Selvanathan alias Raghavan and 9 others vs State

On references, all the above cases have come up before this Full Bench for the determination of certain vital and important questions which

require careful examination as regards the liberty of the subject and their entitlement to certain copies of the documents in the criminal proceedings

before forwarding a police report to a Magistrate on completion of investigation as contemplated under S. 173(2), Crl. P.C., (hereinafter referred

to as ""The Code"".

Crl. M.P. No. 6452 of 1982 is filed under S. 482, of the Code by the accused in Crime No. 1351 of 1988 on the file of the Court of the VI

Metropolitan Magistrate, Madras, for directions to the Magistrate to furnish certified copies of:

(a)Remand report dated 16th November, 1982;

(b)Affidavit filed by the investigating officer seeking police custody of the accused;

(c)Order of the Magistrate dated 16th November, 1982 made on the remand report;

(d)Endorsement and order made by the learned Magistrate regarding any complaint made by the arrestee as regards any illtreatment meted out to

him at the hands of the police;

Crl. M.P. No. 6900 of 1982 is filed under S. 482 of the Code by A1 to A14 in Crime No. 275 of 1982 on the file of Tiruvallur Police Station

for a direction to the Magistrate to issue a certified copy of the F.I.R., which prayer has been turned down on the strength of the decision in

Muthuswamy, In re 1982 L.W. (Cri.) 60 :

Crl. M P. No. 1907 of 1983 is filed under S. 482 of the Code by the accused in R.C. No. 1 of 1983 on the file of the C.B.I., E.O.W.,

Madras, for a direction to the Additional Chief Metropolitan Magistrate, E.O.I. Egmore, Madras, to furnish him a certified copy of the F.I.R.

Crl. M.P. No. 2903 of 1984 is filed under S. 482 of the Code by the accused in Crime No. 6 of 1983 on the file of the Vigilance and Anti-

Corruption, Salem, for a direction to the Chief Judicial Magistrate, Salem, to furnish him a certified copy of the F.I.R. in the said case.

Crl. R.C. No. 821 of 1986 is a revision filed against the order passed by the 17th Metropolitan Magistrate, Saidapet, Madras, dismissing the

petition filed by the accused praying for furnishing the certified copies of the first information report, remand report and the order made thereon,

inquest report, the statements recorded during the inquest under S. 174 of the Code, the postmortem certificate, the requisition given by the police

officers to the Medical Officer to conduct post-mortem examination and to treat the injured, the rough sketch of the scene place and the

observation mahazar prepared by the investigating officer.

Having regard to the importance of the questions, we invited the members of the Bar, especially those practising on the criminal side, to assist

the Court in deciding the issues. Accordingly apart from the learned counsel appearing for the parties concerned and the learned Public

Prosecutor, Messrs. N.T. Vanamamalai and T.S. Arunachalam, learned Senior counsel, and Messrs, B. Sriramulu, S. Pichai, M.

Karpagavinayagam, V.M. Lenin, P. Venkatasubramaniam, P. Rathinam and T.M. Vasudevan, advocates, assisted the Court by making their

detailed submissions.

7A. A Bench of this Court presided over by two of us, viz., Ratnavel Pandian, J. (as he then was) and David Annoussamy, J. in the above criminal

miscellaneous petitions and K.M. Natarajan, J., in Crl. R.C. No. 821 of 1986, have referred the questions arising both in the miscellaneous

petitions and the revision case respectively to be decided by a Full Bench in view of the cleavage of views in this regard. In all these cases, the

common question that arises for consideration is:

Whether the accused is/are entitled to the certified copies of the first information report, remand report and the order passed thereon by the

Magistrate, the complaint, if any, made by the arrestee at the time of remand and the order passed thereon by the magistrate, the inquest report,

the statements recorded during the inquest under S. 174 of the Code, the post mortem certificate, the requisition given by the police officers to the

medical Officer for conducting the necropsy (post mortem) and for treating the injured, the rough sketch of the scene place and the observation

mahazar prepared by the investigating officer ?

Now, we shall, first of all, examine the question with reference to the grant of copy of the first information report even before a police report

under S. 173(2) is forwarded.

WHAT IS A FIRST INFORMATION REPORT ?

The expression ""first information"" or ""first information report"" is not defined in the Code, But these words are always understood to mean

information recorded under S. 154 of the Code"". The word ''information'' occurring in the said S. means something in the nature of a complaint or

accusation or at least information of a crime given with the object of setting the criminal law in motion and the police starting the investigation. Sub-

S (1) of S 154 in Chap.XII dealing with the recording of first information, reads as follows:

Information in cognizable cases:

(1) Every information relating to the commission of a cognizable offence, if given orally to an officer incharge of a police station, shall be reduced to

writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing

as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as

the State Government may prescribe in this behalf.

A cursory reading of the S. extracted above shows that the following conditions are to be satisfied to constitute an information as ''first information

report'' within the meaning of the said S., viz., (1) It must be an information relating to the commission of a cognizable offence;

(2) It must be given to an officer in charge of a police station;

(3) It must be reduced to writing either by the informant (complainant) himself or under his direction;

(4) The information must be read over to the informant if it is written under his direction;

(5) It must be signed by the informant; and

(6) The substance of the information should be entered in a book to be kept by an officer in charge of the police station in such a form as the State

Government may prescribe in this behalf (General Diary, otherwise known as Station Diary or Station House Register).

The very object of insisting on a first information report regarding the commission of an offence is to obtain early information regarding the

alleged criminal activity and record the circumstances before there is time for the parties concerned to embellish or develop the case as

circumstances present themselves to them. The Supreme Court in Thulia Kali Vs. The State of Tamil Nadu, , while pointing out the importance of a

first information being laid without delay, has observed:

Delay in lodging the first information report quite often results in embellishment which is a creature of after thought. On account of delay, the report

not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted

story as a result of deliberation and consultation.

See also AIR 1945 18 (Privy Council) . A first information report is neither an encyclopedia; nor the be all or the end all of the case; nor is it a

substantial piece of evidence (See Abdul Harmed v. State of Tripura A.2.R. 1958 Tripura 1. It is an extremely vital and valuable document on the

basis of which the entire edifice of the prosecution is generally built up and upon which an investigation should be, and ordinarily is, commenced by

the police under Chapter XII of the Code.

Whether a person brought as an accused on the basis of the information (FIR) is entitled to a copy of the same? The above question whether

the accused is entitled to have a copy of the first information report, which is a valuable document as pointed out supra, even before the police

report (which is commonly known as ''charge sheet'') is forwarded to the Magistrate on completion of the investigation as contemplated under S.

173(2) of the Code still remains a controversial issue, and there are divergent opinions in this regard. This Court, in ""A Manual of Instructions for

the Guidance of Magistrates in the Madras State"" (published before the Amendment Act of 1955) under Serial No. 26, dealing with the grant of

copies, examined the stage at which the accused is entitled to ask for copies of certain documents, such as first information reports, inquest

reports, statements recorded under S. 164 of the Code, etc., and instructed that copies of first information reports, and search lists could be

furnished to the accused at any stage of the trial, and that copies of charge-sheets, inquest reports, statements recorded under S. 162 of the Code

and referred charge-sheets should not be furnished to the accused or to any other person, but copies of the statements recorded under S. 164 of

the Code could be granted to the accused at any stage even before the commencement of the enquiry or trial. After the amendment of the Code in

the year 1955. Serial No. 26 was substituted in the year 1959 in P. Dis. No. 270 of 1959, the relevant portion of which reads thus:

If the statement recorded under S. 162, Crl. P.C., or any portion thereof has been used to contradict the witness the relevant portion of the

statement in the case-diary may be marked as an exhibit by the magistrate, who shall cause copies of the portions marked prepared in his office.

These copies can then be substituted in the case records for the original case diary. In any event the portion of the case diary containing the

relevant statement will have to be marked and the case diary must form part of the records. Copies can be used for reference. of course, formal

proof of the statements in the case diary recorded under S. 162, Crl. P.C., can be sought only when the police officer who recorded the statement

is examined before the Magistrate.

Other Records: Copies of most of them have to be supplied free before the commencement of enquiry or trial. Documents for which copies may

be granted before filing of charge-sheet may be specified,... such as Village Magistrates reports, F.I. Rs., inquest report without the statements

recorded, statements under S. 164, Crl. P.C., wound certificates and search lists.

Charge sheets: Copy will be given free soon after filing of the same. Memorandum of information may be excluded as full copies of statements

under S. 162, Crl. P.C., are being granted.

Referred Charge Sheets: Not to be granted except where on further investigation, a charge-sheet is filed, as it will then become a document

referred in S. 173(4), Crl. P.C., (as amended).

At the end of the nineteenth Century (1897) in Queen Empress v. Arumugham ILR 20 Mad. 189 (F.B.), a similar issue arose as to whether

reports made by the police officer in compliance with Ss. 157, 168 and 173 of the Code of Criminal Procedure, 1898, were public documents

within the meaning of S. 74 of the Indian Evidence Act, and consequently an accused person was entitled before trial to have copies of such

reports. This question, on reference was decided by a Full Bench of this Court consisting of four Judges. Collins C.J., and Benson, J., two of the

four learned Judges held that the reports under S. 173 Code of Criminal Procedure were not public documents, whislt the other two learned

Judges, viz., Shophard and Subramania Ayyar, JJ. held that reports under S. 173, Code of Criminal Procedure were public documents, and,

therefore, the accused was entitled to have a copy of the same. (It seems that though the four learned Judges were divided equally on this question,

the opinions expressed by Collins, C.J. and Benson. J. are supposed to have prevailed under the provisions of the Letters Patent. Though it is not

relevant for the further discussion on this question, it may not be out of place to mention here that this judgment came up for adverse criticism at the

hands of the Law Reporters, who have not agreed with the opinions expressed by Collins C.J., and Benson. J. (See 1897 MLJ 7 341). Thereafter

in Emperor v. Muthia Swamiyar ILR (1907) Mad. 466 a question was referred to a Division Bench consisting of Benson, J. and Wallis, J., for

determination whether an accused person under remand was, before the commencement of the preliminary enquiry, entitled to copies of statements

of various persons recorded by the Second Class Magistrate under S. 164 of the Code of Criminal Procedure; and ultimately, this question was

answered in the negative (It may be pointed out that though the question arose only with regard to the refusal of the grant of copies of the

statements recorded under S. 164 Code of Criminal Procedure, the observations only related to the statements recorded under S. 162 Code of

Criminal Procedure).

