Arumugam and Others vs Karuppayi

Arthur Collins, Kt., C.J.—In answering this reference to the Full Bench I intend to follow the exact words of the reference., The question is

whether the accused had, from the moment of his accusation, a right .to inspect and obtain copies of the douments in question for the purpose of

his defence. These documents are certain police reports including a charge sheet. The reference assumes that the documents are records of the

acts of public officers submitted by them as required by law--see Sections 157, 168 and 173, Code of Criminal Procedure--and that they are

public documents within the meaning of Section 74 of the Indian Evidence Act, and that any person interested in the subject matter of apublic

document has a right to inspect it and u/s 76, Evidence Act, has also the right to have a copy of such document supplied to him; but that is really

the point the Full Bench has to decide. There appears no doubt that a person accused is a person interested in the documents referred to in

Sections 157, 168 and 173 of the Code of Criminal Procedure, if the reports relate to the accusation against him; and if such reports are public

documents he would be entitled to inspect and have copies of such documents. I would remark that the accused person would thus be in a position

to know before any evidence is given against him all the information the police have collected relating to the offence and their reasons for

suspecting the accused. The accused would, if he had the above information, have every opportunity of making a successful defence even if he

was, guilty;--in fact, he has a copy of the brief for the prosecution.

The question to be decided is, are these reports, made u/s 157;the occurrence report and 168--the report made by a subordinate police officer

to the station house officer, public documents, and further the charge sheet drawn up u/s 173 a public document ?

The definition of a public document is (so far as. it relays to the question before me) ""a document forming the acts or record of the acts of a

public officer"". It must be conceded that a policeman is a public officer.

Section 157 enacts that if from information received or othe wise, an officer in charge of a police station has reason to suspect the commission

of an offence which he is empowered to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of

such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers to proceed to the spot and investigate

the facts.* * *

Now, can it be said that this report is a document forming the acts or records of the act of a public officer ? I am of opinion that it is not. It is the

reasons the officer in charge of the police station has for suspecting the commission of an offence.

Section 168 directs that a subordinate police officer who has made any investigation, shall report the result of such investigation, to the officer in

charge of the police station. I am of opinion that reporting the result of an investigation cannot be said to be the act or record of an act of a public

officer. Section. 173 directs that, after the investigation under this chapter shall be completed, the officer in charge of the police station shall

forward to a Magistrate * * * a report in a prescribed form setting forth the names of parties, the nature of the information and the names of the

persons who appear to be acquainted with the circumstances of the case and shall also state whether the accused person is in custody or released

on his bond with or without sureties. This information--usually called the charge-sheet stands in a somewhat different position from the reports

under Sections 157 and 168, and it is possible to argue that the latter portion does relate to the act or record of the act of a public officer--viz.,

keeping the accused in custody or releasing him on bail, but as that information would not be of the slightest use to the accused and as in my

opinion the other information does not contain either an act or record of an act by a public officer, I hold that it is not a public document as defined

by Section 74 of the Evidence Act.

The acts and record of the acts of the public officer while the investigation against the accused is carried on are contained in the police diary, but

by Section 172, Criminal Procedure Code, the accused is not entitled to call for such diary. I give no opinion whether the accused can call for the

reports and charge sheet during the progress of the trial, but I answer in the negative the question referred to the Full Bench.

I may add, that I have not considered the English Criminal Procedure in relation to this case. The powers and duties of Magistrates and Police

are so different in India to the powers and duties Of the same officials in England that I consider any reference to English Criminal Procedure

unnecessary.

Shephard J.

