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Jiju Lukose Versus State Of Kerala

2016 (4) TMI 758 - KERALA HIGH COURT

Right to receive copy of the FIR even before the stage of proceedings under Section 207 of the Cr.P.C. - PIL for direction to upload the copy of the FIR in the website of the police station and to make available copies of the FIR to the accused immediately on registration of the FIR - Held that:- When Section 438 is held to be a device to secure individual's liberty, all means to secure the said liberty has to be held to be available to the accused to fulfill the object which clearly reinforces .....

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vided by the police authorities even online also. We are thus of the view that application for copy of the FIR can also be submitted by any person under the 2005 Act. It is however, relevant to note that whether in a particular application police authorities are claiming exemption under Section 8(1) of the 2005 Act is a question which has to be determined by the police authorities by taking appropriate decision by the competent authority. In event no such decision is taken to claim exemption und .....

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o in which case FIR be uploaded and in which it is not be uploaded. The State can come with any such decision which may balance right of information available to the public in general and interest of the State. We are thus of the opinion that petitioner has made out a case for issuing directions to the State to consider all aspects of the matter and take appropriate decision regarding uploading of the FIR in the police website with all details regarding its operation and mechanism. - W.P(C) No.1 .....

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n of the FIR. 2. Petitioner in the Writ Petition has narrated the circumstances and the background facts for filing this public interest litigation. Petitioner, a resident of Ettumanoor was made an accused in C.C. No.567 of 2013 alleging offence under Section 498A of the Indian Penal Code at the instance of the petitioner's wife. Petitioner's parents are senior citizens and on registration of the FIR, the family members were called upon to come to the police station. Although the FIR was .....

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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 e .....

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s not in a position to know the nature of the allegations so that he may approach the appropriate Forum for getting his right and liberty protected. Petitioner's further case is that right to get information is part of fundamental right to freedom of speech and expression guaranteed under Article 19(1)(f) of the Constitution of India. Article 21 guarantees protection of life and personal liberty. A person against whom criminal offence is alleged is under a threat of being apprehended by the .....

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case is that in view of the Right to Information Act, 2005 (for short, "the 2005 Act") all public officers are under obligation to put all information recorded in the public domain. The FIR which is lodged is to be put on the website of the police station, so that any one can assess the FIR including a person staying outside the country. Police is also obliged to accept the online application under the 2005 Act for obtaining copy of the FIR. With the aforesaid pleadings, petitioner in .....

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ps to provide online copy of full FIR, including complaint copy, within 24 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. .....

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il) 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 not envisage supply of copy of FIR to the accused on registration of the FIR. Section 207 of the Cr.P.C. envisages supply of FIR only by the Magistrate in any case where the proceedings had been initiated on a police report and not otherwise. The Government have d .....

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of the petitioner to have the copy of the FIR uploaded in the website on registration of the same. In the counter affidavit it has further been pleaded that although in technical sense the FIR is a public document, it cannot be made available online for visibility to the public as a routine measure. The first information received will be discreet especially in cases involving national and international security. The uploading of FIR in the website can also become defamatory, harassing and intru .....

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5. Learned counsel for the petitioner in support of the Writ Petition referring to the pleadings contends that the accused in the FIR has a right to receive copy of the FIR even prior to the stage of Section 173(7) of the Cr.P.C. There should be obligation on the part of the police authorities to immediately make available copy of the FIR as and when request is made by the accused to have a copy of the FIR. Learned counsel for the petitioner further contends that in view of the right of citizen .....

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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 .....

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s further contended that Cr.P.C. also does not contemplate giving of copy of the FIR prior to the proceedings under Section 207 of the Cr.P.C. It is submitted that under Section 154(2), the Code require immediate giving copy to the informant free of costs but no such obligation is there in the Code to immediately provide copy of the FIR to the accused. Against the judgment of the Orissa High Court dated 05.10.2012, a Special Leave Petition has already been filed in the Apex Court. Judgment of th .....

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der Section 207 of the Cr.P.C. (2) Whether the police authorities are obliged to provide copy of the FIR when an application is filed under the 2005 Act? (3) Whether all the FIRs registered in the State are to be uploaded in the website of the respective police stations? 9. The first issue is regarding right of accused to receive copy of the FIR. The Scheme of Cr.P.C. does not provide for giving copy of the FIR to the accused at any earlier stage than by a Magistrate on commencement of the proce .....

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157 of the Cr.P.C. If from an 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 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 arr .....

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leased 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; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by h .....

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er law. About a century ago, the Patna High Court in Dhanpat v. Emperor (AIR 1917 Patna 625) laid down as follows: "It is vitally necessary that an accused person should be granted a copy of the FIR at the earliest possible in order that he may get benefit of the legal advice." The Calcutta High Court in Panchanan Mondal v. The State (1971 Crl. L.J. 875), after examining the provisions of Code of Criminal Procedure, 1898 has laid down the following in paragraph 5: "5. The second c .....

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S.157 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..." On the basis of the same Mr.Dutt contended that the accused is entitled to a copy of the F.I.R. as part of the record. The question however is one of stage and the provisions contained in S.157(1) of the Criminal P.C. by themselves do not entitle the accused to such a copy. Copies of all the documents sent to the Court and forming part the .....

