Thulasidas, J.:— A common question arises for decision in these petitions which have come before us on a reference made by a learned Judge of this Court, who has doubted the correctness of Geetha v. Aliyar Kunju, 1993 (2) KLT (SN) 29 and Retnakumar v. Registrar High Court, 1993 (2) KLT 677 and opined that they require reconsderation.
2. Petitioners are the accused in complaints filed under S. 138 of the Negotiable Instruments Act At the stage of defence evidence, they applied that the cheques, which they denied were drawn by them in favour of the respondents-complainants, may be sent to the hand-writing expert for his opinion as to their genuineness, which request was turned down by the trial court for different reasons. The order of the Magistrate on the petition filed by the petitioner in Crl. M.C No. 1598 of 1994 was challenged in Crl. M.C No. 906 of 1993 and this court observed:
“If she thinks that an expert's opinion will be necessary to bolster up his defence, she may men apply to the court to issue summons to the expert If she is interested in having the cheque examined by a hand-writing expert, she can apply to the court to supply a photo copy of the questioned cheque to him so that she may forward the same to the handwriting expert of her choice”.
“……… if she is advised to adopt the said defence, it is open to her to file an appl ication before the trial court that a photo copy of the questioned cheque may be suppl ied to her for having it examined through the handwriting expert. If any such application is made, the Magistrate shall dispose of the same in the light of the observations made above”.
3. She accordingly forwarded a photocopy of the disputed cheque to the hand-writing expert, who expressed inability to give his opinion in the absence of original document and therefore she made a fresh application for sending the original cheque itself to the hand-writing expert, which the court below dismissed, by its order that she has challenged. C.M.P No. 2347 of 1994 in C.C No. 351 of 1990 filed by the petitioner in Crl. M.C No. 2387 of 1995 was also dismissed by the Judicial First Class Magistrate, by his order dated 30-4-1994, which was challenged in Crl. M.C No. 24 of 1994 before the Additional Sessions Court, Kottayam. But the said revision was dismissed affirming the Magistrate's order, which is under challenge in Crl. M.C No. 2387 of 1995.
4. The material facts in Retnakumar v. Registrar, High Court, 1993 (2) KLT 677 and these cases are identical. At the stage of defence, the accused filed an application before the trial court for forwarding a document to the Forensic Science and Laboratory for expert opinion on certain aspects. The Magistrate dismissed the application. The accused challenged his order before this court. While dismissing his petition it was observed:
“The procedure prescribed in Chapter XIX of the Code for trial of warrant cases instituted on police report is the procedure to be followed in this case since as per S. 313 of die Code, the Magistrate to whom a complaint is made under S. 340 or 341 shall deal with it as if it were instituted on a police report, under the said Chapter, the Magistrate has to take all evidence for prosecution as enjoined by S. 242. When the case reaches next stage, the Magistrate has to call upon the accused to enter on his defence as provided in S. 243. If the accused applies the Magistrate has to issue process for compelling the attendance or thing for defence evidence. It is not provided anywhere in Chapter XIX of the Code that the accused can apply for sending any document or article for expert examination at the stage when he is called upon to enter on his defence. Even under Chapter XXI of the Code which deals with “general provisions as to enquiries or trial” no provision enabling the court to make such investigation is envisaged. At the same time there is no restriction for the accused obtaining any expert opinion for the purpose of bringing in evidence. If he succeeds in securing a favourable opinion from any expert on any matter relevant for his defence, he can certainly request the court to summon him. But that aspect is qualitatively different from seeking the help of the court, during defence evidence stage, to conduct investigation to ascertain as to what the expert would say on such matter. True, there are some provisions in certain special enactments which enable the accused to conduct a super test on the expert opinion which prosecution rel ies on. Those are cases in which the report of a scientific analysis or chemical examination is the basis for any prosecution proceedings eg. S. 13(2) of the Prevention of Food Adulteration Act and S. 25(4) of the Drugs and Cosmetics Act, 1940. It has to be remembered that no such special procedure is prescribed in the Code”.
5. The correctness of the above observations is in question here.
6. The provisions in (B) of Chapter XIX Cr. P.C are applicable to the cases in question and we are concerned with the scope of Section 243(2), which enjoins upon the court at the close of the prosecution evidence to call upon the accused to “enter upon his defence and produce his evidence”. At that stage he may put in any statement that the Magistrate shall file it with the records and if he,—
“applies to the Magistrate to issue any process for compelling the attendance of any witness for the purpose of examination or cross-examination, or the production of any document or other thing, the Magistrate shall issue such process unless he considers that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice and such ground shall be recorded by him in writing:
Provided that, when the accused has cross examined or had the opportunity of cross-examining any witness before entering on his defence, the attendance of such witness shall not be compelled under this section, unless the Magistrate is satisfied that it is necessary for the ends of justice”.
7. In Sudhir Kumar Dutt v. The King (AIR 1949 FC 6) at page 10) (that was in the context of S. 257 Cr. P.C which corresponds to S. 247 of the present Code) the Supreme Court held:
“It is to be noted that the language of the section is imperative and the trial court has no discretion under it to refuse to issue process to compel the attendance of any witness cited by the accused after he has entered upon his defence, unless it is of the opinion that the application should be refused for any of the reasons which are specified in the section and which it is bound to record.”
8. In Habeeb Mohammed v. State of Hyderabad (AIR 1954 SC 51) the Supreme Court held:
“a conviction arrived at without affording an opportunity to the defence to lead whatever relevant evidence it wanted to produce cannot be sustained.”
9. It is obvious that the provisions are imperative and are meant for a fair trial to the accused, who has every right to adduce evidence in defence, no doubt, subject to the caveat engrafted in the provisions itself, that it is the Magistrate's duty to abide by. Failure to give full effect to S. 243 Cr. P.C would be an illegality and would vitiate the entire proceedings. If the accused desires expert's opinion in defence he can make it available and may, if necessary, examine the expert also. In our view, even in the absence of a specific provision in Chapter XIX Cr. P.C he could request the court that the documents, whose genuineness the disputes may be sent to the expert for his opinion. This is implicit in sub-section (2) of S. 243 Cr. P.C It is a valuable right not entirely in the realm of investigation and would admit of no restriction, save where the Magistrate is satisfied for reasons to be recorded, that the intended exercise is manifestly for the purpose of vexation and delay or for defeating the ends of justice. Whether he should or not go by the expert opinion is a different matter not affecting his right under the aforesaid provision.
10. In our view, the basic legal proposition in Geetha v. Aliyar Kunju (1993 (2) KLT (SN) 29) is sound, but respectfully we are unable to endorse the correctness of the wide propositions laid down in Retnakumar v. Registrar, High Court (1993 (2) KLT 677).
11. The Judicial First Class Magistrate-I, Neyyattinkara and the Judicial First Class Magistrate-I, Kanjirappally, are directed to forward the documents to the expert in terms of the request made in C.M.P No. 4932 of 1992 in C.C No. 19 of 1992 and C.M.P No. 2347 of 1994 in C.C No. 351 of 1990, at the cost of the petitioners. The Crl. M.Cs are ordered accordingly.