Tribunals Cannot Perform Cross-Examination of Defense Witnesses; Neutrality Essential for Adjudicatory Fairness

The petitioner was declared a foreigner of the post-1971 stream by the Foreigners’ Tribunal No. 1st, Morigaon, via an opinion dated 07.09.2018

This was challenged in WP(C) No. 7803/2018, where the High Court remanded the case on 13.02.2019, specifically directing the Tribunal to allow the State to cross-examine DW-2 (the Gaonburah) to verify the petitioner's parentage

On remand, the Tribunal recorded that in the absence of the Government Pleader, the Tribunal itself examined/cross-examined DW-2 under Section 165 of the Evidence Act

Based on this, a second impugned opinion was passed on 29.06.2019, declaring the petitioner a foreigner

The petitioner challenged this second opinion on the grounds of procedural irregularity.

1. Whether the Foreigners' Tribunal exceeded its jurisdiction by itself cross-examining a witness instead of ensuring cross-examination by the State as directed by the High Court

2. Whether the use of Section 165 of the Evidence Act by the Tribunal to perform the role of the prosecution vitiates the proceeding

Section 165 of the Indian Evidence Act, 1872, which grants judges the power to put questions to witnesses to discover proof of relevant facts, but does not permit the court to act as the prosecution

Section 137 of the Evidence Act regarding the definition and procedure for cross-examination

the doctrine of judicial discipline, requiring lower forums to strictly adhere to specific remand directions issued by a superior court under Article 226 of the Constitution

The High Court observed that the previous remand order specifically directed that "DW-2 is subjected to cross-examination by the State authorities"

However, the Tribunal’s records showed that the Tribunal itself examined the witness in the absence of the Government Pleader

the court found that the Tribunal's record was marred by overwriting between "Section 165" and "Section 137," indicating confusion in the procedure adopted

The Court reasoned that while a Tribunal has powers under Section 165 to clarify facts, it cannot step into the shoes of the prosecution to cross-examine a proceedee’s witness

By doing so, the Tribunal acted as the "prosecution," which vitiated the neutrality of the proceeding and directly contravened the High Court's specific instructions for a State-led cross-examination

The High Court set aside the opinion dated 29.06.2019 and expunged the recording of the cross-examination of DW-2

The matter was remanded once again to the Foreigners’ Tribunal No. 1st, Morigaon, with a strict direction to issue notice to DW-2 and ensure that the State authorities conduct the cross-examination as per the original directions in WP(C) No. 7803/2018

The petitioner was directed to appear before the Tribunal on 30.05.2026