Prosecution’s Right to Late Production of Electronic Evidence & Deferred Authenticity Review – Commentary on Sameer Sandhir v. Central Bureau of Investigation, 2025 INSC 776

1. Introduction

In Sameer Sandhir v. Central Bureau of Investigation the Supreme Court of India revisits the long-standing debate on how far a criminal court may indulge the prosecution in bringing additional evidence on record after the filing of the chargesheet and even after commencement of trial. The controversy arose from the Central Bureau of Investigation’s omission to file two crucial Compact Discs (CDs) containing intercepted phone calls while submitting the original and supplementary charge-sheets in a high-profile corruption case. When the prosecution attempted to introduce the CDs midway through evidence, the accused (A-7, Sameer Sandhir) objected, culminating in a chain of orders from the Special Court and the Delhi High Court, and finally this Supreme Court appeal.

Key Issues:

• Whether, under Section 173(5) & (8) CrPC, the prosecution can belatedly file electronic evidence that was available prior to the first chargesheet.
• Whether such permission violates the accused’s fair-trial rights under Section 207 CrPC (supply of documents).
• At what procedural stage should courts test the authenticity and admissibility (including Section 65B certificate compliance) of the additional electronic evidence?

2. Summary of the Judgment

• Permission to file CDs upheld: Relying chiefly on CBI v. R.S. Pai (2002) and reaffirmed in Arjun Panditrao Khotkar (2020), the Court held that Section 173(5) is directory, not mandatory. Hence, courts may allow prosecution to produce omitted documents/things, even if collected before the chargesheet, provided no prejudice is caused.
• No premature authentication enquiry: The Delhi High Court’s observations on the genuineness of the CDs were deemed unnecessary; authenticity, sameness of the CDs, and validity of the Section 65B certificate remain open questions for trial.
• Accused’s safeguards preserved: The Court permitted the recalling of prosecution witnesses for limited cross-examination on the CDs, thereby balancing prosecutorial latitude with the accused’s right to a fair trial.
• Appeals dismissed: The appellant failed to demonstrate any revisitable error; however, the Court clarified that the larger legal questions concerning the CDs can still be agitated during trial.

3. Detailed Analysis

3.1 Precedents Cited & Their Influence

1. CBI v. R.S. Pai (2002) 5 SCC 82 – Three-Judge Bench
   • Established that Section 173(5) CrPC is directory; additional documents may be produced later with the court’s leave.
   • The present Bench re-endorses this principle verbatim, treating the CDs as “omitted” evidence rather than fruit of “further investigation.”
2. Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal (2020) 7 SCC 1 – Three-Judge Bench
   • Reaffirmed R.S. Pai while discussing late production of electronic records under Section 65B.
   • Paragraphs 55-56 directly quoted to illustrate the limited exception allowing the prosecution to cure inadvertent omissions.
3. Mariam Fasihuddin v. State 2024 SCC OnLine SC 58 – Two-Judge Bench
   • Held that “further investigation” cannot be a device for relying on pre-existing material.
   • Distinguished here: the Court clarifies the CDs are allowed not under Section 173(8) “fresh evidence” but under the R.S. Pai inadvertent-omission doctrine.
4. Sidhartha Vashisht (Manu Sharma) v. State (NCT of Delhi) (2010) 6 SCC 1 & V.K. Sasikala v. State (2012) 9 SCC 771
   • Emphasised mandatory supply of relied-upon documents under Section 207 CrPC.
   • Cited by appellant to contend that late filing is barred. Court distinguishes: supply obligation is still mandatory; once CDs are taken on record, they must be supplied. That does not bar their reception in the first place.
5. Narayan Rao v. State of Andhra Pradesh AIR 1957 SC 737
   • Historical reference interpreting analogous provision (Section 173(4) CrPC 1898) as directory. Forms jurisprudential base for R.S. Pai.

3.2 Court’s Legal Reasoning

• Directory nature of Section 173(5): The use of “shall” is contextually directory given the logistical realities of investigation and the overarching aim to ensure that the truth emerges at trial.
• Distinction between “omission” and “further investigation”: Because the CDs were seized pre-chargesheet and mentioned in the supplementary report, their late filing is a mere omission, not an attempt to introduce new material via Section 173(8).
• Fair-trial equilibrium: Any potential prejudice is mitigated by supplying copies to the accused and allowing cross-examination. Therefore, the accused’s Article 21 and Section 207 rights are protected.
• Timing of authenticity enquiry: Questions such as whether the CDs are the same as those seized, or whether the Section 65B certificate is adequate, go to admissibility and weight, not to threshold filing. Testing these issues prematurely would collapse the trial stage safeguards.
• No need to revisit R.S. Pai: The Bench rejects the plea for reference to a larger bench, signalling doctrinal stability.

3.3 Potential Impact

1. Operational Ease for Prosecution: Reinforces prosecutorial flexibility to cure filing defects, especially in complex, data-heavy investigations (cyber-crime, corruption, money-laundering).
2. Guidance to Trial Courts: Trial courts must separate the procedural act of “bringing a document on record” from the substantive scrutiny of its genuineness. This could reduce premature evidentiary rulings that occasionally delay trials.
3. Accused’s Strategic Options: The judgment explicitly reserves the right to challenge authenticity and to recall witnesses, providing a roadmap for defence tactics when late evidence surfaces.
4. Digital Evidence Jurisprudence: By stressing that Section 65B issues remain open, the Court subtly warns prosecution against complacency on certification requirements; mere filing does not guarantee admissibility.
5. Future Precedent Value: Confirms that R.S. Pai and Arjun Khotkar continue to govern late filing questions—likely staving off further “reference to larger bench” motions in similar disputes.

4. Complex Concepts Simplified

• Chargesheet (Section 173 CrPC): A report filed by the investigating agency summarising evidence and accusing specific persons of offences. It triggers commencement of judicial scrutiny.
• Section 173(5) vs. 173(8) CrPC:
  • 173(5) directs the IO to forward all material relied upon with the chargesheet.
  • 173(8) allows further investigation even after filing the chargesheet and submission of supplementary reports containing newly discovered evidence.
• Directory vs. Mandatory Provision: A mandatory provision must be followed strictly; non-compliance invalidates the action. A directory provision permits substantial compliance, with courts empowered to condone lapses if no prejudice is caused.
• Section 65B Evidence Act Certificate: A mandatory certificate accompanying electronic records to confirm integrity of the electronic process; without it, such evidence is generally inadmissible.
• Recall of Witnesses: Under Section 311 CrPC or inherent powers, a court may permit recall of witnesses for further cross-examination when new material emerges.

5. Conclusion

The Supreme Court’s ruling in Sameer Sandhir performs a careful balancing act: it defends the prosecution’s ability to rectify filing oversights while safeguarding the accused’s procedural rights. By reaffirming that Section 173(5) CrPC is directory, the Court maintains investigative flexibility amid increasingly complex digital evidence landscapes. Simultaneously, by postponing questions of authenticity and certifying the defence’s right to challenge the CDs and recall witnesses, the judgment underscores that prosecutorial convenience cannot override the fundamentals of a fair trial.

In the broader legal context, the decision strengthens precedent continuity, clarifies the procedural-substantive demarcation in evidentiary rulings, and provides practical guidance on handling late-produced electronic records. Its pragmatic approach is likely to influence trial courts and investigators confronting inadvertent omissions, ensuring that justice is advanced through orderly yet flexible procedure.