Orissa High Court
Parsuram Patra vs State on 12 September, 2006
Equivalent citations: 2007(1)OLR233
Author: A.K. Parichha
Bench: A.K. Parichha
ORDER A.K. Parichha, J.
1. Though this matter has been listed for admission, on the consent of the learned Counsel for the parties, the same is taken up for final disposal.
2. This revision is directed against the order dated 27.6.2005 passed by the learned Addl. Sessions Judge, Fast Track Court, Baripada in S.T. No. 8/152 of 2004 rejecting the petition filed by the petitioner under Section 311, Cr.P.C. to recall the chemical examiner for cross-examination in connection with his report Ext.9.
3. M/s. S. Nanda, learned Counsel appearing for the petitioner submits that some clarification regarding the report of the chemical examiner, Ext. 9 is necessary for proper adjudication of the case and therefore, the order of rejection is not at all proper. In support of her contention, she cites the case of Kanu @ Chhabindra Dalei v. State of Orissa 2006 (11) OLR 169.
4. Mr. A. K. Mishra, learned Addl. Government Advocate appearing for the State counter argues that the report of the chemical examiner having been accepted without objection under Section 293, Cr.P.C, there was hardly any scope for the trial Court to allow the prayer of the petitioner to summon the chemical examiner for cross-examination. He supports the impugned order.
5. Section 293, Cr.P.C. provides accepting a document as evidence purported to be a report under the hand of a Government scientific expert. Section 293 of the Cr.P.C. reads as follows ':
293. (1) Any document purporting to be a report under the hand of 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) xx xx xx xx (4) This section applies to the following Government Scientific experts, namely:
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) xx xx xx xx
(c) xx xx xx xx
6. In view of the aforesaid provision, the report of a Government Scientific export can be marked as exhibit and accepted as evidence in a case without formal proof. But Sub-section (2) of Section 293, Cr.P.C. gives a discretion to the Court to summon and examine such expert as to the subject matter of his report. A party cannot demand exercise of the power under Section 293(2), Cr.P.C. as a matter of right, but it can to request the Court to invoke the discretion and summon the Government scientific expert for examination or cross-examination to clarify the contents of the report. The petitioner is accused in a case under Sections 498-A, 304-B, 302/34, IPC and Section 4 of the D.P. Act. He wanted certain clarification from the Government Scientific Expert abut the nature of the organic poison indicated in the report and the effect thereof. When the death is said to be due to poison, such clarification would help in proper adjudication of the case. It is also to be noted that the petitioner is in judicial custody and he could not have filed the petition under Section 311, Cr.P.C. to prolong the proceeding as that would prolong his detention further. No doubt, the petition to summon the Scientific Expert was filed at a belated stage, but the said technical lapse should not stand as a bar to the discretion under Section 293(2), Cr.P.C., particularly in a case where serious and heinous offences carrying capital punishment are involved.
7. For the reasons, the impugned order dated 27.6.2005 is set aside. Learned trial Judge is directed to allow the prayer of the petitioner, summon the Government Scientific Expert for examination and cross-examine relating to the contents of the report Ext. 9 and thereafter proceed with the case according to law.
8. With the aforesaid observation and direction, the revision is, allowed.
9. Urgent certified copy be granted on proper application.