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V.J. Thomas Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 565 of 1969
Judge
Reported inAIR1970Ker273b; 1974CriLJ849
ActsEvidence Act, 1872 - Sections 74 and 76; Code of Criminal Procedure (CrPC) , 1908 - Sections 173(1)
AppellantV.J. Thomas
RespondentState of Kerala
Appellant Advocate K. George Varghese Kannanthanam,; Thomas V. Jacob and; P
Respondent AdvocateState Prosecutor
DispositionRevision allowed
Cases ReferredIn Ladli Prasad v. Emperor
Excerpt:
.....and section 173 of criminal procedure code - petition against order refusing to issue certified copies of charge-sheet and order passed thereon - investigating officer is public officer under section 74 - his act or records of act as public officer can be inspected by any person - impugned order set aside - held, petitioner entitled to get copy of such documents. - - afterwards, varkey annamma filed a claim in forma pauperis before the munsiff, chengannur for damages from the present petitioner, who was impleaded as the 1st defendant in the damage claim as well as from the driver of the car impleaded as 2nd defendant. the said decision was found to be in other respects no longer a good law though regarding the particular aspect of the question referred to above had not been..........the reports made by a police officer in compliance of section 173, criminal procedure code are public documents within the meaning of section 74 of the indian evidence act and consequently an accused person being a person in respect of such document is entitled by virtue of section 76 of the indian evidence act to have copies of such reports before trial. the said decision was found to be in other respects no longer a good law though regarding the particular aspect of the question referred to above had not been strictly overruled by later decisions. the madras high court in a later full bench decision reported in state of madras v. krishnan, air 1961 mad 92 (fb) held that section 76 of the evidence act has no unlimited right to ride over section 173(1) of the criminal procedure code......
Judgment:
ORDER

E.K. Moidu, J.

1. This Criminal Petition by one V. J. Thomas is directed against the order dated 23-8-1969 by the Sub-Magistrate, Chengannur, refusing to issue certified copies of (1) Police Refer Charge-sheet in Crime No. 94/68 of the Chengannur police station, and (2) the order passed thereon by the Sub-Magistrate on the basis of his copy application dated 7-8-69.

2. The facts which led to the filing of this Revision petition may be stated as follows: The petitioner is the owner of a car M.S.W. 5585, which was driven by a driver employed by the petitioner. On 24-5-68 when the driver was taking out the car, there was an accident in which one Varkey Annamma sustained injuries as a result of the car dashing against her. On that account she lodged a first information in the police station. Chengannur, and the Sub-Inspector in-charge of the police station registered crime No. 94/68 against the driver of the car for his rash and negligent driving which resulted in injuries to the first informant. But, after investigation, the police officer came to the conclusion that it was only an accident and, therefore, he filed a refer charge-sheet under Section 173(1), Criminal Procedure Code before the Sub-Magistrate, Chengannur. The Sub-Magistrate sent a notice of that refer charge-sheet to Varkey Annamma, who, however, did not choose to file any objection thereto. Therefore, the Sub-Magistrate passed an order thereon dropping the prosecution against the driver of the car. Afterwards, Varkey Annamma filed a claim in forma pauperis before the Munsiff, Chengannur for damages from the present petitioner, who was impleaded as the 1st defendant in the damage claim as well as from the driver of the car impleaded as 2nd defendant. While the claim was thus pending, the present petitioner moved the Munsiff to send for the records of the proceeding in Crime No. 94/68 from the Court of the Sub-Magistrate, Chengannur. The Munsiff wanted (1) First information statement (2) F. I. R. (3) Refer charge-sheet, and (4) the order passed thereon by the Sub-Magistrate. Along with this intimation, the petitioner also filed a verified petition duly stamped before the Sub-Magistrate claiming the certified copies of the documents referred to above in Crime No. 94/68. A list of documents required to be copied had also been appended to the petition filed on 7-8-69. The learned Magistrate allowed certified copies of document Nos. 1 and 2, but refused certified copies of Document Nos. 3 and 4. The order passed on 23-8-69 refusing to issue the certified copy of the police refer charge-sheet and the order passed thereon by the Sub-Magistrate reads as follows:--

