Nirmal vs State of Punjab

V.M. Jain, J.—This is a petition u/s 482 Cr.P.C. filed by accused-petitioner Nirmal, seeking the quashment of the order dated 23.9.2000, passed by Shri L.R. Roojam, Sessions Judge, Hoshiarpur, allowing the application for additional evidence tiled by the State.

The facts which are relevant for the decision of the present petition are that the complaint filed by Smt. Prem Lata, before the Judicial Magistrate, was sent to the Police u/s 156(3) Cr.P.C. and on the basis thereof. FIR No. 44 dated 12.3.1998, under Sections 306/34 IPC was registered in Police Station, City Hoshiarpur. It was alleged that after completion of the investigation, challan u/s 173 Cr.P.C. was submitted in the court. On receipt of the case in the Sessions Court, all the three accused were charged u/s 306 IPC read with Section 120-B IPC. After the entire prosecution evidence had been led, the statements of the accused u/s 313 Cr.P.C. had been recorded and the case was at the stage of defence evidence and arguments, the prosecution filed application u/s 311 Cr.P.C., seeking permission of the Court to tender in evidence the report of the handwriting expert by way of additional evidence. The said application was opposed by the accused. The learned Sessions Judge, after hearing both sides and after perusing the record, had allowed the said application of the prosecution and allowed the prosecution to tender in evidence the report of the handwriting expert by way of additional evidence, vide order dated 23.9.2000. Aggrieved against this order of the learned Sessions Judge, one of the accused namely, Nirmal, has filed the present petition u/s 482 Cr.P.C. in this Court.

In the petition, it has been alleged that after the conclusion of the prosecution evidence and recording the statement of the accused u/s 313 Cr.P.C., when the case was at the defence stage, the prosecution had moved the application u/s 311 Cr.P.C., copy Annexure P-1, to which the accused had filed the reply, copy Annexure P-2, opposing the said application. It was alleged that the learned trial Court had allowed the said application, vide order dated 23.9.2000 and had ordered that the report of the handwriting expert shall be allowed to be tendered in evidence. It was alleged that the order dated 23.9.2000, passed by the learned Sessions Judge, was contrary to law inasmuch as the report of the hand- writing expert could not be taken into evidence per se, without examining the handwriting expert and allowing the opportunity to the accused to cross-examine the said expert. It was further alleged that even otherwise the prosecution could not be allowed to fill up the lacuna especially when even the statements of the accused u/s 313 Cr.P.C. had already been recorded and the production of additional evidence by the prosecution, at this stage, would prejudice the accused.

In the written reply filed by Sh. Sukhwinder Singh, DSP, City Hoshiarpur, it has been alleged that the report of the Director Forensic Science Laboratory was per se admissible and that the handwriting expert could be called for cross-examination even after the report had been tendered. It was denied that the prosecution was filling up any lacuna. On the other hand, it was alleged that the report could not be tendered earlier inadvertently. It was denied that any prejudice would be caused to the accused-petitioner.

I have heard the learned Counsel for the parties and have gone through the record carefully.

So far as the order dated 23.9.2000, passed by the learned Sessions Judge, allowing the prosecution to produce the report of the handwriting expert by way of additional evidence, is concerned, in my opinion, no fault could be found with the same. It is well settled law that u/s 311 Cr.P.C. either side could produce the additional evidence at any stage before the pronouncement of the judgment, if the said evidence is essential to the just decision of the case. In the present case, the report of the handwriting expert was already lying in the judicial file but the same could not be produced in evidence when the prosecution was leading its evidence. The application for additional evidence was filed by the Public Prosecutor when the statements of the accused u/s 313 Cr.P.C. had already been recorded and the case was at the stage of defence evidence. In my opinion, there would be no prejudice to the accused even if the prosecution is allowed to produce the report of the handwriting expert after the close of the prosecution evidence and even after the statements of the accused u/s 313 Cr.P.C. had been recorded, especially when the case is still at the stage of defence evidence and the accused can produce evidence in their defence to rebut the report of the handwriting expert. Accordingly, I up-hold the order of the learned Sessions Judge, with regard to the permission granted to the prosecution to produce the report of the handwriting expert by way of additional evidence.

However, the other part of the order dated 23.9.2000, passed by the learned Sessions Judge, vide which he had allowed the prosecution to tender into evidence the said report of the handwriting expert without summoning the author of the said report, cannot be accepted, inasmuch as the same is contrary to the provisions of Section 293 Cr.P.C. and the law laid down by their Lordships of the Supreme Court, in the case reported as State of Maharashtra v. Damu and Ors., 2000(2) Recent Criminal Reports 781. In my opinion, the learned Sessions Judge, had not even read the provisions of Section 293 Cr.P.C., when he observed that such a report was admissible u/s 293 Cr.P.C. and could be allowed to be tendered into evidence without summoning the author of the report.

Section 293 Cr.P.C. reads as under :-

"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.

The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report.

Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the court had 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.

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.

Front a perusal of the above it would be clear that Section 293 Cr.P.C. applies only to certain experts like Chemical Examiner or Assistant Chemical Examiner to the Government, Chief Inspector of Explosives, Director of the Finger Print Bureau, Director, Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory and the Serotogist to the Government, besides Director of Haffkeine Institute, Bombay. The report of the handwriting expert, even if it has been given by the expert working in the Forensic Science Laboratory, would not be per se admissible u/s 293 Cr.P.C. unless the maker of the said report is summoned and examined as a witness and the other side is given opportunity to cross-examine the witness. In my opinion, there was absolutely no occasion for the learned Sessions Judge to have observed that the report of the handwriting expert was admissible u/s 293 Cr.P.C. and could be allowed to be tendered into evidence without summoning the author of the report.

In 2000(2) Recent Criminal Reports 781 (supra), opinion of the Assistant State Examiner of documents was produced in evidence as Ex. 64. Under these circumstances, it was held by their Lordships of the Supreme Court that from that description alone, it could not be gathered whether his office would fall within the purview of Section 293 Cr.P.C. and hence without examining the expert as a witness in the Court, no reliance could be placed on Ex.64.

In view of the above, in my opinion, even if the prosecution was allowed to produce the report of the handwriting expert by way of additional evidence, the learned Sessions Judge, had gone wrong in allowing the prosecution to lender the said report of the handwriting expert in evidence, without examining the expert and allowing opportunity to the accused to cross-examine him. As referred to above, this was contrary to law, inasmuch as such a report would not be covered tinder Section 293 Cr.P.C.

For the reasons recorded above, while upholding the order of the learned Sessions Judge, allowing the prosecution to produce the report of the handwriting expert by way of additional evidence, the present petition is partly allowed and the order dated 23.9.2000, passed by the learned Sessions Judge, is modified and it is directed that for proving the report of the handwriting expert, the prosecution would be given opportunity to examine the expert, who had given the said report and the accused would have the right to cross-examine the said witness.

Parties through their counsel are directed to appear before the trial Court on 25.9.2001, for further proceedings, in accordance with law.

Petition partly allowed