ORDER 1. The applicant has preferred this criminal revision under section 397 of Cr.P.C. feeling aggrieved by the impugned order dated 8.8.2007 passed by 3rd Additional Sessions Judge, Gwalior in ST No. 212/2007 whereby the order for farming of charge under section 201 of IPC has been passed against the applicant. 2. Briefly stated facts of the case are that the applicant is working as a Scientist in the Regional Forensic Science Laboratory, Gwalior. It is alleged that Mahila Police, Gwalior has registered a criminal case under section 376 of IPC on the report of complainant/prosecutrix and the complainant/prosecutrix after registration of the case was sent for medical examination where the concerning doctor had seized the garments of the complainant/prosecutrix and sealed it for necessary chemical examination for the confirmation of presence of semen and spermatozoa and the said packet was handed over to the concerning police constable for its chemical examination. The concerning police, through the letter of S.P. Gwalior dated 27.9.2006, sent this article to Forensic Science Laboratory, Gwalior. Being a senior Scientist in the ES.L. Gwalior, the present applicant had examined the article A-I (a towel) andA-2 (a gown) and after due chemical examination vide report no. 499/06 dated 6.10.2006 opined about the non-presence of semen and spermatozoa on the aforesaid article and sent this report duly signed by the applicant to the S.P., Gwalior for doing the needful and also returned back the sealed article sent by the police for examination. Thereafter, the concerning police prepared a panchnama in the presence of the scientists working in the S.P. Office, Gwalior. The police personnel opened the sealed packet of the article and found that wherever the spots were found in the article that portion was cut by the scientists and thereby destroyed the material evidence collected by the police deliberately and also prepared a panchnama for the examination and found some spots on the concerning article, on which basis, opined that semen spots were found on the articles but being a senior Scientist of the FSL, the applicant has deliberately given negative report, on the bais of this evidence, the police has also made the applicant as accused for the offence under section 201 of IPC in the aforesaid criminal case and after investigation filed the charge sheet with the main accused before the trial Court. 3. 3. Before the trial Court, the applicant objected his prosecution for the offence under section 201 of IPC and submitted that police personnel was not having any authority to disagree/dissatisfy with the report submitted by the applicant as a Scientist in the FSL and if the investigating officer was not satisfied with the finding of the report then the concerning article could have been sent to the Central Forensic Science Laboratory as per rule fone-examination of the article, of course after obtaining the permission from the trial Court, but without sending the article to the Central Forensic Science Laboratory for second opinion, the police personnel themselves have prepared the report and panchnama for the second report which is not admissible and cannot overrule the report submitted by the applicant and in such circumstances the applicant cannot be charged for the offence under section 201 of IPC. 4. Learned trial Court after hearing both the parties, came to the conclusion that prima-facie, at the stage of charge, the defence of the applicant cannot be seen elaborately and negatived the arguments advanced on behalf of the applicant and ordered for framing of charge under section 201 of IPC against the applicant by the impugned order, feeling aggrieved by which the applicant has preferred this revision petition before this Court. 5. Heard learned counsel for the applicant as well as the learned Panel Lawyer appearing on behalf of the State and perused the record. 6. It is submitted by shfi Ankur Modi, learned counsel appearing on behalf of the applicant that in the capacity of senior Scientist of Forensic Science Laboratory, the applicant submitted the report about the examination of the article sent to laboratory for examination and after due scientific examination submitted the report that whatever article was sent by the police was not having any semen spot and human spermatozoa. This report had been submitted after due scientific examination of the article and this report cannot be overruled by preparing a panchnama by the police officer. There is specific provision that if any person is aggrieved by the report submitted by the senior Scientist of Forensic Science Laboratory, then that aggrieved person may send the same sample for second opinion or for re-examination to the Director of Central Forensic Science Laboratory for which the Director General, BPR&D, MHA, Govt. There is specific provision that if any person is aggrieved by the report submitted by the senior Scientist of Forensic Science Laboratory, then that aggrieved person may send the same sample for second opinion or for re-examination to the Director of Central Forensic Science Laboratory for which the Director General, BPR&D, MHA, Govt. of India had issued a circular so that any confusion may not arise for sending of the sample for second opinion, the prosecution can send the sample for second opinion only after seeking permission from the concerning trial Court. But in the present case without following aforesaid procedure, the investigating officer himself prepared panchnama for re-examination and opined that there were some spots appearing. to be semen spots found on the article seized and thereby wrongly came to conclusion that applicant has illegally concealed or gave wrong opinion on the examination of the article concerned and by preparation of such panchanama unauthorizedly, the applicant cannot be held guilty for the offence punishable under section 201 IPC. And thus learned trial Court has wrongly ordered for framing of the aforesaid charge against the applicant, therefore, prayed for setting aside of the impugned order .and also for discharge of the accused/applicant. 