Cross-examination of a proceedee by the Tribunal instead of State Counsel vitiates the proceedings.

The petitioner challenged an opinion dated 31.10.2018 by the Foreigners’ Tribunal No. 1, Bongaigaon, which declared him a foreigner of the post-25.03.1971 stream

The petitioner claimed to be the son of Late Mahej Ali, citing a 1951 NRC record, 1970 and 1985 voters' lists, land documents (Jamabandi/Khatian), and a Gaon Panchayat certificate to establish his lineage and citizenship

The Tribunal rejected these documents due to spelling discrepancies in his father's name, the petitioner’s inability to recall specific family details during examination, and the use of translated (non-certified) copies of electoral rolls

Crucially, the Tribunal record indicated that no State Advocate was present during the hearing, and the Judge conducted the examination of the petitioner

1. Whether the procedure adopted by the Foreigners’ Tribunal, specifically the act of the Member cross-examining the proceedee in the absence of a State representative, is legally sustainable

2. Whether the discrepancies in names and the nature of the documentary evidence justified the declaration of the petitioner as a foreigner

The court applied Section 9 of the Foreigners Act, 1946, which places the burden of proof on the proceedee

It relied on Isiran Nessa v. Union of India regarding the inadmissibility of translated copies of electoral rolls and unverified certificates

the court applied the principles of natural justice and the precedents set in Sakina Khatun v. Union of India (2025) and Md Sahjahan Ali v. Union of India, which establish that a quasi-judicial authority cannot act as both prosecutor and judge; cross-examination "through the Court" or by the Member is a procedural illegality that vitiates the fairness of the adjudication

The High Court observed that while the petitioner’s documents contained significant discrepancies—such as shifting names for his father (Mahej Ali vs. Mahej Uddin) and mother (Jarina Khatun vs. Jobina Bewa) and the lack of linkage through parental voting records—the procedural conduct of the Tribunal was the overriding factor.

Upon reviewing the Lower Court Records, the Court found that the "examination" of the petitioner on 31.10.2018 was recorded as "OSA XXX" (on solemn affirmation, cross-examined), yet no Government Pleader was present

The court reasoned that the learned Member had improperly embarked on a cross-examination themselves, essentially acting as a prosecutor

This departure from impartial adjudication meant the proceedee did not receive a fair trial, necessitating a remand regardless of the initial findings on the merits of the documents

It held that cross-examination conducted by the Court is an impermissible procedure for a quasi-judicial authority

The case was remanded to the Foreigners’ Tribunal No. 1, Bongaigaon, for a fresh opinion. The Court ordered the petitioner to appear before the Tribunal by 29.05.2026 and directed him to provide a bail bond of Rs. 5,000/- to the Superintendent of Police (Border), Bongaigaon, to ensure his presence during the re-adjudication, during which his biometrics are to be captured