Orissa HC

ORISSA HIGH COURT : CUTTACK W.P.(Crl.) No. 1096 of 2011 In the matter of an application under Articles 226 and 227 of the Constitution of India.

--------------Arun Kumar Budhia.

…

Petitioner

…

Opposite parties

Versus State of Orissa and another.

For petitioner

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M/s. Goutam K. Acharya, K.M.Patra, P.K.Das, S.K.Behera, K.G.Hadai, J.K.Mohapatra and Miss R.Nayak.

For opposite parties

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Government Advocate, (for opposite parties 1 and 2) and Mr. S.D.Das, Asst. Solicitor General (for opposite party no.3).

--------------PRESENT THE HONOURABLE CHIEF JUSTICE MR. V.GOPALA GOWDA AND THE HONOURABLE MR. JUSTICE S.K.MISHRA ---------------------------------------------------------------------------------------------------------------Date of hearing – 13.08.2012

:

Date of judgment - 05.10.2012

---------------------------------------------------------------------------------------------------------------S.K.Mishra, J.

In this writ petition, the petitioner has prayed for issuance of a writ of

mandamus to the State of Odisha to make provision for supply of copy of F.I.R. registered by the police to the accused persons and/or their relatives and to direct

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the Odisha Police to upload the F.I.Rs. in their website within a reasonable time after registration.

2.

The petitioner is an Advocate and has filed this writ petition in the

nature of a public interest litigation to solve the difficulties faced by the accused persons, who were named in the F.I.R. registered against them in receiving copy of the F.I.R. for seeking appropriate relief for protecting their right to life and personal liberty. It is brought to the notice of the Court that most of the times the accused named in the F.I.R. is not aware of lodging an F.I.R. or contents thereof and, therefore, without an authenticated copy of the same, he faces handicap in moving appropriate applications before the Courts for protecting his liberty.

3.

The State has filed a counter affidavit and in the said counter affidavit,

the State has sought to bring to the notice of the Court that there is no provision in the Criminal Procedure Code or in the G.R. & C.O. (Crl.) to provide copies of the F.I.R. to the accused by the Police Officers.

4.

In order to appreciate the contentions raised by the learned counsel for

the petitioner, it is appropriate to take note of various provisions those are applicable. Section 154 of the Code of Criminal Procedure, 1973, hereinafter referred as the ‘Code’ for brevity, provides for information in cognizable cases.

Section 154 of the Code is quoted below: “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

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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 the 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.

6.

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 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 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

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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.�

7.

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, F.I.R., 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, there is no provision under the Code for an accused to be supplied with a copy of the F.I.R. It is argued at length that in absence of the copy of the F.I.R., the very right of the accused to get himself defended cannot be fulfilled as he is not in a position to know the nature of the allegation, so that he will approach the appropriate forum for obtaining necessary relief for protecting his right and liberty.

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8.

Article 21 of the Constitution of India clearly provides for protection of life

and personal liberty, which is quoted below: “21. Protection of life and personal liberty.- No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Thus, it is luculent that Article 21 of the Constitution of India provides for protection of citizens’ life and personal liberty and it can be only curtailed by due procedure established by law. Thus, if a person is accused of committing a crime and there is chance of being apprehended by the police, he has a right to have an information about the allegations against him even at the initial stage of investigation. The Constitution of India provides in Article 22 regarding protection against arrest and detention in certain cases, which is quoted below: “22. Protection against arrest and detention in certain cases.(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.

(3) Nothing in clauses (1) and (2) shall apply(a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.

4. No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless-

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(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of Clause (7); or (b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).

5. When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.

6. Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.

7.

Parliament may by law prescribe-

(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); (b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).�

9.

