1 IN THE HIGH COURT OF JUDICATRE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1337 OF 2008 Maria Monica Susairaj, Age 27 years, Occ.Film Artist, 391/A, Hanumantha Nagar, Bannimantap `C' Layout, Mysore – 570 015, Karnataka Petitioner (At present at Byculla Central Prison, Mumbai) (Org.Accused no.1) VERSUS The State of Maharashtra through CID, Unit-VIII, Bandra, Mumbai (Original CR No.347/2008 registered with Malad Police Station, Mumbai). Respondent Shri Niteen Pradhan with Ms.S.D.Khot and Ameeta Kuttikrishnan for petitioner. Shri S.R.Borulkar with Shri P.S.Hingorani, APP for State. CORAM : BILAL NAZKI AND A.A.KUMBHAKONI, JJ. DATE OF RESERVING THE JUDGEMENT : 08th August 2008 DATE OF PRONOUNCING THE JUDGEMENT : 14th Oct., 2008. JUDGEMENT (PER : A.A.KUMBHAKONI, J.) :- 2 1. Rule. Rule made returnable forthwith. By consent of parties heard for final disposal at the admission stage itself in view of the nature of controversy raised in this petition, which raises a very short but interesting issue dealt with hereunder. 2. Miss. Maria Susairaj, the petitioner – a lady, is a co-accused in a murder case with accusations attracting basically Sections 302, 201 and 34 of Indian Penal Code vide C.R.No.347 of 2008. The alleged incident wherein a male person died, took place on 7th May 2008. The petitioner as also the co-accused, another male person, were arrested on 21st August 2008. 3. According to the prosecution, the petitioner volunteered to make a confessional statement. The petitioner was produced before the Judicial Magistrate, who recorded the alleged confessional statement of the petitioner on 27th/28th May 2008 under Section 164 of the Code of Criminal Procedure 1973 (hereinafter referred to as “the Code” for the sake of brevity). 4. When the investigation was going on, the petitioner filed an application seeking bail u/s 439 of the Code. The prosecution filed a reply 3 thereto wherein, along with other grounds, the prosecution also relied and/or referred to the aforesaid alleged confessional statement of the petitioner to oppose the grant of bail to the Petitioner. 5. The reliance placed by the prosecution on the confessional statement of the petitioner for opposing grant of bail to the petitioner, prompted the petitioner to file an application dated 12th June 2008 giving rise to this writ petition. The petitioner filed this Miscellaneous Application N.973 of 2008 in her Bail Application No.1196 of 2008 and thereby sought for a direction against the prosecution to furnish a copy of the aforesaid alleged confessional statement recorded u/s 164 of the Code by the Judicial Magistrate on 27th/28th May 2008, to effectively prosecute her bail application. We will set out and deal with the contentions raised therein at an appropriate stage hereinafter. 6. The aforesaid application of the petitioner seeking a copy of her alleged confessional statement was opposed by the prosecution by filing a reply dated 17th June 2008. The contents thereof also will be set out and dealt with herein at an appropriate place. 4 7. The learned Lower Court heard both sides and was pleased to reject the aforesaid application of the petitioner by his order dated 19th June 2008. Therefore the petitioner has filed this petition being aggrieved and dissatisfied by the aforesaid order dated 19th June 2008 of the learned Special Judge (CR No.50), Greater Mumbai whereby the application of the petitioner bearing No.973 of 2008 in Bail Application No.1196 of 2008 has been rejected. 8. When the matter was placed before us on 16th July 2008 we passed an interim order directing the learned Sessions Judge to dispose off the bail application of the Petitioner on merits. We also directed the prosecution to produce copy of the statement of the petitioner recorded u/s 164 of the Cr.P.C. before the learned Sessions Judge for only his perusal. We have been informed that accordingly the copy of the statement of the petitioner was produced before the learned Sessions Judge for perusal. 9. The bail application of the petitioner was heard and the learned Additional Sessions Judge, Greater Mumbai, by his order dated 25th July 2008, was pleased to reject the same. In view of rejection of the bail application of the petitioner, the petitioner with the leave by us on 28th July 5 2008, has amended the writ petition. The Petitioner has produced a copy of the aforesaid order dated 25th July 2008 whereby the bail application was rejected and has added certain grounds in the memo of petition as additional grounds, in support of the basic claim of the petitioner for a copy of her alleged confessional statement, at this stage itself. This order of rejection of bail application of the petitioner does refer to the confessional statement of the petitioner as one of the aspects considered for deciding the issue of grant of bail to the petitioner. 