Wednesday, December 8, 2010

Supreme Court: Courts Can’t Impose Irrelevant Conditions of Wife’s Maintenance while granting Anticipatory Bail

Supreme Court: Courts Can’t Impose Irrelevant Conditions of Wife’s Maintenance while granting Anticipatory Bail
(Arising out of S.L.P. (Criminal) No. 637 of 2008)
Munish Bhasin & Ors. … Appellants
State (Govt. of N.C.T. of Delhi) & Anr. … Respondents
1. Leave granted. The complainant (wife of first appellant) to whom notice was ordered on 25.01.2008 is impleaded as second respondent.

2. Heard Counsel.

3. The appellant (accused no. 1) assails the condition imposed by the High Court requiring him to pay a sum of Rs.12,500/- as maintenance to his wife and child while granting anticipatory bail to him and his parents with reference to the complaint filed by his wife for alleged commission of offences punishable under Sections 498A and 406 read with Section 34 of the Indian Penal Code.

4. The marriage of the appellant was solemnized with Ms. Renuka on December 05, 2004. She has filed a complaint in November 2006, against the appellant and his parents for alleged commission of offences punishable under Sections 498A and 406 read with Section 34 of the Penal Code on the grounds that after marriage she was subjected to mental and physical cruelty for bringing less dowry and that her stri-dhan entrusted to them has been dishonestly misappropriated by them.

5. Apprehending arrest, the appellant and his parents moved High Court of Delhi for anticipatory bail. The application came up for consideration before a Learned Single Judge of the High Court on 22.02.2007. The Learned Additional Public Prosecutor accepted notice and submitted that the matter was essentially a matrimonial dispute and therefore the parties should be referred to the Mediation and Conciliation Cell of the Delhi High Court. The Learned Judge agreed with the suggestion made by the Additional Public Prosecutor and directed the parties to appear before the Mediation and Conciliation Cell of the Delhi High Court on March 02, 2007. The case was ordered to be listed on 10.05.2007. The Learned Judge further directed that in the event of arrest of the appellant and his parents, before the next date of hearing, they shall be released on bail on their furnishing personal bond in the sum of Rs.25,000/- each with one surety of like amount to the satisfaction of the Investigating Officer/ Arresting Officer concerned, subject however, to the condition that the appellant and his parents shall surrender their passports to the Investigating Officer and shall file affidavits in the Court that they would not leave the country without prior permission of the Court.6. From the records, it appears that the conciliation proceedings failed and therefore the bail application was taken up for hearing on merits. On representation made by the wife of the appellant, the counsel of the appellant was directed to produce appellant’s salary slip. Accordingly, the salary slip of the appellant was produced before the Court which indicated that the appellant was drawing gross salary of Rs.41,598/- and after deductions of advance tax etc., his net salary was Rs.33,000/-. The Learned Single Judge of the High Court took the notice of the fact that the appellant had the duty to maintain his wife and the child and therefore as a condition for grant of anticipatory bail, directed the appellant, by the order dated 07.08.2007 to pay a sum of Rs.12,500/- per month by way of maintenance to his wife and child. The Learned Single Judge also directed to pay arrears at the rate of Rs. 12,500/- per month from August 2005, that is Rs. 3,00,000/- within six months. The imposition of these conditions for grant of anticipatory bail is the subject matter of challenge in the instant appeal.

7. From the perusal of the provisions of sub-section (2) of section 438, it is evident that when the High Court or the Court of Session makes a direction under subsection (1) to release an accused alleged to have committed non-bailable offence, the Court may include such conditions in such direction in the light of the facts of the particular case, as it may think fit, including

(i) a condition that a person shall make himself available for interrogation by police officer as and when required,

(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer,

(iii) a condition that the person shall not leave India without the previous permission of the Court and

(iv) such other conditions as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section. Sub-section (3) of Section 437, interalia, provides that when a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the following conditions-

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,
(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and
(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.
The Court may also impose, in the interests of justice, such other conditions as it considers necessary.

8. It is well settled that while exercising discretion to release an accused under Section 438 of the Code neither the High Court nor the Session Court would be justified in imposing freakish conditions. There is no manner of doubt that the Court having regard to the facts and circumstances of the case can impose necessary, just and efficacious conditions while enlarging an accused on bail under Section 438 of the Code. However, the accused cannot be subjected to any irrelevant condition at all. The conditions which can be imposed by the Court while granting anticipatory bail are enumerated in sub-section (2) of Section 438 and subsection (3) of Section 437 of the Code. Normally, conditions can be imposed

(i) to secure the presence of the accused before the investigating officer or before the Court,

(ii) to prevent him from fleeing the course of justice,

(iii) to prevent him from tampering with the evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or Court or

(iv) restricting the movements of the accused in a particular area or locality or to maintain law and order etc. To subject an accused to any other condition would be beyond jurisdiction of the power conferred on Court under section 438 of the Code.

