JUDGMENT : 1. The Court proceedings have been conducted through Video-Conferencing in view of the present scenario so as to maintain social distancing. 2. I have heard Mr. Z. Kamar, learned Senior counsel appearing for the petitioner, and Mr. N. J. Dutta, learned Additional Public Prosecutor, Assam, appearing for the State respondent. 3. Sazzadur Rahan has filed this petition under Section 482 of the Code of Criminal Procedure, 1973, read with Sections 401/397 of the Code for quashing of order dated 11.04.2019, passed by the Chief Judicial Magistrate, Kamrup (M), Guwahati, whereby the application filed on behalf of the petitioner/accused under Section 311 of the Cr.P.C. for recalling PW1, PW2 and PW3 for further cross-examination in G.R. Case No. 11132/2013 has been rejected. 4. Before I proceed further, it needs to be noticed that the crime was reported on 12.07.2013 vide CID P.S. Case No. 65/2013 under Sections 66A/67A of the Information and Technology Act, 2000 (for short, “Act of 2000”). Reference to the FIR, placed on record as Annexure-I, indicates that the FIR was registered against the accused at the instance of the father of the victim. The victim happens to be 15 years of age, a student of Class XI. It has been alleged that the victim did not have any Facbook Profile of her own. Some unknown person had created a fake Facebook Profile in her name and uploaded some obscene pictures on that profile. On account of such action, the victim is suffering from deep mental depression. 5. Perusal of Annexure-II indicates that Inspector of Police, CID, Assam, Guwahati, wrote to the Special Superintendent of Police, CID, Assam, Guwahati, vide communication dated 19.09.2013 to the effect that an enquiry was conducted in regard to the creation of Facebook Profile in the name of the victim. Correspondence was made with Facebook authorities to provide login details and other information related to the fake Facebook Profile. From the IP address, it was found that Airtel Telecom Ltd. and Bharati Airtel Telecom Ltd. had issued the IP address. Enquiries were made from the Airtel Telecom Ltd., whereupon it was disclosed that the IP address details were allotted to mobile phone No. 8472088388 and mobile phone No. 7896679975, which were in the name of Md. Sazzadur Rahman, i.e., the petitioner/accused. Enquiries were made from the Airtel Telecom Ltd., whereupon it was disclosed that the IP address details were allotted to mobile phone No. 8472088388 and mobile phone No. 7896679975, which were in the name of Md. Sazzadur Rahman, i.e., the petitioner/accused. The communication (Annexure-II) also reveals that the accused uploaded some sexually explicit photographs in the fake Facebook Profile of the complainant’s daughter and also posted some derogatory remarks against her. The victim is a minor girl, aged about 15 years. In the fake profile, the accused mentioned her name and uploaded obscene pictures that caused her to be mentally unstable and hampered her academic career. On the basis of the said communication, the CID, Assam, was asked to register a case under the provisions of the Act of 2000. 6. It appears that in the course of investigation, incriminating evidence was found against the petitioner/accused and charge-sheet was filed in the Court of Chief Judicial Magistrate, Kamrup (M). The petitioner was asked to face trial. It further appears that in the course of trial three prosecution witnesses were examined, namely, Dipak Das, as PW1, examined on 21.02.2017; Kakoli Kalita was examined as PW2 on 03.08.2018; and Ajit Chandra Kalita was examined as PW3 on 30.08.2018. The said witnesses were also cross-examined by the counsel for the petitioner/accused. 7. While the trial was going on, an Application (Annexure-III) under Section 311 Cr.P.C. was filed on 11.03.2019. I have gone through the contents of the application. As per the application, Sri Z. Kamar, a Senior Advocate of Gauhati High Court, had been engaged recently by the petitioner/accused in the month of March, 2019. On going through the statements of the witnesses recorded under Section 161 Cr.P.C. and the statements given by PWs 1, 2 and 3 (supra), including their cross-examination, the newly engaged Senior counsel thought it necessary to recall the witnesses for further cross-examination, hence the application under Section 311 Cr.P.C. 8. Having gone through the contents of the application, I find that no reason, other than change of counsel, has been given for further cross-examining the witnesses, although the provisions of Section 311 Cr.P.C. inheres that any Court may, at any stage of any enquiry, trial, or other proceedings under the Code, recall and re-examine any person already examined if his evidence appears to be essential for just decision of the case. In the application under Section 311 Cr.P.C., there is neither any reference to the contents of the examination of either of the witnesses nor to the cross-examination. The application does not indicate as to what was the circumstance or fact that made it essential for the defence to seek further cross-examination of the witnesses for just decision of the case. 9. In the course of hearing, I addressed a question to Sri Kamar, learned Senior counsel, as to the reason why PWs 1, 2 and 3 need to be recalled for further cross-examination. All that Sri Kamar stated is that the cross-examination done by the earlier counsel is very scanty and, therefore, the witnesses need to be recalled for further cross-examination. 