Hon’ble Manoj Misra, J.—Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

2. Considering the nature of the order that is being passed as also the ground on which it is being passed both the parties are agreeable that the matter be disposed of finally at this stage itself otherwise inviting counter-affidavit would only delay the proceeding.

3. The instant application, under Section 482 Cr.P.C., has been filed challenging the order dated 11.3.2015 passed by the Fast Track Court, Kanpur Nagar in S.T. No. 1560 of 2008 (State v. Pradeep Kumar and others) whereby the application of the applicant, who is an accused, for summoning the expert, who gave the report with regards to viscera examination of the deceased, as a defense witness, has been rejected on the ground that the defense evidence has already been closed and the application appears to have been moved with an intent to delay the conclusion of the trial.

4. The impugned order has been assailed by the learned counsel for the applicant on the ground that the report of the forensic expert only disclosed presence of aluminum phosphide in the viscera without disclosing its percentage as also whether the percentage of aluminum phosphide found present would have been fatal or not. It has been submitted that admittedly the forensic expert, who had submitted the report, was not examined as a witness in Court and, therefore, necessary questions with regards to extent of aluminum phosphide found present in the viscera could not be put as such the defense of the applicant stood seriously prejudiced.

5. The learned A.G.A. has opposed the prayer of the applicant by submitting that the application was highly belated and since the presence of aluminum phosphide has been found present in the viscera, it could safely be concluded that the death was caused on account of the consumption of aluminum phoshide which is a known poison. Attention of the Court was invited to sub-section (1) of Section 293 Cr.P.C., which provides that a report under the hand of a Government scientific expert can be used as evidence in any enquiry, trial or other proceeding under the Code and it is not necessary for the said expert to personally appear in the Court.

6. The learned counsel for the applicant has invited attention of the Court to sub-section (2) of Section 293 Cr.P.C. so as to contend that the Court has the power to summon and examine any such expert as to the subject-matter of his report. It has been submitted that since the percentage of aluminum phosphide was not mentioned in the viscera report and it has also not been stated whether the percentage of aluminum phosphide found was sufficient enough to cause death, and the said expert had not been examined as a witness during the course of trial, the accused has been deprived of his right to put necessary questions to the concerned expert so as to ascertain whether the aluminum phosphide found present in the viscera was sufficient in ordinary course to cause death or not. The learned counsel for the applicant has also sought to demonstrate that aluminum phosphide is present in various food items though to a very limited extent and, therefore, mere presence of aluminum phosphide in the viscera may not be sufficient to presume that death was caused on account of poisoning.

7. I have given thoughtful consideration to the submissions of the learned counsel for the parties. So far as the application to summon the said forensic expert as a defense witness is concerned, I do not find any error in the order passed by the Court below as the defense evidence was closed and the report of the expert had been relied by the prosecution. However, this Court finds that the expert could have been summoned by the Court in exercise of its power under sub-section (2) of Section 293 of the Code of Criminal Procedure. As the Court below while rejecting the application of the applicant had not considered various aspects that