While imposing conditions on an accused who approaches the Court under section 438 of the Code, the Court should be extremely chary in imposing conditions and should not transgress its jurisdiction or power by imposing the conditions which are not called for at all. There is no manner of doubt that the conditions to be imposed under section 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail under section 438 of the Code. In the instant case, the question before the Court was whether having regard to the averments made by Ms. Renuka in her complaint, the appellant and his parents were entitled to bail under section 438 of the Code. When the High Court had found that a case for grant of bail under section 438 was made out, it was not open to the Court to direct the appellant to pay Rs. 3,00,000/- for past maintenance and a sum of Rs.12,500/- per month as future maintenance to his wife and child. In a proceeding under section 438 of the Code, the Court would not be justified in awarding maintenance to the wife and child. The case of the appellant is that his wife Renuka is employed and receiving a handsome salary and therefore is not entitled to maintenance. Normally, the question of grant of maintenance should be left to be decided by the competent Court in an appropriate proceedings where the parties can adduce evidence in support of their respective case, after which liability of husband to pay maintenance could be determined and
appropriate order would be passed directing the husband to pay amount of maintenance to his wife. The record of the instant case indicates that the wife of the appellant has already approached appropriate Court for grant of maintenance and therefore the High Court should have refrained from granting maintenance to the wife and child of the appellant while exercising powers under section 438 of the Code. The condition imposed by the High court directing the appellant to pay a sum of Rs.12,500/- per month as maintenance to his wife and child is onerous, unwarranted and is liable to be set aside.

9. For the foregoing reasons, the appeal succeeds. The direction contained in order dated August 07, 2007 rendered by Learned Single Judge of Delhi High Court in Bail Application No. 423 of 2007 requiring the appellant to pay a sum of Rs.12,500/- per month by way of maintenance (both past and future) to his wife and child  is hereby deleted. Rest of the directions contained in the said order are maintained. It is however clarified that any amount received by the wife of the appellant pursuant to the order of the High Court need not be refunded by her to the appellant and will be adjusted subject to the result of application for maintenance filed by wife of the appellant under Section 125 of the Code before the appropriate Court.

10. The Appeal is accordingly disposed of.

…………………………J. [R.V. Raveendran]
…………………………J. [J.M. Panchal]
New Delhi; February 20, 2009.

Delhi HC – Put all FIR online-a facet of Article 21 of the Constitution of india-Section 74 of the Evidence Act-Section 207 Crpc


Judgment Reserved on: , 22nd September, 2010

% Judgment Pronounced on: 6th December, 2010

+ WP(Crl.) No. 468/2010


THROUGH MR. AJAY CHAUDHARY ..... Petitioner Through: Dr. L.S. Chaudhary, Mr. Mathew D.,


Mr. Arvind Nigam, Sr. Adv., Amicus

Curiae with Mr. Raghu Tandon, Adv.


STATE ..... Respondent Through: Mr. A.S. Chandhiok, ASG with

Mr.Pawan Sharma, Standing Counsel

for State (Criminal)




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


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 1 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 2 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 3 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 4 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 5 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 6 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 7 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


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 8 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 9 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 10 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


16. First, we shall refer to Section 74 of the Evidence Act. It reads as


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 11 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 12 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 view of S.74 of the Evidence Act; (3) Accused gets right as allegations are made against him under provisions of S.76 of the Indian Evidence Act, and (4) FIR is a document to which S.162 of the Code does not apply and is of considerable value as on that basis investigation commenced and that is the first version of the prosecution, as and when application is made by accused for a certified copy of the complaint, the Court to which it is forwarded should give certified copy of the FIR, if the application and legal fees thereof have been tendered for the same in the Court of law...

25. The situation can be viewed from the constitutional perspective.

Article 21 of the Constitution of India uses the expression personal liberty'.

WP(Crl.) No.468/2010 Page 13 of 35 The said expression is not restricted to freedom from physical restraint but

includes a full range of rights which has been interpreted and conferred by

the Apex Court in a host of decisions. It is worth noting, the great

philosopher Socrates gave immense emphasis on personal liberty'. The

State has a sacrosanct duty to preserve the liberties of citizens and every act

touching the liberty of a citizen has to be tested on the anvil and touchstone

of Article 21 of the Constitution of India, both substantive and also on the

canons of procedural or adjective law. Article 22 of the Constitution of

India also has significant relevance in the present context inasmuch as it

deals with protection against arrest and detention in certain cases. For the

sake of completeness, we think it apposite to reproduce Articles 21 and 22 of

the Constitution of India:

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.

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-

WP(Crl.) No.468/2010 Page 14 of 35 (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 authorise 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 authorise 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

WP(Crl.) No.468/2010 Page 15 of 35 (c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).

26. The Constitution Bench in Shri Gurbaksh Singh Sibbia and others v.

State of Punjab, (1980) 2 SCC 565 has held thus:

26. No doubt can linger after the decision in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.

27. In Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240,

it has been held thus:

the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process . After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right.

28. In Ranjitsing Brahmajeetsingh Sharma v. State of Maharashtra and

another, (2005) 5 SCC 294, while reiterating that presumption of innocence

is a human right, the three-Judge Bench has held thus:

35. Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exit cogent grounds therefor.

WP(Crl.) No.468/2010 Page 16 of 35

29. In State of West Bengal and others v. Committee for Protection of

Democratic Rights, West Bengal and others, (2010) 3 SCC 571, the Apex

Court has expressed thus:

68(ii) Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law. 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. 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 cognizable 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.

30. In Narendra Singh and another v. State of M.P., (2004) 10 SCC 699,

the Apex Court has observed that presumption of innocence is a human


31. In this context, we may refer with profit the decision in Som Mittal v.

Government of Karnataka, (2008) 3 SCC 753, wherein it has been stated


46. The right of liberty under Article 21 of the Constitution is a valuable right, and hence should not be lightly interfered with. It was won by the people of Europe and America after tremendous historical struggles and sacrifices. One is reminded to Charles Dickens's novel A Tale of Two Cities in which Dr. Manette was incarcerated in the Bastille for 18 years on a mere lettre de cachet of a French aristocrat, although he was innocent.

