Allahabad High Court
Yashpal vs State Of U.P. And Another on 13 May, 2026
Author: Vivek Kumar Singh
Bench: Vivek Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2026:AHC:110538
Reserved on 15.04.2026 Delivered on 13.05.2026
HIGH COURT OF JUDICATURE AT ALLAHABAD
APPLICATION U/S 528 BNSS No. - 11556 of 2026
Yashpal
.....Applicant(s)
Versus
State of U.P. and Another
.....Opposite Party(s)
Counsel for Applicant(s)
:
Prateek Kumar Mishra, Pratik J. Nagar, Shashank Singh, Vatsala
Counsel for Opposite Party(s)
:
G.A.
Court No. - 80
HON'BLE VIVEK KUMAR SINGH, J.
1. Heard Ms. Vatsala along with Sri Pratik J. Nagar, learned counsel for the applicant and Sri Prashant Kumar Singh, learned AGA for the State.
2. The present application under Section 482 Cr.P.C. has been filed to quash the order dated 19.01.2026 passed by the Additional Session Judge/Special Judge (Gangster Act), Court No.3, Gautam Budh Nagar in S.T. No.749 of 2024, State versus Shekhar Yadav and others, whereby the application moved by the applicant under Section 293 of Criminal Procedure Code (now Section 329 Bharatiya Nyaya Surakhsha Sanhita, 2023), seeking summoning of the Scientific Officer, Forensic Science Laboratory, Ghaziabad for the purpose of cross-examination has been rejected.
3. It was submitted by the learned counsel for the applicant that a First Information Report was lodged on 28.11.2023 at 5:28 hours, which was registered as Case Crime No. 990/2023, under Sections 302, 307, 147, 148, 149, 323, 504, 506, 34, and 120B IPC at Police Station Bisrakh, District Gautam Buddha Nagar. The applicant was named in the FIR dated 28.11.2023, and it is alleged therein that the applicant and other co-accused caused firearm injuries to the father of the informant, who succumbed to the injuries. The police allegedly recovered the weapon and cartridges, and the same were sent to the Forensic Science Laboratory, where they were received by the officer concerned on 27.06.2024, and a report was submitted by the Government Scientific Expert on 14.02.2025.
4. Learned counsel for the applicant further contended that the case was fixed for recording the statements of the accused under Section 313 Cr.P.C., and that, according to the prosecution version, one licensed revolver bearing No. F-5119, one empty cartridge, and five live cartridges of .32 bore were sent for forensic examination. It was further submitted that in the report dated 14.02.2025, it was mentioned that one empty cartridge, four live cartridges, and one misfired cartridge were received by the Forensic Science Laboratory on 27.06.2024, thereby creating a contradiction affecting the credibility of the expert opinion.
5. The learned A.G.A. has vehemently opposed the prayer made by the learned counsel for the applicant and submitted that the forensic science report is admissible per se under Section 293 Cr.P.C./Section 329 BNSS. The discrepancy raised by the defence counsel is argumentative in nature, and the same can be adequately addressed at the time of final arguments in the present case. No prejudice whatsoever has been caused to the applicant-accused. The aforesaid forensic science report dated 14.02.2025 was proved by PW-6 and marked as Exhibit Ka-19 on 09.09.2025, but no objection was raised by the defence counsel at the time, the said report was exhibited on 09.09.2025. In order to cause delay, the application was moved on 14.01.2026 at the stage of recording the statements of the applicant and other co-accused. A misconceived application was filed by the applicant before the learned trial court, which was rightly rejected vide order dated 19.01.2026.
6. It is further submitted by the learned A.G.A. that the applicant sought to summon the Scientific Officer, Forensic Science Laboratory, U.P., Ghaziabad, for the purpose of cross-examination, whereas the said witness was not produced by the prosecution and his examination-in-chief was not recorded in the trial court. Unless the examination-in-chief of the witness is recorded in the trial court, the request for his cross-examination is not maintainable. It is further submitted that the application was moved at a highly belated stage of the trial, only with the intention of causing delay in the trial. The present application under Section 528 BNSS lacks merit and deserves to be dismissed.
7. I have heard the rival submissions of the parties and perused the record.
8. The scope of Section 293 Cr.P.C./Section 329 BNSS is well settled. A report of a Government Scientific Expert is admissible in evidence without formal proof, and summoning such an expert for cross-examination is discretionary; the accused cannot claim such summoning as a matter of right. As per the provisions of Section 293 Cr.P.C., there is no requirement to call the Scientific Officer of the laboratory to get the report proved. The report of the Forensic Science Laboratory is a public document. It would be relevant to reproduce Section 293 Cr.P.C. for ready reference:-
"Section 293 in the Code Of Criminal Procedure, 1973
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 examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, summon and examine any such expert as to the subject- matter of his report.
(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.
(4) This section applies to the following Government scientific experts, namely:-
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the chief Inspector of- Explosives;
(c) the Director of the Finger Print Bureau;
(d) the Director, Haffkeine Institute, Bombay;
(e) the Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government.
[(g) any other Government Scientific Expert specified, by notification, by the Central Government for this purpose.]"
9. The Hon'ble Supreme Court, in the case of Rajesh Kumar and Another vs. State Government of NCT Of Delhi), (2008) 4 Supreme Court Cases 493, has held that it is not obligatory to call an expert before the trial court to depose in the proceedings. Paragraph no.9 of Rajesh Kumar (supra) is reproduced hereunder:-
"9. A bare reading of sub-sections (1) and (2) of Section 293 shows that it is not obligatory that an expert who furnishes his opinion on the scientific issue of the chemical examination of substance, should be of necessity made to depose in proceedings before the court. This aspect has been highlighted by this Court in Ukha Kolhe v. State of Maharashtra, AIR 1963 SC 1531 and Bhupinder Singh v. State of Punjab, (1988) 3 SCC 513. Therefore, there is no substance in the revision petition so far as the conviction is concerned."