10. We make it clear that by this judgement and order we are considering only and only the claim of the petitioner for supply of copy of her alleged confessional statement at the stage at which it was sought for i.e. before filing of the charge sheet and when the investigation is in progress. Therefore, we are not setting out herein the details about the case of the prosecution leading to the arrest of the petitioner etc.. It is made abundantly clear at the threshold itself that the observations made herein are, therefore, restricted only and only to such entitlement of the petitioner claimed by her and that the same should not be considered as reflection of our opinion anything beyond the issue raised before us. 6 11. Though the original application of the petitioner under consideration was for seeking a copy of the confessional statement for prosecuting her bail application effectively and though pending hearing and final disposal of this writ petition the bail application itself has been finally rejected, the learned counsel appearing on behalf of the petitioner sought for this judgement and order as, according to him, the issue raised in this writ petition, so far has neither been considered by this Court nor by the Supreme Court at any time and that therefore, there is need for an authoritative pronouncement by us in that regard. We are, therefore, venturing to decide the following issue :- (i) Whether an accused is entitled to a copy of his/her Confessional Statement recorded u/s 164 of the Code of Criminal Procedure 1973 by the Judicial Magistrate at any stage before filing of charge sheet ? 12. The contentions raised on behalf of the petitioner not only in the application in issue but also in the present petition as well as during the course of arguments advanced are as under :- In the reply filed by the prosecution opposing the bail application 7 filed by the petitioner under section 439 of the Code, a reference is made to the alleged confession of the petitioner. The hearing of bail application is a trial within trial and that the petitioner is also facing an additional trial at the hands of media, which has led to a societal bias castigating the petitioner as a person with shameless character and departures tendencies. The petitioner has found from the news paper reports that a copy of the confessional statement, at least major and material portions thereof, has landed on the tables of newspaper reporters and on 31st May 2008 itself, the news papers have reported the alleged extracts of the alleged confessional statement of the petitioner. On the other hand, the petitioner who is supposed to be the author of it has not been supplied with a copy thereof. In the submission of the petitioner, the contents of the confessional statement so reported by the press, was not what the petitioner had told the Magistrate during the course of recording of her alleged confession u/s 164 of the Code. There is no bar either in the said Code or in the Criminal Manual prepared by the Bombay High Court under Article 227(2) and (3) of the Constitution of India, for supply of such a confessional statement to the petitioner at a stage before filing of the charge sheet. In any case, according to the petitioner, in law a confessional statement recorded under Section 164 of the Code is a public document in terms of Section 74 of the Indian 8 Evidence Act and, therefore, the petitioner is entitled to a certified copy of it u/s 76 of the Indian Evidence Act. In any case, in order to stop the character assassination of the petitioner by the media by publishing incorrect and untrue versions as the extracts of the confession so allegedly made by the petitioner, a copy thereof be given to the petitioner. According to the petitioner, failure to supply such a copy to the petitioner, will result into great prejudice being caused to the petitioner in defending her case and in seeking bail at this stage, as the petitioner will be handicapped while dealing with the case of the prosecution making allegations against the Petitioner on the basis of her alleged confessional statement. According to the learned counsel for the petitioner, the contents of the alleged confessional statement of the petitioner have direct effect of degree of culpability of the Petitioner, which is a relevant factor for consideration of bail application filed by the petitioner u/s 439 of the Code. In his submission, it will make a qualitative difference inasmuch as if, according to the prosecution, the petitioner has confessed only to the crime u/s 201 of the Indian Penal Code, then she will be entitled to a bail, she having not confessed to any act or deed attracting section 302 of the Indian Penal Code. In his submission, if the press reports are incorrect, it was the 9 duty of the public officer concerned with the investigation of the crime, to provide appropriate clarification by making public statements pointing out the incorrect press reporting attributing the same to the alleged confessional statement of the petitioner. According to the learned counsel appearing for the petitioner, it was the public duty cast on the investigating agency to do so as the investigating agency was duty bound not only to investigate into the crime but also to ensure that an innocent is not falsely implicated. 