32. The Apex Court in D.K. Basu v. State of West Bengal, AIR 1997 SC

610, while emphasizing on personal liberty in a civilized society on the

WP(Crl.) No.468/2010 Page 17 of 35 backdrop of constitutional philosophy especially enshrined under Articles 21

and 22(1) of the Constitution of India, has expressed thus:

22. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic 'No'. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law. In the said case, regard being had to the difficulties faced by the

accused persons and keeping in view the concept that the action of the State

must be right, just and fair and that there should not be any kind of torture,

their Lordships issued the following directions:

36. We, therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures:

(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.

WP(Crl.) No.468/2010 Page 18 of 35 (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation center or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned

telegraphically within a period of 8 to 12 hours after the arrest.

(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.

(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.

(7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The Inspection Memo must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.

(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health

WP(Crl.) No.468/2010 Page 19 of 35 Services should prepare such a penal for all Tehsils and Districts as well.

(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Illaqa Magistrate for his record.

(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

(11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

33. Recently, in the decision rendered in Siddharam Satlingappa Mhetre

v. State of Maharashtra and others (Criminal Appeal No.2271/2010

decided on 2.12.2010), the Apex Court, while dealing with the concept of

liberty, has opined thus:

41. All human beings are born with some

unalienable rights like life, liberty and pursuit of happiness. The importance of these natural rights can be found in the fact that these are fundamental for their proper existence and no other right can be enjoyed without the presence of right to life and liberty.

42. Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. That is why "liberty" is called the very quintessence of a civilized existence.

43. Origin of "liberty"' can be traced in the ancient Greek civilization. The Greeks distinguished between the liberty of the group and the liberty of the individual. In 431 B.C., an Athenian statesman described that the concept of liberty was the outcome of two notions, firstly, protection of group from attack and secondly, the ambition of the group to realize itself as fully as possible through the self-realization of the individual by way of

WP(Crl.) No.468/2010 Page 20 of 35 human reason. Greeks assigned the duty of protecting their liberties to the State. According to Aristotle, as the state was a means to fulfil certain fundamental needs of human nature and was a means for development of individuals' personality in association of fellow citizens so it was natural and necessary to man. Plato found his "republic" as the best source for the achievement of the self-realization of the people.

After so holding, their Lordships referred to various jurisprudential

thought expounded by eminent jurists which we think it condign to


53. Roscoe Pound, an eminent and one of the greatest American Law Professors aptly observed in his book "The Development of Constitutional Guarantee of Liberty" that whatever, `liberty' may mean today, the liberty is guaranteed by our bills of rights, "is a reservation to the individual of certain fundamental reasonable expectations involved in life in civilized society and a freedom from arbitrary and unreasonable exercise of the power and authority of those who are designated or chosen in a politically organized society to adjust that society to individuals."

54. Blackstone in "Commentaries on the Laws of England", Vol.I, p.134 aptly observed that "Personal liberty consists in the power of locomotion, of changing situation or moving one's person to

whatsoever place one's own inclination may direct, without imprisonment or restraint unless by due process of law".


57. Eminent former Judge of this Court, Justice H.R. Khanna in a speech as published in 2 IJIL, Vol.18 (1978), p.133 observed that "liberty postulates the creation of a climate wherein there is no suppression of the human spirits, wherein, there is no denial of the opportunity for the full growth of human personality, wherein head is held high and there is no servility of the human mind or enslavement of the human body".

WP(Crl.) No.468/2010 Page 21 of 35 Thereafter, their Lordships referred to life and liberty under our

Constitution and opined thus:

61. Life and personal liberty are the most prized possessions of an individual. The inner urge for freedom is a natural phenomenon of every human being. Respect for life, liberty and property is not merely a norm or a policy of the State but an essential requirement of any civilized society.

In this regard, we think it seemly to reproduce paragraphs 71 and 72

of the said decision:

71. The object of Article 21 is to prevent

encroachment upon personal liberty in any manner. Article 21 is repository of all human rights essentially for a person or a citizen. A fruitful and meaningful life presupposes full of dignity, honour, health and welfare. In the modern "Welfare Philosophy", it is for the State to ensure these essentials of life to all its citizens, and if possible to non-citizens. While invoking the provisions of Article 21, and by referring to the oft-quoted statement of Joseph Addision, "Better to die ten thousand deaths than wound my honour", the Apex court in Khedat Mazdoor Chetana Sangath v. State of M.P. and Others (1994) 6 SCC 260 posed to itself a question "If dignity or honour vanishes what remains of life"? This is the significance of the Right to Life and Personal Liberty guaranteed under the Constitution of India in its third part.

72. This court in Central Inland Water Transport Corporation Ltd. and Another v. Brojo Nath Ganguly and Another (1986) 3 SCC 156 observed that the law must respond and be responsive to the felt and discernible compulsions of circumstances that would be equitable, fair and justice, and unless there is anything to the contrary in the statute, Court must take cognizance of that fact and act accordingly.

34. From the aforesaid enunciation of law, it is graphically vivid that fair

and impartial investigation is a facet of Article 21 of the Constitution of

India and presumption as regards the innocence of an accused is a human WP(Crl.) No.468/2010 Page 22 of 35 right. Therefore, a person who is booked under criminal law has a right to

know the nature of allegations so that he can take necessary steps to

safeguard his liberty. It is imperative in a country governed by Rule of Law

as crusaders of liberty have pronounced Give me liberty, or give me death'.

Not for nothing it has been said that when a dent is created in the spine of

liberty, it leads to a rainbow of chaos.

