Achuthanandan, V.S. vs State of Kerala and another

Manjula Chellur, Ag. C.J.

This interim application is filed by the petitioner in the above case. Originally in the Writ Petition, the petitioner sought for writ of mandamus directing the State of Kerala to hand over investigation of crime No. 59/11 of Kozhikode Town Police Station to Central Bureau of Investigation (CBI). By interim order dated 27-9-2011, the High Court in the above matter decided to monitor the progress of the investigation of the case.

The Special Investigation Team (hereinafter referred to as "SIT") filed a report after completion of the investigation. The report submitted by the SIT is kept in a sealed cover. According to the petitioner, as it forms part of the records of the High Court, Rule 85 read with 128 of Kerala High Court Rules provides entitlement of the petitioner to inspect the same and obtain copies of the said documents. In the absence of the records in question, not falling within the ambit of Rule 90 of the High Court Rules, the petitioner is entitled for copy of the records i.e., the report which would enable the petitioner to assist the High Court to a larger interest in arriving at a conclusion whether a fair and impartial investigation has been conducted by the SIT or not.

The main writ petition is filed as a public interest litigation to find out the truth of the allegations contained in FIR No. 59/11 of the said police station. When once SIT files formal report u/s 173 Cr. P.C. before the competent Magistrate Court, there is no more secrecy attached to the report, therefore, the petition deserves to be allowed is the contention of the petitioner.

According to the petitioner, large number of influential people are involved and the charges levelled against them are more serious, therefore, the scrutiny of the report in the light of the accompanying documents is highly essential to prevent miscarriage of justice, therefore, the petitioner seeks copies of the report and also the accompanying documents.

Per contra, the first respondent has filed counter-affidavit through one Mr. Jaison K. Abraham, member of Special SIT in Cr. No. 59/11.

During the pendency of the above writ petition, when the above interim application came to be filed, according to the respondent--State, two sealed covers were submitted to the Court on 22-12-2011. In one cover, action taken report is submitted and the other cover contains original case diary pertaining to the above said crime. The case was posted to several dates and on 6-3-2012, the petitioner sought for copy of the report and the accompanying documents. But the High Court directed the petitioner to file an application and accordingly, the present application is filed. According to the first respondent--State, the petition is neither maintainable nor the relief sought are sustainable on account of various reasons and facts which would be narrated hereinafter.

The Code of Criminal Procedure prescribes submission of final report on completion of investigation u/s 173 Cr. P.C. Except communicating the action taken by the Investigating Officer to the informant, no other duty is cast on the Investigating Officer. Under Sub-section 5 of Section 173 Cr. P.C., it is within the option of the Investigating Officer to furnish copies of all or any of the documents to the accused. Other than this provision, there is no prescription for supply of either copies of the documents or copy of the report to a third party. The petitioner being a third party, is not entitled to have copies of the records or the documents is the contention of the State.

So far as submission of the case diary and the report before the Court, it was only for the purpose of reference and scrutiny by the Court. As a matter of fact, submission of these documents in sealed covers cannot be treated as ''filing'' of those documents before the Court as contemplated under the Rules, therefore, the petitioner being an outsider cannot seek for copies of the records and the accompanying documents. After filing the final report before the Magistrate, then such documents becomes part of records. They are not public documents, therefore, the application deserves to be dismissed is the contention of the first respondent--State.

The first respondent further contends petitioner has no locus standi to file the above petition and none of the Rules relied upon by the petitioner, i.e., Rules 85 and 128 of the Kerala High Court Rules are applicable to the facts of the present case and placing reliance is nothing but misconception.

Reading of the High Court Rules along with Rule 173 of Cr. P.C. would only manifestly clarify the position that the petitioner cannot seek for copies of the report and documents as they are not filed or in the custody of the Court in the normal course, is the contention of the State.

Reading of Rule 90 refers to various items and the provisions speaks about the document which specifically forms part of the record and it has no reference as to which does not form the part of the records.