Neither in the Criminal Procedure Code, nor in the Evidence Act, is there any provision declaring or limiting the right of private persons

interested in criminal proceedings to inspect documents in the hands of third parties. A right to inspect public documents is, however, assumed in

Section. 76 of the Evidence Act; and having regard to the authorities cited in the order of reference, I think it may be inferred that the Legislature

intended to recognize the right generally for all persons who can show that they have an interest for the protection of which it is necessary that

liberty to inspect public documents should be given, Within that limit the right appears to be recognized according to the English authorities. In the

present case there can be no question as to the interest of the party who claims inspection. It is plain that a person charged with an offence is

legitimately interested in knowing beforehand the particulars of the charge made against him and the names of the witnesses who are going to

support it. His interest is none the less a legitimate one, because some persons might make improper use of the information so obtained. If,

therefore, the documents sought to be inspected are public docu-ments, and if they are unprotected by special privilege, it follows that the claim to

inspection must be allowed. If any of the documents is not a puplic document, the claim must clearly be disallowed. Documents of three sorts are

mentioned in the order of reference. There is the report which the officer in charge of a police station is bound under the provisions of Section 157

of the Code to send to the Magistrate. There is the report which a subordinate officer is u/s 168 bound to send to the officer in charge of the

station and there is the final report which u/s 173 the officer in charge of the station has, on completing his investigation, to send to the Magistrate.

Section 74 of the Evidence Act, defines public documents; and if any of these reports is a public document, it must be because it forms the act or

the record of the act of a public officer. Now, taking the first of them, commonly called the occurrence report, and applying the language of the

Evidence Act, I cannot see how it can possibly he called a public document. In, obeying the provisions of Section 157 of the Criminal Procedure

Code, the public officer, as far as regards the Magistrate, does no act except the act of writing and despatching a report founded on information

received by him. It is clear that this report does not form an act of the Station House Officer, within the meaning of the section, and it cannot be the

record of an act because there has been no act on his part to record. In popular language any report which a subordinate officer is bound to send

into his superior officer and which is not confidential may he called a public document; but the Evidence Act lends no support to this view.

It is necessary to examine the language of the 74th section more closely in considering the report which the subordinate police officer is, u/s

168 of the Code, directed to send to the Station House Officer. It is a report of the result of the investigation under the provisions of Chap. XIV of

the Code. No doubt there may, in this instance, be said to be a record of acts done by a public officer. Nevertheless, I do not think the report is a

public document within the meaning of Section 74. In construing that section I think it may fairly be supposed that the word ""acts"" in the phrase

documents forming.the.acts or records of the acts"" is used in one and the same sense. The act of which the record made is a public document

must be similar: in kind to the act which takes shape and form in a public document. The kind of acts which Section 74 has in view is indicated by

Section 78 of the same"" Act. The acts there mentioned are all final completed acts as distinguished from acts of a preparatory or tentative

character. The inquiries which a public officer may make, whether under the, Criminal Procedure Code, or otherwise, may or may not result in

action. There may be no publicity about them. There is a substantial distinction between such measures and the specified act in which they may

result. It is to the latter only, in my opinion, that Section 74 was intended to refer. Unless this line of distinction is drawn, I do not.see where the

right of discovery is to stop. If the report which a subordinate police officer sends to the station house officer, may be inspected before the trial,

what is there to prevent inspection of the report which any other officer furnishes for the information of the Public Prosecutor ? It is true that the

police officer acts in performance"" of a statutory duty, but Section 74 makes no distinction between such acts and other official acts. If an

investigation amounts to an act of a public officer within the meaning of that section, and the report of it is, in consequence a public document, it

practically follows that the accused is at liberty to look into the brief of the counsel for the prosecution.

The charge sheet which is prepared u/s 173 of the Code stands, on a different footing. When the charge sheet is sent to the'' Magistrate, the

preliminary stage of investigation and preparation is over. Upon the receipt of it, the Magistrate may u/s 191 take cognizance of any offence that

has been charged. The transmission of the charge sheet with a view to that result, accompanied by a statement as to the accused person whether

be is forwarded in custody or not, may therefore, properly be called an act of a public officer, and the charge sheet itself may properly. be, said to

form a record of that act. It is only reasonable that an accused person should, when once the Magistrate is seized of the case, have access to the

report stating the names of the parties, the nature of the information and the names of the person who appear to be acquainted with the

circumstances of the case. On the other hand, there are good and obvious reasons why, in the case of Communications prior to that stage between

police officers themselves, or between such officers and the Magistracy--communications which may or may not result in a charge and may relate

to third parties and extraneous matters, discovery should not be allowed.