35. At this juncture, we may profitably refer to a part of the first Menon &

Pai Foundation Law Lecture delivered at Cochin by Lord David Pannick,

Queen's Counsel, wherein he has spoken thus:

We should respect human rights in difficult times as well as in tolerable times because we are battling against terrorism precisely so that we can maintain a democratic society in which we enjoy individual liberty, the right to debate and dissent, and all the other freedoms that we cherish and which the terrorists abhor. To discard those values even temporarily, devalues all of us. And it would hand a victory to the terrorists, part of whose goal is to destroy the values we cherish and they despise.

The aforesaid luminously throws the laser beam on the cherished

value of liberty.

36. In this context, it is apt to note that the right to know has its own

signification. The protagonists of modern democracy plead and preach with

immense enthusiasm and rationally support the principle that the collective

has a basic and fundamental right to know about things which are supposed

to be known by the society. In The State of Uttar Pradesh v. Raj Narain

and others, AIR 1975 SC 865, while dealing with a claim of privilege under

Section 123 of the Evidence Act, their Lordships have held as follows:

WP(Crl.) No.468/2010 Page 23 of 35

41. The several decisions to which reference has already been made establish that the foundation of the law behind Sections 123 and 162 of the Evidence Act is the same as in English law. It is that injury to public interest is the reason for the exclusion from disclosure of documents whose contents if disclosed would injure public and national interest. Public interest which demands that evidence be withheld is to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant materials. When public interest outweighs the latter, the evidence cannot be admitted. The court will proprio motu exclude evidence the production of which is contrary to public interest. It is in public interest that confidentiality shall be safeguarded. The reason is that such documents become subject to privilege by reason of their contents. Confidentiality is not a head of privilege. It is a consideration to bear in mind. It is not that the contents contain material which it would be damaging to the national interest to divulge but rather that the documents would be of class which demand protection. (See 1973 AC 388 (supra) at p. 40). To illustrate, the class of documents would embrace Cabinet papers, Foreign Office dispatches, papers regarding the security to the State and high level inter-departmental minutes. In the ultimate analysis the contents of the document are so described that it could be seen at once that in the public interest the documents are to be withheld. (See Merricks v. Nott Bower. [1964] 1 All ER 717.

We have referred to the same only to show how a larger interest will

prevail over the private interest. It is basically in the realm of the doctrine of

striking of balance.

37. In S.P. Gupta v. Union of India and others, AIR 1982 SC 149, their

Lordships opined thus:

73. Now we agree with the learned counsel on behalf of the petitioners that this immunity should not be lightly extended to any other class of documents, but, at the same time, boundaries cannot be regarded as immutably fixed. The principle is that whenever it is clearly contrary to the public interest for a document to

WP(Crl.) No.468/2010 Page 24 of 35 be disclosed, then it is in law immune from discolsure. If a new class comes into existence to which this principle applies, then that class would enjoy the same immunity.

Thereafter, their Lordships proceeded to state as follows:

74. It is necessary to repeat and re-emphasize that this claim of immunity can be justifiably made only, if it is felt that the disclosure of the document would be injurious to public interest. Where the State is a party to an action in which disclosure of a document is sought by the opposite party, it is possible that the decision to withhold the document may be influenced by the apprehension that such disclosure may adversely affect the head of the department or the department itself or the minister or even the Government or that it may provoke public criticism or censure in the legislature or in the press, but it is essential that such considerations should be totally kept out in reaching the decision whether or not to disclose the document. So also the effect of the document on the ultimate course of the litigation whether its disclosure would hurt the State in its defence - should have no relevance in making a claim for immunity against disclosure. The sole and only consideration must be whether the disclosure of the document would be detrimental to public interest in the particular case before the Court.

[Emphasis supplied]

38. In Reliance Petrochemicals Ltd. v. Proprietors of Indian Express

Newspapers Bombay Pvt. Ltd. and others, AIR 1989 SC 190, their

Lordships, while dealing with the said issue, have ruled thus:

9. Elaborate arguments were advanced by counsel for both sides. It was contended that there was no contempt of Courts involved herein and furthermore, it was contended that pre-stoppage of newspaper article or publication on matters of public importance was uncalled for and contrary to freedom of Press enshrined in our Constitution and in our laws. The publication was on a public matter, so public debate cannot and should not be stopped. On the other hand, it was submitted that due administration of justice must be unimpaired. We have to balance in the words of Lord Scarman in the House of WP(Crl.) No.468/2010 Page 25 of 35 Lords in Attorney-General v. British Broadcasting Corporation, 1981 A.C. 303 at page 354, between the two interests of great public importance, freedom of speech and administration of justice. A balance, in our opinion, has to be struck between the requirements of free press and fair trial in the words of the Justice Black in Harry Bridges v. State of California, (86 Led 252 at page 260).

39. Thereafter, their Lordships referred to the decisions rendered in

Express Newspapers (Pvt.) Ltd. v. The Union of India, AIR 1958 SC 578,

State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699, In Re:

P.C. Sen, AIR 1970 SC 1821, C.K. Daphtary v. O.P. Gupta, AIR 1971 SC

1132, Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India,

AIR 1986 SC 515, Harry Bridges v. State of California, 1941-86 Law ed

192, Abrams v. United States, (1918) 63 Law ed 1173, John D. Pennekamp

v. State of Flordia, (1945) 90 Law ed 1295, Nebraska Press Association v.