7. In reply, learned Panel Lawyer appearing on behalf of the State supported the impunged order and submitted that as the stage of framing of charge, the entire defence of the applicant/accused cannot be looked into and the trial Court on the basis of documentary evidence on record rightly came to the conclusion that prima facie charge under section 201 of IPC is made out against the applicant and thus rightly ordered for framing of charge; and no sufficient grounds are available for any interference in the impugned order, hence prayed for dismissal of the revision petition. 8. On perusal of the record, it is an admitted fact that the applicant is a scientist working -in the FSL, Gwalior and he is having the authority to examine the sample sent by the various investigating agencies and after due scientific examination submitted the report and under that power and authority he had given the examination report to the concerning police. The police/investigating agency is not empowered under the Act to prepare himself another report of the examination. The police/investigating agency is not empowered under the Act to prepare himself another report of the examination. If the investigating authority is dissatisfied with the report submitted by Scientist of FSL, there is procedure for sending of the same sample to another FSL, but the prosecution agency must obtain first the permission from the Court concerned and thereafter sample can be referred through Court after sealing it properly by the Court seal then only the second opinion of the sample can be obtained. For this, the learned counsel for the applicant relied on the memo issued by the Directorate-cum-Chief Forensic Scientist, Govt. of India whereby a circular has been issued to the Home Secretaries of all States, Directors General of Police of all States wherein the Code of Ethics of Forensic Science Professionals, has been laid down vide this letter dated 29th of September, 2006 for ready reference it will be useful to quote the concerning memo which reads here as under: Dr. M.S. Rao Directorate of Forensic Science Directore-cum-Chief Ministry of Home Affairs Govt. of India India Forensic Scientist. Block No.9, 8th Floor CGO Complex Lodhi Road, New Delhi 110003 India. Ref. No.DFS/Inst./06 Dated: September, 29 2006 Sub: Code of Ethics of Forensic Science Professionals. Dear Sir, It has come to the notice of the Directorate of Forensic Science, Ministry of Home Affairs, Govt. of India that the physical clues of criminal cases are being referred to two or more forensic science laboratories in the country by the investigating agencies. Sometimes the samples sent to different laboratories are not the portions of the same 0sample but are parts of different samplings. This is bound to result into the difference in opinion. Such procedures give rise to many speculations and pose problems not only to the investigating agencies but also to the concerned laboratories. In Para 11 of the earlier guidelines issued by Director General, BPR&D, MHA, Govt. of India (dated 7th February, 2003). It was clearly indicated that a case for re-examination/second opinion should not be accepted by another Forensic Science Laboratory, on the request of concerned investigating agency. Re-examination or second opinion can be taken up when directed by the concerned Court. In Para 11 of the earlier guidelines issued by Director General, BPR&D, MHA, Govt. of India (dated 7th February, 2003). It was clearly indicated that a case for re-examination/second opinion should not be accepted by another Forensic Science Laboratory, on the request of concerned investigating agency. Re-examination or second opinion can be taken up when directed by the concerned Court. It is desirable that such samples referred through Courts should have the seals of the first forensic science laboratory which examined it initially and it should not be a separate sample seal given by investigating agency, which may result in disruption of proper chain of custody, creating doubts about the authenticity of samples. Unfortunately these ethical guidelines have not been followed strictly by some State laboratories on CFSLS and they accept the cases in good faith which causes serious embarrassment to the first laboratory. It would be desirable that the following procedures may be followed by investigating officers and your forensic laboratory for cases referred for second opinion: 1. FSL,s should not accept cases from outside their jurisdiction without permission of the competent authority for example cases from one State sent to another State laboratory should be accepted only with the permission of both the State Governments. The jurisdiction of the CFSLs has already been defined. Any case referred to them from outside their jurisdiction should be accepted only with permission of DFS, MHA, Govt. of India. 2. The investigating officer should obtain permission from senior officer not below the rank of Supdt. of Police for referring cases for re-examination. 3. The investigating officer should certify that the samples being sent for re-examination are the remnants received from the laboratory which examined them earlier and the parcel bears the original seal of the laboratory. 4. If the samples to be examined are different from the first one for example re-sampling from the scene of crime, it should be referred to the laboratory concerned and should be treated as a fresh case rather than a case for re-examination. 5. If there is any difference in the opinion given by the two laboratories in re-examination process a committee constituted by DFS, MHA, Govt. of India, New Delhi should examine both the reports and give their findings regarding the cause of the difference in opinions". 9. This memo has been issued under the authority of Govt. 5. If there is any difference in the opinion given by the two laboratories in re-examination process a committee constituted by DFS, MHA, Govt. of India, New Delhi should examine both the reports and give their findings regarding the cause of the difference in opinions". 