A single Judge of the Patna High Court (Chapman, J.) in Dhanpat Singh v. Emperor AIR 1917 Pat 625, while answering a question with

regard to the right of an accused to obtain copies of first information, expressed his view thus:

It might be well for the Local Government to consider whether facility should not be given to accused persons to obtain copies from the Police of

first informations at least even before the trial commences in the Magistrate''s Court. It is vitally necessary that an accused person should be

granted a copy of the first information at the earliest possible state in order that he may get the benefit of legal advice. To put difficulties in the way

of his obtaining such a copy is only creating a temptation in the way to the officers who are in possession of the originals.

Thereafter, in 1960, a question came up for consideration before Somasundaram J. (sitting singly), whether copies of statements under S. 164

of the Code could be granted before the riling of the charge-sheet. The learned Judge, after referring to Ss. 74 to 76 of the Indian Evidence Act,

the decision in Queen Empress v. Arumugham ILR 20 Mad 189 (F.B.) and the decision in Emperor v. Muthia Swamiyar ILR (1907) Mad. 466,

observed:

... on a consideration of the provisions of Ss. 74 and 76 of the Evidence Act, and the decision in ILR 20 Mad, 189 (F.B.) and the other provisions

of the Code relating to both, the grant of copies and to the prohibition of granting copies, it seems to me that the decision in ILR 30 Mad. 466,

requires reconsideration.

and referred the matter to be decided by a Full Bench, and formulated the following question:

Whether statements recorded under S. 164, Crl. P.C., fall under S. 74(1)(iii) of the Indian Evidence Act and if so whether the accused will be

entitled to copies of the same under S. 76 of the Evidence Act at any stage of the investigation and even before the filing of the charge-sheet and

whether there are any provisions in the Code of Criminal Procedure or any other law prohibiting- granting of copies at the stages mentioned above

?

The Full Bench comprised of Somasundaram J. (who referred the question) and Ramachandra Iyer and Anantanarayanan JJ (as they were then).

The judgement of the Full Bench is reported in State of Madras Vs. G. Krishnan, . The latter two learned Judges of the Full Bench, after going

deep into the question, gave two different, but concurrent, judgments, with which Somasundaram J. agreed. Ramachandra Iyer J. (as he then was)

has concluded in paragraph 36 of his judgment as follows.

Our answer to the question therefore can be stated thus: (I) The statements recorded under S. 164, Crl. P.C., would be public documents falling

under S. 74(1)(iii) of the Indian Evidence Act. (2) The accused will be entitled to copies of the same as a person interested; (3) But his right to

obtain such copies before the filing of the charge-sheet has been taken away by implication by the provisions of S. 173(4), Crl. P.C., and that he

will be entitled to the copies of the documents only in accordance therewith.

Ananthanarayanan, J., (as he then was) concluded thus:

It could no doubt be urged that S. 173(4), Crl. P.C., does not include words such as ''not-withstanding anything contained in S. 76 of the Indian

Evidence Act''. But that is obviously because S. 76 refers to a far wider class of persons entitled to inspect and to obtain copies of public

documents. Ft has no necessary limitation of reference to accused persons, or to criminal cases. The argument that S. 173(4,) merely deals with

the exceptional case of the obtaining of copies free of cost, as distinguished from the terms of S. 76 of the Indian Evidence Act, does scant justice

to its phrasing, scope and intendment.

I have no doubt that this is an instance of legislative wisdom, a limitation imposed upon considerations of a balance of opposing interests and

opposing principles. We must presume that the legislature introduced this implied restriction as to the point of time at which the accused would

obtain copies of such ''public'' documents affecting him, well realising that here, as elsewhere, considerations of the liberty and rights of an

individual, and of public interest and justice may conflict, and need a harmonisation based upon the broadest equities I would answer the reference

as proposed by my learned brother.

The crux of the decision is that though the statements or confessions recorded under S. 164, Crl. P.C. would be public documents falling under S.

74 (1)(iii) of Evidence Act, and that the accused would be entitled to copies of the same as a person interested, S. 173(4) of the Code should be

construed as impliedly prohibiting the grant of copies earlier than the time prescribed by it and that the said implied prohibition, would itself imply

repeal or abrogation in part of the right under S. 76 of the Evidence Act. The Full Bench held that the copies of statements under S. 164, Crl. P.C,

cannot be granted to the accused before the filing of the charge-sheet.

The question of entitlement of the accused to ask for a copy of the first information report in respect of the offence under which he is arrested,

came up for consideration before Krishnaswamy Reddy, J., in Chinnappan v. State 1975 T.L.N.J. 482 : 1975 Cri. M.P. Nos. 3950 and 4131 of ,

The learned Judge ruled that the accused, after arrest or if he is likely to be arrested is entitled to a copy of the first information report from the

concerned Magistrate on payment of the necessary charges.

The same issue again came up before Maheswaran, J., in Muihusamy, In re 1982 L.W. Cri. 60. The learned Judge dissented from the view

taken by Krishnaswamy Reddy, J., in Chinnappan v. State 1975 T.L.N.J. 60 (supra), and following the judgment of the Full Bench in State of

Madras Vs. G. Krishnan, Mad. 1 and referring to S 207 of the present Code, held,

I feel that the entire scheme of the Act is that the investigation into an offence should necessarily be kept confidential and that copies to the accused

could be furnished only after the charge-sheet is filed.

Thus, there is a conflict of judicial pronouncements of this Court as the question of entitlement of the accused to obtain a copy of the first

information report before the police report (charge-sheet) is filed under S. 173(2) of the Code This conflict of views taken by the learned Judges

of this Court has necessitated these references to this Full Bench.

For a proper understanding and further discussion on this issue, we would like to re-produce some of the provisions of the Code of Criminal

Procedure, 1955, and of the Code of 1973 and give a comparative table of sub-Ss.(4) and (5) of S. 173 of the Code of 1955, as substituted by

S. 23 of the Code of Criminal Procedure (Amendment Act XXVI of 1955), in the place of old sub-S. 4, which was inserted by the Code of

Criminal Procedure (Amendment Act XVIII of 1923).

Code of Criminal Procedure 1898 (As amended by Act XVIII of 1923) SECTION 173:

(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused

Code of Criminal

Procedure, 1955 (As amended by Act XXXVI OF 1955)

(4) After forwarding report under this section, the offer-in-charge of the police station shall, before the commencement of the inquiry or trial,

furnish or cause to be furnished to the

before the commencement of the inquiry or trial; Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to

furnish it free of cost.

accused, free of cost a copy of the report forwarded under sub-S.(1) and the first information report recorded under S. 154 and of all other

documents or relevant extracts thereof, on which the prosecution proposes to rely, including the statements and confessions, if any, recorded under

S. 164 and the statements recorded under sub S.(3) of S. 161 of all the persons whom the prosecution proposes to examine as its witnesses.

(5) Notwithstanding anything contained in Sub-s. (4), if the police officer is of opinion that any part of any statement recorded under sub-S. (3) of

S. 161 is not relevant to the subject matter of the inquiry or trial or that its disclosure to the accused is not essential in the interests of justice and is

inexpedient in the public interests, he shall exclude such part from the copy of the statement furnished to the accused and in such a case, he shall

make a report to the Magistrate stating his reasons for excluding such part,

Provided that at the commencement of the inquiry or trial, the Magistrate shall, after perusing the part so excluded and considering the report of the

police officer, pass such orders as he thinks fit and if he so directs, a copy of the part so excluded or such portion thereof, as he thinks proper,

shall be furnished to the accused.

By S. 29 of the Amendment Act (XXVI of 1955), a new Section, viz, S. 207A, dealing with the procedure to be adopted in proceedings instituted

on police report was inserted. For our purpose, we reproduce sub-S.(3) of S. 207A, Crl. P.C., 1898, as under:

At the commencement of the inquiry, the Magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents

referred to in S 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of

them, he shall cause the same to be so furnished.

In the present Code of 1973, a new S. (S.207) relating to the supply of copy of police report and other documents, to the accused has been

introduced. That section reads as follows:

In any case where the proceeding has been instituted on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a

copy of each of the following:

(i) The police report:

(ii) The first information report recorded under S. 154;

(iii) The statements recorded under sub-S (3) of S. 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding there

from any part in regard to which a request for such exclusion has been made by police officer under sub. S.(6) of S. 173;

(iv) The confessions and statements, if any, recorded under S. 164;

(v) Any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-(5) of S. 173;

Provided that the Magistrate may, after perusing any such part of a statement as is referred to in Cl.(iii) and considering the reasons given by the

police officer for the request, direct that a copy of that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be

furnished to the accused;

Provided further that if the Magistrate is satisfied that any document referred to in Cl.(v) is voluminous, he shall, instead of furnishing the accused

with a copy thereof, direct that he will only be allowed to inspect it either personally or through pleader in Court.

A comparative study of S. 173(4) of the old Code and S. 207 of the new Code reveals that in a proceeding instituted upon a police report, there

was a statutory duty on the police under S. 173(4) of the old Code to furnish to the accused free of cost copies of the documents referred to

therein on which the prosecution proposed to rely, where as under the new Code, under S. 207, the duty of furnishing free of cost, copies of the

documents referred to therein is shifted to the Magistrate. Even in the trial of warrant-cases by the Magistrate under Chapter XIX of the new

Code, under S. 238, it is obligatory on the part of the Magistrate to satisfy himself that he has complied with the provisions of S. 207 of the Code.

Though in summons cases instituted on police report, no similar duty is specifically cast on the Court as in S. 238 of the Code to see that the

copies referred to in S. 207 are delivered to the accused, none-the-less free copies have to be supplied to the accused by the Magistrate in view

of the obligatory provisions of S. 207. In re, Veerappa1, it has been held that in summons case also, it is the duty of the Magistrate to see that S.

173(4) (of the old Code) corresponding to S. 207 of the new Code is complied with.

In Gurbachan Singh v. State of Punjab AIR 1957 S.C. 623, while dealing with the scope and object of S. 173(4) of the old Code, as

amended by Act XXVI of 1955, the Supreme Court has observed thus:

There is also the fact that before the amendment the accused had to request the Court to refer to the statements made to the police officer and

furnish him with a copy thereof in order that the same may be used for contradicting the witness, but as it now stands, no such request is necessary

because there is, as will be shown later, a provision to the effect that copies should be given earlier. S.I73 relates to the report of the police officer

and sub S (4) is practically a new provision. There is also a new sub-S.(5) added.

