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TMI Blog2016 (4) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. Whether all the FIRs registered in the State are to be uploaded in the website of the respective police stations? - Held that:- 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. But there has to be a decision and appropriate categorization or norms for taking a decision as to 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 173(7) of the Cr.P.C. when the Officer investigating the case finds it convenient so to do, he may furnish to the accused copies of all or any of the documents referred to in sub-section (5) of Section 173. In the absence of copy of the FIR, the very right of the accused to get himself defended cannot be fulfilled, since he is 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 police. Being under the threat of apprehension by the police, he has right to get information as to the allegations levelled against him. It is submitted that recording of FIR is an official act of a public official in discharge of his official duties and hence it is a public document within the meaning of Section 74 of the Evidence Act, 1872. Being a public docume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge 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 decided that it would not be advisable to take any policy decision to have all the FIRs uploaded in the website of the police station concerned immediately on registration of the same. Decision on matters as to which are the kinds of cases in which FIRs could be uploaded and at what stage, etc., are one which require deeper analysis and decisions thereon can be taken only after deliberations at various levels and hence the Government have not yet taken any policy decision to accede to the request 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice authority not to disclose the FIR on application under the 2005 Act. Provisions of the Cr.P.C. does not contemplate uploading of the FIR in the website. It is 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 the Orissa High Court was delivered relying on the judgment of the Delhi High Court dated 6.12.2010 Petitioner is not entitled to the reliefs as claimed in the Writ Petition. 7. We have considered the submissions of the learned counsel for the parties and perused the records. 8. The Writ Petition raises mainly three issues which are up for consideration in this public interest litigation. They are: (1) Whether the accused has right to receive copy of the FIR even before the stage of proceedings under Section 207 of the Cr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested; either reject the application forthwith or issue an interim order for the grant of anticipatory bail. For meaningful exercise of the right given to the accused under Section 438 of the Cr.P.C., obtaining copy of the FIR is relevant and necessary. A person who is accused of a congnizable offence by registration of the FIR at the police station cannot be denied the right to know the contents of the FIR to enable him to defend himself and take such steps as provided under 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 contention of Mr.Dutt is a very wide one. Mr.Dutt contended that the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Shyam Lal v. State of 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 offence so that he may be in a position to protect his interest. He is therefore, entitled to a copy thereof. He can have it from (i) the police station, or (ii) the office of Superintendent of Police, or (iii) C.J.M/Magistrate, Incharge/Special Judge as the case may be and as per his desire. Ours is a welfare democratic State. It is a Government by the people, of the people and for the people, as said by Abraham Lincoln. It is common knowledge that the office of the Superintendent of Police or for 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 dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of the accused to receive copy of the FIR. We thus hold that the accused is entitled for copy of the FIR. The accused can make an application to the police station concerned or office of the Superintendent of Police or the Court of concerned Magistrate which is required to be provided to him immediately within forty eight (48) hours. 11. Now we come to the second issue as to whether copy of the FIR registered in a police station 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 laid down in paragraph 74: 74. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 . 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 freed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bandopadhyay ([2011] 8 SCC 497) had occasion to consider the scope and ambit of Section 8 of the 2005 Act. The Apex Court held that the courts and Information Commissions enforcing the provisions of the RTI Act have to adopt a purposive construction, involving 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 be the correct approach. The Act seeks to bring about a balance between two conflicting interests, as harmony between them is essential for preserving democracy. One is to bring about transparency and accountability by providing access to information under the control of public authorities. The other is to ensure that the revelation of information, in actual practice, does not conflict with other public interests which include efficient oper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s incorporated in the website . Common Integrated Police Application The Common Integrated Police Application (CIPA) is a multilingual application to automate the processes (workflow) at primary sources of data itself e.g., Police Station and to build a crime criminal information system based on Cr.PC. It provides an efficient way of organising crime records for generating queries/reports and crime analysis for decision support. This will be subsumed by the CCTNS when it is implemented. At present all Police Stations of Kerala State are networked under the project and FIRs are being prepared on the computers in all these stations from 1st September, 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 online applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not provided with the facility of website and since the process of uploading FIRs in the 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 petitioner, the Delhi High Court has already issued directions in W.P(Crl.) No.468 of 2010 where one of the directions is that FIR be uploaded in the website of the Delhi police except where decision is taken not to upload FIR in sensitive cases. Directions (D), (E) and (F) are relevant which are to the following effect: (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 lodging of the FIR so that the accused or any person connected with the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated . As noted above, police stations in the State of Kerala have been connected with website and online application under the 2005 Act are already been entertained on different police stations. As noted above, it has been pleaded on behalf of the State that the State has not yet taken a policy decision to upload all the FIRs in the website. 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. But there has to be a decision and appropriate categorization or norms for taking a decision as to in which case FIR be uploaded and in which it is not be uploaded. State of Kerala having taken ..... X X X X Extracts X X X X X X X X Extracts X X X X
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