After a whole day of raids across the country by the Delhi Police on October 3, News click founder Prabir Purkayastha found himself having to approach the court to access the First Information Report (F.IR) in the case in which he was arrested. To a bystander, this might seem normal but accessing F.I.R should have been a basic right, granted to him and his lawyers before arrest, instead of having to approach the Court.
This article will argue that the F.I.R is a Public Document and how and why it still remains “concealed’ from citizens
What is an F.I.R?
Although not mentioned as ‘First Information Report’ in the Code of Criminal Procedure, 1973, an F.I.R is the information relating to the commission of a Cognisable offence[1]. If transmitted orally to an officer in charge of a Police Station, it should be written by him or under his direction and be read over to whoever has so informed him (of the crimes committed).
This is laid down in Section 154 of the CrPC. Section 154(2) states that the document be handed over to the informant, free of cost. Access to F.I.R, as far as the CrPC is concerned, is given to the informant and lies with the police officer.
F.I.R as a Public Document
What is a Public Document?
Section 74 of the Indian Evidence act, 1872 defines Public Documents as Documents forming the acts, or records of the acts of the sovereign authority, or of official bodies and tribunals, and of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country; public records kept in any State of private documents.
What is the consequence of something being a Public Document?
Section 76 of the Evidence Act states that if a person, having a right to inspect, demands a copy of a public document, the public officer having the custody of a Public Document on payment of legal fees shall provide the document.
There have been a series of legal pronouncements declaring the F.I.R as a Public Document.
In Chinnappa Anandappa Reddy vs State, the Karnataka High Court declared that the F.I.R is a public document under the Indian Evidence Act, as it is a record of the acts of a public officer in discharge of the official duty. In a revision petition filed against a Taluka Magistrate who refused to give the petitioners a copy of the F.I.R, the court stated that the Taluka Magistrate was legally bound to give the copy asked for, and the Magistrate had no authority to refuse it, making the refusal illegal and reprehensible.[2]
In Panchanan Mondal vs The State, the Calcutta High Court remarked, on the fact that the petitioner in that case was not supplied with the F.I.R, that the question of prejudice of the accused on account of the denial of the copy of the F. I. R. at the earlier stage therefore assumes greater importance. It held 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 therefore at any stage.[3]
In Jayantibhai Lalubhai Patel vs. State of Gujarat, the Gujarat High Court held that whenever an F.I.R is registered against the accused, a copy of it is forwarded to the Court- making it a public document. Considering the provisions of Article 21 of the Constitution and the provisions of Section 74 of the Indian Evidence Act- the Accused has right to inspect the F.I.R under Section 76 of the Evidence Act.[4]
In Mohammed Khalid Shaikh vs. State of Maharashtra, the Bombay High Court stated that F.I.R. is the starting point of the investigation and that investigation can only start after an F.I.R. has been recorded. The court pointed out, when the state submitted that the secrecy of investigation should be maintained, that there is no reason for the accused to not have the F.I.R especially when the informant whose access to the F.I.R is mandated in the CrPC, is allowed to share the F.I.R with anyone.[5]
In COURT ON ITS OWN MOTION THROUGH MR. AJAY CHAUDHARY vs. State, the Delhi High Court made significant contributions to the discussion on whether the accused is entitled to a copy of the F.I.R after it is lodged, and if so, what steps are required to be taken to facilitate it availability.
The court gave its directions, stating that the accused is entitled to get a copy of F.I.R at an earlier stage than prescribed under Section 207 of the CrPC. It also directed that the copies of F.I.R should be uploaded on the Delhi Police Website withing twenty-four hours of lodging of the F.I.R unless the offence is sensitive in nature.
When a person is refused the copy of F.I.R due to it being “sensitive” in nature, the person, after disclosing the identity, could submit a representation with the Commissioner of Police who would constitute a committee of three high officers and the committee shall deal with the said grievance within three days from the receipt of the representation and communicate it to the grieved person, the court directed.
Here, even though the Court recorded the importance of individual liberty especially in criminal proceedings, we see a contrasting direction where the scope of sensitive nature of the F.I.R is left to the Competent Authority to decide without laying any limits to this power.[6]
The Supreme Court had given an order in 2016 in the case of Youth Bar Association of India vs. Union of India, which is similar to the Delhi High Court’s order regarding the directions issued on accused’s entitlement of an F.I.R.
The Supreme Court noted that an accused is entitled to get a copy of the F.I.R at an earlier stage than is prescribed in the CrPC. 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 for grant of a certified copy of the F.I.R and such copy should be provided within 24 hours.
One important exception to this rule, as stated by the Supreme Court was that the offences should “not be sensitive” in nature.
The Supreme Court went on to detail out what the sensitive offences could be- like sexual offences, offences pertaining to insurgency, terrorism and of that category, offences under POCSO Act and such other offences.
In these cases, if the F.I.R is not provided to the Accused, the person aggrieved could approach the Commissioner who would later appoint a three-member committee to address the grievance; this committee should deal with the grievance in 3 days and communicate it to the aggrieved person. It is important to note that even this list by the Supreme Court detailing what constitutes a sensitive offence is not exhaustive. The court itself has stated that the list is merely illustrative.
This could be considered as the current position of Indian Law on the entitlement of an Accused to an F.I.R.
To conclude, an accused is entitled to an F.I.R generally, unless the offence is of “sensitive nature”. This is supported by various High Court decisions and the Supreme Court’s order in Youth Bar Association case. However, the ‘sensitive nature’ exception seriously impedes on the freedoms on the individual and enlarges the scope of arbitrary state power to not give any accused a fair opportunity to know about the status of the case in which he/she is facing allegations in.
Given that the State could still deem a matter sensitive and not provide an F.I.R to an accused like it did in the case of Prabir Purkayashta even without the Supreme Court’s order listing the types of sensitive cases, the Supreme Court’s listing down of offences that could be sensitive in nature, would stop at being informative in nature. This power does derail the constitutional safeguards under Article 21. Therefore, a more individual centric jurisprudence needs to evolve to safeguard the liberty of individual against state action.
(The author is a legal researcher with the organisation)
[1] A cognizable offence is one in which a police officer can make an arrest without the need for a warrant or the consent or order of the magistrate
[2] 1980 CriLJ 1022
[3] 1971 Cri. LJ 875
[4] 1992 CriLJ 2377
[5] Criminal Application No. 709 of 2010 decided on 4 March 2010
[6] 2011 CriLJ 1347
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