The discretionary power under Section 311 of the Cr.P.C. should be exercised for the ends of justice, ensuring a just decision and preventing prejudice.

JUDGMENT :

ARVIND SINGH SANGWAN, J.

1. Prayer in this petition is for setting aside the order dated 19.03.2018 (Annexure P-9) passed by the trial Court in FIR No.50 dated 21.03.2015 under Section 302 of the Indian Penal Code (for short ‘IPC’), Police Station Division No.1, Pathankot, vide which an application filed by the petitioner under Section 311 of the Code of Criminal Procedure (for short ‘Cr.P.C.’), for recalling PW5 Dr. M.L. Attri, for further crossexamination, was dismissed.

2. Brief facts of the case are that the aforesaid FIR was registered by complainant Ratesh Bakshi with the allegations that on 20.03.2015 at about 11.00 pm, he along with his wife Kamli Sharma and 07 years old son, were going in a car bearing registration No.JK-02B-B-6258-T towards Simbol Chowk, Pathankot. When they reached in front of a school on Dalhousie Road, Pathankot, a car bearing registration No.HR26-AR-6889, in which three persons were sitting, suddenly stopped in front of his car and stated that he is trying to escape after hitting side of the car and started giving beatings to him. His wife Kamli Sharma came to the rescue and one more person Anil Kapoor also came to his rescue and thereafter, aforesaid three persons started giving beatings to Anil Kapoor as well. He fell down on the road and died at the spot. In the meantime, people gathered and apprehended these three persons, whose names are Arjun Kaistha (petitioner), Rahul Palak and Arun Kaistha. The FIR was registered with the allegations that these three persons have caused injuries to him.

3. After presentation of the challan, charges were framed under Section 302 IPC. The police recorded statements of the prosecution witnesses and in that process, statement of PW5 Dr. M.L. Attri was recorded by way of video conferencing.

4. During cross-examination of PW5, a question was put by prosecution in re-examination whether deceased Anil Kapoor suffered injuries on chest, after suffering hurt attack or due to fall on hard surface, to which this witness relied that his opinion was not definite but as per his opinion, such possibility can be there.

5. Learned counsel for the petitioner has stated that as per the post-mortem report, cause of death was sudden cardiac arrest due to acute myocardial infarcation precipitated by blunt trauma to chest. It is further submitted that as the petitioner-accused is a serving Army personnel, on basis of the entire evidence collected during the court of inquiry, the accused was not held guilty, the petitioner moved an application for summoning the record of court of inquiry file from Commander 16 (Independent) Armoured Brigade, Mamoon Cantt. The trial Court, while deciding the application under Section 311 Cr.P.C., held that the accused cannot be permitted to produce on record the defence evidence till the time, such stage reaches and therefore, the application was dismissed.

6. Learned counsel for the petitioner submits that the trial Court granted permission to the petitioner to obtain the copies of the Court of inquiry for the purpose of conducting effective cross-examination of ASI Chamba Singh, who was present on the date of passing of the order dated 08.08.2017, subject to decision of case, if such inquiry report is admissible. It is further submitted that thereafter, the petitioner moved an application under Section 311 Cr.P.C. for production in Court the original PMR bearing No.PMR/5/ML/L/RK/15/CHPTK of deceased Anil Kapoor and for further cross-examination of PW5 Dr. M.L. Attri, Medical Officer, Civil Hospital, Pathankot, to prove that there is fabrication in the original post-mortem report and therefore, the original hand-written post-mortem report could not be produced in the Court, as the statement of this witness was recorded through video conferencing. Another application was filed praying for issuance of direction to SMO, Civil Hospital, Pathankot to produce the original mortuary register w.e.f. 15.01.2015 including its pages from 03.03.2015 to 2