Hugh Stuart, (1976) 49 Law ed 2d 683, Attorney General v. British

Broadcasting Corpn., (1979) 3 All ER 45, Attorney General v. B.B.C.,

1981 AC 303, Attorney General v. Times Newspapers Ltd., (1974) AC 273,

Bread Manufacturers Ltd., (1937) 37 SR (NSW) 242 and eventually came

to hold as under:

38. In this peculiar situation our task has been difficult and complex. The task of a modern Judge, as has been said, is increasingly becoming complex. Furthermore, the lot of a democratic Judge is heavier and thus nobler. We cannot escape the burden of individual responsibilities in a particular situation in view of the peculiar facts and circumstances of the case. There is no escape in absolute. Having regard, however, to different aspects of law and the several decisions, by which though we are not bound, except the decisions of this Court referred to hereinbefore, about which we have mentioned, there is no decision dealing with this particular problem, we are of the opinion that as the Issue is not going to affect the WP(Crl.) No.468/2010 Page 26 of 35 general public or public life nor any jury is involved, it would be proper and legal, on an appraisal of the balance of convenience between the risk which will be caused by the publication of the article and the damage to the fundamental right of freedom of knowledge of the people concerned and the obligation of Press to keep people informed, that the injunction should not continue any further.

40. In Dinesh Trivedi, M.P. and others v. Union of India and others,

(1997) 4 SCC 306, while dealing with the facet of right to know, their

Lordships have expressed thus:

16. In modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the Government which, having been elected by them, seeks to formulate sound policies of governance aimed at their welfare. However, like all other rights, even this right has recognised limitations; it is, by no means, absolute. This Court has had many an opportunity to express itself upon this issue. In the case of State of U.P. v. Raj Narain, (1975) 4 SCC 428, Mathew, J. eloquently expressed this proposition in the following words:

In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy, the

common routine business, is not in the interest of the public. Such secrecy can seldom be

legitimately desired. It is generally desired for the purpose of parties and politics or personal self- interest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the

WP(Crl.) No.468/2010 Page 27 of 35 chief safeguard against oppression and corruption.

[Emphasis added]

41. Be it noted, in the said case, their Lordships referred to the decision in

S.P. Gupta (supra) opining that the ordinary rule is that secrecy must be an

exception, justifiable only when it is demanded by the requirement of public

interest and eventually came to hold that to ensure the continued

participation of the people in the democratic process, they must be kept

informed of the vital decisions taken by the Government and the basis

thereof. Democracy, therefore, expects openness and openness is a

concomitant of a free society and sunlight is the best disinfectant. After so

stating, their Lordships have proceeded to state as follows:

19. But it is equally important to be alive to the dangers that lie ahead. It is important to realise that undue popular pressure brought to bear on decision- makers in Government can have frightening side-effects. If every action taken by the political or executive functionary is transformed into a public controversy and made subject to an enquiry to soothe popular sentiments, it will undoubtedly have a chilling effect on the independence of the decision-maker who may find it safer not to take any decision. It will paralyse the entire system and bring it to a grinding halt. So we have two conflicting situations almost enigmatic and we think the answer is to maintain a fine balance which would serve public interest.

42. As is evincible from our aforesaid analysis, we have adverted to the

singular issue from the schematic prism of the Code of Criminal Procedure,

the provisions contained in the Evidence Act, right under Article 21 and the

safeguards engrafted under Article 22 of the Constitution of India, the basic

human right and also the right to know and the limitations thereto be thought

WP(Crl.) No.468/2010 Page 28 of 35 of. Having dwelled upon the said facet, we shall now refer to the scheme

suggested by the learned Additional Solicitor General and combat put forth

by the learned counsel for the petitioner and also the suggestions given by


43. The learned Additional Solicitor General has submitted the following

mechanism / procedure for obtaining a copy of FIR:




a. The applicant (accused person himself / herself or blood relation duly authorized by accused) may submit an application along with a declaration on the prescribed form (Annexure A). It will be submitted at the concerned police station where the SHO will initiate immediate necessary action on the request.

b. The SHO will record the reasons for

recommending or opposing the request of the applicant and forward the same immediately to the ACP / Sub- Division.

c. The ACP / Sub-Division shall take a decision based on the above mentioned criteria and also keep in mind any other relevant factor depending upon the nature of the case.

d. Thereafter, the copy of the FIR or a letter of rejection will be sent by the ACP to the concerned police station from where it can be collected by the applicant within one week of the date of receipt of application. e. The applicant will be duly intimated about the rejection of his / her application by the ACP concerned in the prescribed format (Annexure B).

f. It shall be ensured by the ACP / Sub-Division that this entire process of supplying a copy or rejecting the request is completed at the most within seven working days from the date of receipt of the application.

WP(Crl.) No.468/2010 Page 29 of 35 II) APPEAL

a. In case the applicant fails to get copy of FIR within seven working days from the date of application, or the application is rejected by the ACP / Sub-Division, he / she can make an appeal to the concerned Addl. CP / DCP.

b. On receipt of an appeal, the Addl. CP / DCP shall consider the grounds of appeal and keeping in view the totality of the circumstances including the nature of allegations made in the FIR and the current state of the investigation, the Addl.CP/DCP shall pass a speaking order accepting or rejecting the said appeal.

c. The second appeal against the order of the Addl.CP/DCP shall lie with the concerned Jt.