'Sri V. J. Thomas, Vettiyattuputhenpurayil house, Paippau Muri, Thrikkodithanam Village is hereby informed that copies of the refer charge-sheets and order thereon in refer No. 7/69 of this Court (Crime No. 94/68 of Chengannur Police Station) cannot be granted as per Rule 26 of the Sub-rule (7) of the Manual of instructions for the guidance to Magistrates in Madras State which is also made applicable in Kerala State. Therefore the application dated 7-8-69 for the certified copies of refer charge-sheets and order thereon, is rejected.'

3. Sub-rule (vii) of Rule 26 of the Manual of the instructions for the guidance of the Magistrates in the Madras State referred to in the order was made long before the amendment to the Criminal Procedure Code in 1955. There was no indication as to whether these rules of guidance had been brought into force in the erstwhile Travancore-Cochin area of the Kerala State. It is also important to note that these instructions have no statutory force though they were published as ancillary to the provisions of the Code of Criminal Procedure and to the Criminal Rules of Practice. Sub-rule (vii) of Rule 26 referred to above reads as follows:

'Copies of referred charge-sheets should on no account be granted to the complainant or any member of the public whatever his connection with the case may have been.'

But, no such prohibition is contained in the Criminal Rules of Practice which are still in force in the Travancore-Cochin area. The relevant rules pertaining to certified copies in the Criminal Rules of Practice (Travancore-Cochin State) are in Chapter XXXIII thereof. Rules 322, 323 and 326 are the relevant rules which may be copied as follows:

322. Copies of non-judicial and confidential papers:-- Copies of correspondence, of notes of evidence and of proceedings which are either confidential or not strictly judicial will not be granted.

323. Copies to be given to parties:-- Save as aforesaid, copies of any portion of the record of a criminal case must be furnished to the parties concerned on payment of the proper stamp. Provided, however, that copies of the statements under Section 162 of the Code of Criminal Procedure which are recorded in case diaries should be granted free of cost in cases in which the accused is entitled to be defended at the expense of the State.

326. Application by strangers:-- Applications by strangers to the proceedings shall be allowed only by special orders of the Court on a duly stamped and verified petition setting forth the purpose for which the copy is required.

4. There was an amendment to the above Rule 326 made by the High Court of Kerala as on 14-2-61 to the effect that copies of judgment can be granted to all persons prepared to pay the prescribed fee for the supply of such copies. The above rules of Travancore-Cochin Criminal Rules of Practice did not prohibit applications by strangers to the proceedings getting copies on their applications. But, they are permitted to take copies only by a special order of the Court on a duly stamped and verified petition setting forth the purpose for which the copies are required. However, certain set of documents are excluded from the purview of copy applications. They are set forth in Rule 322. They relate to copies of correspondence, notes of evidence and of proceedings which are either confidential or not strictly judicial. But, under Rule 323, all the rest of the documents described as any portion of the record of a criminal case could be furnished to the parties concerned on payment of proper stamp. These rules will indicate that even a third party to the criminal proceedings will be entitled to get copies of those proceedings subject to the provisions of Rule 322. So, according to the provisions of Rule 322, we have to consider whether the police refer charge-sheet and the order passed thereon are not strictly judicial proceedings as specified in Rule 322.