10. Relevant portion of the impugned order dated 11.04.2019 reads as under: “Accd. Sazzadur Rahman is present. This order arises out of an application/petition dtd. 11.03.2019 filed by the Accused U/s 311 Cr.PC praying for recalling PW-1 (Dipak Das), PW-2 (Kakoli Kalita) and PW-3 (Ajit Ch. Kalita) for cross-examination. According to the Accd., he has engaged Mr. Ziaul Kamar, Sr. Advocate, Gauhati High Court in the 1st week of March, 2019 to defend him in this case & has also handed over the brief to the Ld. counsel. And the newly engaged Counsel after going through the depositions of these PWs, statements recorded under Section 161 Cr.PC and the documents relied upon by the prosecution observed that the earlier engaged counsel did not properly and effectively crossexamine the aforesaid PW’s. And, as such, it has become necessary to recall the said 3 PWs, to enable the Accused & his engaged Advocate to effectively cross-examine the PWs further. The Accused has contended that these PWs are very vital and material witnesses of the case and their evidence and deposition carries a lot of gravity & if the aforesaid PWs are not recalled for further cross-examination, he will be prejudiced. In support of his contention the accused has placed before me the following decisions of the Hon’ble Supreme/High Court - 1. Mohanlal Shamji Soni vs. Union of India (reported in 1991 Crl.J 1521). 2. Rajaram Prasad Yadav vs. State of Bihar (reported in AIR 2013 SC 3081 ). 3. Kuladhar Kalita vs. State of Assam [reported in 2005(3) GLR 725] I have read these case laws. Mohanlal Shamji Soni vs. Union of India (reported in 1991 Crl.J 1521). 2. Rajaram Prasad Yadav vs. State of Bihar (reported in AIR 2013 SC 3081 ). 3. Kuladhar Kalita vs. State of Assam [reported in 2005(3) GLR 725] I have read these case laws. The ground on which the application u/s 311 Cr.PC was allowed varies with the ground on which the accused of this case has sought for recall/further cross-examination. In other words, the ratios laid down by the Hon’ble Supreme Court/High Court in these case laws have got no bearing on the facts of this case in my hand. I have perused the entire case record. There is no dispute to the fact that the Accused through his previous Advocate has cross examined PW1, PW2 and PW3 at length on 21.12.17 and 30.08.18 respectively. As we all know Section 311 Cr.PC clearly lays down that the Court may at any stage of trial recall and re-examine any witness already examined only of his evidence appears to it to be essential for the just decision of the case. In this case, PW1, PW2 and PW3 have already been examined and crossexamined. In my opinion, no new evidence can be elucidated from these witnesses by recalling them as they have already deposed extensively. The settled position of law laid down in Section 311 Cr.PC is that it should be resorted only to find out the truth or obtaining proper proof for such facts which will lead to a just and correct decision of the case. Allowing the accused to further cross examination the PWs will in no way lead to finding out the truth which is already on record. A question of prejudice as contended by the accused cannot also be subscribe to as because he already had the opportunity to test the veracity of the aforesaid witnesses. If the accused is allowed now to further cross examine the PWs it will amount to allowing the accused to cross examine the witnesses twice on the same set of examination-in-chief which is not permissible as per law. Hence, I find that the Accused has failed to show any cogent reason to either re-call or re-examine these witnesses. If the accused is allowed now to further cross examine the PWs it will amount to allowing the accused to cross examine the witnesses twice on the same set of examination-in-chief which is not permissible as per law. Hence, I find that the Accused has failed to show any cogent reason to either re-call or re-examine these witnesses. The only contention of the accused is that his previous Advocate did not properly cross-examine the PWs & now he has engaged a new advocate who wants to further cross-examine the PWs is not a cogent ground for allowing his application. Rather, in my view it would amount to “filling up the lacuna of the defense case” which is not permitted under the code. Accordingly, the prayer made by the accused under Section 311 Cr.PC has no merit and is accordingly rejected. Summon remaining PW’s. Fix 15/6/19 for Evidence/PWs.” 11. Sri Kamar has relied on two judgments rendered by the Hon’ble Supreme Court of India, one being in the case of Hofman Andreas vs. Inspector of Customs, Amritsar, reported in (2000) 10 SCC 430 and the other in P. Sanjeeva Rao vs. State of A.P., reported in (2012)7 SCC56. 