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1994 DIGILAW 349 (RAJ)

Prahlad v. State of Rajasthan

1994-04-28

R.S.VERMA

body1994
JUDGMENT 1. - Heard the learned counsel for the parties. 2. The brief facts giving rise to this case are as followsAccused-petitioner Prahlad is being tried for offence under Section 8/18 of the N.D.P.S. Act in the Court of Additional Sessions Judge, Chhabra, Distt. Baran, in Sessions Case No. 27/94 (39/93). The evidence of the prosecution was closed on 30.3.1994. Arguments were heard on 1.4.1994 and 2.4.1994 and the case was posted for judgment. On 15.4.94, the date fixed for judgment, judgment was not pronounced. Public Prosecutor of the Court below was not present. One S.H.O., Heera Lal, appeared before the learned trial Judge and moved an application purporting to be one under Section 311 of the Cr.P.C. wherein a request was made that the Director of the F.S.L. (Forensic Science Laboratory) be called for evidence. The application was opposed on behalf of the accused-petitioner but the learned Additional Sessions Judge granted the prayer of the S.H.O. and directed summoning of an Officer of the Forensic Science Laboratory to give evidence before him. 3. It may here be recalled that the police had failed to produce the report of the Forensic Science Laboratory during the course of trial. Such a report could have been filed by the prosecution under Section 293 of the Cr.P.C. during the course of trial. The prosecution did not choose to adopt this course and closed its evidence. 4. Learned counsel for the petitioner submits that S.H.O. had no authority to present an application under Section 311 of the Cr.P.C. His second contention is that no useful purpose could be served by summoning any officer of the F.S.L. particularly when it was not known that the sample in question had at all been analyzed. He, therefore, submits that the order of the learned trial Court be set aside and the learned trial Court be directed to proceed with the trial and to complete the same without any delay. 5. Learned Public Prosecutor opposes this petition. 6. Powers under Section 311 of the Cr.P.C. can be exercised by the Court either suo-moto or on the application of either party provided the conditions laid down under Section 311 are satisfied. 7. Learned counsel for the petitioner is right in submitting that S.H.O. had no business to move the application in question. Learned Public Prosecutor opposes this petition. 6. Powers under Section 311 of the Cr.P.C. can be exercised by the Court either suo-moto or on the application of either party provided the conditions laid down under Section 311 are satisfied. 7. Learned counsel for the petitioner is right in submitting that S.H.O. had no business to move the application in question. A trial before a Court of Session has to be conducted by a Public Prosecutor, as laid down in section 225 of the Cr.P.C. The Section reads as follows "225. Trial to be conducted by Public Prosecutor. - In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor." The use of expression "shall" goes to show that the prosecution has necessarily to be conducted by a Public Prosecutor. A public prosecutor is not merely the representative of the State, but is also an officer of the Court and in required to act in the interests of justice by giving an independent and impartial assistance to the Court. He does not act as a persecutor. I am, therefore, of the view that S.H.O. had no business to move the application in question before the learned trial Judge and the Court of Sessions should avoid conduct of a case going in the hands of an Investing Officer. 8. In the present case, however, the learned Public Prosecutor of the court below supported the application of the S.H.O. and argued out the application. Therefore, it can be said that the learned Public Prosecutor of the court below had adopted the application moved by the S.H.O. It is stated at the bar that the report of the F.S.L. had not been received in the Court by the date. The learned trial Court had passed the impugned order dated 18.4.1994. I do now know how summoning of an Officer of the F.S.L. would help the prosecution unless the sample of the contraband had been actually analysed and examined, and the report had been prepared with regard to it. I, therefore, find that the order of the learned trial Court dated 18.4.1994 cannot be sustained and deserves to be set aside. However, the prosecution, if it so likes, may produce before the learned trial Judge, the report of the F.S.L., if any, before the judgment is announced. I, therefore, find that the order of the learned trial Court dated 18.4.1994 cannot be sustained and deserves to be set aside. However, the prosecution, if it so likes, may produce before the learned trial Judge, the report of the F.S.L., if any, before the judgment is announced. In case a report of the F.S.L. is filed, the learned trial Court shall examine the accused with regard to the same under the provisions of Section 313 of the Cr.P.C. and in case accused wants to lead some defence, shall permit him to lead such defence and thereafter proceed to decide the case. 9. The petition is disposed of accordingly. A copy of this order may be scut immediately to the learned trial Court. *******