Avadh Behari Rohatgi, J.
(1) This is an application by Delhi Administration to revise the order of the Chief Metropolitan Megistrate dated June 30, 1980. The respondent was arrested in connection with the murder of Bawa Gurbachan Singh and his body guard Pratap Singh. The investigation is still proceeding ; no charge sheet has been filed.
(2) In the course of investigation autopsy was performed by the police surgeon, Dr. Bharat Singh. His two post-mortem reports and a medico legal examination report are at present in the custody of the inuestigation agency. The respondent made an application for copies of these documents on the ground that they are public documents and he is entitled to certified copies on payment of requisite fee. The Megistrate has ordered the prosecution to supply copies of the reports. Form his order the Administration has come in revision.
(3) The matter first came before Charanjit Talwar J. He referred it to a larger bench in view of the importance of the question involved. Now we have heard counsel for the parties. Talwar J. has prepared the judgment which I have had the advantage of reading. I so entirely agree with him that I really need no more than express my concurrence not only with the conclusion at which he has arrived, but also with the reasoning by which he arrived at it. As, however, the points which have been raised and argued are important, I will state shortly the grounds of my decision.
(4) The police surgeon has made his reports under section 174(3) of the Code of Criminal Procedure 1973. The object of that section is merely to ascertain the cause of death; hence the enquiry under that section should be confined to that purpose only and should not be extended for the purpose of finding out the persons who cause the death, (See Ghaman Lal v. Emperor A.I.R. 1940 Lah 210 (214). That section appears in Gh. Xii which deals with the 'information to the police and their powers to investigate.' The object of investigation is to collect evidence. At this stage the policeman is performing the administrative task of detection and has not begun the legal work of prosecution. But since the enquiry in this phase is natural and directed against no one in particular, ought the results be made available for the benefit of any one who may eventually be accused?
(5) At this stage the police officer is endeavoring to discover the author of a crime. He is trying to track or trace the criminal. The second phase of the enquiry will begin when the suspect become the accused. But we are at the first stage now.
(6) The medical reports are about the cause of death. They are not evidence that a murder has been committed. They do not fix any responsibility for the commission of crime. They are in the nature of a preliminary investigation. However valuable for certain purposes, the result of medical examination conducted by the police surgeon cannot in law be treated as prima facie evidence against the respondent. It cannot be so treated because it is rest inter alio acta (a transaction between others does not prejudice one who -was not a party to it.). It merely amounts to opinion of the doctor as to the cause of death.
(7) The only use of the medical officer's report will be to assist the police in. getting up the case and to refresh the memory of the medical officer at the time of giving his deposition. This deposition must be recorded de novo and at length in the presence of the accused. Punjab Police Rule 25 : 47 says that 'the report shall be placed with the police file of the case and may be used by the medical officer to refresh his memory when giving evidence.'
(8) The question for consideration now is whether copies of the medical reports of the police surgeon under section 174(3) can be granted at this stage, that is, before the filing of the charge sheet.
(9) Counsel for the respondent claims that the medical reports are public documents under section 74 of the Evidence Act and it is on this footing that he maintains that he is entitled to certified copies on payment of fees. The real question is whether the medical reports are public documents. If not, counsel agrees that the respondent will not be entitled to copies.
(10) Counsel for the respondent contends that the medical reports are public documents within the meaning of section 74(1)(iii) and (2) of the Evidence Act. It is said that the police surgeon is a public officer and the report embodying the result of his examination is a document forming the act or record of the act of a public officer.
(11) The sole point for our determination is whether the documents in. question are public documents within the meaning of 74 Section of the Evidence Act.