12. From the judgment rendered by the Hon’ble Supreme Court of India in Hofman Andreas(supra), paragraphs 6, 7, 8,9 and 10 are required to be referred to exactly. The said paragraphs read as under: “6. Normally, at this late stage, we would be disinclined to open up a closed trial once again. But we are persuaded to consider it in this case on account of the unfortunate development that took place during trial i.e. the passing away of the defence Counsel midway of the trial. The Counsel who was engaged for defending the appellant had cross-examined the witnesses but he could not complete the trial because of his death. When the new Counsel took up the matter he would certainly be under the disadvantage that he could not ascertain from the erstwhile counsel as to the scheme of the defence strategy which the predeceased advocate had in mind or as to why he had not put further questions on certain aspects. When the new Counsel took up the matter he would certainly be under the disadvantage that he could not ascertain from the erstwhile counsel as to the scheme of the defence strategy which the predeceased advocate had in mind or as to why he had not put further questions on certain aspects. In such circumstances, if the new Counsel thought to have the material witnesses further examined, the court could adopt latitude and a liberal view in the interest of justice, particularly when the court has unbridled powers in the matter as enshrined in Section 311 of the Code. After all the trial is basically for the prisoners and courts would afford the opportunity to them in the fairest manner possible. 7. We think that the plea of the defence that a further opportunity to put more questions to the three prosecution witnesses can be permitted on account of the unfortunate death of the defence Counsel pendente lite, and a new Counsel has to evolve his defence strategy afresh. 8. We make note of the fact that the new defence Counsel filed the said petition for recalling the prosecution witnesses even before the accused was called upon to enter on his defence. 9. For the aforesaid reasons, without entering into merits of the contentions raised before us we deem it necessary, in the interest of justice, to afford an opportunity to the accused to further cross-examine the three prosecution witnesses who were already examined. We, therefore, set aside the conviction and sentence passed on the appellant and remit the case to the trial court with the following directions: 1. The court shall summon PW-1, PW- 2, and PW-3 to be cross-examined again on behalf of the accused. 2. The evidence already brought on record will remain as part of the evidence in the case. After the defence counsel availing himself of the opportunity to further examine the three witnesses, if prosecution wants to adduce further evidence, it is open to the court to grant permission for the same. Accused shall then be called upon to enter on his defence. 3. After collecting such evidence, if any adduced by the accused, the trial Judge shall dispose of the case afresh in accordance with law and untrammelled by any findings or observations made in the judgment of the trial court or that of the High Court. 10. Accused shall then be called upon to enter on his defence. 3. After collecting such evidence, if any adduced by the accused, the trial Judge shall dispose of the case afresh in accordance with law and untrammelled by any findings or observations made in the judgment of the trial court or that of the High Court. 10. We make it clear that the accused shall remain in custody till the disposal of the case. It is needless to say that the trial Judge shall recall the witnesses at the earliest, so that, this old case must tie disposed of as expeditiously as possible and on a priority basis.” 13. A perusal of paragraphs 6 and 7 of the above extracted portion of the judgment rendered in Hofman Andreas (supra) would indicate that the Hon’ble Supreme Court has clearly stated that at the late stage of trial it would be disinclined to open up a closed trial once again. However, the Hon’ble Supreme Court was persuaded to consider the prayer favourably on account of an unfortunate development that took place during the trial, i.e., passing away of the defence counsel midway of the trial. The counsel could not complete the cross-examination on account of his death. The new counsel was at a disadvantage that he could not ascertain from the earlier counsel as to the scheme of defence strategy. In above extracted paragraph 7 it has been clarified that it is on account of unfortunate death of the defence counsel pendente lite, the application under Section 311 Cr.P.C. was allowed. Further I find that the Hon’ble Supreme Court, in paragraph 9, has made it clear that without entering into the merits of the contentions raised before the Supreme Court, in the interest of justice, an opportunity was afforded to the accused to further cross-examine the prosecution witnesses. 