Cr.MMO No. 276 of 2014. Case: Rama Nand Rathore Vs State of H.P.. Himachal Pradesh High Court

Parts:Rama Nand Rathore Vs State of H.P.
Issuing Organization:Himachal Pradesh High Court
Resolution Date:December 19, 2014
Case:Cr.MMO No. 276 of 2014
Ley aplicable:Code of Criminal Procedure, 1973 (CrPC) - Sections 154, 156, 161, 162, 164, 173, 173(4), 207, 438; Constitution of India - Articles 21, 22, 22(1); Indian Evidence Act, 1872 - Sections 123, 162, 74, 76; Indian Penal Code 1860, (IPC) - Sections 341, 447; Right to Information Act, 2005 - Section 7
Judges:Tarlok Singh Chauhan, J.


Tarlok Singh Chauhan, J.

1. Democracy expects openness and openness is a concomitant of a free society and sunlight is the best disinfectant. It cannot be disputed that ordinary rule is that secrecy must be an exception, justifiable only when it is demanded by the requirement of public interest.

2. These observations are being made in context of the present petition which seeks quashment of FIR No. 145 of 2014, dated 29.11.2014, registered under Sections 447 and 341 of the Indian Penal Code (for short 'IPC'), registered at Police Station East, Chhota Shimla. However, the copy of the FIR has not been placed on record. In response to the query as to why the copy of FIR has not been placed on record, the petitioner, who is present in person, has stated that he is senior citizen of 70 years of age and retired as Assistant Commissioner from the Department of Excise and Taxation, Himachal Pradesh. Being a respectable person, he is too scared to go to the Police Station to get a copy of the FIR, because he may be arrested, since the complainant happens to be none other, than the Superintendent of Police at Shimla. He further apprised this Court that he has already applied for the copy of the same through his counsel on 4.12.2014 under the Right to Information Act, 2005, but the copy thereof has not been made available to him ostensibly because as per the usual practice, the outer limit of 30 days for supplying information as provided under Section 7 of the Right to Information Act is always considered to be the inner limit by those in the helm of affairs.

3. Indisputably, for the present, there is no provision for providing First Information Report under the codified limit, but then the liberty of an individual is inextricably linked with his right to be aware how he has been booked, under which law and what are the allegations set out against him. Liberty in freedom is the strongest passion of men and many have sacrificed their lives for the cause of liberty.

4. At this stage, it would be appropriate to take note of the various provisions of the Code of Criminal Procedure (for short 'Code'):-

154:- Information in cognizable cases:-

(1) Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.

(2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.

(3) Any person, aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) may send the substance of such information, in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code, and such officer shall have all the powers of an officer in charge of the police station in relation to that offence.

5. Section 154 of the Code provides for information as to the cognizable cases and investigation of such cases, whereas Section 156 of the Code provides for police officer's power to investigate cognizable cases. After investigation, final report is submitted by the police to the Magistrate having territorial jurisdiction. After completion of investigation and submission of charge-sheet, before trial, the accused is entitled to copies of the police report as provided in Section 207 of the Code. The said Section reads as follows:-

207. Supply to the accused of copy of police report and other documents:- In any case where the proceedings has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following:-

(i) the police report;

(ii) the first information report recorded under section 154;

(iii) the statements recorded under sub-section (3) of section 161 of all the persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of section 173;

(iv) the confessions and statements, if any, recorded under section 164;

(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of section 173;

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in clause (iii) and considering the reasons given by the police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused.

Provided further that if the Magistrate is satisfied that any document referred to in clause (v) is voluminous, he shall, instead of furnishing the accused with a copy thereof, direct that he will only be allowed to inspect if either personally or through pleader in Court.

6. Section 207 of the Code, therefore, mandates that after completion of investigation and submission of final form before the learned Magistrate, it is the duty of the learned Magistrate to furnish the accused a free copy of the documents, which includes police report, FIR, statements recorded under Sections 161 and 164 of the Code etc. However, this provision comes into play only after the investigation is over and after submission of the final form. Prior to that, as noted above, there is no provision under the Code for an accused to be supplied with a copy of the F.I.R.

7. Now in absence of copy of F.I.R., does the accused have an effective right to defend himself, especially when he is not in possession to know the nature of allegations so that he can approach an appropriate form for obtaining necessary relief for protecting his right and liberty. Is not the copy of FIR a public document?

8. Section 74 of the Indian Evidence Act (for short 'Act') deals with public documents and reads as follows:-

74. Public documents. The following documents are public documents:-

(1) documents forming the acts, or records of the acts:-

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive, (of any part of India or of the Commonwealth), or of a foreign country;

(2) public records kept (in any State) of private documents.

9. Section 76 of the 'Act' deals with certified copies of public documents and reads thus:-

76. Certified copies of Public Documents- Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal frees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal; and such copies so certified shall be called certified copies.

Explanation- Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.

10. A Division Bench of Allahabad High Court in Shyam Lal Vs. State of U.P. and others, 1998 Crl.L.J 2879 has ruled that the First Information Report is a public document.

11. In Chnnappa Andanappa Siddareddy and other Vs. State, 1980 Crl.L.J. 1022 has held thus:-

The FIR being a record of the acts of the public officers prepared in discharge of the official duty is such a public document as defined under Section 74 of the Evidence Act. Under Section 76 of the Evidence Act, every public officer having the custody of a public document, which any person has a right to inspect is bound to give such person on demand a copy of it on payment of the legal fees therefor.

12. A Division bench of Madhya Pradesh High Court in Munna Singh Vs. State of M.P., 1989 Crl.L.J. 580 has opined that a First Information Report is not a privilege document under the Evidence Act.

13. Learned Single Judge of the Calcutta High Court in Sardar Dapinder Singh Bath Vs. State of West Bengal writ petition (W) No. 5474 of 2007 has held that as soon as an FIR is registered, it becomes a public document and members of the public are entitled to have certified copy thereof. Thus there can be no trace of doubt that FIR is a public document as defined under Section 74 of the Evidence Act.

14. Now once it is concluded that FIR is a public document, then the accused at least should be entitled to the copy thereof. At this stage, it will be advantageous to make reference to a Division Bench of Delhi High Court in Court on its own Motion Vs. State, Writ Petition (Cr.) No. 468 of 2010, wherein the Court was seized with the same question and it was held as follows:-

"22. Presently, coming to the entitlement of the accused to get a copy of FIR, we may notice few decisions in the field. In Dhanpat Singh v. Emperor, AIR 1917 Patna 625, it has been held thus:

...It is vitally necessary that an accused person should be granted a copy of the first information at the earliest possible state in order that he may get the benefit of legal advice. To put difficulties in the way of his obtaining such a copy is only creating a temptation in the way of the officers who are in possession of the originals.

23. The High Court of Calcutta in Panchanan Mondal v. The State, 1971 Crl.L.J. 875 has opined...

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