Dalip Singh Bishnoi vs State of Haryana

Harmohinder Kaur Sadhu, J.

Petitioner Dalip Singh is facing trial in a case F.I.R. No. 196 dated 23.12.1991 under Sections 307/324/325/148/149 of the Indian Penal Code registered at Police Station Siwani alongwith 13 other coaccused. During the investigation of this case the police had taken into possession empty cartridges and 12 bore DBBL gun. These articles were sent to Forensic Science Laboratory, Haryana Madhuban Karnal. As per report of the Forensic Science Laboratory the gun was a fire arm and its left firing pin was broken. Empty cartridges C1 to C10 and one misfired cartridge C11 were not found to have been fired or misfired from the gun in question but all the empty cartridges except one were fired from the same fire arm. On receipt of this report, application copy of which is Annexure P.2 was submitted by one Jagdish Rai with a prayer that clothes of Mohinder Singh injured and weapons recovered should be sent for Expert opinion to Forensic Science Laboratory of any other State. It was alleged that the report submitted by Forensic Science Laboratory ''Madhuban'' Karnal was not correct and it was procured by brotherinlaw of Dalip Singh one of the accused who was posted as District Attorney Karnal. The report was procured by the District Attorney by misusing his office as was proved by a letter written by him on 15.2.1993.

The application submitted by Jagdish Rai was opposed by the petitioner and other accused who alleged that veracity of the report could be tested by subjecting the reporting official to crossexamination.

After hearing the counsel for the parties, the learned trial court found that summoning of the reporting official will not serve any useful purpose as State would not be able to crossexamine its own witness. It was further observed that the court could pass any order to dispense justice in a fair manner. So keeping in view the peculiar circumstances of the case, the application filed by the complainant was allowed and it was ordered that the articles in question be sent for examination by the Central Forensic Science Laboratory.

The petitioner has filed this petition under Section 482 of the Code of Criminal Procedure for setting aside the above mentioned order dated 20.5.93 passed by Additional Sessions Judge, Hissar copy of which is Annexure P3.

The petitioner alleged that the case against him and the other accused was the result of acute political rivalry and as many as 14 persons had been involved including a Headmaster, a teacher in Government service, Research Scholar etc. The official acts are presumed to be done in accordance with Rules and Regulations and the report in question was prepared by a Senior Scientific Officer. The impugned order amounted to outright rejection of the report without rhyme and reason on the vague suspicion that a third person had mentioned the report in a letter subsequently written by him. The implied rejection of the report caused a serious prejudice to the petitioner. The Investigating Agency which is the absolute authority in the domain of the investigation has been byepassed in gross violation of the law. Moreover, reexamination by another Laboratory can be ordered if there is clear cut provision for the same in the relevant Statute.

In the return filed by the respondent, the averments made in the petition were denied and it was maintained that the trial court was well within its rights to pass an order, which enabled it to dispense justice in a fair manner and no prejudice has been caused to the petitioner and his coaccused.

I have heard learned counsel for the parties.

It was urged on behalf of the petitioner that there was no provision in the Code of Criminal Procedure under which the articles seized during the investigation of a case could be ordered to be examined by another Forensic Science Laboratory as the investigation of an offence was the filed exclusively reserved for the executive through the police department, the superintendence over which vested in the State Government and the judicial court had no power to interfere with the investigation of the case. The Forensic Science Laboratory (Madhuban) Karnal had given opinion with respect to the weapon, empty cartridges and one misfired cartridge. Simply because the report has mentioned in a letter written by someone, did not authorise the trial court to seek a second opinion unless there was some specific provision in the Code for getting the articles reexamined.

The learned counsel for the respondent could not point out any provision in the Code under which the impugned order was passed. No provision of law was mentioned in the application Annexure P2 under which the same was submitted. This fact is not denied that the report submitted by Director, Forensic Science Laboratory is admissible in evidence and even an accused cannot ask the court to send the articles for reexamination from other source and his only right is to rebut that report by getting the Expert called for crossexamination. To order reexamination of the articles from another laboratory will surely cause prejudice to the petitioner but it is open to the prosecution to follow the procedure and impeach the credit of the Expert witness. It is well settled that where the Act or Statute provides for examination of any material by a specialised agency i.e. by Public Analyst or by a Scientific Expert the reexamination can only be sought if there is a clear cut provision for the same in the relevant Statue. Neither the complainant nor the accused can choose the laboratory to which the material is to be sent for examination except in cases where the Statute has carved out such a provision. It was conceded before me that there was no provision under which the order was passed. The Code of Criminal Procedure did not contain inherent jurisdiction enabling the trial court to pass the impugned order for dispensing justice in a fair manner. In the absence of any specific provision in that regard the impugned order cannot be maintained.

For the reasons recorded above, I accept this petition and set aside the order dated 20.5.1993, Annexure P.3.