It is clear from this new (sub-S.(1)) that when the police officer after completing the investigation sends his report to the Magistrate copies of the

statements and documents referred to should be furnished to the accused The object of this provision is to put the accused on notice of what he

has to meet at the time of the inquiry or trial. The unamended sub-S.(4) had only laid down that a copy of the report forwarded to the Magistrate,

shall, on application, be furnished to the accused before the commencement of the inquiry or trial. There was no compulsion to furnish him with

copies of the statements, documents, etc.

We may now refer to the new provision inserted in the (old) Code as S. 207-A relating to the procedure to be adopted in proceedings instituted

on police report relating to enquiry into a case triable by a Court of Session.

Sub-S.(4) makes a radical change in the manner of recording evidence in the Committing Court, for it lays down that only witnessess, to the actual

commission of the offence, as may be produced, by the prosecution need be examined by a Committing Magistrate, other witnesses, who support

the prosecution story in diverse particulars, need not be examined by the Committing Court. Sub-S (4) of S. 173, read with Sub-S.(3) of S. 207-

A makes ample provision for the defence to be in possession of all the statements and documents before the inquiry begins, but now here is it

stated either in S. 173(4) or S. 207-A (3) that the statements in connected cases should be supplied to the accused. In this connection, we may

also refer to S. 251-A inserted in Chapter XXI, relating to the trial of Warrant Cases by Magistrates. Sub-S (1) of S. 251-A corresponds to S.

207-A (3) Even here there is no reference to the statements in connected cases.

See also Narayan Rao Vs. The State of Andhra Pradesh, .

Under S. 207 of the new Code, the supply of documents cannot be refused by the Magistrate on any ground other than the ground

enumerated in Cl.(iii) of that Section. A combined reading of Ss. 173(6) and 207(iii) read with the first proviso to that S. shows that if the police

officer while forwarding under S. 173(5) to the Magistrate all documents or relevant extracts therefor on which the prosecution proposes to rely

other than those already sent to the Magistrate during investigation and the statements recorded under S. 161 of all the persons whom the

prosecution proposes to examine as its witnesses, is of the opinion that any part of any such statement is not relevant to the subject-matter of the

proceedings 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

the 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; and in such a contingency the Magistrate might, after perusing any such part of the statement, as is referred to

in Cl.(iii) of S. 207 and considering the reasons given by the police officer for the request under S. 173(6), direct that a copy of that part of the

statement or such portion thereof, as he thinks proper, shall be furnished to the accused. S. 208 of the Code is a new introduction, and it deals

with the supply of copies of documents and statements to the accused in respect of cases exclusively triable by a Court of Session instituted on a

complaint or otherwise than on police report. The duty of supplying the copies under S. 208 also is cast on the Magistrate, who is obliged to

furnish to the accused, free of cost, a copy of each of the documents enumerated under Cls. (i) to (iii) of S. 208.

Thus, we find that there is an obligation on the part of the Magistrate in a proceeding instituted on a police report to furnish to the accused, free

of cost, a copy of the first information report recorded under S. 154 along with copies of the police report and other statements. The police report

(which we commonly call as charge-sheet, which expression appears to have been borrowed from the Madras Police Standing Orders-Form 87

evolved presumably prior to the Code of Criminal Procedure), as pointed out by one of us, David Annoussamy J. in his order in Crl. Revision case

No. 184 of 1982 (Vedagiri v. State-Order dt. 1-12-1985) is a report prepared in the form prescribed by the State Government on completion of

investigation of a case and forwarded to the magistrate empowering him to take cognizance of the offence on the said report as defined under S.

173(2) which provision, when read with S. 207 indicates that a copy of the first information report recorded under S. 154 of the Code has to be

furnished by the magistrate to the accused, free of cost, only after the submission of the police report (charge-sheet. But the question, now posed

for our consideration is, whether the accused is entitled to obtain a copy of the first information report recorded under S. 154 of the Code on

payment of charges, if not free of cost, before the police report is forwarded to the magistrate.

All the learned counsel who rendered assistance to the Court placed reliance on Article 22(1) and (2) of the Constitution of India and S. 50(1)

and (2) of the Code, in support of their submission that an accused is entitled to a copy of the first information report recorded under S. 154 of the

Code, on payment of charges, if not free, even before the police report under S. 173(2) is forwarded to the Magistrate and before the stage of S.

We shall now reproduce these two provisions.

Article 22(1) and (2) of the Constitution:

22.(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall

he be denied the right to consult and to be defended by, a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of

such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained

in custody beyond the said period without the authority of a magistrate.

S.50(1) and (2) of the Code:

(1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence

for which he is arrested or other grounds for such arrest.

(2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person

arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

In this connection, reference also can be made to S. 104 of the Customs Act and S. 35(1) of the Foreign Exchange Regulation Act, which

provisions are analogous to S. 50 of the Code, enjoining a duty on the arrester to inform the arrestee of the grounds for his arrest. Before the

introduction of S. 50 of the Code, a question whether, an arrestee has a right to be informed of the reasons or grounds for his arrest, arose before

the Supreme Court and the various High Courts, and the answers were given affirmatively by a number of authoritative judicial pronouncements

which we would refer to in the succeeding portion of this order in appropriate places.

In the text book, ""Burn''s Justice of The Peace"" by Rev. Richard Burn, D.C.L., which deals in detail with the law of arrest without warrant, it is

stated in Volume I, page 302, that,

Where a constable acts without warrant by virtue of his office of constable, he should, unless the party be previously acquainted with it, notify that

he is a constable, or that he arrests in the Queen''s name, and for what.

In ""Hale''s Pleas of The Crown

Volume 2, Ch.X, P. 82, dealing with arrest by a private person on suspicion, it is stated,

note that in all arrests he must acquaint the party with the cause of his arrest.

""Archibald''s Metropolitan Police Guide"" (7th Ed. p, 713) affirms the proposition that the general rule is that, in arresting without warrant on

suspicion, the person making the arrest, whether constable or private person, should at the time state on what charge the arrest is being made.

The above propositions laid down in the above text books are supported by a number of English judicial decisions. In Christie v. Leacninsky

Vol. I-H.L. 1947 A.E.R. 567 a question arose before the House of Lords that if a policeman arrests without warrant when he entertains a

reasonable suspicion of felony, is he under a duty to inform the suspect of the nature of the charge, and if he does not do so, is the detention a false

imprisonment? It was held that an arrest without warrant either by a policeman or by a private person can be justified only if it is an arrest on a

charge which is made known to the person arrested, unless the circumstances are such that the person arrested must know the substance of the

alleged offence, (e.g., where the alleged wrongdoer is caught red-handed), or where he forcibly resists arrest. Viscount Simon, with reference to

the above passages in the text books and the other English decisions, observed thus:

If a policeman arrests without warrant on reasonable suspicion of felony, or of other crime of a sort which does not require a warrant he must in

ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason

which is not the true reason. In other words, a citizen is entitled to know on what charge or on suspicion of what crime he is seized.

If the citizen is not so informed, but is never the less seized, the policeman, apart from certain exceptions, is liable for false imprisonment.

The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances as such

that he must know the general nature of the alleged offence for which he is detained.

The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of

substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to

submit to restraint on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed.

The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces

the situation which makes it practically impossible to inform him, e.g., by immediate counter-attack or by running away.

Lord Simonds, who was also a party to that judgment, expressed his view as follows:

First, I would say that it is the right of every citizen to be free from arrest unless there is in some other citizen, whether a constable or not, the right

to arrest him. 1 would say next that it is the corollary of the right of every citizen to be thus free from arrest that he should be entitled to resist anest

unless that arrest is lawful. How can these rights be reconciled with the proposition that he may be arrested without knowing why he is arrested ? It

is to be remembered that the right of the constable in or out of uniform is, except for a circumstance irrelevant to the present discussion, the same

as that of every other citizen. Is citizen A. bound to submit unresistingly to arrest by citizen B. in ignorance of the charge made against him ? I think,

my Lords, that cannot be the law of England. Blind, unquestioning obedience is the law of tyrants and of slaves. It does not yet flourish on English

soil. I would, therefore, submit the general proposition that it is a condition of lawful arrest that the man arrested should be entitled to know why he

is arrested, and then, since the affairs of life seldom admit an absolute standard or an unqualified proposition, see whether any qualification is of

necessity imposed on it. This approach to the question has, I think, a double support. In the first place, the law requires that, where arrest

proceeds on a warrant, the warrant should state the charge on which the arrest is made. I can see no valid reason why this safeguard for the

subject should not equally be his when the arrest is made without a warrant. The exigency of the situation, which justifies or demands arrest without

a warrant, cannot, as it appears to me, justify or demand either refusal to state the reason of arrest or a mis-statement of the reason. Arrested with

or without a warrant, the subject is entitled to know why he is deprived of his freedom, if only in order that he may without a moment''s delay take

such steps as will enable him to regain it.

Further, Lord Simonds, after citing a single passage from the speech of Lord Cranworth, C.J., Hooper v. Lane 6 H.L. Cas. 443, 550, reading:

(The Sheriff) is bound, when he executes the writ, to make known the grounds of the arrest, in order, among other reasons, that the person

arrested may know whether he is or is not bound to submit to the arrest.

registered his view.

Here is a clear illustration of the principle on which I base this opinion that, if a man is to be deprived of his freedom, he is entitled to know the

reason why.

Lord Du Paroq pointedly observed thus:

The omission to tell a person who is arrested at, or within a reasonable time of, the arrest with what offence he is charged cannot be regarded as a

mere irregularity. Arrest and imprisonment without a warrant, on a charge which does not justify arrest, are unlawful and, therefore, constitute false

imprisonment, whether the person making the arrest is a policeman or a private individual.

It was decided by the House of Lords in the celebrated case in Bird v. Jones 1846 7 Q.B. 742 that a police officer who arrests a person must, in

ordinary circumstances, tell him the true grounds for his arrest and that if he does not do so, the arrest is unlawful. The rule enunciated in Christie v.

Leachinsky Vol. I H.L. 1947 A.E.R. 567 and Bird v. Jones Vol. I H.L. 1947 A.E.R. 567 is now incorporated in the English Act which provides

that if a person is arrested, he must be informed at the time of his arrest or as soon as practicable the grounds for his arrest.

Before a Division of Bench of the Allahabad High Court in Vimal Kishore Mehrotra Vs. State of Uttar Pradesh and Another, a similar matter

came up for decision. The petitioner in that case was informed that he had been arrested under the Criminal Law Amendment Act, 1932. The

learned Judges deciding the case observed:

S.7, Criminal Law Amendment Act prohibits several acts. It may be that prohibition of some of these acts is unconstitutional. But it does not follow

that prohibition of other acts also is unconstitutional. It is possible to separate the valid part from the invalid parts.

