AI Drafter 
TaxTMI 
TaxTMI 
TaxTMI 
2016 (4) TMI 758
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....ice station. Although the FIR was registered on 21.12.2012, petitioner could obtain a copy of the FIR only after two months. Till the petitioner could obtain a copy of the FIR, the petitioner and his family members were in dark about the nature of the allegations levelled against the petitioner. Petitioner is in a job at the United States of America. Petitioner's case in the Writ Petition is that the accused has no way of knowing whether the complaint levelled against him is false or not. Once the FIR is lodged, unless the accused has good contacts in police station there is no way of knowing even the number of the FIR. Delay in getting copies of the FIR by the accused and delay in filing FIR in Court gives opportunity for falsification of the FIR including modifying the FIR. There should be transparency with regard to registering a crime and furnishing copy of the FIR and also uploading in the website. According to Section 207 of the Code of Criminal Procedure (for short, "the Cr.P.C."), an accused is entitled for supply of copies of the FIR free of cost only when proceedings are instituted by the Magistrate in the Court on the basis of police report. According to Section 173(....
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.... hours of registering the FIR in the station. iii. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding the respondents to initiate immediate steps to provide certified copy of FIR under the 'Life & Liberty' section of the Right to Information Act, to the accused within 48 hours of application at Police Station by paying necessary fees as prescribed under the act. iv. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding respondents 3 and 4 to provide necessary instructions to the police stations in the State to accept applications under the RTI Act for obtaining copies of FIR, even without quoting FIR number in the application. v. Issue such other appropriate writ, order or direction as this Honourable Court deems fit and proper in the facts and circumstances of the case. And vi. Allow this Writ Petition (Civil) with cost". 3. A statement dated 13.03.2015 as well as additional counter affidavit dated 10.06.2015 had been filed by the 1st respondent, the State Government. It is stated in the statement that provisions of the Cr.P.C. does....
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....ading of the FIR in the website shall serve various purposes and object. Petitioner has heavily relied on the directions issued by the Delhi High Court in suo motu W.P(Crl.) No.468 of 2010 where the Delhi High Court has given direction for uploading the FIRs except those which are sensitive. A decision whether the FIR is sensitive or not has to be taken by the Officer not below the rank of Deputy Commissioner of Police. It is submitted that similar directions also have been issued by the Orissa High Court in W.P(Crl.) No.1096 of 2011 and the High Court of Punjab and Haryana in CWP No.21898 of 2012. 6. Smt.Girija Gopal, learned Special Government Pleader appearing for the State refuting submissions of learned counsel for the petitioner contends that uploading of FIR in the website is neither practical nor advisable due to various reasons. It is submitted that the police has to apprehend the accused and uploading the FIR will cause hindrance to the police apprehending the culprits. It is submitted that several FIRs cannot be made public in the interest of national and international security. Under the 2005 Act exemption has been provided under Section 8(1) (h) which sufficiently c....
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....wered under Section 156 to investigate, he shall forthwith send a report report to a Magistrate empowered to take cognizance upon such offence on a police report. The Code also empowers the police officer to arrest the accused. Section 438 of the Cr.P.C. provides that where a person who has reason to believe that he may be arrested on accusation of having committed a non-bailable offence he may apply to the High Court or the Court of Session for a direction. Section 438(1) reads as follows: "438. Direction for grant of bail to person apprehending arrest.- (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; ....
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.... "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 costs, a copy of the report forwarded under sub-s.(1) and of the first information report recorded under S.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 S.164 and the statements recorded under sub-s.(3) of 161 of all the persons whom the prosecution proposes to examine as its witnesses". I accordingly hold that although the F.I.R., when forwarded to the Court, forms part of the record, the accused will not be entitled, merely on that footing, to a copy thereof irrespective of the stage reached independently of the other provisions in the Statute, and of other considerations, entitling him to have the same. In view, however, of the other specific provisions in the different Statutes which have been considered at length in the context of the other issues, I hold that case of F.I.R. is different and the accused is entitled to a copy thereof on payment of....
