JUDGMENT
L. Mohapatra, J.
1. This revision is directed against the order dated 25.7.2003 passed by the learned Additional Sessions Judge, Mayurbhanj at Baripada if S.T. No. 32/272 of 2002 rejecting the petition filed by the petitioners under Section 293 of the Code of Criminal Procedure to summon the Chemical Examiner for examination and cross-examination.
2. From the record, it appears that the petitioners are facing trial for commission of offences under Sections 498-A, 304-B and 34 of the Penal Code. It appears from the impugned order that the Chemical Examiner had opined that organ chloro insecticidal poison was detected during examination. The report of the Chemical Examiner as it appears from the impugned order was proved on admission and examination of the Chemical Examiner was dispensed with. The said report was marked as Ext. 11 and after closure of the prosecution evidence as well as examination of the accused persons under Section 313 Cr.P.C. an application was filed under Section 293 Cr.P.C. read with Section 311 of the Code for summoning the Chemical Examiner and to give an opportunity to the petitioners for cross-examining him in relation to the said report submitted by him. The said prayer having been turned down, the present revision has been filed.
3. The learned Additional Sessions Judge in the impugned order rejected the prayer on the ground that the Chemical Examiner report was marked as Ext. 11 on admission. At the relevant time the accused persons never challenged the report or expressed their desire to cross-examine the said Chemical Examiner. According to the learned Additional Sessions Judge this conduct of the accused persons not only shows the admission of the accused persons with regard to genuineness of the report but also its contents. Such a petition filed after closer of the prosecution evidence was not maintainable.
4. Shri S.P. Mishra, the learned counsel appearing for the petitioners submitted that under Section 293 of the Code of Criminal Procedure the report of the Chemical Examiner being a report of the Government scientific expert can be used as evidence in any inquiry, trial or other proceeding under the Code. Sub-section (2) of Section 293 of the Code however prescribes that the Court may examine any such expert as to the subject-matter of his report. Therefore, the Court had ample powers to summon the Chemical Examiner for examination. There cannot be any dispute about the powers of the Sessions Court in summoning the Chemical Examiner for examination, if it thinks fit. The learned Additional Sessions Judge also in the impugned order has not disputed the said proposition of law. Therefore the only question remains to be considered is whether for the ends of justice the Chemical Examiner is required to be summoned or not. The Apex Court in the case of Ram Dayal v. Municipal Corporation of Delhi and Anr. , which is also referred to by the learned Additional Sessions Judge in the impugned order, held as follows :-
Where certificates are not made final and conclusive evidence of the facts stated therein, it will be open to the party against whom certificates which are declared to be sufficient evidence, either to rebut the facts stated therein by his own or other evidence or to require the expert to be produced for cross-examination which prayer the Court is bound to consider on merits in granting or rejecting it. There is no presumption that the contents are true or correct though such certificate is evidence without formal proof. In any case where there is evidence to the contra the Court is bound to consider that evidence along with such a certificate with or without the evidence of the expert who gave it being called and come to its own conclusion….
5. The other decisions cited by the learned counsel for the petitioners have no application to the facts of the present case since they relate to post mortem examination report which is not covered under Section 293 of the Code of Criminal Procedure. The petitioners are facing trial for heinous type of offence and every opportunity must be offered to them to put forth their defence. The prosecution shall not be in any way prejudiced, if the Chemical Examiner is summoned and examined. The learned Additional Sessions Judge should have in my view taken this approach while considering the petition. Though I do not find any fault in the order of the learned Additional Sessions Judge, for ends of justice, I am of the view that since the petitioners are facing trial for a serious offence, they should be given all the opportunities to defend themselves.
6. I accordingly set aside the impugned order, allow the revision and direct that the learned Additional Sessions Judge shall summon the Chemical Examiner for examination and the petitioners shall be given opportunity to cross-examine the said witness in relation to the report, Ext. 11 only.