WP(Crl.) No.468/2010 Page 1 of 35 * THE HIGH COURT OF DELHI AT NEW DELHI Judgment Reserved on: , 22nd September, 2010 % Judgment Pronounced on: 6th December, 2010 + WP(Crl.) No. 468/2010 COURT ON ITS OWN MOTION THROUGH MR. AJAY CHAUDHARY ..... Petitioner Through: Dr. L.S. Chaudhary, Mr. Mathew D., Advocates Mr. Arvind Nigam, Sr. Adv., Amicus Curiae with Mr. Raghu Tandon, Adv. versus STATE ..... Respondent Through: Mr. A.S. Chandhiok, ASG with Mr.Pawan Sharma, Standing Counsel for State (Criminal) CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ The fundamental issue that has emerged for consideration in this writ petition that has been instituted on the basis of a letter sent to this Court is whether an accused is entitled to a copy of the First Information Report after it is lodged and if so, what steps are required to be taken to facilitate its availability as the liberty of an individual is inextricably linked with his right to be aware how he has been booked under law and on what allegations. Liberty and freedom are the strongest passion of men and many have WP(Crl.) No.468/2010 Page 2 of 35 sacrificed their lives for the cause of liberty. No one has ever conceived it as an arduous contrivance, a distant notion to be achieved by fortunate moments but as a basic human right. Liberty and life are in wedlock in a civilized society with the pledge not to tolerate the idea of separation. Jose‘ Marti has described liberty thus: ―Like bone to the human body, and the axle to the wheel, and the song to a bird, and air to the wing, thus is liberty the essence of life.‖ 2. Regard being had to the aforesaid concept, we now proceed to deal with the issue. At the very initial stage of adjudication, on 28.4.2010, the learned standing counsel for the State submitted that a scheme has been formulated in respect of the supply of First Information Report to the accused. A statement was made that further time would be required to set up a suitable mechanism for providing copies to the accused persons in certain categories of cases. 3. On 04.08.2010, Mr. Chandhiok, learned Additional Solicitor General, submitted that when an FIR is registered under Section 154 of the Code of Criminal Procedure (for short ‗the Cr.P.C.), the same is sent to the Magistrate within 24 hours even if the accused is not apprehended. It was his further submission that this Court can issue a direction that anyone can file an application for obtaining the certified copy of the FIR and that would subserve the purpose. On that date, this Court directed the Registrar General of this Court to examine the aforesaid facet and submit a report. Mr.Arvind Nigam, learned senior counsel, was appointed as the Amicus Curiae to assist WP(Crl.) No.468/2010 Page 3 of 35 the Court. On the basis of the aforesaid order, the Registrar General of this Court has submitted a report. Be it noted, the Registrar General has given certain suggestions on which there was a debate at the bar on various issues. It is also worth noting that the learned amicus curiae and the learned counsel for the petitioner, Dr. L.S. Chaudhary, who appeared on behalf of Mr. Ajay Chaudhary, who had invoked the jurisdiction of this Court, have given their respective suggestions. 4. Presently to the scheme under the Cr.P.C. Section 154 of the Cr.P.C requires a police officer to reduce in writing any information given to him disclosing the commission of a cognizable offence. It is also incumbent that the FIR is to be signed by the person giving it. The said provision being relevant for the present purpose is reproduced hereinbelow: “Section 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 WP(Crl.) No.468/2010 Page 4 of 35 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. On a scanning of the anatomy of Section 154 of the Cr.P.C., it is clear as crystal that certain conditions are to be satisfied for recording of the first information. The Apex Court in State of Haryana & Ors. v. Ch. Bhajan Lal & Others, AIR 1992 SC 604 has enumerated the conditions which are sine qua non for recording the First Information Report. We think it appropriate to reproduce the relevant paragraph from the said decision: ―31. Be it noted that in Section 154(1) of the Code, the legislature in its collective wisdom has carefully and cautiously used the expression "information" without qualifying the same as in Section 41(1)(a) or (g) of the Code wherein the expressions, "reasonable complaint" and "credible information" are used. Evidently, the non- qualification of the word "information" in Section 154(1) unlike in Section 41(1)(a) and (g) of the Code may be for the reason that the police officer should not refuse to record an information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for registration of a case. A comparison of the present Section 154 with those of the earlier Codes will indicate that the legislature had purposely thought it fit to employ only the word "information" without qualifying the said word. Section 139 of the Code of Criminal Procedure of 1861 (Act XXV of 1861) passed by the Legislative Council of India read that 'every complaint or information' preferred to an officer incharge of a police station should be reduced into writing which provision was subsequently modified by Section 112 of the Code of 1872 (Act X of 1872) which thereafter read that 'every complaint' preferred to an WP(Crl.) No.468/2010 Page 5 of 35 officer incharge of a police station shall be reduced in writing. The word 'complaint' which occurred in previous two Codes of 1861 and 1872 was deleted and in that place the word 'information' was used in the Codes of 1882 and 1955 which word is now used in Sections 154, 155, 157 and 190(c) of the present Code of 1973(Act II of 1974). An overall reading of all the Codes makes it clear that the condition which is sine-qua-non for recording a First Information Report is that there must be an information and that information must disclose a cognizable offence.