Friday, 14 April 2017

Whether right of accused to defend is violated if he is not supplied certified copy of FIR?

 Learned counsel for the petitioner would submit that the said
deemed refusal of the “certified copy” by the police authorities or2
the concerned Court violates Article 21 of the Constitution of India
as it infringed the right to defend the petitioner for the alleged
offence. He placed his reliance in Youth Bar Association of India
v. Union of India & Others, decided on 07.09.2016 by the Hon'ble
Supreme Court in Writ Petition (Criminal) No.68 of 2016. It is
vehemently submitted that in the face of the direction issued by the
Supreme Court, if it has not been followed, then it would be a gross
violation and contempt of the order of the Supreme Court.
HIGH COURT OF CHHATTISGARH, BILASPUR
WPCR No. 145 of 2016
Titash Banik, 
V
State Of Chhattisgarh, 
Coram:Hon'ble Shri Justice Goutam Bhaduri
Dated: 23.12.2016
Citation: 2017 CRLJ1227 Chhat

1. An FIR was registered against the petitioner on 04.06.2016 under
Section 13(1)(d) and 13(2) of the Prevention of Corruption Act,
1988. The petitioner thereafter applied for the copy of the FIR
through his representative Advocate after payment of challan on
13.06.2016 as per Annexure P-2 and it is stated that requisition
was made to challenge the registration of FIR. It is contended that
neither the said application was allowed nor was refused but was
shelved as such there was a deemed refusal though the copy of
FIR is alleged to have been sent to the Magistrate. Thereafter
when the application was made to the Magistrate, only the
photocopy of FIR was given without any authenticity of the same.
2. Learned counsel for the petitioner would submit that the said
deemed refusal of the “certified copy” by the police authorities or2
the concerned Court violates Article 21 of the Constitution of India
as it infringed the right to defend the petitioner for the alleged
offence. He placed his reliance in Youth Bar Association of India
v. Union of India & Others, decided on 07.09.2016 by the Hon'ble
Supreme Court in Writ Petition (Criminal) No.68 of 2016. It is
vehemently submitted that in the face of the direction issued by the
Supreme Court, if it has not been followed, then it would be a gross
violation and contempt of the order of the Supreme Court.
Therefore, it is prayed that the respondent be directed to supply the
certified copy of the FIR forthwith as per application dated
13.06.2016.
3. Learned State counsel opposes the same and would submit that
the copy of the FIR having been sent to the Magistrate under
Section 157(1) of Cr.P.C. The petitioner could avail the copy of the
same from the concerned Court and it is not necessary on the part
of the police authorities to supply the copy of the FIR; therefore, the
petition be dismissed being without any merit.
4. Heard learned counsel appearing for the parties and perused the
judgment passed by the Hon'ble Supreme Court in Youth Bar
Association v. Union of India & Others.
5. Their Lordships in that case while issuing different directions,
considered Article 21 of the Constitution of India which guarantees
the right of liberty. Reference was made to the case of State of
West Bengal & Others v. Committee for Protection of
Democratic Rights, West Bengal & Others reported in (2010) 3
SCC 571. The recent judgment reiterates the earlier view
expressed by the Supreme Court that Article 21 of the Constitution
in its broad perspective seeks to protect the persons of their lives3
and personal liberties except according to the procedure
established by law. It was further fortified that the said Article in its
broad application not only takes within its fold enforcement of the
rights of an accused but also the rights of the victim and the State
has a duty to enforce the human rights of a citizen providing for fair
and impartial investigation against any person accused of
commission of a congnizable offence, which may include its own
officers. In certain situations even a witness to the crime may seek
for and shall be granted protection by the State.
6. Further the Supreme Court while considering the case reiterated
the law laid down in D.K.Basu v. State of West Bengal reported in
AIR 1997 SC 610 and it was observed that the citizen cannot be
expected to shed off his fundamental right to life to be put in
abeyance on his arrest. The right guaranteed by Article 21 of the
Constitution of India cannot be denied to convicted undertrials,
detenues and other prisoners in custody, except according to the
procedure established by law by placing such reasonable
restrictions as are permitted by law.
7. Considering the various aspects in case of Youth Bar Association
of India (supra), the Supreme Court has laid down the following
observation and the relevant part of it reproduced as under :
“12. Having heard learned counsel for the parties, we think it
appropriate to record the requisite conclusions and, thereafter,
proceed to issue the directions:-
(a) An 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.
(b) An accused who has reasons 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 his4