5. It is held in Pukh Raj v. Shesh Mal, ILR 1960 (10) Raj 1662 = (AIR 1961 Raj 231) that in a case cancelled by the Magistrate on the final report of the police under Section 173(3) Criminal Procedure Code accepting such report he does not act as a Court. Similarly in IIarbir Singh v. State, AIR 1952 Pepsu 29 it has been pointed out that the Magistrate's order that the offence he cancelled on his refusal to accept the police recommendation cannot prejudice the party for the simple reason that the order is not judicial as the aggrieved party can always agitate the matter. In Ramsarup v. State, AIR 1951 Raj 146 it was held that since the order of the Sub-Divisional Magistrate taking of the case from his file was made in his individual capacity, it was capable of being tried by him or by any other executive authority competent to do so. So, it was held to be an executive action and not a judicial action. In Brahm Dev v. Emperor, AIR 1938 Lah 469 it was held that the accused was not entitled to get copies of such orders as of right. But, in State v. Shankar Bhaurao Khirode,. AIR 1959 Bom 437 it was held that the order passed by the Magistrate under Section 173 issuing direction, according to the Police Manual, Bombay, is not an administrative order, but a judicial order. The point whether the order passed by a Magistrate on receipt of police refer charge-sheet under Section 173(1), Criminal Procedure Code is a judicial order or not is, therefore, not conclusive from the above decision. It is, therefore, necessary for us to make further research in this matter.

6. The police is expected to file either a charge-sheet or a refer charge-sheet, as the case may be, in respect of every investigation which they took up and the police has to forward such charge-sheet to the Magistrate empowered to take cognizance of the offence on a police report. The police was also required to furnish copies of the documents relied upon by them during the investigation to the accused concerned under Sub-section (4) of Section 173. There was a decision reported in Queen Empress v. Arumugham, (1897) ILR 20 Mad 189 which was made before the amendment to the Criminal Procedure Code of 1955. There was a finding by two of the 4 learned Judges of the Madras High Court in the above ruling that the reports made by a police officer in compliance of Section 173, Criminal Procedure Code are public documents within the meaning of Section 74 of the Indian Evidence Act and consequently an accused person being a person in respect of such document is entitled by virtue of Section 76 of the Indian Evidence Act to have copies of such reports before trial. The said decision was found to be in other respects no longer a good law though regarding the particular aspect of the question referred to above had not been strictly overruled by later decisions. The Madras High Court in a later Full Bench decision reported in State of Madras v. Krishnan, AIR 1961 Mad 92 (FB) held that Section 76 of the Evidence Act has no unlimited right to ride over Section 173(1) of the Criminal Procedure Code. In this regard, it is appropriate that the relevant passage is quoted. It is as follows:--

'Section 76 of the Evidence Act entitles a person interested in a public document to inspect or obtain certified copy thereof. A statement or confession recorded under Section 164, Criminal Procedure Code being a public document, a person interested (such as a person suspected of an offence) would be entitled to obtain a certified copy thereof if there is no other statutory prohibition. Chapter XIV, Criminal Procedure Code, authorises the recording of a confession or statement during the course of the investigation into an offence.

Section 173(4) of the Code which occurs in that Chapter provides for the supply of a free copy of the statements specified therein. Thus both Section 76 of the Evidence Act and Section 173(4), affirmatively enact and confer a right to copies. But the object and intendment of Chapter XIV of the Code requires that Section 173(4) should be exhaustive of the right at the stage prior to the commencement of the enquiry. To hold otherwise would defeat the very purpose of Chapter XIV, namely, effective investigation into offences.

Therefore, Section 173(4), Criminal Procedure Code should be construed as impliedly prohibiting the grant of copies earlier than the time prescribed by it. That prohibition will become ineffective if an unlimited right under Section 76 of the Indian Evidence Act is recognised. Section 173(4) would itself imply a repeal or an abrogation in part of the right under the former section. This is no new principle. When two statutes though expressed in affirmative language are contrary in matter, the latter or special would abrogate the earlier or general.'

7. It is, therefore, unnecessary to consider whether a refer charge-sheet is a public document or not. The public documents are enumerated in Section 74 of the Evidence Act. It reads as follows:

'The following documents are public documents:--

(1) Documents forming the acts, or records of the acts --

(i) of the sovereign authority,

(ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive (of any part of India or of the Commonwealth), or of a foreign country.

(2) Public records kept (in any State) of private documents.'

8. Section 76 of the Evidence Act states that every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot- of such copy that it is a true copy of such document or part thereof.