The conclusion at which I arrive is that an accused person is entitled to inspect and, therefore to have a copy of the charge sheet before the

trial, but that he is not entitled to inspect the other documents. Whether he is entitled to call for them at the trial is a different question with which we

are not now concerned. It was on that question that the cases in Sheru. Sha v. The Queen Empress ILR 20 C. 642 and Bikao Khan v. The Queen

Empress ILR 16 C. 612 turned.

Subranmania Aiyar, J.

The further consideration which I have bestowed upon the question referred for decision, has not led me to think that the view expressed in the

order of reference is erroneous. But some arguments, not urged before Davies J. and myself prior to the date of the reference, have been

advanced since and the most important of them call for some notice.

One of the arguments is that a right, similar to that put forward now on behalf of the accused, does not exist in England. But. this ignores an

essential difference which exists between the circumstances of the police in England and of the police in this country. There the law does not

sanction an investigation by the police as is. allowed by the Code of Criminal Procedure here. This is pointed out by Sir Fitz James Stephen in the

history of Criminal Law where he observes :--The second way in which proceedings may begin is by a police investigation. This process (Sections

154, 172, Criminal Procedure Code), is unknown in England. It is not altogether unlike Freneh Procedure, but it is still more like what would exist

in England if the course usually taken in fact by the police were to be taken under a legal sanction, the police being invested by law with special

powers to take evidence for their own information and guidance."" (Vol. 3, p. 332). Owing to this difference between the two systems, official

documents corresponding to ""charge sheets"" and ""occurrence reports"" under our Code are unknown to the law in England and, consequently, no

question as to inspection of such documents has or could have arisen there.

The next argument appears to be that, as in England a person accused of an offence falling under the description "" felony"" is not entitled to a

copy even of the indictment, it ought not to be held that an accused person in this country is entitled to copies of such documents as the charge

sheet, etc. With reference to this argument, the first obesrvation to be made is that the sole point for our determination being whether the

documents in question are public documents within the meaning of Section 74 of the Evidence Act, one is unable to see any connection between

that question and the fact that in England persons accused of a particular class of offence are disentitled to a copy of the indictment. In the next

place, supposing the doctrine of English law as to copies of indictment in cases of felony is somehow germane to the present discussion, it is clear

that even in England that doctrine is much disapproved of, if it has not already ceased to be law. (Vide Greave''s Note 0, III. Russel on primes, p.

463, 6th Ed.) But granting that it is well recognized in English Criminal Procedure, can it be defended as a just and sound rule whilst admittedly a

man accused of a misdemeanour is under the same law treated better? The characteristics of reasonableness and of good sense, which alone

would justify our adopting a rule of English Common Law, being wanting in the particular instance relied on, a reference to it would seem scarcely

calculated to throw true light on the question at issue.

Another argument was urged with reference to the law as to grant of copies of depositions in England. In arguing thus by analogy, the peculiar

nature of the theory which prevailed in England (before salutary changes were introduced by 6 and 7, Will. IV, chap. II), as'' to a prisoner''s

position with reference to everything done in connection with the charge against him prior to the trial must not be lost sight of, That theory was that,

in enquiring into and committing a person charged with an offence, a Magistrate was acting inquisitorially, that is,'' enquiries should be conducted in

private and behind the back of the prisoner if that is considered necessary and that the prosecutor or solicitor alone might have access to the

depositions taken by the Magistrate, but not the party accused, who, strangely enough it was thought, should not, before the actual trial, be

enabled to know what the evidence to bo adduced against him was (Vide the procedure adopted by he Magistrate in Thurttell''s case and the

observations of Justice J.A. Park in the same, I Step H. Criminal Law 227,228). Referring to the working of a practice of this extraordinary

description, Sir Fitz James Stephen.justly observes ""I do not think, any part of .the-old procedure operated more harshly upon prisoners than the

summary, and. secret way in which justices of the peace, acting frequently the part of detective officers, took their examination and committed

them '' for trial"". (Ib. p. 225). No doubt all this is now happily changed. But that such was the law and procedure even in the early part of this

century ought to make one hesitate to look for light to the English practice under the Common Law in a matter like this. If we turn to the English

