Section 173(5) Cr.P.C. applies only to police reports, not private complaints; new adjudication orders affecting prosecution require fresh sanction.

ORDER

The present Criminal Revision Case is filed, challenging the order dated 18.06.2025, passed by the learned Chief Judicial Magistrate, Trichirappalli, in Criminal M.P.No.12824 of 2025 in C.C. No.5 of 2009, whereby the petition filed by the complainant/Assistant Commissioner, GST and Central Excise, Trichirappalli, under Sections 294 r/w 173(5) Cr.P.C., 1973, seeking permission to mark the order-in-original dated 09.08.2023 as an additional document was allowed. The revision petitioners herein are Accused Nos.1 and 3 in C.C. No.5 of 2009.

2. It is submitted by both the counsels that the 3^rd respondent did not participate in the trial in Criminal M.P.No.12824 of 2025 before the learned Chief Judicial Magistrate, Trichirappalli. That apart, he is only the General Manager of the 2^nd respondent company and he is not a necessary party to this case. Memo has also been filed to that effect. Recording the same, notice to R-3 is dispensed with.

3. Case of the Prosecution/Complainant:

A complaint was originally lodged in 2006 on the strength of show-cause notices dated 17.08.2004 and 20.10.2004, culminating in an adjudication order dated 30.12.2005 passed by the Commissioner of Central Excise. On appeal, the Customs, Excise and Service Tax Appellate Tribunal (herein after referred to as “CESTAT”) Chennai, set aside the said adjudication order, holding that excise duty cannot be demanded from two different entities for the same goods, while leaving liberty to the department to issue fresh notices. Pursuant thereto, two fresh notices dated 24.07.2007 were issued, and after due representation by Accused Nos.1, 3 and 5, a fresh order-in-original was passed on 09.08.2023 by the Joint Commissioner, GST, Trichirappalli. Since this order directly concerns the accused still facing trial, the complainant sought to mark the same under Section 294 Cr.P.C., 1973, on the premise that the accused cannot dispute its genuineness.

4. Case of the Accused/Revision Petitioners:

The complaint itself was launched on the basis of the 2004–2005 notices and the order-in-original dated 30.12.2005, all of which were quashed by the CESTAT in 2007. The sanction order dated 2006 was founded only on those quashed proceedings; therefore, no subsequent adjudication order can be relied upon unless fresh sanction is obtained. The adjudication order dated 09.08.2023 was not in existence when the sanction order was passed. Introduction of such subsequent documents would fundamentally alter the substratum of the prosecution. Sections 173 (5) and 294 Cr.P.C., 1973, have no application to private complaints under the Central Excise Act, 1944 . Reliance was placed on Assistant Collector of Customs v. L.R. Malvani , [11999 (110) ELT 317 (SC)], which clarified that provisions of Section 173 Cr.P.C. are confined to police reports. The attempt to bring in documents generated after 2006 is misconceived, as they were never before the sanctioning authority. Further, the Chief Judicial Magistrate erred in observing that the 2023 order “was in existence at the time of complaint,” which is factually incorrect.

5. Findings of the Learned Trial Court:

The Chief Judicial Magistrate extracted Section 294 Cr.P.C., 1973, and in the absence of any formal proof of admitted documents, observed that the defence had not disputed the genuineness of the 2023 adjudication order. Invoking Section 173 (5) Cr.P.C., the Trial Court held that since the prosecution had inadvertently omitted to file the adjudication order, the same could be introduced without causing prejudice to the accused. It concluded that marking such a document would aid in “finding the truth” and accordingly allow