13. The submissions of the petitioner have been opposed on behalf of the prosecution who, in reply filed before the Lower Court, has raised following points :- ● The confessional statement is a part of Police papers and, therefore, like any other police papers relating to the investigation, it's copy cannot be given to the petitioner at this stage of investigation; ● The petitioner is highly educated and is fully aware of what she has confessed. Moreover, the petitioner in her own handwriting has made appropriate endorsement on her confessional statement after reading it herself; ● In the confessional statement the petitioner has disclosed, directly and indirectly, information about other important witnesses in 10 respect of which the investigation is still going on; ● If, before completion of investigation a copy of confessional statement of the petitioner is provided to her, unnecessarily, information given by her in it and names of the important witnesses & evidence will be disclosed and it will cause adverse effect on the pending investigation that is at present going on; ● At an appropriate stage when the charge sheet will be filed, the accused/ petitioner will be supplied with requisite documents in terms of sections 173(5), (7) and 207 of the Code; ● The Investigating Officers have strong objection for supplying such copy to the petitioner at this stage of investigation as the same will adversely affect it. It is the submission of learned Public Prosecutor that if we consider the scheme of the Code in its proper perspective, the accused is not entitled to obtain copies of papers of investigation as of right, till proceedings reach the stage of Section 207 of the Code. Moreover, Section 164 of the Code does not contemplate that a copy of such confessional statement be given to the accused. The guideline no.21 framed by the Criminal Manual permits only the Police to take copies of such statements and not the accused. Even under Right to Information Act, the case will fall u/s 8 which deals 11 with exemption from disclosure of such information. In his submission, the documents collected during investigation have potential links to the evidence of crime which, if disclosed before conclusion of investigation, will materially hamper further investigation. Inasmuch as, the allegations pertaining the trial by media are concerned, in the submission of the learned public prosecutor, even the Supreme Court has observed and held that the trial by press is very antithesis of the Rule of law and that pending investigation, publication of articles is deprecated. The request of the petitioner for these and such other reasons is strongly opposed by the prosecution. 14. The Lower Court after considering these and such other submissions on behalf of both the sides, while rejecting the request of the petitioner, has observed that the publication of defamatory news in the newspaper is something with which the Court is not concerned at this stage and that the petitioner was at liberty to adopt any other remedy in that regard. It is observed that in the Code there is no provision to furnish copies of the statement of witnesses as also of the confessional statement of the accused, to the accused when the investigation is in progress. In the Criminal Manual also there is no such provision. The object in not supplying the copy at this 12 stage is to facilitate the Police to decide as to the further line of investigation and that such copy, if so supplied, the petitioner or her well wishers may try to destroy/tamper with the evidence and thereby hamper the investigation. It is further held that after completion of the investigation the petitioner will be entitled to get such a copy along with other documents and if at that time such copy is not supplied to her, she can take recourse to legal provisions for getting it. 10. The learned counsel appearing on behalf of the petitioner relied on a set of judgements to which detail reference need not be made by us for the simple reason that this set of judgements holds that the statement recorded u/s 164 of the Code by a Magistrate is a public document and that the accused is entitled for a copy thereof. These judgements also conclude that statements recorded u/s 161 of the Code, FIR recorded u/s 154 of the Code and report u/s 202 of the Code are also public documents and that an accused is entitled to a copy thereof. These judgements, in our view, will not assist in any manner the petitioner any further in her case and claim copy of her confessional statement at the stage when the investigation is incomplete and that the charge sheet is not yet filed. None of these judgements on which reliance is 13 placed by the petitioner even remotely or indirectly suggest that the petitioner is so entitled, as claimed by her in the application under consideration. The prosecution in the present case is also not disputing the entitlement of the petitioner to such a copy at a stage on and after filling of the charge sheet. Therefore, we refrain ourselves from dealing with the judgements so relied on behalf of the petitioner. 15. At the further outset we make it abundantly clear that there is no issue before us as to whether the petitioner is entitled to the copy of alleged confessional statement or not. Certainly, the petitioner is entitled to such a copy. But the issue is at what stage is the petitioner entitled to such a copy. More particularly, as the aforesaid issue under consideration reflects, the question is : “ Is the petitioner is entitled to a copy of her confessional statement recorded under Section 164 of the Code, that too as of right, at any stage before filing of the charge sheet ?” 