S.173(5) CrPC Directory, Not Mandatory: Inadvertent Omission to File Evidence with Chargesheet Rectifiable, Supreme Court Reaffirms R.S. Pai - 2025-06-14

Supreme Court Allows Late Submission of CDs in Corruption Case, Authenticity to be Tested at Trial

New Delhi: The Supreme Court, in a recent judgment, has upheld the decision allowing the Central Bureau of Investigation (CBI) to produce two Compact Discs (CDs) as evidence in a corruption trial, even though they were not filed with the original or supplementary chargesheet. Justice Abhay S. Oka , delivering the judgment, reaffirmed the legal principle established in CBI v. R.S. Pai (2002) , stating that Section 173(5) of the Code of Criminal Procedure (CrPC), which deals with the production of documents by the prosecution, is directory and not mandatory.

The Court, however, emphasized that while the late production is permitted due to an "inadvertent omission," the authenticity and admissibility of these CDs, along with the validity of the accompanying Section 65B Indian Evidence Act certificate, will be subject to scrutiny during the trial. The appellant (accused) will also have the right to recall prosecution witnesses for cross-examination concerning the CDs.

Background of the Protracted Dispute

The case revolves around accused No. 7 in a corruption trial (Case No. RC-217/2013/A0004) involving offences under the Prevention of Corruption Act, 1988, and Section 120-B of the Indian Penal Code. The dispute centered on two CDs containing intercepted telephone call records (189 and 101 calls respectively), seized in May 2013.

The timeline of events highlights the procedural complexities:

* May 2013 : CDs seized and sent to the Central Forensic Science Laboratory (CFSL).

* July 2, 2013 : CBI filed the initial chargesheet, but the CFSL report was pending, and the CDs were not filed.

* October 25, 2013 : CFSL report received.

* October 30, 2013 : CBI filed a supplementary chargesheet along with the CFSL report, which referred to the CDs. However, the CDs themselves were still not produced before the court.

* March 11, 2014 : Charges framed against the accused.

* September 16, 2014 : During the evidence of Prosecution Witness-3 (PW-3), the prosecution sought to play the CDs. This was objected to by the defence as the CDs were not on record and copies had not been supplied.

This objection triggered a series of applications and legal challenges, moving between the Special Court and the Delhi High Court, before finally reaching the Supreme Court. The Special Court eventually allowed the CBI's application to place the CDs on record on February 6, 2016, a decision upheld by the Delhi High Court on April 26, 2017, leading to the present appeals.

Arguments Before the Supreme Court

The appellant (accused No. 7) , represented by senior counsel, argued that:

* The CDs were available with the prosecution when the original chargesheet was filed and should have been produced then.

* Any subsequent production could only occur through "further investigation" under Section 173(8) CrPC, which is meant for new material, citing Mariam Fasihuddin & Anr. v. State (2024) .

* The decision in R.S. Pai required reconsideration, as Section 173(5) CrPC should be treated as mandatory.

* The non-supply of CDs violated the mandatory provisions of Section 207 CrPC (supply of documents to accused), as held in Sidhartha Vashisht v. State (NCT) and V K Sasikala v. State .

The respondent (CBI) , through the Learned Additional Solicitor General, contended that:

* The CFSL report was not available when the first chargesheet was filed.

* The CDs were inadvertently not produced with the supplementary chargesheet, despite being mentioned.

* No prejudice would be caused to the appellant if the CDs were produced.

* The law laid down in R.S. Pai is well-settled and does not warrant reconsideration.

Supreme Court's Reasoning: Upholding R.S. Pai

The Supreme Court meticulously analyzed the factual matrix and the prevailing legal precedents. The judgment heavily relied on the three-Judge Bench decision in CBI v. R.S. Pai and Anr, (2002) 5 SCC 82 , which held:

"Normally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently. If some mistake is committed in not producing the relevant documents at the time of submitting the report or the charge-sheet, it is always open to the investigating officer to produce the same with the permission of the court... the word “shall” used in sub-section (5) cannot be interpreted as mandatory, but as directory."

The Court noted that this principle was reiterated in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal & Ors, (2020) 7 SCC 1 , which stated that an exception to the general rule (that prosecution should not fill lacunae during trial) is if the prosecution had "mistakenly" not filed a document.

The Court distinguished the appellant's reliance on Mariam Fasihuddin , stating it did not depart from R.S. Pai . Similarly, cases like Sidhartha Vashisht and V K Sasikala were deemed to operate in a different field, concerning the accused's right to receive copies under Section 207 CrPC, not the prosecution's ability to produce inadvertently omitted documents.

The Court observed:

"In the facts of the case, the CDs were seized and referred for forensic analysis to the CFSL along with voice samples of the accused. The CDs were referred to in the supplementary chargesheet... Therefore, when the CDs were sought to be produced, in a sense, they were not new articles... There was only an omission on the part of the respondent-CBI to produce the CDs. Therefore, applying the law laid down in the case of R.S.Pai , the impugned judgments of the Special Court and the High Court cannot be faulted with."

Clarification on Authenticity and Admissibility

While upholding the permission to produce the CDs, the Supreme Court made crucial clarifications regarding observations made by the High Court. The High Court had commented on the authenticity of the CDs and the Section 65B certificate, suggesting their authenticity couldn't be suspected at that stage.

The Supreme Court corrected this approach:

"In our view, the High Court ought not to have gone into the issue of the authenticity of the CDs allowed to be produced. Whether the CDs produced were the same which were seized on 4th May 2013 and 10th May 2013, is something which will have to be proved by the prosecution. The issue regarding the legality of the Certificate under Section 65B of the Evidence Act ought not to have been dealt with at this stage. Even if the production was allowed, the issue of the CDs' authenticity remains open."

Final Decision and Implications

The Supreme Court dismissed the appeals, thereby allowing the CBI to place the CDs on record. However, it explicitly stated:

* The issue of whether the CDs produced are the same ones seized is left open.

* The validity of the Section 65B certificate under the Evidence Act is left open.

* The overall authenticity of the CDs is kept open for determination during the trial.

* The appellant will have the opportunity to recall prosecution witnesses for cross-examination specifically concerning these CDs.

This judgment reinforces the judiciary's approach of treating certain procedural requirements as directory to prevent trials from being derailed by inadvertent errors, provided no serious prejudice is caused to the accused. It also underscores that allowing late production of evidence does not automatically confirm its admissibility or authenticity, which must still be rigorously tested during the trial process, safeguarding the accused's right to a fair trial.