III. NON ENTITLEMENT OF FIR: In the following types of cases, copy of FIR will not normally be provided to the accused, and in such cases no reason would be required to be given for non supply of an FIR nor even any confirmation or otherwise be given whether FIR has been recorded or not:

a. Cases of kidnapping for ransom.

b. Cases of kidnapping and abduction.

c. Heinous cases with a component of trauma like murder, rape etc.

d. Cases in which desperate gangsters are involved and there is the danger of witnesses or the complainant being intimidated.

e. Other serious cases in which only one accused has been arrested while others may be at large and since the FIR contains the names of the complainant, eye- witnesses etc, there may be chances of undue advantage being taken either by the accused still at large to continue to evade arrest or his / their becoming a threat to the complainant or eye-witnesses etc.

f. Cases relating to terrorists and cases in which the contents of the FIR may deal with issues of National Security.

WP(Crl.) No.468/2010 Page 30 of 35 g. Other cases such as those registered under the Official Secrets Act etc. where there may also be serious security implications or scope of leakage of sensitive information by revealing the contents of the FIR.



a. Copy of FIR being sent for information to the area Metropolitan Magistrate and senior officers will be properly marked ad stamped and dispatched in a sealed cover.

b. Steps will be taken by supervisory levels to maintain confidentiality by Delhi Police Officers.

c. An undertaking will be taken from the accused / relative in the prescribed declaration (Annexure A) that he / she will use it only for the bona fide purpose and entitlement under the law and no pass on the same or its contents to any unauthorized person / organization.

44. Mr. Ajay Chaudhary has filed an affidavit opposing the mechanism

suggested by the learned counsel for the State on the grounds that the

proposed mechanism is not capable of achieving the object required to be

achieved inasmuch as if an accused has no relation in Delhi then the copy of

FIR would not be supplied to him; that if the accused has severed his

relations with the relatives, then the accused will be deprived of the copy of

FIR; that if a person, from distant part of the country visits Delhi and he is

implicated in any offence / case in Delhi then it would not be possible for

him to get a copy of FIR; that there is no need for any declaration being

attested by a Gazetted Officer because an accused some time may not have

access to a Gazetted Officer which eventually amounts to denial of a copy of

the FIR to the poor and downtrodden person who is badly in need of

protection of law and that the mechanism proposed by the police will

increase unnecessary paper work and wastage of manpower and time and the WP(Crl.) No.468/2010 Page 31 of 35 hierarchical system of appeal and second appeal is totally impracticable and

that the suggestions given are fundamentally unworkable. Mr. Chaudhary

has given certain suggestions, namely, that the FIR should be recorded on

the computer and the person who operates the computer can give a printout

by asking the same which would lessen the use of manpower and minimize

the human resources; that if the copies of FIR are uploaded on the internet

on the website of the Delhi Police, a person desirous of taking the copy of

the FIR may download the same; that the higher officials of the police like

DCP or the Joint Commissioner who sometimes receive copies of FIR be

directed to supply the copy / certified copy on demand to anyone; that the

Ahlmad / Record Clerk concerned can be authorized to supply the copy of

FIR; that no authorization from the accused would be necessary as that

would cause unnecessary and improper delay and negate the concept of

access to justice; and the charges can be fixed keeping in view the provisions

of the Right to Information Act, 2005.

45. It is fruitful to note that though the aforesaid scheme was given by the

learned Additional Solicitor General during the debate and deliberation in

Court, yet he fairly conceded that the investigating agency has no objection

to put the First Information Report which do not relate to sensitive matters

on the Delhi Police website so that an accused or his relative can download

the same.

46. Keeping in view the law in the field, the entitlement of the accused,

the mechanism suggested by the learned Additional Solicitor General as well

WP(Crl.) No.468/2010 Page 32 of 35 as the learned counsel for the petitioner and regard being had to the concept

of striking of balance, as had been referred to earlier, we proceed to record

our conclusions and the directions as enumerated below:

(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 his

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 FIR, unless reasons recorded regard being had to the

nature of the offence that the same is sensitive in nature, should be

uploaded on the Delhi Police website within twenty-four hours of

WP(Crl.) No.468/2010 Page 33 of 35 lodging of the FIR 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.

(E) The decision not to upload the copy of the FIR on the website of Delhi

Police shall not be taken by an officer below the rank of Deputy

Commissioner of Police and that too by way of a speaking order. A

decision so taken by the Deputy Commissioner of Police shall also be

duly communicated to the Area 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 being had

to the nature of the FIR.

(G) 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 with the Commissioner of

Police 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

grieved person.

(H) The Commissioner of Police shall constitute the committee within

eight weeks from today.

WP(Crl.) No.468/2010 Page 34 of 35 (I) 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


(J) The directions for uploading the FIR on the website of the Delhi

Police shall be given effect from 1st February, 2011.

47. A copy of this order be sent to the Commissioner of Police to take

appropriate action to effectuate the directions in an apposite manner

so that grievances of this nature do not travel to court.

48. The writ petition is accordingly disposed of.



December 6, 2010


WP(Crl.) No.468/2010 Page 35 of 35

Saturday, December 4, 2010

Del HC-Justice Dhingra aquits Mother in-law of dowry death, slamming the trial court and public prosecutor for callousness. 'Criminal Justice System in India Needs Overhauling'

Crl. Appeal No. 93 of 2004                                                                  

Date of Reserve:  1st October, 2010  Date of Order: 2nd December, 2010  +Crl. Appeal No. 93 of 2004                    

RANI                                              ... Appellant 
      Through: Mr. Bhanu Pratap Singh, Advocate


THE STATE OF NCT OF DELHI           ... Respondents
      Through: Mr. O.P. Saxena, Addl. PP for the State


1. Whether reporters of local papers may be allowed to see the judgment?  Yes.
2. To be referred to the reporter or not?            Yes.
3. Whether judgment should be reported in Digest?        Yes.