Statute Law on the point, it cannot be denied that, so far as it goes, it affords reasonable facilities to the accused. The substance'' of it is this : a

person under trial is entitled, subject to payment of certain fees, to copies of depositions, provided he applies for the same before the day

appointed for the commencement of the Assize or Sessions at which he is"" to be tried. If, however, he is not diligent in the matter and applies later,

he can get them only if the Judge considers that the copies may be made, and delivered without delay and inconvenience to such trial. Nor are

persons under trial who have; not taken the precaution of securing copies of depositions thereby precluded from ascertaining before their trial the

nature of the evidence recorded against them by the Magistrate, for they possess the right of inspecting without fee or reward all depositions or

copies thereof which have been taken against them and returned into the Court before they are tried. (3 Russel on Crimes and. Misdemeanours,

6th Ed., pp. 404. to. 466 and especially. Note V at p. 466)., What is there in these provisions to suggest anything against the granting of copies of

the papers in question? Turning now to the provisions of the Criminal Procedure Code relating to those papers, it is necessary in order to

understand their real import and nature to see why such provisions came to be enacted. Prior to the passing of the first Criminal Procedure Code.

i.e., that of 1861, the powers of the police were different from those now exercised by them. Complaints in cases of the more serious offences

were usually laid before them. They were authorized to examine the complainant, to issue process of arrest, to summon witnesses, to examine the

accused and to forward the case to the Magistrate or submit a report of the proceeding according as the evidence in their judgment warrant the

one or the other course. These large powers were grievously abused for purposes of extortion and oppression and it was a question for the,

determination of Her Majesty''s Commissioners appointed to consider the reform of the judicial establishments, . procedure and laws 1856,

whether the powers should not be greatly abridged. The Commissioners, however, came to the conclusion that considering the extensive

jurisdiction of magistrates in this country, the facilities which exist for the escape of parties concerned in serious crimes and the necessity for the

immediate adoption in many cases of the most prompt and energetics measures, it was requisite to arm the Police with some such powers.. as they

then possessed (See p. 181 of the selections from the records of Government Papers relating to the reform of the Police in India, 1861). The

original draft of the Criminal Procedure Code, therefore, sought to give effect. to the above conclusion. But when the matter came before the

Legislative Council much difference of opinion prevailed among the members of the Council in respect of some of the provisions inserted to carry

out the view of Her Majesty''s Commissioners. On the one side, it was contended that to allow the polic3 to record statements of parties and

witnesses and to place '' them before .the Magistrate would be productive of much mischief On the other side, it was urged that in the interest, not

only of the prosecution but also of the defence, it was necessary that such | statements should bo immediately recorded and laid before the

Magistrate at once. (See Proceedings of the Legislative Council, Vol V., pp. 515 to 545 and 570 to 574). The substance of the existing

provisions'' of the law respecting the submission of reports by the police seems to have been devised to avoid the evils apprehended by one set of

members and to secure in a measure some of the advantages to which the other members attached so much importance.

Now, first, the general report directed to be sent is the daily report called the diary. This, the law prescribes, should he forwarded; to the

officers of the Department itself in accordance with the principle insisted upon at the re-organization of the Police which took place about the same

time as the passing of the Criminal Procedure Code, viz., chat dual control should be avoided and policemen should be directly dependent on and

be responsible only to their own officers (p. 250 of the Selections already cited). And this diary, which must contain everything material heard or

done by a policeman in the course of the day with reference to his work, was for obvious reasons declared hot to be subject to inspection by the

parties. Next special reports bearing upon particular cases coming up for investigation were directed to be submitted to the Magistrate. One of the