‖ 6. Section 155 of the Cr.P.C. provides for information as to non- cognizable cases and investigation of such cases. Section 156 of the Cr.P.C. deals with the police officer‘s power to investigate into cognizable cases. After investigation, when a final report is submitted by the police, the Magistrate has a role under Section 156(3) of the Cr.P.C. Wherever the Magistrate chooses to take cognizance, he can adopt certain alternatives as has been stated by a three-Judge Bench of the Apex Court in Tula Ram & Ors. v. Kishore Singh, AIR 1977 SC 2401. 7. Section 157 of the Cr.P.C. deals with the procedure for investigation. The said provision is reproduced hereinbelow: ―Section 157 - Procedure for investigation- (1) If, from information received or otherwise, an officer in charge of a police station has reason to suspect the commission of an offence which he is empowered under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers not being below such rank as the State Government may, by general or special order, prescribe in this behalf, to proceed, to the spot, to investigate the facts and circumstances of the case, and, if necessary, to WP(Crl.) No.468/2010 Page 6 of 35 take measures for the discovery and arrest of the offender: Provided that— (a) when information as to the commission of any such offence is given against any person by name and the case is not of a serious nature, the officer in charge of a police station need not proceed in person or depute a subordinate officer (to make an investigation on the spot; (b) if it appears to the officer in charge of a police station that there is no sufficient ground for entering on an investigation, he shall not investigate the case. (2) In each of the cases mentioned in clauses (a) and (b) of the proviso to sub-section (1), the officer in charge of the police station shall state in his report his reasons for not fully complying with the requirements to that sub- section, and, in the case mentioned in clause (b) of the said proviso, the officer shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact that he will not investigate the case or cause it to be investigated.‖ 8. Section 207 of the Cr.P.C. which deals with the supply of copies to the accused is as follows: 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 WP(Crl.) No.468/2010 Page 7 of 35 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 it either personally or through pleader in Court. 9. To understand the present provision and the authorities in the field, it is apposite to refer to Section 173(4) of the Code of Criminal Procedure, 1898. It read as follows: ―173(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 (1) 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 sub-section (3) of section 161 of all the persons whom the prosecution proposes to examine as its witnesses.‖ On a reading of the said provision, it is luculent that there was a statutory duty on the police officer to furnish to the accused free of cost copies of the police report, first information report under Section 154 and all WP(Crl.) No.468/2010 Page 8 of 35 other documents and relevant extracts after forwarding the report and before the commencement of the enquiry or trial but the legislature thought it appropriate to introduce Section 207 to confer the power on the Magistrate to supply copies of the documents specified in the section to the accused free of cost. This is an obligation and a duty cast upon the Magistrate to see that they are furnished. We may hasten to clarify that we are presently only concerned with the supply of the copy of the FIR. In the course of our discussion, we will refer to the decisions to show how the courts had dealt with the right of an accused to get a copy of the FIR on payment of legal fees at any stage even earlier than the stage under Section 173(4) of the old Code. 10. Be it noted, lodging of FIR, launching of criminal prosecution, investigation, facilitation of the trial by enabling the accused to defend himself and speedy trial are the sacred pillars of dispensation of the criminal justice system. 11. In Emperor v. Kampu Kuki, (1902) 11 Cal W N 554, Chief Justice Prinsep and Mr. Justice Henderson observed thus: ―The first information if recorded as directed by S.154 at the time that it is made, is of considerable value at the trial because it shows on what materials the investigation commenced and what was the story then told.‖ 12. In Thulia Kali v. The State of Tamil Nadu, AIR 1973 SC 501, it has been held thus: ―12. …First information report in a criminal case is an extremely vital and valuable piece of evidence for the WP(Crl.) No.468/2010 Page 9 of 35 purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation….‖ 13. The lodging of FIR has an object. The Apex Court in Hasib v. State of Bihar, AIR 1972 SC 283 has observed thus: ―4. ….The principal object of the first information report from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party….