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2020 Supreme(Gau) 314
IN THE HIGH COURT OF GAUHATI, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
Ajai Lamba, J.
Sazzadur Rahman S/o Samedur Rahman – Petitioner
Versus
The State of Assam and Anr. – Respondents
Crl. Pet. 654 of 2019
Decided On : 02-06-2020
Advocate Appeared:
For the Petitioner: Mr Z Kamar
The main legal point established in the judgment is that the discretion conferred under Section 311 of the Code of Criminal Procedure, 1973, to recall and re-examine witnesses should be exercised judiciously, and a change of counsel alone is not a sufficient ground for allowing the application.
Headnote:
Code of Criminal Procedure - Quashing of order - Sections 482, 401, 397 - Information and Technology Act, 2000 - Sections 66A, 67A - [SUMMARY OF ACTS AND SECTIONS REFERENCED: Code of Criminal Procedure, 1973 - Sections 482, 401, 397; Information and Technology Act, 2000 - Sections 66A, 67A] - The court discussed the provisions of Section 311 of the Code of Criminal Procedure, 1973, which allows the recall and re-examination of witnesses if their evidence appears to be essential for a just decision of the case. The court also considered the provisions of the Information and Technology Act, 2000, specifically Sections 66A and 67A, which were the basis for the FIR in the case. The interpretation of these legal provisions influenced the court's decision to reject the application for recalling witnesses under Section 311 of the Cr.P.C.
Fact of the Case:
The petitioner filed a petition under Section 482 of the Code of Criminal Procedure, 1973, seeking to quash an order passed by the Chief Judicial Magistrate, Kamrup (M), Guwahati, rejecting the application for recalling prosecution witnesses for further cross-examination in a case related to the creation of a fake Facebook profile and uploading of obscene pictures under the Information and Technology Act, 2000.
Finding of the Court:
The court found that the change of counsel was the only reason given for further cross-examination of witnesses, and it did not find any abuse of the court's process in rejecting the application under Section 311 of the Cr.P.C. The court also noted that the trial court had exhibited judicious application of mind while rejecting the application.
Issues: The main issue was whether the application under Section 311 of the Cr.P.C. for recalling witnesses for further cross-examination should be allowed based on the change of counsel and the necessity for just decision of the case.
Ratio Decidendi: The court held that the discretion conferred under Section 311 of the Cr.P.C. to recall and re-examine witnesses should be exercised judiciously, and the trial court had exhibited judicious application of mind while rejecting the application. The court also emphasized that the change of counsel alone was not a sufficient ground for allowing the application.
Final Decision: The petition was dismissed, and the trial court was directed to deal with the matter expeditiously.
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.
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