objects, which the Legislature had in view in requiring the submission of these reports to the Magistrates, was manifestly to provide a record with

reference to which the action of police officers engaged in making an investigation may be scrutinized during the later stages of the case. Now, who

is'' more interested in exercising this scrutiny than the accused implicated in the particular case to which the investigation relates ? It is impossible to

believe that the Legislature intended that the persons so deeply interested in bringing to light any misconduet in connection with the investigation,

should not have access to there-cords in question. If such were really the intention, why whilst ex- pressly laying down that the general report or

diary cannot be called tor"" by the parties, the Legislature, singularly enough, refrained from declaring that'' these special reports also are

confidential? Why did it not in terms extend the protection accorded to the diaries, to the other reports prescribed ? It is scarcely necessary to add

that to withhold from the accused access to the reports in question would certainly be to deprive those persons of one, reliable means of

ascertaining the development of the case during the investigation and to disable them from exposing, at the preliminary enquiry or . trial, the

attempts, if any, made by the police or other persons connected with the case, to get up false evidence, or other circumstances appearing in the

reports and revealing flaws in the case for the prosecution.

As to Section 125 of the Evidence Act, that only provides against a police officer, being compelled as a witness to say whence he got any

information, as to an offence. The section has clearly no reference to the present case.

Lastly, that the documents in question fall strictly within the language of Section 74 of the Evidence Act, seems to my mind to admit of. no

doubt. Erst as to the charge sheet, is it not a "" record"" of at least some of the investigating officer''s acts ? Again suppose it is not, is it not

unquestionably itself a document forming an ""act "" of his, he being enjoined to act in a particular Way, that is, submit such a report. The same

remark applies to the report u/s 157. Nor is it right to suppose there is no other ""occurrence report"" sent by the police to a Magistrate in the

course of an investigation. For, according to the rules of the department a policeman making a search has to send one in respect of it to the

Magistrate (Order No. 140 h., Police Orders, p. 80) and there is the inquest report prescribed by Section 174 of the Code. Copies of these are

not unimportant to accused persons and it cannot be doubted that these reports are records of a public servant''s acts within the meaning of

Section 74.

For all the above reasons, I would answer the question submitted in the affirmative.

Benson J

The question for our decision is, as I understand it, whether a person who is named as accused of an offence, in a change sheet forwarded by

the police to a Magistrate is entitled before his, trial to inspect and obtain copies of certain reports made by the police in connection with the case,

viz:--(1) the occurrence report made under B. 157, Criminal Procedure Code; (2) the report made u/s 168, Criminal Procedure Code, by a

subordinate police officer to the station house officer; and (3) the charge sheet drawn up u/s 1-73, Criminal Procedure Code,

It was, I understand, conceded that a copy of the Station. House officer''s report made u/s 167, Criminal Procedure Code could not be

demanded, inasmuch as it is an extract from the police diary which is specially protected by Section 172, Criminal Procedure Code.

I am of opinion that the reference must be answered in the negative.

It is admitted that the right is nowhere given by any express legislative enactment; but it is argued that the reports in question are public

documents within the meaning of Section 74 of the Indian Evidence Act; that every person interested in the subject matter of public document has

an inherent right'' to inspect it, ''and that, under.S, 76 of the Indian Evidence Act, every person entitled to inspect a public document is also entitled

to obtain a copy of it. It will be seen that the whole question depends on whether the documents in question are public documents within - the

meaning of Section 74 ""of the Indian Evidence Act. I do not think that they are. The only class of documents specified in that section within which

they could fall is ""documents forming the acts or records of the acts of executive officers."" The police officers, who send in these reports are, no

doubt, public executive officers, but I do not think that these reports can, with any propriety, be regarded either as forming their acts or as the

records of their acts. The diary of a police officer which is kept u/s 172, Criminal Procedure Code, is the record of his acts, in the popular sense of

the word, in making an investigation under the Criminal Procedure Code. It sets forth his proceedings day by day in making the investigation and

inter alia it must record "" the time at which information reached him, the time at which he ""began and closed his investigation, the place or places

visited by him and a statement of the circumstances ascertained through his investigation,"" but his diary is by Section 172 expressly protected from

inspection by the accused and his agents. It may, I think, well be doubted whether the word "" acts"" in Section 74 is used in its ordinary and popular

sense and not rather in the restricted and technical sense in which it is used in Section 78 of the Act, but in either case, I think that the report''s in

question are not, in any sense, records of the acts of the police officer. This will be clear if their contents, as prescribed by ''law are considered.