16. The perusal of the Code will demonstrate that there is no provision in the Code which either specifically entitles the petitioner or specifically prohibits the prosecution or for that matter, the Court, from 14 supply of copy of confessional statement to an accused, when the investigation is pending, at any stage before filing of the charge sheet. The provisions of Sections 207 and 208 of the Code deal with the supply of copies of statements and documents to the accused. In this case, the provisions of Section 208 has no applicability as Section 208 deals with a case instituted otherwise than on police report, unlike the present one. For us, the relevant provision is Section 207 which deals with the proceedings initiated on police report as in the present case the proceedings have been initiated on Police report. This Section 207 reads thus :- “207. Supply to the accused of copy of police report and other documents.- In any case where the proceeding 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 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; 15 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 sch 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 it either personally or through pleader in Court.” The Criminal Procedure Code (V of 1898) contained a similar provision that provided for supply of such documents in the following terms contemplated by section 173 thereof :- “173. Report of police officer.- (1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer in-charge of the police-station shall- (a) forward to a Magistrate empowered to take cognizance of the offence, on a police report, a report in the form prescribed by the State Government setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused if arrested has been forwarded in custody, or has been released on his bond, and, if so, whether with or without sureties, and 16 (b) communicate, in such manner as may be prescribed by the State Government the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given. (2) Where a superior officer of police has been appointed under section 158, the report shall in any cases in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in- charge of the police station to make further investigation. (3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. (4) After forwarding a report under this section, the officer in charge of the police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused free of cost, a copy of the report forwarded under sub section (I) and of the first information report recorded under section 154 and of all other documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under section 164 and the statements recorded under section (3) of section 161 of all the persons whom the prosecution purposes to examine as its witnesses; (5) Notwithstanding anything contained in sub section (4), if the police officer is of opinion that any part of any statement recorded under sub section (3) of section 161 is not relevant to the subject matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interests,he shall exclude such part from the copy of the statement furnished to the accused and in such a case, he shall make a report to magistrate stating his reasons for excluding such part; 17 Provided that at the commencement of the inquiry or trial, the Magistrate shall, after perusing the part so excluded and considering the report of the police officer, pass such orders as he thinks fit and if he so directs, a copy of the part so excluded or such portion thereof, as he thinks proper, shall be furnished to the accused. 18. A perusal of both the aforesaid provisions demonstrate that the Magistrate is duty bound to furnish the accused, free of cost, copy of various documents including police report and the confessions, if any, recorded u/s 164 of the Code. The police report is defined by the Code as under :- “2. Definitions.- In this Code, unless the context otherwise requires,- ................ ............... (r) “police report” means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173” The relevant portion of Section 173 of the Code reads thus :- “173. Report of police officer on completion of investigation. (1) Every investigation under this Chapter shall be completed without unnecessary delay. (2)(i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating - (a) the names of the parties; (b) the nature of the information; 18 (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arrested; (f) whether he has been released on his bond and, if so, whether with or without sureties; (g) whether he has been forwarded in custody under section 170. (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. ..................... ................... (Emphasis supplied) 19. If we consider the scheme of the Code in its entirety inasmuch as stage of investigation in the context of supply of copies of documents to the accused is concerned, it becomes clear that the stage for supply of documents to the accused, reaches only after a police report u/s 173 of the Code is forwarded to the Magistrate empowered to take cognizance of the offence in issue. An occasion to submit such a police report under sub section 2 of section 173 r/w Section 2(r) of the Code arises only and only upon completion of investigation. Thus, if considered in this