10. In the case of Dhanajaya Reddy-Vs.- State of Karnataka reported in (2001) 4 Supreme Court Cases 9, the Hon'ble Supreme Court has held as follows:-
"39......Learned counsel appearing for the appellants made vain attempt to impress upon us that the serologist's report was not produced at the trial Court, which we do not accept in view of the fact that the said report is shown to have been admitted in evidence and marked Exhibit P-87. Otherwise also the report of the serologist can be used as evidence without any formal proof under Section 293 of the Cr.P.C."
11. In the case of State of Himachal Pradesh -Vs.- Mast Ram reported in (2004) 8 Supreme Court Cases 660, the Hon'ble Supreme Court has held as follows:-
"6. Secondly, the ground on which the High Court has thrown out the prosecution story is the report of ballistic expert. The report of ballistic expert (Ex.P-X) was signed by one Junior Scientific Officer. According to the High Court, a Junior Scientific Officer (Ballistic) is not the officer enumerated under sub-section (4) of Section 293 of the Code of Criminal Procedure and, therefore, in the absence of his examination, such report cannot be read in evidence. This reason of the High Court, in our view, is also fallacious. Firstly, the Forensic Science Laboratory Report (Ex.P-X) has been submitted under the signatures of a Junior Scientific Officer (Ballistic) of the Central Forensic Science Laboratory, Chandigarh. There is no dispute that the report was submitted under the hand of a Government Scientific Expert. Section 293(1) of the Code of Criminal Procedure enjoins that any document purporting to be a report under the hand of a Government Scientific Expert under the section, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under the Code, may be used as evidence in any inquiry, trial or other proceeding under the Code. The High Court has completely overlooked the provision of sub-section (1) of Section 293 and arrived at a fallacious conclusion that a Junior Scientific Officer is not an officer enumerated under sub-section (4) of Section 293. What sub-section (4) of Section 293 envisages is that the Court to accept the documents issued by any of six officers enumerated therein as valid evidence without examining documents."
12. In the case of Kailas S/O Bajirao Pawar Vs. The State of Maharashtra, 2025 INSC 1117, the Hon'ble Supreme Court has held that the report of a chemical examiner is admissible under Section 293 of Cr.P.C. even if he is not produced as a witness. Paragraph No.21 of Kailash (supra) is reproduced hereunder:-
21. As far as non-production of Chemical Examiner as a witness is concerned, under Section 293 of CrPC, report of a Chemical Examiner is admissible even if he is not produced as a witness though, the Court may summon and examine him as to the subject matter of the report. Nothing is there in High Court's judgment to show that before the trial court any application was moved to summon the Chemical Examiner but the same was rejected. In paragraph 19 of its judgment, the High Court records that no specific order was passed by the trial judge while admitting the CA (Chemical Analyst) report. The High Court thereafter goes on to observe that in cases under NDPS Act as and when a CA report is tendered, the Court must insist the prosecutor to examine the CA. In our view, there is no such requirement of law that Chemical Examiner would have to be called in each NDPS case to prove the report when it is otherwise admissible under sub-section (1) of Section 293 of CrPC. Moreover, from the judgment of the trial court it appears that the Chemical Examiner's report was admitted in evidence as Exh Nos.81 and 82. Nothing is there in High Court's judgment that any objection was raised in respect of exhibiting the Chemical Examiner's report. In such circumstances, reason (b) supra assigned by the High Court for ordering re-trial is not sustainable.
13. Therefore, in view of the language of Section 293 Cr.P.C. and the judgments of the Hon'ble Supreme Court, expert evidence is advisory in nature, and summoning of an expert is warranted only when the court finds the opinion to be unclear or insufficient for a just decision in the case. The court cannot be compelled to summon the scientific expert in terms of Section 293 Cr.P.C.
14. Furthermore, the applicant or his counsel did not raise any objection on 09.09.2025 when the report of the Scientific Officer dated 14.02.2025 was exhibited as Exhibit Ka-19 by PW-6. The statement of PW-6 has not been appended to the present application. PW-6, when appeared before the trial court could have been cross-examined with respect to the Forensic Science Laboratory report dated 14.02.2025. It has also not been clarified as to why no objection was raised in this regard by the defence counsel on 09.09.2025 at the time of examination of PW-6 and why the application was moved at a belated stage. It appears that the aforesaid application dated 14.01.2026 was moved in order to cause delay in the trial. The applicant failed to demonstrate as to how such variation, if any, would cause any prejudice to his defence. Even if any contradiction is found on the face of the record, which the prosecution did not explain satisfactorily, the benefit thereof would accrue to the applicant-accused at the appropriate stage of the trial.
15. In view of the above, this Court is of the considered view that the summoning of the Scientific Officer is neither essential nor required for the just decision of the case. The application dated 14.01.2026 appears to be misconceived. The present application under Section 528 BNSS lacks merit and deserves to be dismissed. Accordingly, it is dismissed.
16. No order as to costs.
17. The Registrar (Compliance) is directed to send a copy of this order to the Trial Court concerned through the fastest available mode.
(Vivek Kumar Singh,J.) May 13, 2026 Radhika