The accused is not legally entitled to cross examine the scientific expert who made report on record: High Court of Jharkhand

 1 Cr.M.P. No. 5021 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 5021 Sujit Dey @ Sujit Kumar Dey aged about 54 years son of Late Kashinath Dey resident of Rajganj P.O. & P.S. Rajganj District Dhanbad Versus … Petitioner The State of Jharkhand through A.C.B … Opposite Party HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner For the State : Mr. Dilip Kumar Chakraverty Advocate : Mr. Suraj Verma Spl. P.P C.A.V. on 03.08.2021 Pronounced on 10.08.2021 Heard Mr. Dilip Kumar Chakraverty learned counsel for the petitioner and Mr. Suraj Verma learned Spl. P.P. for the opposite party State This criminal miscellaneous petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID 19 pandemic. None of the parties have complained about any technical snag of audio video and with their consent this matter has been heard on merit This criminal miscellaneous petition has been filed for quashing the order dated 08.02.2021 passed by learned District Judge II cum Special Judge Dhanbad in Special Case No.15 of 2012 arising out of Vigilance P.S. Case No.15 of 2012 whereby the learned court without giving opportunity to cross examine the expert exhibited the report given by the Forensic Science Laboratory Jharkhand Ranchi and allowed the petition dated 20.03.2020 under Section 293 of the Cr.P.C The case of the prosecution is that one Sanjay Kumar Singh had complained to the S.P. Vigilance Ranchi stating therein that he is having 2 Cr.M.P. No. 5021 land in the name of his grandmother in Rangamati Police Station Baliapur District Dhanbad. After selling 20 25 decimals of land he went to the Circle Office for giving rent of remaining land which was due since last 18 years and meet with the Halka Karamchari then Halka Karamchari had given advise to go and file an application before the Circle Officer thereafter the Circle Officer sent application to Halka Karamchari petitioner). Again complainant visited the office of Halka Karamchari who demanded Rs.15 000 from the complainant. The complainant made request that he is not able to pay such huge amount. The complainant namely Sanjay Kumar Singh had complained to the S.P. Vigilance Ranchi After receiving the aforesaid complaint the Police Inspector for verification went along with complainant to the Revenue Office of Shitalpur on 07.07.2012 by hiding his identity and again in front of Police Inspector the petitioner demanded Rs.15 000 from the complainant and thereafter the First Informant Report was lodged. Mr. Dilip Kumar Chakraverty learned counsel for the petitioner submitted that the petitioner is innocent. The petitioner was working as Halka Karamchari in the Revenue Office at Shitalpur. He further submitted that on 23.01.2019 a petition under Section 311 of the Cr.P.C. has been filed by the prosecution for examination of Deputy Superintendent of Police A.C.B. namely Nawal Kishore Prasad which has been allowed vide order dated 22.11.2019. The argument in the case was already completed on 02.03.2020 and the case is fixed for pronouncement of judgment Mr. Chakraverty learned counsel for the petitioner further submitted that charge sheet was submitted on 08.09.2012 without report of chemical examination of Forensic Science Laboratory Jharkhand Ranchi. The prosecution has filed a petition on 20.03.2020 under Section 293 of the 3 Cr.M.P. No. 5021 Cr.P.C. to mark exhibit of result of chemical examination of Forensic Science Laboratory Jharkhand Ranchi which has been allowed by the impugned order dated 08.02.2021 without giving any opportunity of defence to the petitioner. Mr. Chakraverty learned counsel for the petitioner relied upon Sub sectionof Section 293 of the Cr.P.C. and submitted that in view of this provision the petitioner was required to be provided an opportunity of cross examination which has not been allowed and for that the petitioner has been prejudiced. He further relied upon the judgment rendered by the Hon ble Supreme Court in the case of Keshav Dutt v. State of Haryana reported in9 SCC 286 and submitted that this case is also arising out of the same section and the Hon ble Supreme Court has directed to allow the accused to cross examine the expert. Paragraphs 16 17 and 18 of the said judgment are quoted herein “16. We are afraid that we cannot concur with the views either of the trial court or of the High Court in the above regard. When the trial court chose to rely on the report of the handwriting expertit ought to have examined the handwriting expert in order to give an opportunity to the appellant and the other accused to cross examine the said expert. There is nothing on record to show that the appellant and the other respondents had admitted to the report of the 17. In our view the trial court ought to have allowed the appellant an opportunity to cross examine the expert and both the trial court and the High Court erred in denying him such opportunity and shifting the onus on the accused to disprove Ext. PR which had not been formally proved by the prosecution. The decision cited on behalf of the appellant regarding reliance on the opinion of an expert who had not been examined as a witness however includes an Assistant Director of the State Forensic Science Laboratory in clauseof Section 293 CrPC 18. Section 293(4)(e) which is relevant for our purpose is “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 evidence in any inquiry trial or other 4 Cr.M.P. No. 5021 proceeding under this Code 2)4) This section applies to the following Government scientific experts namely— a)e) The Director Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory f) On the other hand Mr. Suraj Verma learned Spl. P.P. for the opposite party State submitted that there is no illegality in the impugned order and the trial court has rightly passed the order. He further submitted that chemical