representative/agent/parokar 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 obtaining such a copy
from the Court. On such application being made, the copy shall be
supplied within twenty-four hours.
 (c) 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 Cr.P.C.
(d) The copies of the FIRs, unless the offence is sensitive in
nature, like sexual offences, offences pertaining to insurgency,
terrorism and of that category, offences under POCSO Act and
such other offences, should be uploaded on the police website,
and if there is no such website, on the official website of the State
Government, within twenty-four hours of the registration of the First
Information Report so that the accused or any person connected
with the same can download the FIR and file appropriate
application before the Court as per law for redressal of his
grievances. It may be clarified here that in case there is
connectivity problems due to geographical location or there is
some other unavoidable difficulty, the time can be extended up to
forty-eight hours. The said 48 hours can be extended maximum up
to 72 hours and it is only relatable to connectivity problems due to
geographical location.
(e) The decision not to upload the copy of the FIR on the website
shall not be taken by an officer below the rank of Deputy
Superintendent of Police or any person holding equivalent post. In
case, the States where District Magistrate has a role, he may also
assume the said authority. A decision taken by the concerned
police officer or the District Magistrate shall be duly communicated
to the concerned jurisdictional Magistrate.
(f) The word 'sensitive' apart from the other aspects which may be
thought of being sensitive by the competent authority as stated
hereinbefore would also include concept of privacy regard being5
had to the nature of the FIR. The examples given with regard to the
sensitive cases are absolutely illustrative and are not exhaustive.
(g) If an FIR is not uploaded, needless to say, it shall not enure per
se a ground to obtain the benefit under Section 438 of the Cr.P.C.
(h) In case a copy of the FIR is not provided on the ground of
sensitive nature of the case, a person grieved by the said action,
after disclosing his identity, can submit a representation to the
Superintendent of Police or any person holding the equivalent post
in the State. The Superintendent of Police shall constitute a
committee of three officers which shall deal with the said
grievance. As far as the Metropolitan cities are concerned, where
Commissioner is there, if a representation is submitted to the
Commissioner of Police who shall constitute a committee of three
officers. The committee so constituted shall deal with the grievance
within three days from the date of receipt of the representation and
communicate it to the grieved person.
(i) The competent authority referred to hereinabove shall constitute
the committee, as directed herein-above, within eight weeks from
today.
(j) In cases wherein decisions have been taken not to give copies
of the FIR regard being had to the sensitive nature of the case, it
will be open to the accused/his authorized representative/parokar
to file an application for grant of certified copy before the Court to
which the FIR 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.
(k) The directions for uploading of FIR in the website of all the
States shall be given effect from 15th November, 2016.
8. In this case, applying the aforesaid principles, the submission made
by the State that the petitioner can avail a copy of the FIR from the
concerned Magistrate cannot be appreciated and thereby the police
authorities can be absolved of their duties against the observation
of Supreme Court and police officers would be under the duty to
provide the FIR if applied for as per the direction issued by the6
Supreme Court and any violation would sounds in contempt. It is
further observed that even if the copy of FIR has been forwarded to
the Magistrate then in such case too, the person seeking copy of
FIR cannot be denied. The observation is based on inherent object
of Constitution that one person cannot be denied to get a certified
copy of the FIR from the police authorities as it would offend the
right guaranteed under Article 21 of the Constitution of India.
However the exception is carved out like offences of sexual nature,
offences pertaining to insurgency, terrorism and of that category,
offences under POCSO Act and other such offences. It is expected
that State shall abide by the orders passed by the Supreme Court
and upload the FIR in the police website and in absence thereof
any official website of the State Government.
9. Here in this case, since the certified copy of the FIR has not been
supplied till date, in view of the aforesaid discussion, the
respondent is directed to supply the certified copy of the FIR
forthwith to the petitioner as per the direction passed by the Hon'ble
Supreme Court.
10. In a result, the petition is allowed.
Ashok Sd/-
(Goutam Bhaduri)
Judge
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