The object underlying the provision in Article 22(1) that the ground of arrest should be communicated to the person arrested appears to be this.

On learning about the ground for arrest, the man will be in a position to make an application to the appropriate Court for bail, or move the High

Court for a writ of habeas corpus. Further, the information will enable the arrested person to prepare his defence in time for purposes of his trial.

It is not necessary for the authorities to furnish full details of the offence. But the information should be sufficient to enable the arrested person to

understand why he has been arrested.

An identical question arose in Madhu Limaye Vs. The State, , wherein the petitioner was arrested and taken to the police station, and at the time of

his arrest, he was told that he was being arrested for the offence of abetment of the offence punishable under S. 7 of the Criminal Law Amendment

Act, 1932, and for the offence punishable under S. 143 read with S. 117, I.P.C. The detention of the petitioner therein was challenged to be ultra

vires of the Constitution and illegal on the ground that the provisions of Article 22 of the Constitution of India were violated, for no grounds of

arrest had been given to the petitioner at the time of arrest, as envisaged by the said Article. A single Judge of the Punjab High Court, making

reference to Vimal Kishore Mehrotra Vs. State of Uttar Pradesh and Another, and Christie v. Leachinsky AIR 1966 S.C. 1910, held:

It is apparent that mere stating the sections of any penal provision is not giving information to the arrested person of the grounds for which his

liberty is curtailed.

And pointed out:

It is well recognised that at common law a man is not to be deprived of his liberty except in due course and process of law and that if a man is to

be deprived of his freedom, he is entitled to know the reason why. Telling a person, he is arrested under some sections of some enactment is not

providing him with any information, much less grounds of arrest.

After having said so, the learned Judge concluded:

For all these considerations, I have no hesitation in concluding that the arrest of the petitioner in the instant case was wholly repugnant to the

constitutional guarantee as contemplated by Article 2C(l) of the Constitution of India.

In Panchanan Mondal Vs. The State, it was contended that the accused was entitled to a copy of the F.I.R. as part of the record. It was held

by a learned Single Judge of the Calcutta High Court in that case, that the question was one of ''stage'' and the provisions contained in S. 157(1) of

the Code by themselves did not entitle the accused to such a copy, and copies of all documents sent to Court and forming part thereof cannot as

such be granted to the accused irrespective of the stage reached in the case. It was held by the learned judge that, although F I.R. formed part of

the record, the accused would not be entitled, merely on that footing to a copy thereof irrespective of the stage reached, independently of the other

provisions in the statute, and of other considerations, entitling him to have the same. In view, however, of the other specific provisions in the

different statutes, the learned Judge held that the case of F.I.R. is different and the accused is entitled to a copy thereof on payment of the legal fees

therefor at any ''stage''.

Before a Division Bench of the Gauhati High Court comprised of Baharul Islam and D. Pathak, JJ., in Ajit Kumar Sannah Vs. The State of

Assam and Others, , the petitioner therein Ajit Kumar appearing in person submitted that his detention was violative of S. 50 of the Code, and

consequently, the P.R. bond that he had to execute was also a nullity and prayed that he should be freed from that bond. The Division Bench

cancelled the P.R. bond executed by the petitioner and freed him from detention, holding:

....The provision of S. 50 Code of Criminal Procedure is mandatory and must be strictly complied with. A citizen''s liberty cannot be curtailed

except in accordance with law. Even if any communication about the offence was orally made by the respondent No. 3 (in that case) to the

petitioner, we do not know what kind of communication was made, whether the communication of the full particulars or the mere section of the

offence was told to the petitioner. In the circumstances, we hold that the arrest and detention of the petitioner by the respondent No. 3 was in

violation of S. 50 Code of Criminal Procedure They are illegal, and consequently, the P.R. bond that had to be executed by the petitioner was also

a nullity.

However, the other prayer of the petitioner for quashing the case was not accepted. See also Sri Nooral Huda alias Nanak v. S.C. Jail, Naini, All.

and others 1984 2 Cri 44.

As pointed out in A.R. Antulay Vs. Ramdas Sriniwas Nayak and Another,

S.4(1) provides for investigation, inquiry or trial for every offence under the Penal Code according to the provisions of the Code. S. 4(2) provides

for offences under other law which may be investigated inquired into, tried and otherwise dealt with according to the provisions of Crl.P.C, but

subject to any enactment for the time being in force regulating the manner or place of investigation inquiring into, trying or otherwise dealing with

such offences. In the absence of a specific provision made in the statute indicating that offences will have to be investigated, inquired into, tried and

otherwise dealt with according to that statute, the same will have to be investigated, inquired into, tried and otherwise dealt with according to the

Crl. P.C. In other words, Criminal PC. is the parent statute which provides for investigation, inquiring into and trial of cases by criminal Courts of

various designations.

It is a well-established canon of construction that the Court should read the section as it is and cannot rewrite it to suit its convenience; nor does

any canon of construction permit the Court to read the section in such manner as to render it to some extent otiose

Having regard to the above principles, we have to read, construe and interpret S. 50 as it stands in the light of Article 22(l) of the Constitution of

India, but not in a manner as to render it otiose.

Arrest is undoubtedly a serious inroad into the fundamental right of the personal liberty of the subject, and hence it has to be strictly in

accordance with law. Indeed, the law relating to the exercise of the power of arrest should be as strictly construed as possible so that light or

flippant interference with the most valued of the fundamental rights guaranteed by the Constitution may be rendered difficult, if not impossible. The

meaning of the expression ""arrest"" came up for consideration before a Full Bench of this Court, to which one of us (Ratnavel Pandian J., as he then

was) was a party, in Rohsan Beevi v. Joint Secretary to the Government, Tamil Nadu, Public Dept, etc 1983 L.W. (Cri.) 289 (F.B.). The Full

Bench, after referring to the Lexical meaning of the word ""arrest"" in the various dictionaries and the connected provisions observed thus:

From the various definitions which we have extracted above, it is clear that the word ''arrest'', when used in its ordinary and natural sense, means

the apprehension or restraint or the deprivation of one''s personal liberty. The question whether the person is under arrest or not, depends not on

the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the

procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for

the purpose, of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements

to constitute an arrest in the above sense are that there must be an intent to arrest under the authority, accompanied by a seizure or detention of the

person in the manner known to law, which is so understood by the person arrested.

In Christie v. Leachinsky Vol. 1 H.L. 1947 A.E.R. 567, Lord Du Pareq stated:

Arrest (as is said in DALTON''S ""Country Justice"" 1727 Ed.580) ''may be called the beginning of imprisonment''..

The fundamental right of protection against arrest is set forth in Article 22 of the Constitution According to CI (l). the arrestee is entitled to know

the grounds of his arrest as soon as possible. The corresponding new provision in S. 50 of the Code requires that the police officer or other person

arresting any person without a warrant must forthwith communicate to him full particulars of the offence for which he is arrested or other grounds

for such arrest. If the arrest is not inserted, evidently that provision of S 59 of the Code has not been specifically referred to in this order, though,

referent to Article 21 (I) sufficiently protects the rights of an arrested person on being informed as soon as may be of the grounds for such arrest,

on the principle of which S. 50 of the Code is newly introduced.

Mr. Vanamamalai would state that the law prevailed at the time when the case State of Madras Vs. G. Krishnan, was decided on 22nd

August, 1960, was the majority view of the Supreme Court in the decision in A.K. Gopalan Vs. The State of Madras, to the effect that the

expression ""the procedure established by law"" occurring in Article 22 of the Constitution means ""the procedure prescribed by the law of the State"",

but that view was overruled by the decisions in Rustom Cavasjee Cooper Vs. Union of India (UOI), and in Mrs. Maneka Gandhi Vs. Union of

India (UOI) and Another, , in the latter of which decisions it has been held:

... the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be ''right

and just and fair'', and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not

be satisfied.

and, therefore, in view of the present position of law as enunciated by the Supreme Court, it will be reasonable, just and fair that the person who is

affected as envisaged under S. 363(5), Crl. P.C, and Rule 339 of the Criminal Rules of Practice (as per which copies of any portion of the record

of a criminal case must be furnished to the parties concerned on payment of proper stamp and authorised fee for copying, and where the Judge''s

notes form the only record of the Evidence, copies of these notes should be given) is entitled to get copies of the F.I. Rs. etc., even prior to the

filing of the police report under S. 173(2) of the Code, in view of the fact that the said documents are public documents falling under S. 74(iii) of

the Evidence Act. In that view, according to learned counsel, the proposition expressed in G. Krishnan''s case1, is no more good law. He would

continue his argument stating that in other words, the position is that under S. 76 of the Evidence Act, the accused is entitled to copies at any stage

of the criminal case, and, therefore, it would include the time from the filing of the first information report. He continues his submission stating that

as per S. 76 of the Evidence Act, the accused is entitled to copies of the documents in a criminal case at any stage of the criminal proceeding,

which would include a copy of the first information report, and this position is now made clear by the present Rule 339 of the Criminal Rules of

Practice, reading, ""Copies of any portion of the record of a criminal case must be furnished to the parties concerned..."" as different from the earlier

corresponding Rule, viz., Rule 177, reading, ""Copies of any portion of the record of a criminal trial must be furnished to the parties concerned... "",

and thus the present rule entitles the accused to get copies of any portion of the record of a criminal case at any stage.

Mr. Sriramulu, after taking us elaborately through the Full Bench decision in G. Krishnan''s case1 and S. 50 and some other provisions of the

Code, submitted that S. 50 is a procedure established by law, that therefore, the procedure should be scrupulously and strictly followed, and that

in order to avoid any controversy as to whether S. 50(1) has been strictly complied with, if that Section is to be construed that even oral

communication is enough, the grant of a copy of the first information report to the accused, will be a legal compliance in the true spirit of that

section and Article 22(1) of the Constitution of India. But he would add that the accused are not entitled to get copies of all documents, except

those such as first information reports, which could be furnished under the specific provisions before the charge-sheet is filed, and that copies of

those documents not covered by the specific provisions cannot be furnished to the accused as there is a clear bar under S. 173 of the Code. He

cited the decision in Govind Prasad v. State of West Bengal 1975 Cri. L.J. 1910.

