S.173(8) CrPC Inapplicable To Additional Document Already Part Of Record In Incomplete Form, Without Introducing New Allegations: Delhi HC

Justice Chandra Dhari Singh was considering the petitioner/accused's challenge to the Trail Court's judgment. The respondent/CBI alleged that the petitioner, employed as a Single Window Operator at Bank of Baroda, was involved in falsifying cash deposit slips and altering transaction records. The charges were filed against the petitioner under Section 13(2) of Prevention of Corruption Act along with Sections 409, 420, 468, 471 and 201 IPC.

Before the Trial Court, CBI filed an application seeking permission to place on record a complete screenshot from the OHDTM menu of the Finacle System, which is used for processing and recording cash deposit transactions. CBI filed this application after the completion of final arguments. CBI submitted that the screenshot was already placed on record earlier but was incomplete and thus that the new document/screenshot contained important details including a transaction number linking the petitioner to the offence.

CBI also sought recall and re-examination of four witnesses on the grounds that their testimonies were based on incomplete records and that the missing information/screenshot was necessary for the proper adjudication of the case.

However, the petitioner opposed the applications. He contended that the screenshot constituted fresh evidence and could only be brought on record through further investigation under Section 173(8) of the CrPC.

The petitioner further argued that the recall of witnesses after the closure of prosecution evidence and after final arguments had commenced would be highly prejudicial to his right to a fair trial as it placed him at a severe disadvantage and that it would amount to procedural unfairness.

The Trial Court allowed CBI's application, noting that the screenshot was already a part of the record and that its completion did not amount to fresh evidence. It also allowed recall of witness on the ground that their testimonies needed to be examined in light of the additional document/screenshot and allowing their re-examination would ensure that the court concerned had access to a complete factual record.

Introduction Of Additional Document/Screenshot

Distinguishing between 'fresh evidence' and 'rectification', the Court observed that fresh evidence means new material that was not a part of the original investigation and does not alter the nature of the prosecution's case by introducing new facts or allegations against the accused. Whereas, rectification involves the correction of an omission, mistake or incomplete filing of evidence that was already collected during the investigation.

Here, the Court was of the view that the screenshot did not constitute fresh evidence as it was already a part of the record in an incomplete form. It observed “Applying this distinction, this Court finds that the introduction of the complete screenshot does not constitute fresh evidence. The document in question was already a part of record in an incomplete form, and its completion does not introduce any new allegation, new findings, or alter the prosecution's case in any material manner.”

Pursuing the Trial Court's order, the Court noted that the Trial Court observed that the document was already a part of the record and its omission was a procedural oversight. It had noted that the prosecution was not attempting to introduce a new piece of evidence, rather providing full details of an already submitted document for proper adjudication.

Furthermore, on the petitioner's contention that the screenshot could not have been introduced without requisite permission under Section 173(8) CrPC, the Court observed that Section 173(8) of the CrPC did not apply to the present case.

It noted that Section 173(8) CrPC applies only in cases where police conduct 'further investigation' after filing the final report and obtaining new evidence that was not originally collected. It stated “The application of Section 173(8) of the CrPC hinges on whether the prosecution's act of submitting the complete screenshot amounts to further investigation. Section 173(8) of the CrPC applies only when the police conduct further investigation after filing the final report and obtain new evidence that was not originally collected. In such cases, a supplementary chargesheet must be filed before the Magistrate to ensure procedural fairness.”

Here, the Court observed that neither further investigation was conducted by the police nor any additional evidence was collected. It thus held that since the screenshot was part of the original record and no additional investigation was undertaken by the police, Section 173(8) CrPC was inapplicable in the case.

Recall Of Witness After Completion Of Final Arguments

On the petitioner's objection to the recall of witnesses, the Court stated that the petitioner has not demonstrated how the screenshot which includes the transaction number materially changes his defense strategy or impairs his ability to contest the case on its merit.

It was of the view that no prejudice would be caused to the accused by recalling witnesses as the screenshot did not introduce any new facts or allegations. It observed that the as accused will be given an opportunity to cross-examine the re-called witnesses, “the ability to test the evidence through cross-examination defeats any claim of procedural unfairness.”

On the petitioner's contention that his right to fair trial would be violated, the Court remarked, “Further, it is essential to distinguish between a genuine violation of right to a fair trial and a situation where a party merely loses the benefit of a procedural lapse. The key question is not whether the accused's tactical advantage has been diminished but whether they have been deprived of the fundamental safeguards of cross-examination, rebuttal or access to the evidence.”

Here, the Court said that as the accused is being afforded procedural safeguards, the introduction of the screenshot after the conclusion of final arguments does not violate the right to a fair trial. It stated that rather than prejudicing the accused, the complete document/screenshot would ensure proper adjudication of the case.

With these observations, the Court upheld the Trial Court's decision and dismissed the petition.

Case title: Sonu vs. CBI

Citation: 2025 LiveLaw (Del) 208