In the absence of any of the documents now sought for being part of the records, the interim application itself is unsustainable and they seek for dismissal of the same.

Learned Senior Counsel Sri Shekhar Naphade arguing for the petitioner vehemently contended that the present report is either a document u/s 164 Cr. P.C. or a report u/s 173 Cr. P.C. According to the learned Senior Counsel, provisions of Rule 90 of the Kerala High Court Rules does not take in its fold any of the documents now sought for by the petitioner, therefore, there is no impediment for issuing copies of the report and the accompanying documents.

As the allegations are against 21 important Government Officials and when high profile persons are involved, unless the petitioner knows what the report and the accompanying documents contain, he will not be able to assist the Court properly. When larger public interest is involved and when public accountability is the controversy, the application deserves to be allowed. By placing reliance on paragraphs 65, 69, 70, 71 & 72 in the judgment reported in S.P. Gupta Vs. President of India and Others, , he prays for allowing the interim application.

As against this, the learned Advocate General appearing for the State, took us through the prayer in the writ petition and para 8 of the counter. He also referred to a portion of the interim order dated 27-9-2011 at paragraphs 5, 6, 7, 8 and 9. According to the learned Advocate General, the petitioner being not a complainant, not an accused, not a witness, how he could seek or claim copies of the report of the investigation and the accompanying documents? The only grievance in the writ petition seems to be that investigation is not proceeded properly, therefore, the matter has to be referred to investigation by CBI. When the investigation is done by the investigation team which was constituted by the petitioner himself during his tenure as the Chief Minister, now he cannot suspect the competency of the investigation team. Therefore, he contends that apart from the petitioner having no lucus standi to file the present application, the very Rules does not provide for issuance of copies of the documents as none of the documents are filed as part of the record in the writ petition. With these averments, placing reliance on Balakrishna Pillai v. State of Kerala (1994 (2) KLT 1017); Janata Dal Vs. H.S. Chowdhary and Others, ; Vijayan v. Fauziya Hassan ( 1997 (1) KLT 55); Kunga Nima Lepcha and Others Vs. State of Sikkim and Others, ; Edwin Tomson Vs. Kunhalikutty, , the learned Advocate General seeks for dismissal of the application.

In reply, the learned Senior Counsel arguing for the petitioner referred to Article 215 of the Constitution to contend as the Rules are framed by virtue of Article 215 of the Constitution and when the Rules provide for inspection and issuance of copies, the Court has to follow the said Rules and none of the decision relied upon by the learned Advocate General has any relevancy on the controversy in issue as the controversy is whether investigation is fair or not and not for issuance of copies of documents.

With these arguments at our command, we have gone through the relevant Rules as well as Section 173 Cr. P.C.

It is not in dispute formant No. 9 referred to above, is the formant in which copies of the documents have to be sought for. When the above writ petition came to be filed on 27-9-2011, the Bench expressed at paragraphs 6 & 7 with reference to the SIT as under:

It may not be out of place to mention that this entire episode has generated a great deal of public debate on the functioning of various constitutional organs in the State of Kerala and more than one writ petition was filed seeking various reliefs touching some aspects of the episode or the other (the details of which are may not be necessary for the present).

It is also not out of place to mention that the petitioner herein is none other than the former Chief Minister of the State of Kerala. The Special Investigation Team mentioned above was constituted while the petitioner was heading the Government of the State of Kerala.

It is not in dispute that the Officers in the SIT continue to be the same Officers right from the beginning till the end of the investigation. At para 11, the Bench observed as under:

In the circumstances, though we do not see any reason at this juncture to opine that the investigation is not progressing, we deem it appropriate that the progress of the case is required to be monitored by this Court. We may also place on record that during the course of hearing today the learned Advocate General made a statement that the investigation in the above-mentioned case would be completed in the next 90 days and the final report u/s 173 Cr. P.C. would be filed before the appropriate Court.

