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2011 DIGILAW 1536 (CAL)

S. K. Gupta v. State

2011-12-21

PRASENJIT MANDAL

body2011
JUDGMENT: 1. THE Judgment of the Court was as follows: Heard learned advocates of both the sides. 2. THIS application is directed against the order dated March 21, 2011 passed by the learned Special Judge, Port Blair in Spl. Case No. 2 of 2008 thereby allowing of two applications - one application under section 293 of the Code of Criminal Procedure and another application under section 294(3) of the Code of Criminal Procedure. 3. THE short fact necessary for the purpose of disposal of this application is that the petitioner is facing trial in respect of charge under sections 7 and 13(1) (d) of the Prevention of Corruption Act, 88 punishable under sections 7 and 13(2) of the Prevention of Corruption Act, 1988. 4. BY allowing the first application under section 293 of the Cr PC the learned trial Judge has marked the forensic examination report as exhibit No. 12 and by allowing the application under section 294(3) of the Cr PC has marked the original sanction for prosecution as exhibit No. 13. Being aggrieved by such order, this application has been preferred. 5. NOW the question is whether the impugned order should be sustained. 6. SO far as the application under section 293 of the code of criminal procedure is concerned, from the materials on record, I find that the report prepared by the government scientific expert after examination or analysis of the material had been submitted by him in the course of investigation. The prosecution prayed for marking the said report as exhibit under the said section. In order to appreciate the provision of said section, the section is quoted below: "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. (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 Controller 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 Laboratory; (f) the Serologist to the Government. (g) Any other Government Scientific Expert specified by notification by the Central Government for this purpose." 7. THUS, from the sub-section 1 of section 293, I find that the trial Judge has been vested with the discretionary power to use the report submitted by a government scientific expert and the learned trial Judge has exercised such discretionary power. During argument, Mr. Tabraiz has submitted that the handwriting expert does not fall within any of the clauses as mentioned in sub-section 4 of the said section. With due respect to him, I am of the view that this submission cannot be accepted. The government handwriting expert when examined the chemical material is certainly comes within the section 293(4) (a) of the Code of Criminal Procedure and the learned trial Judge has rightly discussed the contentions of the parties in the impugned order. Thereafter, he has rightly concluded that the report is admissible and the said document could well be marked as exhibit. An elaborate discussion has been made by the trial Judge, in order to mark the said document as exhibit. The examination of the witness is not compulsory but at the discretion of the learned trial Judge. Therefore, I am of the view that so far as disposal of the application under section 293 of the code of criminal procedure is concerned, there is no scope of interference with the impugned order. So, the order on this applicaiton shall sustain. 8. Therefore, I am of the view that so far as disposal of the application under section 293 of the code of criminal procedure is concerned, there is no scope of interference with the impugned order. So, the order on this applicaiton shall sustain. 8. AS to the disposal of the application under section 294(3) of the Cr PC, I find from the materials on record that the original sanction letter has been produced by the prosecution. For convenience, the provision of section 294 of the Code of Criminal Procedure is quoted below: "294. No formal proof of certain documents - Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. (2) The list of documents shall be in such form as may be prescribed by the State government. (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed. Provided that the Court may, in its discretion, require such signature to be proved." 9. THE Sub-section 3 of the said section lays down that where the genuineness of any document is not disputed such document may be read in evidence in an enquiry trial or other proceedings under the Court without prove of the signature of the person to whom it purports to be signed. In this regard, I find that the learned trial Judge has simply recorded the decision referred to by the learned lawyer for the applicant and he has jumped to the conclusion that the said order of sanction should be marked as exhibit No. 13. THE applicant has raised objection about the documents in his written objection against the application under section 294(3) of the Cr PC. This being the position without discussing the matter more, I am to the view that the learned trial Judge should be directed to hear out the application under section 294(3) of the Cr PC afresh and to pass a reasoned order thereon. 10. This being the position without discussing the matter more, I am to the view that the learned trial Judge should be directed to hear out the application under section 294(3) of the Cr PC afresh and to pass a reasoned order thereon. 10. THE learned trial Judge has concluded in the last part of the impugned order to the effect that the applicant is at liberty to examine those witnesses, if he thinks fit. This is up to the matter of the applicant but whenever any objection is raised as to marking the order of sanction as exhibit under the provisions of the said Act, it is to be dealt with properly. 11. ACCORDINGLY, the part of the impugned order relating to the disposal of the application under section 294(3) of the Cr PC 73 is hereby set aside and the learned trial Judge is directed to dispose of the said application afresh within a period of 30 days from the date of communication to him. 12. THIS application is disposed of in the manner indicated above. There will be no order as to costs. Urgent Xerox certified copy of this order be supplied to the parties, if applied for, on observing all requisite formalities. Prasenjit Mandal, J. Application disposed of.