examination of Forensic Science Laboratory Jharkhand Ranchi was already on the record which was only required to be marked and for that a petition was filed. He also submitted that there is no need for providing cross examination to the defence in light of Sub sectionof Section 293 of the Cr.P.C. He relied upon the judgment rendered by the Hon ble Supreme Court in the case of Rajesh Kumar and another v State Government of NCT of Delhi reported in4 SCC 493 Paragraph 9 of the said judgment is quoted herein below “9. A bare reading of sub sectionsandof Section 293 shows that it is not obligatory that an expert who furnishes his opinion on the scientific issue of the chemical examination of substance should be of necessity made to depose in proceedings before the court. This aspect has been highlighted by this Court in Ukha Kolhe v. State of Maharashtra and Bhupinder Singh v. State of Punjab Therefore there is no substance in the revision petition so far as the conviction is concerned.” By way of relying on this judgment Mr. Suraj Verma learned Spl. P.P submitted that in the case of the petitioner there is no question of examination of handwriting expert and only chemical examination was required and in that view of the matter the trial court has rightly passed the impugned order. 10. On perusal of the impugned order it transpires that the case record was running at the stage of judgment on the petition dated 20.03.2020 5 Cr.M.P. No. 5021 filed by the prosecution under Section 293 of the Cr.P.C. for exhibiting the result of chemical examination of Forensic Science Laboratory Jharkhand Ranchi. For correct appreciation Section 293 of the Cr.P.C. is incorporated “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 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 3) Where any such expert is summoned by a Court and he is unable to attend personally he may unless the Court has 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 4) 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 f) the Serologist to the Government.” In the case of the petitioner the substance of chemical examination of Forensic Science Laboratory Jharkhand Ranchi was already on the record and only for exhibiting the same the petition was filed. Thus Sub sectionsandof Section 293 of the Cr.P.C. are not obligatory that an expert who furnishes his opinion on the scientific issue it should be necessitated that he may depose in the proceeding before the court and this has been held by the Hon ble Supreme Court in the case of Rajesh Kumar and another the Hon ble Supreme Court has clearly observed in paragraph 19 of the said judgment that it is only the report of handwriting expert which connects the appellant of that case and that is why the prayer for cross examination was allowed by the Hon ble Supreme Court. In the case in hand there is no question of handwriting expert. The report of Forensic Science Laboratory Jharkhand Ranchi which was already on record was only required to be considered. Thus the judgment relied by Mr. Chakraverty learned counsel for the petitioner is not helping the petitioner. 13. The report of the Forensic Science Laboratory Jharkhand Ranchi are admissible in terms of Section 293 of the Cr.P.C. There is no illegality in the impugned order dated 08.02.2021 passed by learned District Judge II cum Special Judge Dhanbad in Special Case No.112 arising out of Vigilance P.S. Case No.112. 14. Accordingly this criminal miscellaneous petition stands dismissed (Sanjay Kumar Dwivedi J High Court of Jharkhand Ranchi Dated: the 10th day of August 2021 Ajay N.A.F.R. 

Summary: An order cannot be quashed on grounds that the scientific expert who drafted a report on record was not called to court and cross-examined by the petitioner. This was held in the judgement passed by a single member bench of the High Court of Jharkhand consisting of Justice Sanjay Kumar Dwivedi in the case of Sujit Dey v The State of Jharkhand [Cr. M.P. No. 506 of 2021] pronounced on 10th August 2021. The petitioner, Sujit Kumar Dey who was working as a Halka Karamchari in the Revenue Office at Shitalpur filed this criminal miscellaneous petition before the High Court of Jharkhand to quash the order passed by the District Judge II-cum-Special Judge Dhanbad on 8th February 2021 in the case of Special Case No. 15 of 2012 on the grounds that the court allowed the petition under Section 293 of the Cr.P.C and exhibited the report given by the forensic science laboratory in Ranchi without giving an opportunity to cross examine the expert who made the report. As per the prosecution case, the complainant- Sanjay Kumar Singh had visited the circle office for paying some dues on his land, where the petitioner demanded for Rs. 15,000 from the complainant to get the work finished. As a result of this, the First Information report was filed against the petitioner. The petitioner’s counsel submitted that the charge-sheet was submitted on 8th September 2012 without the report of chemical examination and that the prosecution filed the petition on 20th March 2020 under Section 293 of the Cr.P.C to mark exhibit of chemical examination without giving the petitioner an opportunity of defence. The case of Keshav Dutt v State of Haryana [9 SCC 286 of 2010] was cited by the petitioner’s counsel, where it was held that when the trial court relied on the report of a handwriting expert, the expert should have been summoned and the accused should have been given an opportunity to cross-examine him. This submission was countered by Mr Suraj Verma who was appearing for the state by citing the case of Rajesh Kumar &amp; another v State Government of NCT of Delhi [4 SCC 493 of 2008] where the Supreme Court of India observed that “It is not obligatory that an expert who furnishes his opinion on the scientific issue of the chemical examination of substance, should be of necessity made to depose in proceedings before the court”.