The occurrence report (Section 157) is a report sent to the Magistrate that the officer of police suspects, on information or otherwise, that a

cognizable offence has been committed in his jurisdiction, and if the police officer considers it- unnecessary to investigate the case, it must state the

reasons for such conclusions. It is not a record of his acts but a report of information to the Station House officer of the ""result of his investigation

into an alleged or suspected cognizable case. It is not the record of any act of the investigating officer. The charge sheet is the report sent to the

Magistrate u/s 173 when an investigation has been completed. It must contain "" the names of the parties, the nature of the information and the

names of the persons who appear to be acquainted with the circumstances of the case,"" and must state whether ""the accused person has been

forwarded in custody. or has been released"" on bail. This report re not the record of the acts of the police officer. It ho doubt reports one act of

the office viz., whether he forwarded the accused in custody, or has released him on bail, but it is not the official record of that act The record of

the act is the proceedings in granting or refusing bail, not. the . report of those proceedings to the Magistrate. I conclude, then., that none of the

reports in question are the acts or the records of the acts of the police officers within the meaning of Section 74 of the Indian Evidence Act. They

a,re not, therefore, public documents, and the accused has no right to inspect them or to obtain copies of them.

So far I have referred to the reports as if they contained only the information which they are required by the Code - to contain. As a fact,

however, they have been enlarged so as to contain much more than the Code requires. For example, in both the occurrence report and the charge

sheet there is a column in which is set forth, the name of the person by whom the information was given. Section 125 of Indian. Evidence Act

expressly provides that no Magistrate or police officer shall be obliged to state whence he received the information of any offence. In any view,

therefore, an accused person could have no right to inspect or obtain a copy of that entry. So also in the occurrence report the names of persons

inspected are entered, and in the charge sheet the houses searched and other particulars which may not concern the accused person at. all are

stated. It is obvious that he could have no right to obtain copies of such entries regarding third persons. If, however, the accused person was

entitled to obtain a copy of the reports so far as they concerned himself, I do not think that his right could be taken away by the insertion in them of

particulars regarding, third, parties or matters not required by law to be mentioned in this reports. The Magistrate might, however, grant an

extract..pf so much only as concerned the applicant and was not protected by law from disclosure.

It is argued that, if an order has been made on an occurrence report or charge sheet affecting an accused person, he is ipso facto entitled to a

copy of the document u/s 548, Criminal Procedure Code. This will be: so only if the Magistrate making the Order is'' at the time a ""Criminal

Court.''''

It may, I think, be doubted whether a Magistrate (even when he has jurisdiction to try the offence) can be regarded as"" a ""Court""1 before the

trial commences. He is certainly not a ""Court"" when enquiring into offences which he is not empowered to try, e.g., into"" Sessions Cases (Section

19 Illustration (d) and Section 20, I.P. C). In this large and important class of cases, therefore, Section 548 has no application. This, however, is

not the question before us, and I need not pursue it further.

I am not aware of any statute or practice which enables an accused person in England to obtain, before his trial, copies of reports made by the

Police in the course of their investigations. No doubt, the relations of the Police to the Magistracy in the two countries stand on a different footing,

but it seems improbable that if the Indian Legislature intended to give ari accused person access, before his trial, to the police reports''connected

with his case, this would not have been: clearly laid down by law.

In my opinion, the alleged right is nowhere expressly conferred bylaw, nor can it be deduced from Sections 74 and 76 of the1 Indian''

Evidence Act.

I would, therefore, answer the inference in the negative.