1.  Present Appeal has been preferred against the Judgment dated 1st October,  2003, and order on Sentence dated 13th October, 2003, whereby the Appellant was  convicted under Section 304B/498-A IPC read with Section 34 IPC and sentenced to undergo Rigorous Imprisonment for a period of 7 years with fine of `1,000/-.  

2.  Janki was married to son of the  Appellant on 5th  December, 2000.  She  committed suicide by hanging herself on 1st   March, 2001.  After  her  death,  her brother Ved  Prakash, PW-2 gave a statement to SDM  that  he  had  visited  Janki’s  house on 23rd February, 2001 and found her in a sad mood.  She told him that her in- laws were asking for ` 50,000/- and a scooter as they wanted to open a shop and the  scooter was required for roaming around.  Ved Prakash stated that thereafter he talked to in-laws of her sister and told them that he would respond after thinking over.  He asked them to send Janki with him.  On this, he was told that they would take her to his house after 2-3 days.  After that he received information that Janki had died. He expressed his doubt that his sister had been killed by her husband, parents of her husband and husband’s sister Kiran. 

3.  In the name of investigation, police  took photographs of deceased,  recorded statement of brothers of Janki, collected postmortem report about the cause of her death, and FSL report of viscera. Even the site plan of the place of suicide and of the house was not prepared. The postmortem report shows that there was no external injury on the body of Janki.   The cause of death was given due to asphyxia. Ligature mark present on the neck showed that there was no ligature mark on left side of neck showing that ligature was caused due to hanging.  FSL report showed presence of insecticide  in the body.  No  investigation was  done by the police on the aspect of purchase of  insecticide or  administration of insecticide etc.   Charges against the accused persons were framed under Section 304B read with Section 498-A IPC read with Section 34 of IPC.  

4.  Prime witnesses in this case are PW-2 Ved Prakash and PW-7 Jai Prakash, the two brothers of the deceased Janki.  Ved Prakash is the one who claimed to have visited Janki on 23rd February, 2001 and stated that Janki was in sad mood and she complained that her in-laws were demanding  ` 50,000/- and a scooter.  PW-7 Jai  Prakash stated that Janki had come to his house in the village after about a week of her  marriage and had told  him that her in laws were demanding scooter and `  50,000/-.  He then sent his brother Jaidev @ Ali to the house of his sister Janki and this demand was repeated to him and Jaidev informed him about the demand. 

5.  PW-4 Laxman is 3rd brother of Janki.  He testified that he had visited his sister  at her matrimonial house after about a month of her marriage.  He stayed there for few moments  and  at  that time he had no  talks  with his sister.  Thus, as per his  testimony, no complaint was made to him by his sister about demand of `50,000/- and a scooter. 

6.  These three witnesses were practically not cross examined on the charges framed against the accused persons.  The  only cross examination done  by the defence counsel was putting to the witnesses statement recorded under Section 161 Cr. P.C. and giving suggestion regarding denial of the demand. 

7.  On the basis of the testimony of two  brothers  i.e. PW-2 and PW-7, the appellant and other two accused persons were convicted under Section 304B/ 498-A/34 IPC. 

8.  It is apparent that the allegations were very vague in nature.  Who demanded ` 50,000/- and scooter, whether it was the demand of husband or of mother-in-law or of  father-in-law, when was it made  –  answers to all these questions are  absent.  Even if it is presumed that demand was made,  the ingredients of Section 304B IPC were  totally absent in this case as there was  no evidence on record to show that cruelty  of any kind was  perpetuated on Janki for this demand.  Section 304B IPC reads as under:

  “(1) Where the death of a woman is caused by any  burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her  marriage and it is shown that soon before her death  she was subjected to cruelty or harassment by her  husband  or any relative of her husband for, or in  connection with, any demand for dowry, such death  shall be called "dowry death" and such husband or relative shall be deemed to have caused her death.

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less  than seven years but which may extend to imprisonment for life.”

To bring home an offence under Section 304-B IPC it is  an  obligation of the  prosecution to prove in those cases where death of a woman occurs within 7 years of her marriage, that soon before her death, she was subjected to cruelty or harassment by her husband or any other relative,  in connection with a demand of dowry.  Mere making of demand is not the only pre-requisite for proving an offence under Section 304B IPC.  The prosecution was  thus supposed to prove that the demand made by the accused was coupled with  a  harassment or cruelty in connection with the demand. Unnatural death can be called a dowry death only if, after making a demand of dowry, the accused perpetuates cruelty on the victim so that the demand made by him is got fulfilled by perpetuation of cruelty on  the victim.  If the alleged demand of dowry is not coupled with cruelty, harassment or any other  such act on the part of accused, Section 304B of IPC would not be made out.  In this case, none of the three brothers stated that cruelty was perpetuated on Janki or she was  harassed by  the appellant or  by  any other relative for not fulfilling the demand. I consider in these circumstances conviction of the appellant under Section 304B IPC was totally  illegal and unjust. The conviction seems to be the result of a callous criminal justice system where neither the defence counsel prepared the case nor the prosecutor discharged his duty  in an impartial manner nor the Judge considered it as his duty to see what offence was made out and everyone acted in a mechanical manner. 

