hussain, learned counsel for the petitioner and Mr. B. Sharma, learned Additional Public Prosecutor for the respondent no. 2, State of Assam. 2. Having regard to the issue involved, the case is taken up for consideration at the motion stage itself, dispensing with the procedure of issuance of notice to the respondent no. 1. 3. The instant criminal revision petition under Section 438 and Section 442 read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 [ BNSS ] is preferred by the petitioner aggrieved by an Order dated 25.07.2025 passed by the Court of learned Principal Judge, Family Court at Dhubri [‘the Family Court’, for short]. 4. The respondent no. 1 herein claiming to be the wife of the petitioner, has filed a petition under Section 144 , BNSS before the Family Court claiming monthly maintenance from the petitioner. The said application has been registered and numbered as F.C. [Crl.] Case no. 03/2025, wherein the petitioner is the sole opposite party. Notice was issued to the petitioner after registration of the F.C. [Crl.] Case no. 03/2025 for his appearance and filing of written statement. On receipt of notice, the petitioner appeared before the Family Court and in due course, submitted his written statement. Though a number of opportunities were granted to the petitioner to submit his affidavit of disclosure of assets and liabilities, the petitioner failed to do so. 5. Shorn of unnecessary details, it can be stated that the petitioner in F.C. [Crl.] Case no. 03/2025 submitted her examination-in-chief on affidavit as P.W.1 along with two other witnesses, namely, S.K. Golam Mostafa [P.W.2] and Jahirul Islam [P.W.3] on 18.06.2025. On that day, the present petitioner [the opposite party therein] was absent by filing a petition, Petition no. 65/2025 seeking time for his appearance. The Family Court posted the case on 08.07.2025 next for cross- examination of the PWs, if any. On 08.07.2025, the P.W.1 was present with the other two witnesses, P.W.2 and P.W.3. But, on 08.07.2025 too, the present petitioner [the opposite party therein] was found absent. However, a petition, Petition no. 75/2025 was filed on his behalf seeking adjournment on the ground that on that day he had to join his new place of posting. The present petitioner [the opposite party therein] is a member of the Assam Forest Protection Force. But, on 08.07.2025 too, the present petitioner [the opposite party therein] was found absent. However, a petition, Petition no. 75/2025 was filed on his behalf seeking adjournment on the ground that on that day he had to join his new place of posting. The present petitioner [the opposite party therein] is a member of the Assam Forest Protection Force. Considering the ground shown in Petition no. 75/2025, the prayer made on behalf of the present petitioner [the opposite party therein] was allowed as a last chance by imposing a cost of Rs. 1,000/-. The Family Court posted the case on 25.07.2025 next for cross-examination of the PWs. 6. On 25.07.2025, P.W.1 along with P.W.2 and P.W.3 was present before the Family Court to face cross-examination. The present petitioner [the opposite party therein] was present physically on that day. But he filed a petition, Petition no. 78/2025 seeking adjournment. In Petition no. 78/2025, the present petitioner [the opposite party therein] stated that he received the copies of the evidence of the PWs and also deposited the cost imposed on him vide Order dated 08.07.2025. He, however, prayed for another date for cross-examining the PWs citing inability on the part of his engaged counsel to cross-examine the witnesses. 7. The learned Family Court observed that last opportunity to cross-examine the PWs was already granted earlier and hence, Petition no. 778/2025 lacked merit due to absence of any plausible cause for adjournment. The Family Court noted that the only ground shown was that the learned engaged counsel was not able to conduct the case. Observing so, the Family Court had decided to close the cross- examination of the PWs. The Family Court also observed that it had been reported that the cost imposed on 08.07.2025 had also not been deposited by the present petitioner [the opposite party therein]. The Family Court proceeded to fix the case on 19.08.2025 for evidence of the opposite party witnesses, if any. 8. Aggrieved by and dissatisfied with the closure of the opportunity to cross-examine the PWs, the present petitioner has approached this Court by the instant criminal revision petition. 9. Power to postpone or adjourn proceedings has been provided for in Section 346 , BNSS . 8. Aggrieved by and dissatisfied with the closure of the opportunity to cross-examine the PWs, the present petitioner has approached this Court by the instant criminal revision petition. 