(12) The classic authority on this question is the speech of Lord Blackburn in Strula v. Freccia (1880) 5 App. Gas. 623. That case was concerned with the report of a committee appointed by a public department of a foreign State and acted upon by the Government of that State but held to be inadmissible as a public document. Lord Blackburn, referring to the judgment of Parke B. in Irish Society v. Bishop of Derry (1846), 8 English Reports 1561 used these words : 'Now my Lords, taking that decision, the principle upon. which it goes is, that it should be a public inquiry, a public document) and made by a public officer. I do not think that 'public* there is to be taken in the sense of meaning the whole world...... But it must be a public document, and it must be made by a public officer. I understand a public document there to mean a document that is made for the purpose of the public making use of it, and being able to refer to it. It is meant to be where there is judicial, or quasi-judicial, duty to inquire as might be said to be the case with the bishop acting under the writs issued by the Grown. That may be said to be quasi-judicial. He is acting for the public when that is done; but I think the very object of it must be that it should be made for the purpose of being kept public, so that the persons concerned in it may have access to it afterwards.'
(13) Lord Blackburn stressed the dual requirements that document should not only in fact be available for public inspection but that it should have been brought into existence for this very purpose. In my opinion, the medical reports are of a highly confidential nature and the investigating agency has an absolute right to object to produce it for the inspection of the respondent on the ground that investigation into an offence has necessarily to be kept confidential till the charge sheet is filed. (State of Madras v. 0. Krishnan : AIR1961Mad92 . It is difficult to see how a document to which the public can have no access and which the investigating officer can refuse to produce could by any possibility be described as a public document. It is clear from Lord Blackburn's speech that to be a public document it must be one made for the purpose of public making use of it. Its object must be that all persons concerned in it may have access to it.
(14) Applying Lord Blackburn's test to the documents in question it has not been shown to us by the respondent that such reports are in fact at all times open to public inspection. It is true that the police surgeon is a public officer and that it is his statutory duty to inquire into the cause of death and report thereon. But it would defeat the very purpose of Chapter Xii, namely, effective investigation into offences if it is made known to the public or the respondent as in this case.
(15) Lord Blackburn's speech is an authoritative statement of law and his definition has now been generally accepted for one hundred years. This was accepted by the Privy Council in Ioannou v. Demetriou 1952 A.C. 84 (92).
(16) It appears that the test of a public document propounded by Lord Blackburn is the test of publicity. The public, are interested in it and are entitled to see it. The whole gist of the rule as to public documents is publicity and publicity means that persons interested will have a right to inspect the document. That this equally applies to the definition of public documents under section 74 of the Evidence Act and is clear from sec ion 78 of the Evidence Act. All the examples of public documents catalogued in the section 78 are such as are clearly covered by the definition of Lord Blackburn. They are of a public nature. They speak of a public matter. They contains entries of public interest. Public element is discernible in all of them. The very object of these documents is that they were made for the purpose of being kept public so that person concerned in them may have access to them afterwards.
(17) All descriptions of public documents have this characteristic, that they are kept in some special custody and provable by means of a copy without production of the original. Their accessibility to the public and the right to inspect them are their hallmarks. It follows that the right to inspect (which is assumed in section 76) and take copies of public documents are essential qualities of public documents. 'Every officer appointed by law to keep records ought to deem himself for that purpose (for the production of documents) a trustee (per Lord Denman G. J. in R.V. Justices of Strafford- shire (1837) 112 E R 33 (38).
(18) Can it be said that the investigating officer is a 'trustee' for the accused because he keeps the record of the medical reports? It will be ridiculous to hold so. The investigation has to be conducted in private and behind the back of the criminal. Investigation into a criminal offence is not a public enquiry. It is private, secret and confidential. It is so because it proceeds the accusatorial stage. I am of opinion that reporting the result of an investigation or the expression of opinion cannot be said to be the record of an act of public officer. (See Abdul Halim Khan v. Raja Sadat Ali Khan, A.1.R. 1928 Oudh 155 and Queen Empress v. Arumugam 1.L.R. 20 Mad. 189 (197) (F.B.) ).
(19) I conclude, thus, that none of the reports in question are the acts or the records of the acts of the police surgeon within the meaning of section 74 of the Evidence Act. They are not, thereforee, public documents and the accused has no right to demand inspection or to obtain copies of them until the stage of section 207, Code of Criminal Procedure, arrives.
(20) I agree that the revision should be allowed and the order of the learned Magistrate dated June 30) 1980 be set aside.