9.  The other question arises whether the appellant could be convicted under  Section 306 IPC i.e.  for the offence  of abetment  of suicide, since the deceased  committed suicide within three months of her marriage.  In order to convict a person
for abetment of suicide,  apart from proving suicide, it has to be proved that the appellant or accused was instrumental in commission of suicide.  Section 113A of  Evidence Act which raises a presumption regarding abetment of suicide in respect of
a married woman reads as under: 

  “113A. Presumption as to abatement of suicide by a  married women  - When the question is whether the commission of suicide by a women had been abetted by  her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband has subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.”

A perusal of above section would show that abetment of suicide of a married woman by relatives would be presumed by the Court if it is shown that her husband or such other relative of husband had subjected her to cruelty.  In the present case, there is not  an iota of evidence in respect of cruelty perpetuated upon the victim, either medical evidence or oral evidence.  I, therefore, consider that that the appellant could not have been convicted even under Section 306 IPC. 

10.  It is seen that the Appellant herein belonged to a very poor family of vegetable seller.  She had three young daughters and two sons.  She herself was a house-wife and not working and that seems to be reason that during trial she and her husband and son could not engage a counsel with some experience who could have done justice to the brief. The witnesses were not cross-examined in a proper manner and cross-examination done to the witness was only to confront them with their statements under Section 161 Cr. P.C. Along with the Appellant, her husband and her son were also convicted.  Even during Appeals, this  family could not engage an efficient counsel and that is why her husband and son remained in JC during entire  Appeal period.  After  undergoing entire  sentence, they appeared in the court and stated that they do not wish to pursue their Appeals, so, the Appeals were dismissed. 

11.  A perusal of record shows  that  the deceased’s brother had made application before the Court for return of dowry articles and  Istridhan during trial and gave a list of the articles given at the time of engagement ceremony (sagai) and marriage.   The
list reads as under;

(i) One Silver Coin, (ii) One Three Piece Suit for Boy, (iii)
One Gold Ring, (iv) 51 Utensils, (v) Fruits and Dry Fruits,
(vi) Nine Sarees, (vii)  Nine Gents Shirts, (viii) Four Pairs of
Clothes for Children and (ix) ` 501/-.    At marriage the dowry list is as under;
(i) One Silver Coin, (ii) 5 Units of Clothes for Boy, (iii) One
HMT Wrist Watch, (iv) 27 Utensils (of Steel and Brass), (v)
Ear-ring (Kundal) +  „LONG‟  of Gold for Girl, (vi) A set of
Silver pajeb + Key Ring, (vii) One Double-Bed with
Matress, Quilt and Pillow, (viii) One Chair, One Table, One
Stool, One Dressing Table, One Cooler, One Godrej
Almirah and One Small Box.

  This list, prepared at the time of marriage was duly signed by husband Raju.  The list would show that both parties belonged to poor strata of society and except     ` 501/-, there was no cash transaction as dowry between the parties and the parties knew each-other’s  financial position well.  No question was asked about the list nor the investigating agency made the list as a part of their investigation nor the dowry list attracted attention of the Judge concerned.  This list would have shown that it was not a case where dowry has been demanded.  Where the parties knew that the status of girl  was such that even at marriage and engagement ceremonies only    ` 501/-  cash was given, the husband  of relatives  would not have thought  of  demanding ` 50,000/- and scooter within few days of marriage.  The most disturbing factor is that no evidence, whatsoever, was collected by the police about the real facts.  No effort was made by learned Public Prosecutor or by Trial Judge to even go through the evidence and consider what charges were made out.  Charges seemed to have been framed in a mechanical manner.  No effort is seem to have been made by the Trial Judge either at the time of framing charge or later on as to what offence was made out. 

12.  Every suicide after marriage cannot be presumed to be a suicide due to dowry demand.  The tendency of the Court should not be that since a young bride has died after marriage, now somebody must be held culprit and the noose must be made to fit some neck.

13.  There is an unfortunate development under criminal justice system that even in those cases where accused should be examined as a witness by the defence, the accused persons are not examined as a witness.  In matrimonial offences, it is the accused and his family members who know what transpired within the family and they should always volunteer themselves as witnesses in the Court so that the Court gets their side of the version by way of evidence and testimony.  Under Section 106 of Evidence Act, when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.  When a death takes place within the four walls of matrimonial home, the  husband and  in-laws should come forward and depose as to what was the real cause of death.  The criminal practice in India has been on the lines of old track that accused must not speak and he should not be examined as a witness.  I do not know  why this practice developed but in all matrimonial offences, this practice is shutting the doors of the Court, to the version of the other side, by their advocates.  

14.  Adversarial system of trial being followed in this country has turned most of the trial court judges into  umpires and despite having sufficient power to ask questions to the witnesses and to find out truth, most of them do not ask questions to the witnesses to know the truth.  In fact, the witnesses are left to the Advocates and the Judges  just sit and watch.  This tendency of being only umpires works  heavily against the poor who are normally not defended by Advocates of competence and standing, as they cannot afford their fee.  The Trial Courts, therefore, must shed their inertia and must intervene in all those cases where intervention is necessary for the ends of justice.

15.  In this case the High Court did not find time to hear the appeals of other two appellants, who continued to remain in jail during trial period as well as appeal period for no crime.   In all such cases where  appellants are in jail and sentence is not suspended,  the High Court should fix a time limit for disposing of such appeals.  Neither the criminal should be let off by default as High Court has no time to hear appeals  nor should the innocents rot in jail by default.  The whole criminal justice system needs overhauling so that the constitutional mandate of equality before law is made meaningful and it should not be the case that higher courts are kept occupied by the person with money or power, as is the case today. 

16.  The appeal is allowed.  The appellant is acquitted.