C LOHITHAKSHAN Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner seeks to revise an order of the Court of Sessions, Kasaragod, in Crl.R.P. No. 26 of 1988 setting aside the order of the Magistrate declining permission to send material objects involved in the case, to the Director of Forensic Science Laboratory for examination. Petitioner (second accused) and fifty two others are alleged to have committed offences punishable under Ss.143, 147, 148, 323, 324, 120 B, 436, 307, 302& 34 read with S.149 IPC, at or about 5.30 p.m. on 23-3-1987 the date of general elections to the Kerala Legislative Assembly. On 29-3-1988, the charge sheet was filed. Along with that, a petition was made seeking permission to send certain material objects produced in Court to the Forensic Science Laboratory. Reason for the petition was that a report obtained earlier from the Assistant Chemical Examiner, Calicut contained mistakes. The Magistrate declined the prayer, and on revision the Sessions Judge granted it.

(2.) Counsel for petitioner submits that the order would operate to the prejudice of the accused, and that the court had no jurisdiction to make an order in the. nature made. In answer, learned Special Prosecutor submitted that, what was resorted to was only a step in investigation, and that investigating agency had full powers in this regard. Sanction of Court was sought, only because the articles were in Court. If it were not in the Court, there would have been no bar in forwarding material objects for analysis, submits the Prosecutor. Fact that it was in Court, would not change the legal position according to him. Both sides referred to the decision in Ram Lal Narang v. State ( AIR 1979 SC 1791 ) to illustrate the scope of S.173(8).

(3.) The sweep of powers available to investigating agency arise for consideration. Both sides proceed on the basis, that the action contemplated is by way of investigation. I will assume so, for, it could not be referred to any other power.