Prosecution May Tender Relevant Document In Evidence Even After Submission Of Chargesheet, Veracity To Be Tested During Trial: Kerala High Court

The Kerala High Court recently held that there is no embargo on prosecution producing a relevant document even after submission of the final report or charge sheet, with the court’s permission. The Court also held that genuineness and veracity of the documents produced at a later stage could be dealt with during the trial.

A single bench of Justice Raja Vijayaraghavan V relied on the Apex Court decision in Central Bureau of Investigation v. R.S. Pai and another [2002 (5) SCC 82] to hold that if a mistake is made by the investigating officer by not producing some document of relevance at the time of submitting the report or the charge sheet, it is open to the investigating officer to produce it with the permission of the court.

The Court also relied on the decision in Criminal Trials Guidelines Regarding Inadequacies and Deficiencies, In Re. v. State of Andra Pradesh and Ors. to hold that the Court may allow the document to be received on file and examine the genuineness and veracity of the document produced at the trial stage:

“the Presiding Officer has to decide objections to questions during the course of the proceeding or failing it at the end of the deposition of the witness concerned. This will result in de-cluttering the record and, what is more, also have a salutary effect of preventing frivolous objections.”

The Apex Court had also said that whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration.

The Petitioner in this case had been accused of the offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985. It is alleged that he was entrusted 27.530 kg of Ganja by the first accused, which was kept in the house where he was a caretaker, until it was seized.

Towards the end of examining the detecting officer, the prosecution filed an application for producing the photocopy of the document prepared by the investigating officer while conducting the search of the house from where the alleged contraband was seized. This document was to apparently show that the detecting officer had informed the accused of his right to be searched in the presence of a Judicial Magistrate or a Gazetted Officer. This document was not produced at the time of filing of the final report. Later, a photocopy was produced, claiming that the original was lost.

The Sessions Court allowed the additional document produced to be marked in evidence, despite the objection of the Petitioner. It is against this order of the Sessions Judge, that the Petitioner approached the High Court.

Counsel for the Petitioner Adv. Rajesh Chakyat argued that the court below did not give any reasons for allowing the application. The Petitioner also argued that the said document was fabricated and was introduced to fill up lacunae in the prosecution case.

Senior Public Prosecutor Vipin Narayan contended that the petitioner was free to raise objections to the document at the appropriate stage and that the document was to show that the petitioner was informed of his right to be searched in front of a gazetted officer in accordance with the NDPS Act.

The Court agreed with the course adopted by the Sessions Judge and refused to interference with the impugned order:

“I find that the learned Sessions Judge has acted strictly in terms of the directions issued by the Apex Court. The document has only been tendered in evidence, and it has been received on file, subject to the objection raised by the petitioner, and its genuineness and veracity will be dealt with at the trial stage.”

However, the Court clarified that the petitioner can raise objections to the document at the appropriate stage and the Sessions Judge must consider the merits of the contentions of both sides at the time of the final hearing before accepting or rejecting the document produced in evidence.

Case Title: Sundaran V. State of Kerala

Citation: 2023 LiveLaw (Ker) 253

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