G H IYER Vs. STATE GOVT OF INDIA

JUDGEMENT

(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 non-availability 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 complainant 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, C.R. 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).