The discretion vested with the Court to summon an expert witness under Section 293(2) of the Criminal Procedure Code should be exercised judiciously, especially when a request comes from the accused for the purpose of cross-examination.

T.P.S. Mann, J. - The petitioners are aggrieved by the order passed by Additional Sessions Judge (Fast Track Court), Gurgaon on 1.9.2005, whereby their application under Section 311 Criminal Procedure Code for summoning Dr. R.K. Kaushal from Forensic Science Laboratory, Madhuban (for short FSL) for cross- examination was dismissed.

2. Trial of FIR No. 80 dated 14.3.2001 was going on against the petitioners and respondent Nos. 2 to 7 in the Court of Additional Sessions Judge, Gurgaon. During the same, the prosecution tendered into evidence report Ex. PQ of Director FSL on 21.7.2004. No objection whatsoever was raised by the accused at that time regarding its admissibility. Even otherwise the said report was admissible in evidence by virtue of the provisions of Section 293 Criminal Procedure Code The aforementioned report Ex. PQ was also put to the accused in their respective statements. After the prosecution evidence was over and the statements of the accused were recorded under Section 313 Criminal Procedure Code on 13.10.2004, the case then proceeded to the stage of recording of defence evidence. Several adjournments were granted to the accused for leading their defence. However, on 18.8.2005, they filed an application for summoning Dr. R.K. Kaushal from FSL for cross- examining him in respect of the report Ex. PQ. This prayer was declined by the trial Court vide impugned order. It was held therein that the accused had been given a number of adjournments for leading their defence and arguments including last adjournment but they did not do so. They thereafter moved the aforementioned application on 18.8.2005 for prolonging the disposal of the case.

3. Learned counsel for the petitioners submitted that if the opportunity to the accused for cross-examining Dr. R.K. Kaushal of FSL in respect of report Ex. PQ was not granted, a great prejudice will be caused to them. Further that the report submitted by an expert does not become evidence automatically and the person, who had prepared the said report was required to be examined as a witness in the Court and had to face cross-examination. Even if the FSL report was per se admissible in evidence under Section 293 of the Code, a discretion vested with the Court to summon the expert and the said discretion was to be exercised judiciously.

4. Learned State counsel and the counsel representing the complainant while supporting the impugned order submitted that the report Ex. PQ prepared by Dr. R.K. Kaushal of FSL was admissible as such in evidence without calling for the expert, who had prepared the same.

5. I have heard learned counsel for the parties and gone through the impugned order minutely.

6. The opinion of Dr. R.K. Kaushal of FSL, as contained in report Ex. PQ was a relevant fact given by a person specially skilled in forensic science. Such an opinion given by an expert is made admissible as such in view of the provisions of Section 293(1) Criminal Procedure Code in any enquiry, trial or the other proceedings under this Code. However, Section 293(2) permits the court to summon and examine any such expert as to the subject-matter of his report if it thought fit. The relevant provisions are reproduced hereinbelow :-

"293. Report 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.

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

7. In the present case, though the report Ex. PQ was admitted in evidence without there being any objection from the accused and the said report thereafter put to the accused while they were examined under Section 313 Criminal Procedure Code yet an objection was