9. This memo has been issued under the authority of Govt. of India and the Court can take cognizance of the aforesaid memo issued under the authority of the Government of India and on perusal of the aforesaid memo wherein the Code of Ethics has been mentioned by the Director-cum-Chief Forensic Scientist when any agency disagreeing with any report submitted by one FSL then second opinion can only be obtained after seeking permission from the concerning Court. The investigating agency himself is not at all empowered to prepare a panclvwma like report of the sample concerned and come to the conclusion about the second opinion which is contrary to the report submitted by the Scientist of FSL. 10. The investigating agency only prepared apanchnama with the help of scientists working in the scientific laboratory of SP Office, Gwalior and came to the conclusion that there were certain spots found on the articles which appear to be stops of semen. By preparation of such type of panchnama without any authority, the report submitted by the applicant cannot be disbelieved. It is authority of the trial Court who can send the sample again for second opinion to any other FSL concerned and thereafter Court himself has power to examine both the reports and come to the conclusion as to which report appears to be correct. 11. The second contention against the applicant is that he had cut down the spot portion of the cloth concerned and thereby destroyed the valuable evidence deliberately. This allegation also appears to be on wrong footing because in the prescribed book of scientific examination and laboratory procedure biology, there are specific procedure prescribed for examination of semen spot on the article concerned. In 11th Edition of Lyon's Medical Jurisprudence & Toxicology revised by T.D. Dogra, 2005 Ed. in Chapter XLII at page 661 procedure for microscopic examination has been prescribed which reads as under: Microscopic examination: Microscopic examination can be carried out to identify seminal fluid. In 11th Edition of Lyon's Medical Jurisprudence & Toxicology revised by T.D. Dogra, 2005 Ed. in Chapter XLII at page 661 procedure for microscopic examination has been prescribed which reads as under: Microscopic examination: Microscopic examination can be carried out to identify seminal fluid. The following preparation should be made prior to the examination, depending upon the source of the sample: (1) For liquor semen from vagina or rectum, swabs provide wet preparations. Staining is not necessary. Smears, however, must be made. Dried and examined for blood, pus or bacteria, especially gonococci by staining. (2) Dried smears on the body are wetted with normal saline and transferred to a slide. Public hair if stained is cut off and examined like fabric. (3) From stains on fabric pieces are cut out and soaked (in a watch glass enclosed in a moist chamber made with Petri dishes) in a saline or vibel1's fluid (sodium chloride 2gms. And mercuric chloride 1 2 gm. In 100 cc. of distilled water) for 1/2-1 hour. A piece is then picked up with forceps and gently dabbed on at least three slides to leave a deposit which may be examined as a wet preparation or dried and stained. For staining a dried film made from soaking a dried stain, gentian violet or methylene blue, with eosin as a counter stain, will suffice. For staining a film made from liquid discharge obtained from the vagina or rectum, the appropriate stain must be used (Leisman's stain for blood and pus, etc., and Gram's stain for gonococci). An elaborate staining procedure aims at demonstrating only heads of (I) spermatozoa in broken specimens obtained from dry stains (K.R. Ganguly, 1936, Indian Med. Gaz, 71,400). With accepting a head for an entire spermatozoon for medico legal purposes, however, most medical jurists do not agree. When no spermatozoa are found the report should be to that effect only, not that the stain is not seminal." 12. On perusal of the aforesaid procedure prescribed for microscopic examination it is apparent that the cutting of fabric poriton for microscopic examination is provided in the procedure itself and the applicant cannot be held responsible for the deliberate cutting of spot portion of the clothe concerned for destroying of the material evidence. On perusal of the aforesaid procedure prescribed for microscopic examination it is apparent that the cutting of fabric poriton for microscopic examination is provided in the procedure itself and the applicant cannot be held responsible for the deliberate cutting of spot portion of the clothe concerned for destroying of the material evidence. For the second report or second opinion, the Court can ask the scientist of FSL to produce the aforesaid samples which he had taken from the cloth concerned and thereafter on sealing them properly by the Court, the same sample can be sent to the another FSL for re-examination or for second opinion and in view of that also, when the applicant has cut down the spot portion of the cloth as per the procedure of this Act, the applicant/accused is also not found to be acted deliberately to destroy the valuable evidence of the case concerned and in view of that also, the applicant cannot be held guilty for concealing of evidence, for an offence punishable under section 201 of IPC. 13. This Court in a decision reported in Amin Bhabha (Dr.) v. State of M.P. [ 1999 (1) MPWN 148 ] laid down that medical expert giving autopsy report cannot be prosecuted merely on the ground that previous report has been contradicted by another team of doctors and the officer concerned cannot be prosecuted for the offence under section 201 of IPC. 14. Thus, on overall re-appreciation of the documentary evidence on record, in my considered opinion prima-facie, no legal and cognet material is on record on which basis the prima-facie charge under section 201 of IPC may be framed against the applicant and in view of that, impugned order of framing of charge passed by the trial Court is liable to be set aside. 15. Consequenly, the revision petition preferred by the applicant is allowed and the impugned order of framing of charge against the applicant is set aside. The applicant is hereby discharged from the offence under section 201 of IPC.