'Statement recorded or orders passed by the Income-tax Officers are public documents under Section 74. Under Section 76 it is not necessary that the public generally must have a right to inspect. It is sufficient if there is any single person who has a right to inspect'. (Vide: Buchibai v. Nagpur University, AIR 1946 Nag 377). Similarly, it is held in Kaderkutty v. Agricultural Income-tax Officer, Tellicherry, AIR 1961 Ker 32 that the records in the assessment file constitute public documents within the meaning of Section 74 as forming the acts or records of the acts of a public officer or of an official body. It is pointed out that the decision in Martin v. London County Council, (1929) 141 LT 120 shows that no duty can exist to prosecute for a criminal offence. The question in that case was whether the act of prosecution was a public duty within the meaning of Public Authorities Protection Act 1893 of England. The plaintiff in that case, the suit being one for damages for malicious prosecution, was earlier unsuccessfully prosecuted for stealing certain stamps, the defendant pleaded that the suit was barred on the ground that in prosecuting the plaintiff they were acting in execution of a public duty within the meaning of Section 1 (a), of the Act, which stated:

'Any action ...... against any person for any act, done in pursuance, or execution .. . . of any Act of Parliament, or of any public duty or authority, in respect of any alleged neglect; and so on shall not lie unless it is commenced within six months next after the act .......

Avory, J. held that the public duty referred to in the section meant a duty which could be legally enforced, having regard particularly to the succeeding words relating to a neglect or default of the duty, and that the duty to prosecute for an offence was not a public duty within the statute. We can-not see how the principle of that decision can apply to the instant case. Under the Criminal Procedure Code the police is charged with the duty of investigating offences; so also the magistrate with a duty to record a confession or statement by a person during the course of investigation,'

9. In the light of the above authority one is inclined to think that the police who is charged with the duty of investigating offence is a public officer within the meaning of Section 74 of the Evidence Act and that his act or records of the act as a public officer could be inspected by any person when a public officer having custody of such a public document in the light of the provisions of Section 76 of the Evidence Act as well.

10. The right to obtain copies of public documents will ordinarily depend upon the applicant's right to inspect them within the meaning of Section 76 of the Evidence Act. However, that section does not specify under what circumstances a person would have 'an interest for the protection of which it is necessary that liberty to inspect such documents should be given'. In the decision referred to above as AIR 1961 Ker 32, Velu Pillai, J., stated that the right to inspect under Section 76 is not to be upheld or rejected, depending upon the purpose for which inspection is sought, though the purpose would have a relevance in determining whether the right set up is illusory or not. So, if the refer charge-sheet is a public document and if the petitioner had the right to inspect the same, there is no reason why he should be denied the certified copy of the document along with the order passed thereon.

11. In Ladli Prasad v. Emperor, ATR 1931 All 364 on construing Section 548, Criminal Procedure Code., it is held:

'I see no reason to construe the words 'affected by a judgment or order' narrowly. It certainly cannot be said that they refer to a person who is a party to the judgment or order, for the rights of the accused to a copy of the judgment are dealt with elsewhere in the Code. The public as a whole cannot fail to be affected by every judgment of a Criminal Court. For example, as in this case, the judgment in a Criminal case dealing with sedition affects the general public as indeed any judgment dealing with any crime is bound to affect the general public. A knowledge of the law, it is true, in many cases is made available to the public by statute, but the construction of statutes by the Courts, as expressed in their judgments, is of even greater importance. It is a rule of law that every member of the public is presumed to know the law, it follows that the public must have a right of access to the judgments of the Courts which express that law.'

12. Though it relates to the copy of a judgment being given to a stranger, who is not a party to the judgment, the same argument holds good in respect of an order if it comes within the scope of Section 548 Cr. P. C.

13. It is clear that the police refer charge-sheet and the order passed thereon are held by the Sub-Magistrate as a public document and that the revision petitioner is entitled to get a copy of those documents as he was bound to have the right to inspect the same within the meaning of Section 76 of the Evidence Act. Accordingly, I find that the petitioner is entitled to get copies of these documents.

14. In the result, this revision petition is allowed. The order passed by the Sub-Magistrate on 23-8-1969 is set aside. The Sub-Magistrate will give copies of the documents applied for by the petitioner.


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