‖ 14. In Vidyadharan v. State of Kerala, (2004) 1 SCC 215, it has been held that delay in lodging of FIR cannot be a ground to arouse suspicion and it can only be so when the delay is unexplained. Similar view has also been expressed in State of Punjab v. Ramdev Singh, AIR 2004 SC 1290. When the delay is not satisfactorily explained, the same creates doubt as to the genuineness of the prosecution. It has been ruled in State of Punjab v. Ajaib Singh & Ors., AIR 2004 SC 2466 that if the explanation is not satisfactory in the facts of the case, the same might have been due to long deliberation questioning on its credence and acceptability. WP(Crl.) No.468/2010 Page 10 of 35 15. It is apposite to note that once an FIR is lodged and the conditions precedent are satisfied, it is the statutory duty of the police to investigate a cognizable offence and in case it is not investigated, the informant can take recourse to other modes as provided under the Cr.P.C. but we have dealt with the aforesaid provisions only to highlight the significance of lodging an FIR and the duty of the investigating authority under the Code. The submission of Mr. Nigam, learned senior counsel, is that an FIR which is recorded under Section 154 of the Cr.P.C. is to be recorded in terms of the Punjab Police Rules, 1954 under the Indian Police Act, 1861 as extended to Delhi in terms of Rule 24.1 thereof and in terms of Rule 24.5(1), an FIR is required to be filled up in Form 24.5(1). A copy of the FIR is required to be sent to the Superintendent of Police and to the Magistrate under Rule 24.5(b) immediately and the said Magistrate is required to initial the same and note the date and time of receipt, etc. That apart, submits Mr. Nigam, the police, in terms of Section 157 of the Cr.P.C., is also required to submit to the Magistrate forthwith the report of investigation, etc. It is contended by him that recording of an FIR is an official act of a public official in discharge of his official duties and, therefore, it becomes a public document within the meaning of Section 74 of the Evidence Act, 1872. It is contended by him that being a public document, every public officer having in custody thereof, which any person has right to inspect, shall give to that person on demand a certified copy thereof in terms of Section 76 of the Evidence Act, 1872. The learned senior counsel further urged that under Sections 437, 438 and 439 of the Cr.P.C., an accused is required to satisfy the Court in respect of the WP(Crl.) No.468/2010 Page 11 of 35 matters specified therein before the Court may admit the accused to bail and such right cannot be exercised by the accused in the absence of knowing the substance of the allegations made against the accused if a copy of the FIR is denied. 16. First, we shall refer to Section 74 of the Evidence Act. It 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.‖ 17. Section 76 of the Evidence Act being pertinent is reproduced below: ―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 fees 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 officers 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.‖ WP(Crl.) No.468/2010 Page 12 of 35 18. A Division Bench of Allahabad High Court in Shyam Lal v. State of U.P. and Others, 1998 Crl. L.J. 2879 has ruled that the First Information Report is a public document. 19. In Chnnappa Andanappa Siddareddy and others v. State, 1980 Crl. L.J. 1022, it has been 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.‖ 20. In this context, we may refer with profit to the decision in Munna Singh v. State of M.P., 1989 Crl. L.J. 580, wherein a Division Bench of Madhya Pradesh High Court has opined that a First Information Report is not a privilege document under the Evidence Act. 21. Thus, there can be no trace of doubt that FIR is a public document as defined under Section 74 of the Evidence Act. 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.‖ WP(Crl.) No.468/2010 Page 13 of 35 23. The High Court of Calcutta in Panchanan Mondal v. The State, 1971 Crl.L.J. 875 has opined that the accused is entitled to a copy of the FIR on payment of legal fees at any stage. After so opining, the learned Judge proceeded to deal with the facet of prejudice in the following terms: ―The question of prejudice of the accused on account of the denial of the copy of the FIR at the earlier stage therefore assumes greater importance and on a proper consideration thereof, I hold that it is expedient in the interests of justice that a certified copy of the first information report, which is a public document, should be granted to the accused on his payment of the legal fees therefor at any stage even earlier than the stage of S.173(4) of the Code of Criminal Procedure. At the later stage of accused will have the right to have a free copy but the same would not take away the right he already has in law to have a certified copy of the first information report on payment of the legal fees.‖ 24. In Jayantibhai Lalubhai Patel v. The State of Gujarat, 1992 Crl. L.J. 2377, the High Court of Gujarat has ruled thus: ―6. …whenever FIR is registered against the accused, a copy of it is forwarded to the Court under provisions of the Code; Thus it becomes a public document. Considering (1) of the provisions of Art.21 of the Constitution of India, (2) First Information Report is a public document in