It is, thus, clear that the provisions of Section 293 Cr.P.C. are applicable to the Chemical Analysers and Assistant Chemical Analysers /examiners. It is in this background and the legal provisions allowing the trial Court to use the report of Chemical Analyser as evidence in any enquiry, trial or other proceedings, that the prosecution was under obligation to explain the reasons for moving the Court for summoning the Chemical Analyser, that too at a very belated stage when the case was closed for judgment. As such, in my considered opinion, the order of the trial Court directing issuance of summons to Regional Forensic Science Laboratory needs to be set aside.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR
CRIMINAL REVISION APPLICATION NO. 127 /2012
Mukesh s/o Ramshankar Shivhare Vs The State of Maharashtra
CORAM: M.L.TAHALIYANI,J.
DATED : 26th September, 2012
1. Heard Mr. R.M.Patwardhan, learned Advocate for the
applicant and Mrs. S.S.Jachak, learned Additional Public Prosecutor for the respondent.
2. Admited. With the consent of the learned counsel for respective
parties, this Revision is finally heard at the stage of admission.
3. The present Application impugns the order passed by the
learned Sessions Judge, Nagpur in Sessions Trial No. 157/2009 below Exh.216. Exh.216 originally was the Application for recall of two Police Officers who had participated in investigation of the case i.e. Crime No. 285/2008 of Ganeshpeth Police Station. It appears that the prayer for recall of witnesses was extended by the learned Additional Public Prosecutor by filing a pursis to call the Chemical Analyser from the office of the Regional Forensic Science Laboratory, to examine him as a witness. As far as two Police Officers are concerned, it was stated before the learned trial Court
that one of the Police Officers had recorded memorandum of statement of the accused no.2 which had led to recovery of clothes. The other Officer was sought to be recalled on the ground that the articles seized by the Investigating Officer during the course of investigation were not shown to the Police Officer when he was examined as a witness. As far as Chemical Analyser is concerned, it appears that no reasons were stated by the learned AP.P. for summoning the Chemical Analyser. The impugned order at
paragraph 9 runs as under :
“9. In the matter at hand, today pursis Exh.221
is passed by the learned Additional Public Prosecutor Mr
Mendhe stating that inadvertently in this application it
remained to be mentioned to recall a officer examining the
articles by way of DNA profile of the office of Chemical
Analyser.”
It is, thus, clear that the learned APP had not stated the reasons for
summoning the Chemical Analyser despite the fact that DNA profile reports were admitted to be genuine and true by the accused and accused had no objection for reading the same in evidence.
4. Before I examine the correctness or otherwise of the order, it
may be stated that admittedly, the case was closed by the prosecution, statements of all the accused were recorded and arguments of the parties were also heard. The case was closed for judgment. It is at this later stage that Application for recalling two Police Officers and one Chemical Analyser was made before the learned trial Judge.
5. Learned counsel for the applicant Mr. R.M.Patwardhan does
not press for any relief as far as recalling of the Police officers is
concerned. It is submitted by him that he does not oppose the prayer of prosecution to recall those two Police Officers and examine them for the limited purpose mentioned hereinabove i.e. one Police Officer on the point of statement of the accused no.2 leading to discovery of certain articles and another Police officer for showing certain articles seized during the course of investigation. However, Mr. Patwardhan has serious objection for calling the Chemical Analyser at such a belated stage. It was submitted by Mr Patwardhan that DNA profile reports have been admitted by the applicant/ original accused. It is further submitted that certain discrepancies were brought to the notice of the Court during the course of arguments. Mr Patwardhan, therefore, submits that the pursis pressed into service by the learned APP as an extension to his original Application (Exh.216) was nothing but an afterthought and with a view to fill up the lacunae in the prosecution case. Mr Patwardhan has submitted that though Section 311 gives ample powers to the Court to call or recall any witness and part of
Section 311, in fact, enjoins upon the Court to call the witnesses whose evidence is necessary for just decision of the case, the discretion is to be exercised judiciously. The order of the learned trial Court does not indicate as to what made the learned APP to suddenly take a decision to call the Chemical Analyser despite the fact that DNA profile reports were admitted by the applicant. The learned trial Judge, in fact, should have asked the learned APP to file a separate Application stating the reasons for calling Chemical Analyser as a witness. This was necessary particularly keeping in
mind the fact that the DNA profile reports were admitted by the
applicant/original accused.
6. The report of Chemical Anaalyser is admissible u/s 293 of
Cr.P.C. without formal proof thereof. Section 293 of Cr.P.C. runs as under.
“293: Reports of certain Government scientific
experts: (1) Any document purporting to be a
report under the hand of a Government scientific
expert to whom this section applies, upon any
matter or thing duly submitted to him for the
examination or analysis and report in the course of
any proceeding under this Code, may be used as
evidence in any enquiry, trial or other proceeding
under this Code.
(2) ....
(3) ....
(4) This Section applies to the following
government scientific experts, namely(
a) any Chemical Examiner or Assistant Chemical
Examiner to Government;
(b) ....
(c) ...
(d) ....”
It is, thus, clear that the provisions of Section 293 Cr.P.C. are applicable to the Chemical Analysers and Assistant Chemical Analysers /examiners. It is in this background and the legal provisions allowing the trial Court to use the report of Chemical Analyser as evidence in any enquiry, trial or other proceedings, that the prosecution was under obligation to explain the reasons for moving the Court for summoning the Chemical Analyser, that too at a very belated stage when the case was closed for judgment. As such, in my considered opinion, the order of the trial Court directing issuance of summons to Regional Forensic Science Laboratory needs to be set aside. The prosecution can be allowed to recall PW No.23 P.I. Gadekar and prosecution can be allowed to examine PSI Mane. This is also because of the concession given by the learned counsel Mr Patwardhan on behalf of the applicant. As far as summoning of Chemical Analyser is concerned, it is obvious from what has been stated by me hereinabove that the order of learned Sessions
Judge to that extent will have to be set aside. Hence I pass the following order:
ORDER:
(1) The order dated 20th July 2012 of the learned Sessions Judge
directing issuance of summons to officers/ Chemical Anslyser of FSL is set
aside.
(2) PSI Mane shall be allowed to be examined as prosecution witness.
(3) PW 23 Gadekar may be allowed to be recalled for the limited purpose
stated in the text of the order.
(4) Needless to state that the additional statements of the accused will
have to be recorded, if necessary, after examination and further examination
of the above stated two witnesses. Interim stay, if any, stands vacated.
Application stands disposed of accordingly.
(5) Matter to appear on the Board of the learned Sessions Judge on 17 th
October,2012.
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