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.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 .....

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U.P. and Others (1998 Crl. L.J. 2879) had elaborately considered the question as to whether an accused is entitled for copy of the FIR and he can obtain it either from the police station or the office of the Superintendent of Police or from the Magistrate. In paragraphs 10.4 and 10.5 the following was stated: "10.4 Fully agreeing with the ratio laid down in the aforesaid cases we hold that the accused is entitled to know what was said in the first information report to connect with the offe .....

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the matter of that the Courts are situated invariably at a distance far from the Police Stations. Imagine the plight of such a person who is required to cover a great distance for having a certified copy of the F.I.R. to know its contents so that he could defend himself. 10.5. Accordingly, there is no manner of doubt that an accused person or any person who suspects that his name figures in a first information report can file an application or get an application filed through his pairwikar (repr .....

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led to certified copy of the F.I.R. before forwarding of the Final Report but we are handicapped to appreciate the reasons for holding so due to their non-mentioning. In any view of the matter for the reasons recorded as above we are unable to agree with that view." A Division 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 not .....

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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 be held to be available to th .....

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can be obtained under the 2005 Act. The 2005 Act has statutorily recognised the right of information of all citizens. The Apex Court in State of U.P. v. Raj Narain (1975 (4) SCC 428) held that 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. The following was la .....

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solute, 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...". In Dinesh Trivedi v. Union of India (1997 (4) SCC 306) the following was laid down in paragraphs 16, 17 and 19: "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 .....

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f 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 .....

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legitimately be claimed because it would then be in the public interest that such matters are not publicly disclosed or disseminated. 19. What then is the test? 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. Sunlight is the best disinfectant. But it is equally important to be alive .....

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tem 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". The Apex Court further held in People's Union for Civil Liberties v. Union of India (2004 (2) SCC 476) that right of information is facet of the freedom of speech and expression as contained in Article 19(1)(g) of the Constitution of India. 12. The State in the counter affidavit has refuted the claim of the .....

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XII of the Code of Criminal Procedure, 1973 proceeds on the First Information Report. In most of the instances First Information is inextricably linked to the process of investigation or apprehension or prosecution of offences. In such cases, such information need not be disclosed to the public as it is exempted under Section 8(1)(h) of the Right to Information Act, 2005 which provides that information which would impede the process of investigation or apprehension or prosecution of offenders ne .....

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rocedure, 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 .....

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ing a reasonable and balanced approach which harmonises the two objects of the Act. While interpreting Section 8 and the other provisions of the Act, the following was laid down in paragraphs 61 and 62: "61. Some High Courts have held that S.8 of RTI Act is in the nature of an exception to S.3 which empowers the citizens with the right to information, which is a derivative from the freedom of speech; and that therefore S.8 should be construed strictly, literally and narrowly. This may not b .....

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resources and preservation of confidentiality of sensitive information. The preamble to the Act specifically states that the object of the Act is to harmonise these two conflicting interests. While S.3 and S.4 seek to achieve the first objective, S.8, S.9, S.10 and S.11 seek to achieve the second objective. Therefore when S.8 exempts certain information from being disclosed, it should not be considered to be a fetter on the right to information, but as an equally important provision protecting o .....

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legislature has however 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 ha .....

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ate 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, crime and road accident statistics, criminal intelligence gazette etc. An online complaint facility viz., Citizen's Watch is incorporated in the website". Common Integrated Police Application The Common Integrated Police Application (CIPA) is a multilingual application to automate the p .....

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2009". In Ext.P7 filed along with the reply by the petitioner it is clearly mentioned that online facility is provided for filing application under the 2005 Act which stated the following: Online facility to file application under RTI Act Online facility is provided for filing applications under the RTI Act. The applicant can send their applications in the format available on the website through email. The mode of payment of fees (Postal order, Money Order etc) should be mentioned in the on .....

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8(1) of the 2005 Act is a question which has to be determined by the police authorities by taking appropriate decision by the competent authority. In event no such decision is taken to claim exemption under Section 8 of the 2005 Act, the police authorities are obliged to provide for copy of the FIR on an application under the 2005 Act. 13. Now we come to the third issue, i.e., uploading of FIR in the website. As noted above, the State in its statement as well as counter affidavit has stated tha .....

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ble 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 .....

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website concerned would not only require technical expertise but also financial commitments, the Government has not yet taken any positive decision in this regard". Again in the counter affidavit reasons have been given by the State for not uploading FIR in the website as noted above in paragraph 3 of the counter. Certain more reasons have been given by the State for not uploading the FIR in the website as mentioned in paragraphs 8 and 9. 14. As submitted by the learned counsel for the pet .....

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Website within twenty four hours of 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 .....

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al harmony, cases relating to security of nation and international security and several other categories of cases may fall in this group. As noted 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 .....

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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 facilities the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to a .....

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te. Even if it has not taken a policy decision as to upload all FIRs in the website, it has to take a decision as to which category of FIRs have to be uploaded in the website for information to all and to permit easy access to all those who are concerned with crime registered and those who have to take further steps regarding the crime registered. As noted above, it is in the domain of authorities as to which category of the FIRs are to be put on website for information to the public in general. .....

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