Mr. T.S. Arunachalam, learned counsel assisting the Court as Amicus Curiae, has argued that the expression ""communicate"" in S. 50 of the

Code is a strong word, meaning that sufficient knowledge of the basic facts constituting the full particulars of the offence for which the person is

arrested or the other grounds for such arrest should be imparted effectively and fully to the arrestee in writing so that the arrestee could, understand

the cause of his arrest. Then he relies on the observations of the Supreme Court in State of M.P. v. Shobharam A.I.R 1986 S.C. 1910, which we

extract below.

There are three rights and each stands by itself. The first is the right to be told the reason of the arrest as soon as an arrest is made, the second is

the right to be produced before a Magistrate within twenty four hours and the third is the right to be defended by a lawyer of one''s choice. In

addition there is the declaration that no person shall be deprived of his personal liberty except by procedure established by law.

Then relying on the decisions in Surinder Singh Vs. Central Government and Others, and State of West Bengal v. Swapan Kumar Guha 1982

M.L.J. Cri. 359, which are to the effect that if the first information report does not disclose the commission of a cognizable offence, the Court

would be justified in quashing the investigation on the basis of the information as laid or received, would continue his argument that in a case where

the first information report does not disclose the commission of a cognizable offence, the accused, if he approaches the Court for quashing the

proceedings by invoking the inherent jurisdiction of the High Court under S. 482 of the Code, has to file a copy of the first information report, and

therefore, there can be no legal support or justification indenying the furnishing of a copy of the first information report to the accused on payment

of charges.

Learned Public Prosecutor, relying on the analogy of the judgment of the Full Bench in State of Madras v. G. Krishnan AIR 1961 Mad. 92

(F.B.): 73 L.W. 713 would urge that the accused is not entitled to get free copy of the document till a police report (charge-sheet) is filed, as

contemplated under S, 173(2) of the Code, and what S. 50 of the Code requires, when a person is arrested without warrant, is communication of

the full particulars of the offence for which he is arrested or other grounds for such arrest, which communication would not necessarily mean

communication in writing, and as such the accused has no justification to claim a copy of the first information report before the charge-sheet is filed

even on payment of charges, and if such a copy is furnished to the accused, it would - enable the accused to tamper with the prosecution witnesses

and thus hinder the course of justice.

Now, we shall examine the principles laid down in the Full Bench decision in State of Madras Vs. G. Krishnan, and see whether, in the light of

the discussion made above, that decision holds good for the proposition that the accused is not entitled to a copy of the first information report fill a

final report is filed as contemplated under S. 173(2) of the Code. In that Full Bench decision, it has been held that the statements recorded under

S. 164 of the Code would be public documents falling under S. 74(1)(iii) of the Indian Evidence Act, that the accused will be entitled to copies of

the same as a person interested, but his right to obtain such copies before the filing of the charge-sheet has been taken away by implication of the

provisions of S. 173(4) of the old Code and that he will be entitled to the copies of the documents only in accordance there with. It is only on the

basis of the principles laid down in the above decision, Maheswaran J., has ruled in Muthusamy In re 1982 L.W. (Cri.) 60 that the accused is not

entitled even to a copy of the first information report before the Police report (charge-sheet) is filed before the Court. In our opinion, the view

taken by Maheswaran, J., is not a correct one for the reasons to be presently mentioned. Firstly, in the Full Bench case, the question referred to

for decision was whether the statements under S. 164 of the Code fall under S. 74(1)(iii) of the Indian Evidence Act, and if so, whether the

accused would be entitled to copies of the same at any stage of the investigation, even before the filing of the charge-sheet. Secondly, the Full

Banch has not considered the constitutional mandate envisaged under Art 22(1) of the Constitution. Above all, the framers of the Code have now

introduced a new provision, S. 50 in conformity with Article 22(l) of the Constitution. Further, the view expressed by the Full Bench that the

accused''s right to obtain copies before the filing of the charge-sheet has been taken away by the implication of the provisions of S. 173(4) of the

old Code (corresponding to S. 207 of the new Code) and that he will be entitled to copies of the documents only in accordance there with, cannot

hold good in view of the new provisions of S. 50 of the Code in conformity with Article 22( 1) of the Constitution.

The cherished legal right vested in the accused under Article 22(1) of the Constitution and S. 50(1) of the Code to obtain full particulars of the

offence or the grounds for his arrest, is based on well settled principles of law, as enunciated in a number of judicial pronouncements which we

have already referred to. In this connection, it would be useful to bear in mind Articles 3 and 29 of the Universal Declaration of Human Rights,

1948 and Art 9(2) of the International Covenant of Civil and Political Rights, published by the United Nations (New York 1978) at page 24,

reading.

Any one who is arrested shall be informed at the time of arrest of the reasons for his arrest and shall be promptly informed of any charges against

him.

Further, if the first information is laid by the accused himself, he is entitled to get a copy of the information free of cost as per S. 154(2) of the

Code, since the expression ""informant"" appearing in S. 154(2) does not exclude the accused giving information about the crime. When it is so, we

are unable to understand as to what would be the legal impediment to furnish a copy to the accused, who as per S. 50(1) has to be informed of the

full particulars of the offence for which he is arrested or other grounds for such arrest.

There is yet another compelling reason, and that being, if the accused intends to file a petition to quash the first information report by invoking

Section 482 of the Code, in case the first information report does not disclose the commission of a cognizable offence, or a petition under Article

226 of the Constitution seeking the issuance of a writ of habeas corpus for setting him at liberty on the ground that the accusations made against

him do not, warrant his detention, he cannot do so unless he gets a copy of the first information report, and files the same before the Court. State

of West Bengal and Others Vs. Swapan Kumar Guha and Others, . Further when there is a constitutional right to the accused to engage a counsel

of his choice to defend him, that right could be exercised only in case he is informed of the nature of the allegations or the charge levelled against

him. The argument of learned Public Prosecutor is that what Section 50 of the Code demands is that the person arrested is only to be informed of

the grounds of arrest and of his right to bail, and the said provision does not specifically and expressly require a copy of the first information report

to be furnished to the accused, as u/s 154(2) of the Code. Though in the heading of Section 50 of the Code, the word ""informed"" is used, in the

body of the section, the expression ""communicate"" is found. In legal parlance, there is a lot of difference between the expression ""inform"" and

communicate"". As Patanjali Sastri, J., pointed out in his separate judgment i Commissioner of Income Tax, Bombay Vs. Ahmedbhai Umarbhai

and Co., Bombay, , ""marginal notes in an Indian Statute, as in an Act of Parliament, cannot be referred to for the purpose of construing the statute.

Nor can the title of a Chapter be legitimately used to restrict the plain terms of an enactment."" See also Balraj Kunwar v. Jagatpal Singh 26 All

393: 31 I.A. 132 P.C. Hence, in the light of the above decisions. We have to approach Section 50(1) only with reference to the specific word

used in that Section, and not with reference to the word used in the heading of the section. This section requires the arresting person to

communicate to the arrestee the full particulars of the offence for which he is arrested or the other grounds for such arrest. Though the section does

not mean that any technical or precise language need be used, it demands that all the particulars of the offence for which the accused is arrested

should be communicated to him. If it is to be construed that the communication could be oral also, then it would lead to a dispute, when the

accused denies that full particulars of the grounds have not been communicated to him. Even if any communication of the offence is orally made to

the accused, the Court may not be in a position to come to a definite conclusion as to what kind of communication was made, whether

communication of the mere particulars of the offences was made or whether mere section of the offence was told to the arrestee. Therefore, in

order to avoid any controversy or dispute, it will always be desirable to give the particulars of the grounds in writing. We may point out at this

juncture that the Supreme Court in Shri. Lallubhai Jogibhai Patel Vs. Union of India (UOI) and Others, , while interpreting the word

communicate"", observed that if the ""rounds"" are only verbally explained to the arrestee and nothing in writing is left with him, then the purpose of

Section 50 of the Code is not served and strictly complied with.

As repeatedly pointed out by the authoritative judicial pronouncements of the Supreme Court and the various High Courts, it is

unconstitutional, illegal, unjust and unfair not to let the arrestee know the accusation against him or the full particulars of the offence or the grounds

on the basis of which the arrest has been effected. To expect an arrestee to a blind and unquestioned obedience in ignorance of the particulars of

the offence or the accusation made against him is only the la of the tyrants. After the advent of the Constitution of India, in our view, it should not

be allowed to flourish or exist on our soil. Every person subjected to arrest is entitled to know why he is deprived of his freedom. It is only with

this underlying principle, Section 50 is now introduced in the Code.

So much for principles. Coming to practical purposes, we are of the view that certain facts have to be borne in mind. As we have pointed out

already, as per the new Code, a copy of the First Information Report is to be given after the final police report is forwarded on completion of

investigation to the Magistrate empowered to take cognizance of the offence and before the stage of the commencement of the proceedings before

the Magistrate, as per Section 207 of the Code. Section 50 of the Code does not contemplate the furnishing of a copy of the first information

report to the arrestee at the time of arrest. Section 50, which is mandatory, provides that any person arrested without warrant shall, forthwith b6

communicated with full particulars of the offence for which he is arrested or other grounds for such arrest and that if the arrest is made in a bailable

case, he shall be informed of his right of entitlement to bail. Even a cursory reading of Section 50, which provision is in conformity with Article

22(1) of the Constitution of India, clearly indicates that the arrestee should be communicated, not the specific provision of the Section of the

offence for which he is arrested, or the gist of the offence, but the full particulars of the offence for which he is arrested, though the Section does

not disclose in detail what are the nature of the particulars or pieces of information to be furnished to the accused.

42 (a).The First Information Report, as it reaches the Magistrate, contains three elements, viz.,

(1) The information relating to the commission of a cognizable offence, received by the police, which is usually called the complaint;

(2) The record of that information by the police as contemplated u/s 154 of the Code and

(3) The report of the police officer in charge of a police station as per Section 157 of the Code.

The said first Information Report in Form No. 81 appended to the Madras Police Standing Orders contains details other than those contemplated

u/s 50 of the Code like the date of despatch from the police station, steps taken regarding investigation, explanation for delay in investigation, etc.

The provisions of Article 22(1) of the Constitution of India and Section 50 of the Code, as they stand, do not require the supply of the First

Information Report as such. On the other hand, there may be cases in which the First Information Report is a cursory one and does not contain the

name of the accused and the nature of his involvement in the case, and all those details may come to light only in the course of investigation

preceding the arrest. In such a case, the mere supply of a bald First Information Report will not satisfy the requirements of Section 50 of the Code.