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....vision Bench of the Delhi High Court in W.P(Crl.) No.468 of 2010 has also after elaborate consideration of earlier cases held that the FIR is a public document and an accused is entitled to have a copy of the FIR. 10. As noted above, apart from other reasons which entitled an accused to receive copy of the FIR his right to defend himself by filing application under Section 438 of the Cr.P.C. can only be be fulfilled only when he receives a copy of the FIR. Section 438 in so far as the State of Kerala is concerned is a provision for obtaining anticipatory bail. In this context reference is also made to the judgment of the Apex Court in Parvinderjit Singh v. State of (U.T. Chandigarh) (AIR 2009 SC 502) where the Apex Court had occasion to examine the right given under Section 438 of the Cr.P.C. In paragraph 15, the following was observed: "15...An order under Section 438 is a device to secure the individual's 'liberty' it is neither a passport to the commission of crimes nor a shield against any and all of accusations likely or unlikely". When Section 438 is held to be a device to secure individual's liberty, all means to secure the said liberty has to ....
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....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 chief safeguard against oppression and corruption. (Emphasis added) 17. Implicit in this assertion is the proposition that in transactions which have serious repercussions on public security, secrecy can legitimately be claimed because it would....
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....rocess of investigation or apprehension or prosecution of offenders need not be disclosed to the citizens. Therefore, even when the case law developments point to the fact that FIR is a public document, where an FIR is covered by the provisions under Section 8(1)(h) of the Right to Information Act, 2005, it need not be disclosed to the citizens till investigation is completed. But it can be claimed by the informant and the accused as per legal provisions under the Code of Criminal Procedure, 1973 as a matter of legal right. The provisions in the Code of Criminal Procedure, 1973 are specific to this effect, that is, the supply of copy of FIR to the accused is contemplated only at a stage after proceedings are being initiated on a police report by the competent Magistrate. As such there is no legal provision which entails the accused to have a copy of the FIR served on him immediately on the FIR being lodged. It is also totally impossible in most cases to judge within twenty four hours of lodging the FIR as to who the real accused is. The law makers never intended that the accused should also be served with a copy of the FIR within 24 hours of its lodging or that it be made public. A....
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....ever made an attempt to do so. The enumeration of exemptions is more exhaustive than the enumeration of exemptions attempted in the earlier Act that is S.8 of Freedom to Information Act, 2002. The Courts and Information Commissions enforcing the provisions of RTI Act have to adopt a purposive construction, involving a reasonable and balanced approach which harmonises the two objects of the Act, while interpreting S.8 and the other provisions of the Act". The petitioner has brought on record sufficient materials to indicate that website of the Kerala Police itself provides for common integrated police application under which online application can be given for copy of the FIR. In the reply affidavit petitioner has filed Ext.P5 which provides the option website, (www.keralapolice.gov.in) and other details. It is useful to extract the following: "Official website [www.keralapolice.gov.in) Official website of Kerala Police gives overall information about the State Police. It contains Press releases, latest news, alerts, announcements, look out notices, Circulars, Executive Directives, Tenders, seniority lists, information as per RTI act, contract, information, crim....
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....the website of the police. Paragraph 4 of the statement filed on behalf of the State is as follows: "4. It is respectfully submitted that keeping in view of the above statutory prescriptions as also the practical situations that would be required to be faced by the Investigating Officers in various kinds of offences, the Government have examined the matter in detail and have decided that it would not be advisable to take any policy decision to have all the FIRs uploaded in the websites of the police station concerned immediately on registration of the same. it is keeping in kind that various instances would demand FIRs to be kept in sealed cover that the Government has decided not to take a decision to have FIRs uploaded in the official website, irrespective of the crime involved. Since decisions on matters as to which are the kinds of cases in which could be uploaded and at what stage etc. are ones which require deeper analysis and decisions thereon can be taken only after deliberations at various levels, the Government has not yet taken any policy decision thereon to acceded to the petitioner's prayer to have FIRs uploaded immediately on registration of the same. Mor....
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....d above, the Legislature itself has narrated exemptions under Section 8 of the 2005 Act. The Apex Court in CBSE v. Aditya Bandopadhyay (supra) has laid down that Section 8 has been enacted to ensure that revelation of information in actual practice does not conflict with other public interest which include efficient operation of the Governments, optimum use of limited fiscal resources and preservation of confidential and sensitive information. Section 8 cannot be allowed as an exception to Section 3 so as to construe strictly, literally and narrowly. The Apex Court held that State information Commission have to adopt purposive consideration involving reasonable and balanced approach which harmonises two objects while interpreting Section 8 and other provisions of the 2005 Act. Section 4 of the 2005 Act requires that all public authorities have to ensure that all records that are appropriate to be computerised are computerised and connected through a network all over the country. Section 4(1)(a) of the 2005 Act is as follows: "4. Obligations of public authorities.-(1) Every shall - (a)maintain all its records duly catalogued and indexed in a manner and the form which facili....