Subsequently, on 22-12-2011, the present Bench at para 3 noticing the progress in investigation proceeded to say as under:

As on today, we note in all 129 witnesses were examined as against examination of 84 witnesses as on 27-9-2011. We also note that, in all 104 documents are seized as on today as against 56 documents that came to be seized on 27-9-2011. As per the memo filed by the Government Pleader and the statement of the Special Investigating Officer, only 5% of the investigation is to be completed, as 95% of the investigation is completed. According to him, 15 more witnesses from various parts of the State have to be examined and more documents have to be seized.

At para 4, importance given to the investigation in question as submitted by the learned Advocate General is reflected, which reads as under:

As per the submission of the learned Advocate General and also the details given in the Action Taken Report, we note that till 24-11-2011, the Special Investigating Officer was holding the charge of the Thamarassery Sub Division and he was also in-charge of this Special Investigation, therefore, he was finding it difficult to attend to both the duties. As he is relieved of the duties of Thamarassery Sub Division, he can concentrate on the Special Investigation entrusted to him. This is also evident from the progress made in the investigation as per the list of dates and details of investigation.

Subsequently, final report was filed and it is relevant to mention that this Court felt it appropriate that the progress of the case was required to be monitored by the High Court.

So far as the investigation being handed over to CBI, it is the subject-matter of the writ petition. So far as the present interim application, controversy is whether copy of the report and the accompanying documents could be given to the petitioner or not.

In the case of Balakrishna Pillai v. State of Kerala reported in (1994(2) KLT 1017), while referring to Sections 238 & 239 Cr. P.C., this Court held that these two provisions are a complete code in the matter of the procedure to be followed. It further held the question of any third party being permitted to take part in the proceedings while the Court considers the material on record in order to ascertain whether a charge should be framed or the accused should be discharged, does not arise.

While referring to S.P. Gupta Vs. President of India and Others, , the Apex Court observed that the Court must be careful to see that the member of the public, who approaches the Court in cases of this kind, is acting bona fide and not for personal gain or private profit or political motivation or other oblique consideration. The Court must not allow its process to be abused by politicians and others.

We have gone through the judgments referred to by both the sides. We are not considering the merits of the writ petition in this IA. We are only concerned with the relief sought in the interim application whether copies of final report and accompanying documents could be furnished to the petitioner at this stage.

Section 173 Cr. P.C. reads as under:

Report of Police Officer on completion of investigation.--(1) Every investigation under this Chapter shall be completed without unnecessary delay.

(2) (i) as soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating-

(a) the names of the parties;

(b) the nature of the information;

(c) The names of the persons who appear to be acquainted with the circumstances of the case;

(d) whether any offence appears to have been committed and if so, by whom;

(e) whether the accused has been arrested;

(f) whether he has been released on his bond and, if so, whether with or without sureties;

(g) whether he has been forwarded in custody u/s 170.

(ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any by whom the information relating to the commission of the offence was first given.

(3) Whether a superior officer of police has been appointed u/s 158, the report, shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation.

(4) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(5) When such report is in respect of a case to which Section 170 applies, the Police Officer shall forward to the Magistrate along with the report-

(a) all documents or relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation;

(b) the statements recorded u/s 161 of all the persons whom the prosecution proposes to examine as its witness.

(6) If the Police Officer is of opinion that any part of any such statement is not relevant to the sub-matter of the proceeding or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in the public interest, he shall indicate that part of the statement and append a note requesting the Magistrate to exclude that part from the copies to be granted to the accused and stating his reasons for making such request.

(7) Where the police 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).

(8) Notwithstanding in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).

The final report has to be filed by the Investigating Officer after completion of the investigation. Once the final report is filed before the jurisdictional Magistrate who has jurisdiction to take cognizance of the offence, the entire report and the accompanying documents enters public domain. It is for the Magistrate concerned to consider whether to have copies of such report and documents supplied to such person who could be an accused, a witness, complainant etc. Depending upon the locus standi of the applicant, how his presence is relevant for the purpose of proceeding with the case, the concerned Magistrate can decide whether copies of such documents could be given to him or not. As of a right, the accused does have a right to have copy of the entire charge sheet.

