The accused has the right to challenge F.S.L. reports under Section 293(2) of the Cr.P.C. and should be allowed to cross-examine the person who submitted the report to ensure a fair trial.

JUDGMENT :

Heard Mr. Indrajit Sinha, : Mr. Indrajit Sinha, Advocate : Mrs. Priya Shrestha, Spl.P.P. : Mr. M.B. Lal, Advocate learned counsel for the petitioner, Mrs. Priya Shrestha, learned counsel for the State and Mr. M.B. Lal, learned counsel for opposite party no.2.

2. This petition has been filed for quashing and setting aside the order dated 23.11.2021 passed in S.T. Case No.336 of 2018 (arising out of Barwadda P.S. Case No.67 of 2018) passed by the learned District and Additional Sessions Judge-X, Dhanbad, whereby petition filed by the petitioner under Sections 311 of the Cr.P.C. has been rejected.

3. The petitioner is being tried as an accused in S.T. Case No.336 of 2018. After the closure of the prosecution witness on 03.08.2021, the statement of the accused was recorded under Section 313 of the Cr.P.C., wherein the petitioner denied the allegations put to him. After recording of statement under Section 313 Cr.P.C., the learned court below received report from F.S.L., Ranchi, which was forwarded by the learned Magistrate, Dhanbad. The prosecution moved a petition dated 26.08.2021 under Section 294 of Cr.P.C. with the prayer to mark the said F.S.L., Ranchi report as exhibit. The petitioner filed rejoinder petition dated 01.09.2021 opposing the petition of the prosecution stating therein that the petitioner is not aware of the F.S.L. report and the petitioner would be seriously prejudiced if the copies of the F.S.L. report is not provided to him. The petitioner filed another petition dated 28.09.2021 under Section 293(2) and 311 of Cr.P.C. praying interalia to summon the Director of F.S.L., Ranchi as a witness. The said petition filed by the petitioner was rejected on 23.11.2021. Aggrieved with this order, the petitioner has filed this petition.

4. Mr. Indrajit Sinha, learned counsel for the petitioner assailed the impugned order on the ground that Section 293 Cr.P.C. is an exception to the rule that the document needs to be proved before it can be admitted as a piece of evidence. He further submits that as per Sub-section (2) of Section 293 Cr.P.C., the power can be used either suo motu or at the instance of the accused person. He also submits that Sub-section (2) bestows a right on the accused to challenge the authenticity and veracity of the contents of the report. The said right is a substantive right which must be brought to the notice of the accused. According to him, it was necessary to bring to the notice of the petitioner, as per Sub-section (2) of Section 293 Cr.P.C. He further submits that however in the case in hand, such petition was filed on behalf of the accused which is a right of the accused and if a person who has submitted the F.S.L. Report, is not cross-examined by the accused, it will be seriously prejudiced.

5. Per contra, Mr. M.B. Lal, learned counsel for opposite party no.2 submits that the learned court has discussed every thing in the order dated 23.11.2021 and the learned court below has right rejected the petition filed by the petitioner. He further submits that the learned court below has passed well reasoned order and there is no illegality in the impugned order and this Court may not interfere in this petition.

6. Mrs. Priya Shrestha, learned counsel for the State submits that it is the discretion of the court to exercise its power under Section 293 Cr.P.C. She further submits that Section 311 Cr.P.C. is also discretionary in nature and second part of Section 311 Cr.P.C. is mandatory.

7. In view of the above facts and considering the submissions of the learned counsel for the parties, for correct appreciation of Section 293 Cr.P.C., the same is quoted herein below:

“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 e