The Expression ""full particulars"" will take into its fold;-(1) the name and residence of the informant: (2) place of occurrence; (3) the date and time

of occurrence; (4) the brief description of the offence complained of with reference to the provisions of law; (5) the details of property involved, if

any, and (6) the name of the police station and crime number. Though Section 50 of the Code, as we have stated earlier does not state in specific

terms that a copy of the First Information Containing the full particulars of the offence or the grounds should be given in writing to the accused as

u/s 154 of the Code, as per which a copy of the information as recorded u/s 154(1) should be given free of cost, to the informant, in order to

avoid any controversy with regard to the communication of the full particulars, we are of the firm view that it would be desirable that the particulars

enumerated by us above be communicated to the arrestee in writing and free of cost, which would be in strict compliance of Article 22(1) of the

Constitution of India and Section 50 of the'' Code. If the investigating officer, for the purpose of convenience prefers to give a copy of the first

information report itself, such a course would be a welcome measure and would meet the requirements of Section 50 of the Code in its true tenor

and spirit. We are alive to the situation that there may be cases of mass arrest in which it may not be possible for the concerned police officer to

communicate forthwith in writing the full particulars of the offence, in which event, the particulars may be communicated first orally and then in

writing as expeditiously as possible. In this connection, we would like to express our view that the failure to communicate the particulars as

required u/s 50 of the Code in writing would not render the arrest and the subsequent investigation, illegal, because arrest takes place before the

prescribed communication and any lapse in respect of this subsequent fact would not vitiate the very arrest itself. However, failure to communicate

the particulars as required by Section 50 would have a deterrent effect on the judicial remand which follows the arrest. No doubt, it is true that if a

duty is cast on the arresting officer to comply with certain statutory formalities, there is a corresponding duty cast on the Magistrate who is called

upon to pass remand orders to satisfy himself whether the statutory formalities have been strictly complied with or not. In case the Magistrate is not

satisfied that the requirements of Section 50 of the Code have not been complied with, he can limit the judicial remand in the first instance to such

period as would be necessary, thereby affording an opportunity to the police officer to communicate in writing the full particulars of the offence for

which the accused is arrested or the other grounds of such arrest. This view is fortified by some of the provisions of the enactments dealing with

preventive detentions, such as Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, National Security Act, Tamil Nadu

Act 14 of 1982, etc., wherein there are specific provisions permitting the authority making the order of detention to communicate the grounds on

which the said order has been made within a specified period, which provisions are held to be valid in conformity with Article 22(1) of the

Constitution of India, though the copy of the order of detention has to be served on the detenu forthwith. Be that as it may, now coming to the

prayer in these petitions, for the discussions made above, we hold that the accused, notwithstanding the communication of the full particulars in

writing at the time of arrest or subsequent thereto, as indicated above, is entitled to a copy of the First Information Report even before the final

report (charge-sheet) is forwarded to the Magistrate u/s 173(2) of the Code on application and on payment of charges.

Whether the accused is entitled to copies of the remand report and the complaint, if any, made by the arrestee at the time of remand and the

orders passed thereon by the Magistrate ? There are two sections in the Code, Ss.l67 and 309 of the Code (corresponding to Section 344 of the

old Code), which empower the Magistrate or the Court respectively to grant time to the police in connection with the investigation of the case. u/s

167 of the Code, if any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of

twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge

of the police station or the investigating officer shall forward the accused to the nearest Magistrate with a copy of the entries in the diary relating to

the case. Thereafter, u/s 167 (2) of the Code, the Magistrate to whom an accused person is forwarded, whether he has or has not jurisdiction to

try the case, from time to time, may authorise the detention of the accused in such custody as such Magistrate thinks fit, for a period not exceeding

fifteen days in the whole. If a Magistrate, who has no jurisdiction to try the case or commit it for trial and who has authorised the detention of the

accused, considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having jurisdiction.

The section then applicable for further detention is Section 309 of the Code As per sub-S.(2) of Section 309 of the Code, if the Court after

taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any

inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it

considers reasonable, and may by warrant remand the accused if in custody. The remand of the accused person to custody cannot be for a term

exceeding fifteen days at a time.

Explanation (1) of the said Section reads that if sufficient evidence has been obtained to raise a suspicion that the accused may have committed

an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand. As a Division Bench

of the Calcutta High Court held in Superintendent & Remembrancer of Legal Affairs, Government of West Bengal v. Bidhindra Kumar Roy AIR

1949 Cal 143, this Explanation indicates that further remand may be granted before submission of charge-sheet, because this Explanation

contemplates a stage prior to submission of the charge-sheet and that time is wanted for further investigation. A reading of these two sections

shows that the Magistrate while passing the order of detention of the accused in the first stage u/s 167(2) of the Code has to satisfy himself by

going through the entries in the diary transmitted to him relating to the case that the detention of the accused is necessary. The remand u/s 309 of

the Code raises at the second stage when investigation is not completed within fifteen days and more time is needed for collecting further evidence;

provided the evidence so far collected is sufficient to raise a suspicion that the accused might have committed the offence and it appears likely that

further evidence may be obtained by a remand of the accused. Therefore, even at the stage when further remand is made at the second stage, on

going through the case diary and the other connected records, the Court has to satisfy itself that the material so far obtained raises a suspicion that

the accused might have committed an offence and that further evidence may be obtained by extension of the remand of the accused, after the

expiry of the period of fifteen days in terms of the order u/s 167 of the Code. Neither Section 167 of the Code nor Section 309 of the Code which

contains the provision for authorising detention and the provision of remand and the extension of remand of the accused respectively contemplates

expressly any report by the police, which in practice is called ''remand report''. 0.593(1) of the Madras Police Standing Orders dealing with

Further uses of the case diary"" reads thus:

Remands should be applied for on case diary for Ms. S 167(1) Crl P.C, requires a copy of the case diary to be sent when remand is sought. The

investigating officer should, therefore, prepare an additional carbon copy of the case diary when he is aware that he will have to send a prisoner for

remand.

However, it is the practice in vogue to submit a report under the name ""Remand report"" containing such particulars and necessary information apart

from furnishing entries in the case diary or copies thereof, on perusal and examination of which the Magistrate should take a decision as to whether

or not the accused has to be detained in custody or continued to be kept in remand (judicial remand) as the case may be. In other words, remand

report is nothing but an application submitted by the investigating officer containing the sum and substance of the case diary relating to the materials

so far collected. u/s 207, remand report is not one of the documents enumerated therein to be furnished to the accused free of cost by the

Magistrate; nor could it be said that the expression ""any other document'' or relevant extract thereof"" mentioned in Section 207(v) would include

remand report.

An argument was advanced that remand report is a public document within the definition of Section 74(1)(iii) of the Evidence Act and as such

Section 76 of the Evidence Act clothes any person, who has a right to inspect the said public document in the custody of a public officer, with a

right to obtain and demand a copy thereof on payment of legal fees therefor. In support of this proposition, reliance was placed on a judgment of

the Division Bench of the Kerala High Court consisting of Raghavan, C.J., and Bhaskaran, J. in Circle Inspector of Police, Attingal v. Velu ILR

1973 1 Ker 50 in which it had been held that:

...The remand report submitted by the police, whether in relation to the remand u/s 167, or extension of remand u/s 344 of the Code, is a public

document within the meaning of Section 74 of the Evidence Act.

Even assuming that it is a public document, it has to be seen whether there is any other statutory provision which takes away or qualifies the right

granted u/s 76 of the Evidence Act. In State of Madras Vs. G. Krishnan, he Full Bench went to the extent of laying down the law, when examining

the question of grant of a certified copy of a statement u/s 164 of the Code thus:

There is no express provision in that Code which prohibits the granting of copies of such statements. But it is not always necessary that a statute

should necessarily be explicit in the matter. The language of the statute may be such that a prohibition can be implied.

Therefore, we have to consider whether there is any prohibition of the right of the accused to obtain a certified copy of the remand report, either

impliedly or explicitly. Sub-section (2) and (3) of Section 172 of the Code, which are relevant for our purpose, read as follows:

172(1)...

(1) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in

the case, but to aid it in such inquiry or trial.

(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are

referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose

of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act, 1872, shall

apply.

(Sub-S.(2) of the old Code corresponds to the above present sub-S. Ss.(2) and (3)).

The above sub-S.(3) makes it absolutely clear that neither the accused nor his agents are entitled to call for the police diary of a case, either during

inquiry or trial; nor the accused and his counsel are entitled to see the same, merely because the entries in the case diary are referred to by the

Court, except under circumstances when the entries are used by the police officer who made them, to refresh his memory or the Court uses them

for the purpose of contradicting such police officer. Therefore, there is a clear and express provision prohibiting the accused and his agents from

calling for the police diaries and seeing them; but in the two exempted events contemplated in Section 172(3), the diary becomes available to the

accused, viz, for cross-examining a police officer under S 161 of the Evidence Act and for contradicting him u/s 145 of the Evidence Act.

The Kerala High Court, in Circle Inspector of Police, Attingal v. Velu ILR 1973 Ker 50, rejected the argument advanced before it by the

learned Government Pleader that u/s 172 (2) of the old Code, there is a bar against the accused calling for the case diary or seeing it even where

the Court, during the course of an enquiry or trial sends for and uses such diary in aid of such enquiry or trial, and observed:

This Prohibition, as we view it, is only against the use by the accused of the case diary as such, but not against ""remand report"", submitted by the

investigating officer. The Legislature has consciously provided a safeguard with respect to the claim for inspection of the case diary by the accused.

The same safeguard, there would have been, with respect to the ""remand report"" also, if the legislature had any intention to treat it as a privileged

document beyond the reach of the accused. The correct position seems to be that the prohibition contained in sub-S.(2) of S 172 Crl. P.C.,

against the right of the accused to inspect the case diary, does not extend to the ""remand report"".

With great respect to the learned Judges, we are unable to subscribe to that conclusion, firstly because the question of the Legislature treating the

remand report us a privileged document beyond the reach of the accused does not arise, since the Code does not contemplate a remand report

being submitted to the Magistrate. Secondly, when the learned Judges themselves have expressed the view that the Legislature has consciously

provided a safeguard with respect to the claim for inspection of the case diary by the accused, then the same analogy should apply to the invented

remand report by practice, which is nothing but only a sum and substance of the case diary. Thirdly, if the certified copy of the remand report is to

be furnished to the accused on the ground that the Legislature has not placed any prohibition, then it would tantamount to furnishing a copy of the

substance of the case diary itself in other form, which the Legislature has prohibited by a statutory inhibition in that behalf. In other words, the case

diary is the genus and the remand report is only a species, and, therefore, the prohibition made u/s 172(3) with regard to the genus, (i.e., entries in

the case diary) will apply on all fours to its species (i.e., remand report). In case a certified copy of the remand report is furnished to the accused

containing the information so far collected with all the particulars, then there is every likelihood of the accused tampering with the evidence and

collection of further evidence in that line, thereby hindering and stultifying the course of investigation.