Now, the question is whether the petitioner is entitled to have the copies of the final report and accompanying documents?

Apparently, the investigation is completed.

Rule 85 of Kerala High Court Rules reads as under:

Application for search.--A person desiring to make a search of the records of the Court for the purpose either of inspection or of obtaining copies of records, shall submit an application for the same as in Form No. 8.

Form No. 8 (Rule 85)

Form of Application for search of public records

To

The Registrar,

High Court of Kerala, Ernakulam.

Date:

Signature of Applicant

This provides filing an application for search of records of the Court either for inspection or for obtaining copies of the records.

Rule 128 of the Kerala High Court Rules, which specifically provides for filing an application for certified copies in formant No. 9, reads as under:

Application for copies.--(1) Any person entitled to obtain a copy of any proceeding or document filed in or in the custody of the Court may present an application therefor as in Form No. 9 setting out the name of the applicant, his position in the proceeding, if he is a party thereto and the description of the document of which copy is required.

(2) Issue of Carbon or Photostat Copies.--Any party to the proceeding may, immediately after the judgment or order is pronounced, apply orally to the Court for a carbon copy or photostat copy thereof and if the Court so directs, a carbon copy or a photostat copy duly certified, will be issued to the party on his making an application for an urgent copy under Rule 136 accompanied by the charges required by Rule 138:

Provided that in cases where the State Government or the Central Government is a party, a carbon copy/photostat copy may be issued to the State Government or the Central Government, as the case may be, by the office free of cost on receipt of a written requisition in Form 9A for the same which shall be entered and dealt within a separate register.

(3) Copies of Judges'' minutes or of correspondence and other papers, not strictly judicial, will be granted only under the orders of the Court.

Form No. 9 (Rule 128)

Copy of Application Form

To

The Registrar,

High Court of Kerala, Ernakulam.

Sir,

Please furnish me with certified copies of the documents mentioned herein.

Date:

The description of the document applied for should be clearly given.

Counsel for appellant/respondent.

Prohibition regarding certain items.--Nothing in these rules shall entitle any person to inspect:

(i) the Judges'' notes or minutes;

(ii) correspondence confidential or not strictly judicial;

(iii) autograph judgments; and

(iv) registers of the Court.

Reading of all the three Rules would indicate that they refer to documents which specifically form part of the records of the Court. In order to become part of the records of the Court, the documents have to be filed or have to be in the custody of the Court in the usual course of business. As a matter of fact, so far as the final report and case diary or accompanying documents now submitted in sealed covers, the same need not be filed before the Court so far as the merit of the case is concerned. Para 11 of the order dated 27-9-2011 specifically refers to the fact that the Court wanted to monitor the progress of the investigation in order to appreciate the stand of the petitioner that the investigation was not progressing properly In that context, as per the directions of the Court, the status report was filed from time to time. From 23-9-2011 onwards, status reports were submitted.

If the status report was part of the court record in the above writ petition, there was no need for the Investigating Officer to file it in a sealed cover. Reading of the entire order sheet dated 27-9-2011 would indicate that the status report from time to time was filed in sealed covers only to substantiate before the Court that the SIT was making progress in the investigation. It was never intended to be part of the records. Rules 85, 90 and 128 of the Kerala High Court Rules, refer only to documents which are part of the records. Therefore, status reports and the case diary etc. filed in sealed covers are not part of the records of the writ petition and they are only intended for reference in order to convince the Court that the investigation is under progress. Under the above circumstances, the petitioner is not entitled for copies of the final report and also accompanying documents. Once they enter the public domain as required u/s 173 Cr. P.C., the parties are at liberty to approach the jurisdictional Magistrate concerned, seeking copies of the documents or the report and the jurisdictional Magistrate can decide such application, if any, filed in accordance with the procedure contemplated.

With these observations, the interlocutory application is dismissed.