9. Power to postpone or adjourn proceedings has been provided for in Section 346 , BNSS . The second proviso to sub-section [2] of Section 346 , BNSS , has provided that when witnesses are in attendance, no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing. 10. The fourth proviso to sub-section [2] of Section 346 , BNSS read as under :- Provided also that – [a] no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party; [b] where the circumstances are beyond the control of a party, not more than two adjournments may be granted by the Court after hearing the objections of the other party and for the reasons to be recorded in writing; [c] the fact that the advocate of a party is engaged in another Court, shall not be a ground for adjournment; [d] where a witness is present in Court but a party or his advocate is not present or the party or his advocate though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be. Explanation 1.—If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand. Explanation 2.—The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused. 11. From a plain reading of the Order dated 25.07.2025, it does not emerge that the Family Court has proceeded in a manner contrary to the procedure laid down in Section 346 , BNSS . At the same time, it can be noticed that on 25.07.2025, the present petitioner was present in person and it was the learned engaged counsel who did not conduct the cross-examination. At the same time, it can be noticed that on 25.07.2025, the present petitioner was present in person and it was the learned engaged counsel who did not conduct the cross-examination. As a result of the Order of the Family Court dispensing with the cross-examination of the witnesses, the present petitioner herein has lost a vital opportunity for establishing his case. One of the contentions raised by the petitioner in the written statement is that there was no marriage solemnized between the petitioner and the respondent no. 1, contrary to claim made by the respondent no. 1 in her application under Section 144 , BNSS . 12. Grant of one further opportunity to the present petitioner herein to cross-examine the PWs, that is, P.W.1, P.W.2 & P.W.3 is not going to be that much detrimental in comparison to the possible detrimental effect going to cause to the petitioner if he loses the opportunity cross-examine the PWs. At the same time, any adjournment or postponement cannot be allowed as a rule except for special reasons. In the case in hand, the witnesses came to the Family Court on two occasions for facing cross-examination. It was due to the present petitioner’s prayers for seeking adjournment, the cross-examination did not happen. 13. Explanation-2 to Section 346 , BNSS has provided for terms on which an adjournment or postponement may be granted and in an appropriate case, the payment of cost by the prosecution or by the accused can be ordered. Any order to make payment of cost while granting adjournment or postponement is to be made keeping in view that the same shall have deterrent effect to the party from seeking any adjournment or postponement unnecessarily. At the same time, the amount of the cost imposed should not be such that it is beyond the capacity and means of the party to deposit. 14. At the same time, the amount of the cost imposed should not be such that it is beyond the capacity and means of the party to deposit. 14. Taking the facts and circumstances of the case in its entirety including the status of the parties involved and balancing the interest and equities of the parties, this Court is of the considered view that the petitioner can be granted one further opportunity, as a last one, to cross-examine the PWs, that is, P.W.1, P.W.2 & P.W.3 by setting aside that part of the Order dated 25.07.2025, whereby, the learned Family Court has closed the opportunity of cross-examination of the PWs, that is, P.W.1, P.W.2 & P.W.3, to the present petitioner. It is accordingly ordered. 15. The petitioner will appear before the Family Court in person, along with his learned engaged counsel on the next date of hearing of the case along with a copy of this Order. Appearance of PWs before the Family Court on previous two occasions entailed costs to them, apart from time. Therefore, an amount of Rs. 5,000/- is found to be reasonable cost for the present petitioner to deposit for defraying the expenses incurred by the PWs during the previous two occassions. The present petitioner is directed to deposit an amount of Rs. 5,000/- at the time of his appearance on the next date of hearing. Upon such deposit, the amount is to be paid to the petitioner in F.C. [Crl.] Case no. 03/2025. The Family Court shall therafter, fix a date for cross-examination of the P.W.s – P.W.1, P.W.2 & P.W.3, by putting the other side on notice. 16. This criminal revision petition is disposed of in the afore-stated terms.