In fact, this problem arises only on account of the investigating officer sending a ''remand report'' which is not contemplated under law.

Therefore, we hold that the judicial remand should be applied by the concerned police officials in strict compliance with the provisions of Section

167 of the Code and 0.593(1) of the Madras Police Standing Orders. In such a case, the accused would not be entitled to a copy of the

requisition for remand in view of the embargo placed by Section 172(3) of the Code. If any other record besides the remand report is forwarded

to the Magistrate under any name, a copy of the same will have to be furnished to the accused once an order is passed on the basis of such

document other than the requisition for remand, as per the provisions of Section 353(5) of the Code on payment of charges. So far as the

requisition for remand is concerned, we hold that the accused is not entitled to a copy of the same.

The next issue for consideration is, whether the accused is entitled to copies of the order made by the Court on the remand report as well as

the complaint, if any, made by the accused, and the order made thereon. The orders made on the remand report are orders passed by the

Magistrate in the course of his judicial Proceedings. In other words, they are all judicial orders. Recording of the complaint made by the accused at

the time of remand is also part of the judicial function of the Magistrate. It may be mentioned here that the accused may require the order of

remand in case the accused intends to challenge the validity of remand. Therefore, the accused on application and on payment of the prescribed

charges, is entitled to a copy of such order as contemplated u/s 363(5) of the Code (corresponding to Section 548 of the old Code). Similarly, the

accused is also entitled to a copy of his complaint made to the Magistrate which was reduced to writing by the Magistrate in the discharge of his

judicial function, on application made in this behalf and on payment of prescribed charges, in the absence of any statutory inhibition. Hence, the

accused is entitled to get copies of the order passed in the first stage while ordering the detention of the accused u/s 167 of the Code, and also the

order of remand and extension of remand u/s 309 of the Code and also the copy of his complaint, if any, made by him and reduced by the

Magistrate into writing at the time of remand and the order, if any, passed thereon.

49A. Whether the accused is entitled to obtain certified copies of the inquest report, statements recorded u/s 174 of the Code, the post mortem

certificate, the requisition given by the police officers to the Medical Officer for conducting post mortem and medically treating the injured, the

rough sketch of the scene place, and the observation mahazar prepared by the investigating officer ?

S.174 of the Code was intended to apply to a case where inquest is necessary. The investigation under this section is limited in scope and confined

to the ascertainment of the actual cause of death, as to whether in a given case, death was accidental, suicidal, homicidal or caused by any other

reason. It is not necessary that all the witnesses are to be examined during the inquest As pointed out by the Supreme Court in Mrs. Shakila

Khader and Others Vs. Nausheer Cama and Others,

In an inquest, all the witnesses need not be examined, as an inquest u/s 174, Crl. P.C, is concerned with establishing the cause of the death and

only evidence necessary to establish it need be brought out.

In Marudamuthu Kudumban v. King-Emperor ILR 1950 Mad 750: 25 L.W. 599 it has been ruled that the accused is not entitled to the copies of

the inquest statements, and that the procedure which governs the copies of statements u/s 162, Crl. P.C, would govern also the grant of copies of

statements, made at the inquest. (See also Ch. Razik Ram Vs. Ch. Jaswant Singh Chouhan and Others, and Nirpal Singh and Others Vs. State of

Haryana, Such inquest statements, as the case of the statements recorded u/s 162 of the Code, should not be got signed by the deponents, and the

statements recorded during the inquest in the course of the investigation are not substantive evidence, but those statements could be used for

contradicting the witnesses u/s 145 of Evidence Act.

u/s 174(1) of the Code, the officer holding the inquest has to draw out a report of the apparent cause of death describing such wounds,

fractures, bruises and other marks of injury as may be found on the body, and stating in what manner or by what weapon or instrument (if any),

such marks appear to have been inflicted; and such report prepared in the presence of two or more inhabitants of that neighbourhood should be

signed by the officer holding the inquest and other persons or by so many of them as occur therein, and the said report should be forwarded to the

Magistrate. In Order 605(3) of the Madras Police Standing Orders, it is stated that in case of trial for culpable homicide, the report of the

preliminary investigation u/s 174 of the Code should invariably be exhibited by the prosecution in the trial. The inquest report so drawn out being a

report of what the officer holding the inquest actually found on inspection of the dead body and what he ascertained by questioning the persons

present should not be admitted as evidence either for the prosecution or for the defence, but it would only be open to the defence to cross-

examine the witnesses in the light of any material that they might find from the inquest report, but the inquest report itself could not be admitted as

evidence and could not be used directly for showing that the prosecution witnesses had given some other version before the said officer. In

Pandurang v. State of Hyderabad AIR 1955 Mad 216, it has been observed that it is questionable how far an inquest report is admissible except

u/s 145 of the Evidence Act.

When there is any doubt regarding the cause of death or when for any other reason, the officer holding the inquest considers it expedient to do,

he shall, subject to such rules as the State Government may prescribe, forward the body with a view to its being examined to the nearest Civil

Surgeon, or other qualified medical man, appointed in this behalf by the State Government, if the state of the weather and the distance admit of its

being so forwarded without risk of such putrefaction on the road as would render such examination useless, as contemplated u/s 174 (3) of the

Code. The most important feature for which the necropsy, i.e., postmortem examination, is asked for is to obtain the opinion of the Medical

Officer as to the causa causans (immediate cause) of death. As per G.O.204, Pub. dated 28-3-1892, Medical Officers have to supply a copy of

the post mortem notes on application from an officer not below the rank of Station House Officer, and in addition thereto, the Medical Officers

should furnish the police with all possible information calculated to assist the elucidation of the case either orally or in writing. (See Order 615 of

the Madras Police Standing Orders). It is during the course of the investigation, the investigating officer, in order to ascertain the nature of the injury

and the probable manner in which the injury has been caused, and the nature of the weapon that could have been used, etc., obtains a copy of the

wound certificate from the Medical Officer concerned on a requisition in that behalf. The wound certificates will be delivered to the police by the

concerned Medical Officers as per G.O.204, Public, dated 28-3-1892 (See also Order 614 of the Madras Police Standing Orders).

The rough sketch, plan or map of the scene place is prepared by the investigating officer during investigation giving all the necessary and

relevant details of the scene place, the main purpose of which is to explain to the Court the scene spot, and to enable the investigator to refresh his

memory at 4 later stage.

The observation mahazar is also one prepared during investigation noting down all the relevant details of the scene locality.

Though there is no specific provision requiring the investigating officer to prepare the observation mahazar and to draw a topography, these

documents are prepared only as part of the investigation in the process of collection of materials relating to the case.

Now, we pass on to the next question as to whether the accused is entitled to copies of these documents, even before the filing of the charge-

sheet. Mr. N.T. Vanamamalai and Mr. Rangavajjula, placing heavy reliance on Section 173(7) of the Code, strenuously urged that whilst a police

officer investigating the case is given option to furnish to the accused copies of all or any of the documents referred to in sub-S.(5) of Section 173,

there may not be any conceivable or justifiable reason for denying the grant of copies of the documents referred to above before the stage of

Section 207 to the accused. According to Mr. Rangavajjula, if Sections 173(7) and 207 of the Code are to co-exist, Section 173(7) should

prevail. Both the learned counsels drew the attention of this Court to Section 363(5) of the present Code (corresponding to Section 548 of the

Old Code), as per which any person affected by a judgment or order passed by a Criminal Court is entitled to a copy of the judgment or order or

of any deposition or other part of the record, on an application made in this behalf and on payment of the prescribed charges; and they

supplemented their arguments stating that the affected party is entitled to a copy of the other part of the record also on the basis of which any order

is made, before the charge-sheet is filed. In support of this contention, Mr. NT. Vanamamalai relied on a judgment of the Supreme Court in

Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Satyen Bhowmick and Others,

Mr. Sriramulu, relying on the decision of the Supreme Court in Maru Ram and Others Vs. Union of India (UOI) and Others, contended that

Sections 173 and 207 are specific provisions overriding the general law, viz., Evidence Act, and therefore, the copies of the documents have to be

furnished only according to these specific provisions as per which the accused is entitled to get copies of the documents only after the police report

is forwarded. According to him, there is a clear demarcation between the specific provision and the general law, and hence even if these

documents are construed to be public documents within the meaning of Section 74(1(iii) of the Evidence Act, these documents could not be

furnished to the accused before the police report (charge-sheet) is submitted on account of the implied restriction, as borne out from a combined

reading of Sections 173(2) and 207 of the Code. Mr. Sriramulu would further submit that the ruling relied on by Superintendent and

Remembrancer of Legal Affairs, West Bengal Vs. Satyen Bhowmick and Others, cannot be availed of, on the ground that the Supreme Court

examined that case only with reference to the provisions of the old Code since the occurrence in that case was much earlier to the commencement

of the new Code, and secondly, the question that arose in that case was entirely different from the one now put forth by Mr. N.T. Vanamamalai.

56a. Relying on the decision in Assistant Collector of Customs and Another Vs. L.R. Malwani and Another, , wherein the applicability of Section

173 of the old Code came to be examined and wherein it has been pointed out,

That provision is attracted only in a case investigated by a police officer under Chapter of the Code of Criminal Procedure, followed up by a final

report u/s 173, Crl. P.C.

And another decision in Gurbachan Singh Vs. State of Punjab, wherein it has been observed:

It is clear from this new Sub-section (S.173 (4) of the old Code) that when the police officer after completing the investigation sends his report to

the Magistrate, copies of the statements and documents referred to should be furnished to the accused.

Mr. Sriramulu urged that the procedure laid down under the Code of Criminal Procedure is the procedure duly established under law, and,

therefore, the accused is entitled to copies of these documents only as per the specific provision which is fair and just and which is in consonance

with Article 21 of the Constitution of India. In continuation of his argument, learned counsel submitted that Section 173, and 207 are specific

provisions overriding the general law, and, therefore, any plea that the accused is entitled to copies of these documents on payment of charges on

the basis of Sections 173(7) and 363(5) of the Code cannot be countenanced. According to him. Section 173 (7) comes into effect only after the

completion of the investigation followed by a final report by the police, and not earlier to it.: We see much force in the submission made by Mr.

Sriramulu for the following reasons: S 173(7) of the Code reads thus:

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-3.(5).

