ORDER
P.K. Tripathy, J.
1. The petitioner calls in question legality of the order dated 21-3-1995 passed by the Judicial Magistrate, First Class, Anandapur accepting the prayer made by the prosecution for recalling P.W. 5 for re-examination in 2(c) CC No. 12 of 1992.
2. One Nityananda Mahakud who was working as a Mazdoor in the Mines area was crushed under a dumper and sustained injury. He was shifted to the hospital in a jeep, but on the way he expired. The accident was enquired into by the complainant who is the Deputy Director of Mines Safety. Having found the petitioner contravened the provision of Rule 40(2)(b) of the Mines Rules, 1955 which is punishable under Section 73 of the Mines Act, 1952 he launched prosecution under Section 200(a) of the Code of Criminal Procedure (in short, ‘Cr. PC). During the course of trial, so far five witnesses have been examined and the Deputy Director, Mines Safety has been examined as P.W. 5. On 4-12-1993 though the said witness was present but the prosecution prayed for an adjournment on the ground of nonavailability of the enquiry report. Keeping in view the objection raised on behalf of the petitioners, the trial Court recorded the evidence of P.W. 5 and discharged him. On the same day on the petition filed by the A.P.P. to recall the witness with the permission to produce the enquiry report, the trial Court allowed the petition”. On 22-1-1994 prosecution filed the documents and the P.W. 5 was present. An objection petition was filed by the petitioners challenging the recall order dt. 4-12-1993. The trial Court rejected the objection. The petitioners challenged the said order in Criminal Misc. Case No. 371 of 1994 under Section 482, Cr. P.C. This Court on 25-4-1994 set aside that order and directed the Magistrate to hear the recall petition afresh after giving opportunity of hearing to both the parties. The trial Court in compliance to that direction heard the matter and passed the impugned order allowing the prayer of the prosecution on the ground that the document (i.e. the enquiry report) is material evidence and further evidence of P.W. 5 is necessary for just decision of the case.
3. Sri S. S. Das, learned Counsel for the petitioner argued that the impugned order is bad in the eye of law inasmuch as the complainant1 had not appended to the complaint petition the said enquiry report and when the prosecution evidence was at a closing stage, such report is being introduced in evidence as a surprise item; If the said report is accepted in evidence, it will cause prejudice to the petitioner. He further argued that keeping in view the provision in Section 138 of the Evidence Act and the ratio in the case of Collector, Cuttack v. Sankar Sahu ILR (1980) 1 Cut 1; Jitendra Nath Bose v. State 1991 Cri LJ 922; and Laxmidhar Panda v. Smt. Bidulata Das CR. 74 of 1987 (unreported), the order to recall P.W. 5 is illegal. Mr. H. K. Jena, Senior Standing Counsel for the Central Government, on the other hand, argued that the impugned order is squarely covered by the procedure prescribed by Section 311, Cr. P.C. and the trial Court has found the enquiry report to be relevant and essential document in the interest of justice, thus in exercise of the inherent power this Court should not interfere with that discretion exercised by the trial Court in furtherance of justice. He placed reliance in the cases of Sarada Charan Parija v. Sari Swain 1962 (28) CLT 593; Kanhu Charan Saraf v. Radhamohan Padhi AIR 1955 Ori 219 : 1965 (2) Cri LJ 794; and Jamatraj Kewalji Govani v. State of Maharashtra AIR 1968 SC 178 : 1968 Cri LJ 231.
4. Section 138 of the Evidence Act provides for order of examination of witnesses wherein there is also provision for re-examination of a witness whereas Section 311, Cr. P.C. provides for power to summon material witnesses, or examine person present. It is needless to mention that the aforesaid two provisions are complementary to each other and not conficting with one another. When Section 138 of the Evidence Act makes provision relating to the order of examination of witnesses, Section 311 mentions about the procedure and the duty of the Court to consider and pass order relating to examination and/or re-examination of witnesses.
5. The cases of Collector, Cuttack and others and Laxmidhar Panda and others cited by the petitioner are completely distinguishable being relating to civil proceedings and are of no help so far as the present case is concerned. In the case of Jitendra Nath Bose (supra) the confessional statement of the accused, existence of which was not known throughout the investigation and till the conclusion of the trial, was offered as surprise evidence after the prosecution was closed. The Calcutta High Court on merit found the charge under Section 409, I.P.C. was not substantiated;, hence did not appreciate the trial Court’s conduct in accepting such surprise evidence at such belated stage. Thus, the cited case has also no relevance to the facts and circumstance of the present case.,
6. Section 311, Cr. P.C. corresponds to Section 540 of the old Code. In the decisions of this Court and Apex Court, which have been cited by the opposite party, the provision of law involved in Section 540 of the old Code (Cr. P.C. 1898) which corresponds to Section 311, Cr. P.C. It is settled therein that the first part of that provision gives wide discretion to the trial Court to summon and examine a witness or to recall and re-examine a witness whereas the second part of the said provision makes it obligatory on the part of the trial Court to examine or re-examine witness at any stage of the proceedings if such evidence is found essential for a just decision of the case.
7. In the case of Sabar Mahabhoi v. State of Orissa (1994) 78 CLT 990, the fact before this Court was that some witnesses not examined during the investigation and not named in the charge-sheet were permitted to be summoned and examined. It was held :
If the facts disclosed in evidence or questions put in cross-examination necessitate bringing on record the evidence of a person, Court should not hesitate in summoning him as a prosecution witness, or even as a Court-witness in terms of Section 311 of the Code….
Similarly, in the case of Pradeep Kumar Agarwal v. State (1994) 79 CLT 962 : 1995 Cri LJ 76, it was held :
The object underlying Section 311, Cr. P.C. is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of witnesses examined from either side. The determinative factor is whether it is essential to the just decision of the case. The Section is not limited only for the benefit of the accused, and it will not be an improper exercise of the powers of the Court to summon a witness under the section merely because the evidence supports the case for the prosecution and not that of the accused….
8. It is mentioned in the complaint petition that P.W. 5 had conducted an enquiry. P.W. 5 in his deposition has also stated that he had conducted an enquiry and in the concluding sentence of paragraph 3 of his evidence he has stated that “It will be difficult on my part to depose in this case without perusal of the said enquiry report and message”. On 4-12-1993 before examination of P.W. 5, the A.P.P. prayed for an adjournment on the ground of non-availability of the enquiry report. Besides that, it appears from the lower Court record that the petitioner had filed Criminal Misc. Case No. 1389 of 1992 under Section 482, Cr. P.C. which was disposed of on 26-3-1993. In the said case, the petitioner had prayed to quash the cognizance and in that order also the factors relating to the enquiry being conducted by P.W. 5 was noted. Therefore, the enquiry and the enquiry report is not a surprise item of evidence for the petitioner. In the impugned order, the learned Magistrate has recorded that the document is necessary for adjudication of the matter. At this stage without discussing the evidentiary value of that report and its implication because such discussion may prejudice either of the party, it may be noted that the trial Court has found such document as a relevant evidence and has permitted P.W. 5 to be re-examined for a just decision in the case which is neither illegal nor unjust. Hence, there is nothing to interfere with the impugned order. Accordingly, the Criminal Misc. case is dismissed.
This being, a year-old case of the year 1992, the trial Court should make efforts for its expeditious disposal and preferably within a. period of two months from the date of receipt of the L.C.R. which be sent back forthwith