Sunday 6 January 2013

the accused is entitled to get a copy of the F.I.R. at an earlier stage than as prescribed U/s.207


 F.I.R. – Supply of copy of F.I.R. to the accused or to their 
relatives by the police – No provision in Cr.P.C. or in G.R. & C. O. (Cri.) 
– Writ petition filed for a direction – Held, the accused is entitled to get 
a copy of the F.I.R. at an earlier stage than as prescribed U/s.207 
Cr.P.C. – The accused may apply for certified copy of F.I.R. through his 
agent and can get it within 24 hours from the concerned police officer 
and within two working days from the concerned Magistrate - Direction 
issued for uploading the F.I.R. on the website of Odisha Police w.e.f. 
31
st
 January, 2013.  2012 ( II ) ILR - CUT- 931 
V. GOPALA GOWDA, CJ & S.K.MISHRA, J. 
W.P.(CRL.) NO. 1096 OF 2011 (Dt.05.10.2012) 
ARUN KUMAR BUDHIA                                               ……… 
.Vrs. 
STATE OF ORISSA & ANR.                                        ………


       F.I.R. – Supply of copy of F.I.R. to the accused or to their 
relatives by the police – No provision in Cr.P.C. or in G.R. & C. O. (Cri.) 
– Writ petition filed for a direction – Held, the accused is entitled to get 
a copy of the F.I.R. at an earlier stage than as prescribed U/s.207 
Cr.P.C. – The accused may apply for certified copy of F.I.R. through his 
agent and can get it within 24 hours from the concerned police officer 
and within two working days from the concerned Magistrate - Direction 
issued for uploading the F.I.R. on the website of Odisha Police w.e.f. 
31
st
 January, 2013.                                                                  (Para 11) 
                                                                                                                           
B. CONSTITUTION OF INDIA, 1950 – ARTS. 21, 22 & 226. 
        Writ petition in the nature of P.I.L. – Prayer made for supply of 
copy of F.I.R. by the police to the accused or to their relatives – 
Authenticated copy required for protecting their right to life and 
personal liberty – Held, direction issued for supply of copy of F.I.R. to 
the accused or to their relatives either from the P.S. or from the Court 
as per the modalities fixed.                                                    (Para 11) 
             
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 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 
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 subsection (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 made by the police officer under subsection (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 accusedProvided 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.  
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- 
       (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 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 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 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 
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. 
                                                                                 Writ petition allowed
Print Page

No comments:

Post a Comment