Gauhati High Court Sets Aside Tribunal Opinion | Finds Fair Trial Denied And Decision-Making Vitiated By Use Of Extraneous Materials
Sanchayita Lahkar
The High Court of Assam Division Bench of Justice Kalyan Rai Surana and Justice Malasri Nandi set aside the opinion dated 29.06.2018 passed by the Foreigners Tribunal (5th), Darrang, Mangaldai. The Court held that the decision-making process of the Tribunal had been vitiated due to reliance on extraneous materials and failure to provide a fair trial. Consequently, the proceedings in F.T. (V) Case No. 1846/2016 were remanded for a fresh decision. The Court directed the petitioner to appear before the Tribunal on or before 13.06.2025 without the requirement of any fresh notice. Further directions were issued regarding the conduct of the Tribunal’s future proceedings and handling of evidentiary inconsistencies.
The writ petition was filed under Article 226 of the Constitution of India challenging the opinion dated 29.06.2018 passed by the Foreigners Tribunal (5th), Darrang, Mangaldai in F.T. (V) Case No. 1846/2016. The case originated from S.P. Enquiry No. 15749/98. The petitioner, a resident of Dalgaon Khuti in Darrang district, Assam, was declared to be an illegal migrant/foreigner who entered India post-25.03.1971.
Upon receipt of notice from the Tribunal, the petitioner entered appearance and submitted a written statement. She subsequently deposed as DW-1 and examined Abdul Hai as DW-2 in support of her defence. The petitioner submitted several documents during the course of proceedings. These included:
- Electoral Roll of 1966 (Exhibit 1)
- NRC Legacy Data of 1966 (Exhibit 2)
- NRC Legacy Data of 1971 (Exhibit 3)
- Gaonburha certificate from Dalgaon Khuti (Exhibit 4)
- NRC Legacy Data of 1951 (Exhibit 5)
- Gaonburha certificate from No.5 Baruajhar G.P. (Exhibit 6)
- Affidavit clarifying the petitioner’s name and age (Exhibit 7)
The records from the Tribunal showed that DW-1 was examined and cross-examined on 05.06.2018. However, the order dated 05.06.2018 did not indicate who conducted the cross-examination. DW-2 was orally examined on the same date, but it appeared from the order that he was not cross-examined. The order dated 21.06.2018 recorded the presence of the A.G.P., but there was no prior mention of such appearance on 05.06.2018.
The deposition of DW-2, Abdul Hai, as recorded on 05.06.2018 stated that he knew the petitioner since childhood, that she was 15 years old at the time of marriage, and had been voting since 1971. He also confirmed that two sons of the petitioner were declared as D-voters. He admitted to not stating the petitioner’s residential details in his affidavit and stated that he had not submitted any false statement.
While evaluating the testimony of DW-2, the Tribunal referred to records of two other cases: FT 5th Case No. 825/2016 (disposed of on 11.05.2018) and FT 5th Case No. 837/2016 (disposed of on 28.05.2018). DW-2 had also appeared as a witness in both these cases. The Tribunal noted discrepancies between his statements in those proceedings and the one at hand, particularly regarding the petitioner’s age and that of her husband. Based on these discrepancies, the Tribunal disbelieved the evidence of DW-2.
The Tribunal did not produce the records of the aforementioned cases nor confront DW-2 with his previous statements. No opportunity was provided to DW-2 to clarify the alleged inconsistencies, and the petitioner was not informed that the Tribunal would rely on evidence from the other two proceedings.
The Court recorded that “if the learned Tribunal had any doubt as regard the veracity of the evidence tendered by DW-2, the learned Tribunal could have produced the records of (i) FT 5th, Case no. 825/2016, and (ii) FT 5th, Case No. 837/2016, and would have asked questions to DW-2, which is permissible under Section 165 of the Evidence Act, 1872.”
The judgment further observed that “this would have been a fair procedure of trial by asking questions in the presence of the petitioner, who is the proceedee before the learned Tribunal and/or in the presence of petitioner’s learned counsel.”
The Bench stated that “the learned Tribunal could have otherwise put to the petitioner to notice it would relying on the proceedings of other two cases where DW-2 had also appeared as a witness.”
It noted that “having not done so, the Court is unable to hold that the petitioner is given a fair trial because the learned Tribunal had discarded the evidence of DW-2 based on materials which do not form a part of record of the proceedings of Case No. F.T. (V) 1846/2016 and moreover, DW-2 was not put to notice to his previous statement purportedly made in (i) FT 5th, Case no. 825/2016, and (ii) FT 5th, Case No. 837/2016.”
In view of this, the Court concluded that “the impugned opinion being partly based on materials which do not form a part of record of Case No. F.T. (V) 1846/2016 and the evidence of DW-2 been discarded without bringing his earlier statements if any to his notice, is found to have vitiated the decision making process of the learned Tribunal, rendering the impugned opinion as perverse.”
The Court declared that “the opinion dated 29.06.2018, passed by the learned Member, Foreigners Tribunal (5th), Darrang, Mangaldai in Case No. F.T. (V) 1846/2016, arising out of S.P. Enquiry No. 15749/98, is hereby set aside.”
It further directed that “the proceedings of Case No. F.T. (V) 1846/2016 is remanded back to the said learned Tribunal for a fresh decision in accordance with law.”
Clarifying the Tribunal’s course of action, the Bench stated that “in the event the learned Tribunal is of the view that the evidence of DW-2 in the present case is contradictory to his previous statements made in (i) FT 5th, Case no. 825/2016, and (ii) FT 5th Case No. 837/2016, it would be open to the said learned Tribunal to recall DW-2 and to put such questions as may be permissible under Section 165 of the Evidence Act as now substituted by Section 168 of the Bharatiya Sakshya Adhiniyam, 2023.”
The Court issued a specific directive: “the petitioner is directed to appear before the learned Member, Foreigners Tribunal (5th), Darrang, Mangaldai on or before 13.06.2025 without requirement of any fresh notice to be served for petitioners appearance.”
It instructed that “the petitioner, by producing a certified copy of this order before the learned Tribunal shall await for further directions/order of the said learned Tribunal.”
The Bench added that “in the event the petitioner fails to appear before the said learned Tribunal within the time allowed it would be open to the said learned Tribunal to treat the petitioner as absent on call a pass appropriate order as deemed fit and proper.”
Finally, the Court directed: “The Registry shall send back the Tribunals records expeditiously.” The writ petition was accordingly “partly allowed to the extent as indicated above.”
Advocates Representing the Parties
For the Petitioners: Mr. I. Alam, Advocate; Mr. T. SK, Advocate
For the Respondents: Mr. D. J. Das, Central Government Counsel; Mr. G. Sarma, Standing Counsel, Foreigners Tribunal; Mr. H. K. Hazarika, Government Advocate; Mr. A. I. Ali, Standing Counsel, Election Commission of India
Case Title: Asia Khatun @ Asia Bewa v. The Union of India and Others
Neutral Citation: 2025:GAU-AS:5931
Case Number: WP(C)/5564/2018
Bench: Justice Kalyan Rai Surana, Justice Malasri Nandi
[Read/Download order]
