DANA RAM CHOUDHARY Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS petition has been filed under Section 482 Cr.P.C. and it is prayed that Public Analyst, Jodhpur, who submitted the report dt. 4.9.1993 may be directed to be summoned by the court as witness and petitioners may be given opportunity to cross-examine him. Alternatively it has been prayed that if the witness is not examined then an adverse inference envisaged under Section 114(g) of the Indian Evidence Act should be drawn against the prosecution.

(2.) LEARNED counsel for the petitioner has argued that the Public Analyst is a material witness who has given the report that the sample taken from the petitioner was found adulterated or did not conform to the prescribed standard. It is argued that it is necessary to cross-examine the witnesses about the test conducted by him and some other important matters about testing of the sample. The petitioner filed an application under Section 293 sub- section (2) Cr.P.C. to call the public analyst to examine him as a witness but the application has been rejected by the impugned order saying that the Public Analyst cannot be allowed to be cross-examined when the prosecution does not want to examine him as witness. It has been observed in the impugned order that the prosecution cannot be compelled to examine any witness and defence can examine public analyst as defence witness.

(3.) I have considered the arguments advanced by both the parties. Section 293 sub-section (2) of Cr.P.C. provides that if the court thinks fit it can summon and examine any such expert with respect to the subject matter of this report. Therefore, when application is filed under Section 293 sub-section (2) Cr.P.C. when the court should apply its mind on the facts and circumstances of the case and on the basis of the chemical analyst report that whether it thinks fit to call the Public analyst as a witness and examine him about his report. The learned trial court has not given reasons as to whether it thinks it proper or not to summon and examine the public analyst as witness. The powers have been conferred on the Court to summon the Public Analyst as witness under Section 293 sub-section (2) Cr.P.C. It is true that the prosecution cannot be compelled to produce public analyst as a witness but he can be summoned as witness under Section 293 Sub-section (2) of Cr.P.C. by the court. Even if, accused has a right to examine the Public analyst as defence witness, the accused can also submit an application under Section 293(2) Cr.P.C. to get the Public nalyst exa 'mined under these provisions by invoking powers of the court even before the defence evidence commences. The application also appears to be little vague because the prayer has been made to cross-examine the Public nalyst examined under these provisions by invoking powers of the court even before the defence evidence commences. The application also appears to be little vague because the prayer has been made to cross-examine the Public analyst whereas the application has been filed under Section 293(2) Cr.P.C. Therefore, I deem it proper to direct the learned trial court to consider the application afresh under the provisions of Section 293(2) Cr.P.C.