J.B. Pardiwala, J.

1. By this application under Art. 227 of the Constitution of India, the petitioner-original accused calls in question the legality and validity of the order dated 9th October, 2014 passed by the learned 2nd Additional Sessions Judge, Junagadh below Exh. 83 in the Sessions Case No. 8 of 2012 by which the learned Additional Sessions Judge allowed the application Exh. 83 filed by the prosecution for the purpose of summoning a medical officer for his examination. The facts giving rise to this application may be summarized as under:

(a) The petitioner is being tried being accused of the offence of murder punishable under Sec. 302 of the Indian Penal Code, in the Court of the learned 2nd Additional Sessions Judge, Junagadh. It appears from the materials on record that after the arrest and while drawing the panchnama of the person of the accused, the Investigating Officer noticed few injuries on his body. In such circumstances, the Investigating Officer thought fit to forward the accused with a police yadi for the purpose of his medical examination, at the Civil Hospital. One Dr. P.K. Javia had carried out the medical examination of the accused at the relevant point of time.

(b) It also appears that in the charge-sheet Dr. Javia was shown as one of the prosecution witnesses, however, in the course of the trial he was dropped by the prosecutor and was not examined. The recording of evidence was concluded. The further statement of the accused under Sec. 313 of the Code of Criminal Procedure, 1973 was also recorded when the trial was at the stage of pronouncement of the judgment, the Public Prosecutor filed an application Exh. 83 stating that inadvertently Dr. Javia, who had carried out the medical examination of the accused was not examined and his examination was essential for the just decision of the case. In the application Exh. 83, it was prayed that Dr. Javia, the Medical Officer be summoned along with the medical case papers for his examination.

2. The Exh. 83 filed by the State was opposed by the accused by filing his reply Exh. 84.

3. The learned Additional Sessions Judge adjudicated the application and allowed the same taking the view that summoning Dr. Javia and his examination was necessary for the just decision of the case.

4. The petitioner original accused being dissatisfied with the order passed by the learned Additional Sessions Judge, Junagadh has come up with this application challenging the same.

Submissions on behalf of the accused:

5. Mr. Hriday Buch, the learned Advocate appearing on behalf of the accused vehemently submitted that the impugned order is erroneous in law and quite prejudicial to the defence of the accused. The principle argument of Mr. Buch is that the impugned order ought not to have been passed by the learned Judge after the arguments were concluded and the matter was posted for pronouncement of the final judgment.

6. Mr. Buch submits that the Medical Officer who is now sought to be summoned for the purpose of examination was consciously dropped by the Public Prosecutor during the trial, more particularly, when he was shown as one of the witnesses in the charge-sheet. According to Mr. Buch having consciously dropped a witness the Public Prosecutor now cannot pray that he should be permitted to examine the Medical Officer as the Medical Officer had carried out the medical examination of the accused.

7. Mr. Buch further submits that in the application Exh. 83 no cogent grounds have been assigned as to why it is necessary to examine Dr. P.K. Javia, the Medical Officer.

8. In support of his submissions, Mr. Buch has placed strong reliance on the following decisions of the Supreme Court (1) Mohanlal Shamji Soni v. Union of India, 1991 Cri. L.J. 1521 : 1991 Suppl. (1) SCC 271 : AIR 1991 SC 1346, (2) Rajesh Talwar v. C.B.I., 2014 (1) SCC 628.

9. In such circumstances referred to above, Mr. Buch prays that there being merit in the application the same be allowed and the impugned order be