Thus, Articles 21 and 22 provides that the liberty of a citizen cannot be

interfered or curtailed lightly by the authorities. So it is to be determined, whether at the stage of initial investigation, the accused has a right of receiving information

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regarding the accusation or allegation made against him. In this case, learned counsel for the petitioner has relied upon the case of Its own motion through Mr. Ajay Chaudhury v. State, in W.P.(Crl.) No. 468 of 2010, which has been disposed of by a Division Bench of the Delhi High Court. In the said case, Hon’ble Mr. Justice Dipak Mishra, the Chief Justice, as his Lordship was then, has taken into consideration a large number of cases and rules, and has come to the conclusion that the accused is entitled to receive a copy of the F.I.R. even from the police. In this regard, His Lordship has also held after taking into consideration a number of reported cases that F.I.R. is a public document and, therefore, a person, who is in custody of the same, has the liability to give a copy thereof to the person who has interest in the same or whose interest is adversely affected by the same.

10.

In that view of the matter, having gone through the case of Delhi High

Court, we are of the considered opinion that similar order should be passed with regard to supply of copies of the F.I.R. to the accused in the State of Odisha also.

11.

Thus, we allow the writ application and direct that : (i)

The accused is entitled to get a copy of the First Information Report at an earlier stage than as prescribed under Section 207 of the Cr.P.C.

(ii)

An accused who has reason to suspect that he has been roped in a criminal case and his name may be finding place in a First Information Report can submit an application through his representative/ agent for grant of a certified copy before the concerned police officer or to the Superintendent of Police on payment of such fee which is payable for

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obtaining such a copy from the court. On such application being made, the copy shall be supplied within twenty-four hours. (iii) Once the First Information Report is forwarded by the police station to the concerned Magistrate or any Special Judge, on an application being filed for certified copy on behalf of the accused, the same shall be given by the court concerned within two working days. The aforesaid direction has nothing to do with the statutory mandate inhered under Section 207 of the Code. (iv) The copies of the F.I.Rs., unless reasons recorded regard being had to the nature of the offence that the same is sensitive in nature, should be uploaded on the Odisha Police website or by the district police website, as the case may be, within twenty-four hours of lodging of the F.I.R. so that the accused or any person connected with the same can download the F.I.R and the appropriate application before the Court as per law for redressal of his grievances. (v)

The decision not to upload the copy of the F.I.R. on the website of Odisha police/District police office shall not be taken by an officer below the rank of Deputy Superintendent of Police or Assistant Commissioner of Police, as the case may be, and that too by way of a speaking order.

A decision so taken by the DSP/ACP shall also be duly communicated to the Magistrate having jurisdiction.

(vi)

The word ‘sensitive’ apart from the other aspects which may be thought of being sensitive by the competent authority as stated hereinbefore

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would also include concept of privacy regard being had to the nature of the F.I.R. (vii)

In case a copy of the F.I.R. is not provided on the ground of sensitive nature of the case, the person aggrieved by the said action, after disclosing

his

identity,

can

submit

a

representation

with

the

Commissioner of Police/Superintendent of Police of the District, who shall constitute a committee of three high officers and the committee shall deal with the said grievance within three days from the date of receipt of the representation and communicate it to the aggrieved person. (viii)

The Superintendent of Police shall constitute the committee within eight weeks from today.

(ix)

In cases wherein decisions have been taken not to give copies of the F.I.Rs. regard being had to the sensitive nature of the case, it will be open to the accused/his authorized representative to file an application for grant of certified copy before the court to which the F.I.R. has been sent and the same shall be provided in quite promptitude by the concerned court not beyond three days of the submission of the application.

(x)

The directions for uploading the F.I.R. on the website of Odisha Police shall be given effect from 3Ist January, 2013.

A copy of this order be handed over to the Government Advocate for

early consideration. Copies of this order shall be circulated to all the

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Commissioners of Police, all the Deputy Commissioners of Police and all the Superintendents of Police. Registry of the Court is also directed to supply copies of this order to all the cognizance taking Magistrates and District Judges.

The writ petition is allowed with the above observations.

……………………..

S.K.Mishra, J. V.Gopala Gowda, C.J.

I agree. ……………………….

V.Gopala Gowda, C.J.

Orissa High Court, Cuttack, Dated, October 5, 2012/JNS.