14. A perusal of the judgment rendered in Hofman Endreas (supra), therefore, would make it evident that the same cannot be invoked in favour of the petitioner/accused in the present case. In the case in hand, there is no such unfortunate incident, rather, as a matter of choice a counsel was engaged in a case, in which charges were framed on 19.07.2017, and the counsel continued to represent the defence/petitioner/accused till 2019 and, thereafter, the counsel was changed. In the case in hand, there is no such unfortunate incident, rather, as a matter of choice a counsel was engaged in a case, in which charges were framed on 19.07.2017, and the counsel continued to represent the defence/petitioner/accused till 2019 and, thereafter, the counsel was changed. Thus, the only reason that is coming forth is the change of the counsel, in whose perception it was necessary to further cross-examine PWs 1, 2 and 3. 15. So far as P. Sanjeeva Rao’s case (supra) is concerned, Hon’ble Supreme Court was dealing with a case registered under the Prevention of Corruption Act, 1988. The appellant before the Hon’ble Supreme Court of India/accused filed an application under Section 311 Cr.P.C. for recalling of prosecution witnesses No. 1 and 2 for cross-examination on the plea that their cross-examination had been deferred till such time the trap laying witness (PW11) was examined by the prosecution. Rather, a second prayer was made before the trial Court to defer cross-examination of the Investigating Officer (PW12) till such time PWs 1 and 2 were cross-examined. The trial Court, however, recorded “nil” in the cross-examination of PWs 1 and 2. The trial Court record did not show that the accused had reserved his right to cross-examine the witnesses at a later stage. Faced with such a situation, a counsel having substantial standing and repute, filed his personal affidavit stating that PWs 1 and 2 had not been cross-examined by him under a bona fide impression that he could do so after evidence of the trap laying witness (PW11) had been recorded. Such were the facts that were considered by the Hon’ble Supreme Court of India in P. Sanjeeva Rao (supra). In view of the peculiar facts that were considered by the Hon’ble Supreme Court of India, the petitioner cannot take advantage in the facts and circumstance of the case under adjudication. 16. Having referred to the contents of the impugned order extracted above, I am of the considered view that the petitioner has not been able to show abuse of the process of Court in any manner in rejecting the application by the trial Court so as to invoke Section 482 of the Cr.P.C. In the considered opinion of this Court, no such circumstance has been shown that the application ought to have been allowed to secure the ends of justice. Likewise, perusal of the application filed before the trial Court under Section 311 Cr.P.C., and perusal of the impugned order do not, in any way, indicate that the impugned order is illegal, incorrect or improper in any manner. This Court does not trace any illegality in the procedure followed by the trial Court in rejecting the application under Section 311 Cr.P.C. Under the circumstances, I find no reason to interfere under the inherent powers; or revisional jurisdiction. 17. I have also taken note of the fact that PWs 1, 2 and 3 were examined and cross-examined during the period spanning between February, 2017 and August, 2018. The application under Section 311 Cr.P.C. was filed before the trial Court on 11.03.2019, essentially, only on the ground that a new Senior counsel had been engaged on behalf of the accused, who was of the opinion that the cross-examination done by the earlier counsel was not satisfactory. 18. It is a settled law that although a witness can be examined or re-examined at any stage of proceedings in exercise of powers under Section 311 of the Code, however, the discretion thus conferred is to be exercised judiciously. Wider the power, greater is the necessity for application of judicious mind. The order of the trial Court has exhibited judicious application of mind while rejecting the application. Relevant and necessary aspects of the matter have been taken into account. Ordinarily, discretion of the trial Court, which, ex facie, has been exercised judiciously on the basis of relevant materials, is not to be interfered with either in revisional jurisdiction or under Section 482 Cr.P.C. 19. For all the reasons given above, the petition is dismissed. 20. The trial Court is directed to deal with the matter expeditiously because the crime took place sometime in July, 2013 and, even after seven years, the matter is pending adjudication. 21. Let a copy of this order be conveyed to the trial Court through the Registrar General of this Court forthwith. 22. Let a copy of the order be provided under the signature of the Court Master.