Sub-S.(4) of Section 173 of the old Code cast a statutory duty on the officer in charge of the police station to furnish to the accused free of cost

the documents contemplated therein. There is no such duty on the police officer under the present Code, but that duty is now cast on the

Magistrate to furnish to the accused free of cost the documents enumerated in Section 207, in a case instituted on police report. However, the

present Sub-section (7) of Section 173, newly introduced, leaves the matter of granting of copies of the documents mentioned in sub S.(5) of the

new Code, to the convenience of the police officer investigating the case. Never the less, the present sub-S.(7) corresponds to, and replaces, sub-

S.(4) of Section 173 of the old Code. If sub-S.(7) is read in conjunction with sub-S.(5) of Section 173, it would make it clear that sub-S.(7)

would come into operation only after a police report as contemplated in sub-S.(2)(i) of Section 173 is forwarded to the Magistrate. Therefore, the

submission made by Mr. N.T. Vanamamalai and Mr. Rangavajjula on the basis of sub-S (7) cannot be accepted.

S.548 of the old Code came under Chap XLVT under the heading ''Miscellaneous'' of the old Code. Section 363(5) of the new Code,

corresponding to Section 548 of the old Code, comes under the heading ""Judgment"" in Chap. XXVII. The expression ""other part of the record

appearing in sub-S.(5) of Section 363 would not refer to the documents referred to in Sections 173 and 207 Crl. P.C, but would only refer to the

records of the Court with reference to the case. The expression ""record"" in legal parlance would mean ""an official contemporaneous memorandum

stating the proceedings of a Court or official copy of legal papers used in a case"" (Shimmel v. People 108 Colo 592, 121, P.2d 491, 493 as

defined, in Black''s Law Dictionary Fifth Edn.) There-fore, in the context of Section 363(5), it would pertain only to the subject matter of the order

and is quite distinct from the expression ""documents"" referred to in sub-S.(7) of Section 173, and the furnishing of the copy of the part of the

record also is only after the judgment or order, as the case may be, is pronounced. Therefore, as per Section 363 (5), an aggrieved person is

entitled to a copy of any order or part of the record on which that order is based only after the order is passed, subject to the express exclusions

which may be found in the Code. Hence, no argument could be permitted to be advanced relying on Section 363 (5) for the plea that the accused

are entitled to get copies of the documents referred to in Section 173 before a police report is forwarded u/s 173(2)(i).

Citing the decision of the Supreme Court in Ram Jethmalani v. Director, C.B.I. C.I A. I, New Delhi 1987 Cri. L.J. 570, in which it has been

held that statements which are recorded by the police officer u/s 161, Crl. P.C, are acts of a police officer, or public officer, or record of acts of

public officers, that all documents which may be handed over to such police officer to substantiate the statements made to the police officer would

also be part and parcel of the record of acts of the police officer, that the statements recorded and documents filed in support of the statements

with public officers would be public documents within the meaning of S 74, Evidence Act, and that it cannot be said that as the statement as

recorded by the police officer is not a record within the meaning of Section 35, Evidence Act, it cannot be a public document within the meaning of

Section 74, Evidence Act, Mr. Vanamamalai would urge that in the light of the above proposition of law laid down by the Supreme Court, there

cannot be any impediment in granting copies of the above said documents. As rightly pointed out by Mr. Sriramulu, the decision of the Supreme

Court in Ram Jethmalini v. Director, CBI. SPE, CIA-I, New Delhi 1987 Cri. L.J. 570 cannot be availed of for the proposition that the accused

are entitled to copies of the above-said documents even before the police report is forwarded, for the reason that the petitioner (Ram Jethmalani)

in that case sought a writ of mandamus for permitting him inspection of statements and documents in possession of respondent (Director CBS),

relating to the investigation and final report u/s 173, Criminal P.C; in respect of a criminal case and to grant him copies or to make copies of certain

documents in order to prove his case in a libel action instituted by him in the Queen''s Bench Division of the High Court of Justice in England.

Secondly in that case, the final report u/s 173 of the Code has already been forwarded to the Magistrate. In other words, the investigation in that

case was over. Thirdly, the copies were directed to be given to the petitioner therein on the petitioner giving an affidavit of undertaking that he shall

not use it against the State.

Yet another argument was advanced by Mr. N.T. Vanamamalai, relying on Rule 339 of the Criminal Rules of Practice stating that the words

any portion of the record of a Criminal case"" would indicate that the accused can get any document at any time on payment of charges. As

pointed out earlier, in Rule 339, as it originally stood as Rule 177, the expression ""any portion of the record of a Criminal trial"" was used. As stated

by the Full Bench in State of Madras v. G. Krishnan A.I.R 1961 Mad. 92 F.B.: 73 L.W. 713, the present rule (R. 339) entitles the accused to get

copies of any portion of a record of a criminal case on payment of proper stamp and authorised fee for copying. Learned Public Prosecutor would

contend that the record of a criminal case gets constituted only from the time the Magistrate takes cognizance of the case, and that is, the stage of

Section 207 and that the accused cannot get copies earlier. It is obvious that the Rules are subject to the provisions of the Code, and that the Rules

cannot travel beyond the Act, and must be read subject to its provisions. Thakur Pratap Singh Vs. Shri Krishna Gupta and Others, , As found

earlier, the Code has provided that certain documents are not to be given to the accused before the police report is forwarded to the Magistrate.

In respect of some others, it has prescribed the stage at which the copies are to be given, and as such a prescription as per the scheme of the

Code excludes the right to get them earlier. Therefore, the Rules cannot be construed to have given any right to the parties to obtain copies against

the provisions of the Code. At any rate, Rule 339 does not postulate that the accused is entitled to copies at any stage, i.e., even before the

forwarding of the police report to the Magistrate on payment of prescribed charges.

Besides, we may point out that as per Section 173(5), the police officer has to forward to the Magistrate along with his 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; and (b) the statement recoded u/s 161 of all persons whom the prosecution proposes to examine as its witnesses. Under sub-S.(6) of

that Section if the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings 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 the 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. The Magistrate, to whom such a request is made, as per the first proviso to Section 207, may, after perusing any such part of a

statement as is referred to in Cl.(iii) of Section 207, and considering the reasons given by the police officer for the request, direct that a copy of

that part of the statement or of such portion thereof as the Magistrate thinks proper, shall be furnished to the accused. This contingency will arise

only after the report has been forwarded to the Magistrate, because sub-S.(6) of Section 173 will come into play only after the documents are

forwarded to the Magistrate along with a report, viz., the report contemplated u/s 173(2)(i) in accordance with sub-S.(5) of that Section.

In this connection, we would like to stress that the purpose of the Code of Criminal Procedure is that on any point specifically dealt with by it,

the law should be ascertained by interpreting the language used, instead of by roaming over a vast number of authorities in order to discover what

the law ought to be See Bank of England v. Vagliano Brothers 1891 A.C. 107. In short, it is not the province of a Judge to disregard or go outside

the letter of the enactment. The law of procedure is meant to aid, and not to hamper the administration of justice. As pointed out in Kaleiha v.

Emperor 62 M.L.J. 71: AIR 1931 Mad 797, ""The Code of Criminal Procedure is not devised on be-half of the prosecution or on behalf of the,

accused, but on behalf of justice.

(Underlining is ours).

The Code lays down the procedure to be followed in every investigation or inquiry into or trial for every offence, whether under the Indian

Penal Code or under any other law. The cardinal rule of interpretation is that the language used by the Legislature is the true depository of the

Legislative intent and that words and phrases occurring in a statute are to be taken not in an isolated or detached manner dissociated from the

context, but are to be read together and construed in the light of the purpose and of the object of the specific provision of the Code itself; and,

therefore, every section of the Code should be given a proper interpretation adhering to the ordinary meaning of the words used and to the

grammatical construction; and it is not proper for Courts by way of interpretation to read words in a section which are not found in it or to infer

meanings which the actual words used cannot bear. For all the foregoing reasons, we hold that accused are not entitled to certified copies of the

inquest report, statements recorded u/s 174 of the Code, Post-mortem certificate, requisition given by the police officers to the Medical Officer for

conducting post-mortem and medically treating the injured, rough sketch of the scene place, and observation mahazar prepared by the investigating

officer, before the final report is forwarded to the Magistrate, as contemplated u/s 173(2) of the Code.

Whether the accused is entitled to a. copy of the affidavit of the investigating officer requesting the accused for his custody? Section 167 of the

Code empowers a Magistrate to whom an accused person is forwarded under this Section to make an order of detention of the accused to such

custody, viz., whether judicial custody or police custody, as the Magistrate thinks fit, for a term not exceeding, l5 days as a whole. As per Sub-

sections (3) and (4), the Magistrate authorising the detention of the accused to the police custody should record his reasons for so doing, and if the

said Magistrate is other than the Chief Judicial Magistrate, he should forward a copy of his order with his reasons for making it, to the Chief

Judicial Magistrate. Rule 76 of the Criminal Rules of Practice states that the Magistrates shall not grant remands to the police custody unless they

are satisfied that there is good ground for doing so and shall not accept a general statement made by the investigating or other Police Officer to the

effect that the accused may be liable to give further information, that a request for remands to Police custody shall be accompanied by an affidavit

setting out briefly the prior history of the investigation and the likelihood of further clues which the police expect to derive by having the accused in

custody, sworn by the investigating or other police officer, not below the rank of a Sub Inspector of Police and that the Magistrate, after perusing

the affidavit and satisfying himself about the request of the police officer, shall entrust the accused to police custody; and at the end of the police

custody, the Magistrate shall question the accused whether he had in any way been interfered with during the period of custody. See also amended

Order 670 of the Madras Police Standing Orders and G.O. Ms. 1734, Home, dated 24th May, 1963.

A careful analysis of these provisions shows that the affidavit of the police officer demanding police custody of the accused is based on any

information received by him during the course of the investigation, which information needs further probe. The Magistrate, before ordering police

custody has to satisfy himself not only by perusing the contents of the affidavit, but also the entries in the case diary on the basis of which the

affidavits are to be sworn to by the police officers. Hence the affidavit drawn in accordance with Rule 76 of the Criminal Rules of Practice without

any extraneous material, cannot be said to be a ''record'' within the meaning of Section 363(5,) of the Code before the stage of passing any order

thereon. So, till an order is passed by the Magistrate, there is no right whatsoever for the accused to get a copy of the affidavit. But, once an order

is passed on the basis of the affidavit filed by the police officer the said affidavit becomes a part of the record. It may be pointed out in this

connection that there is no specific legal embargo under S 3) of the Code disentitling the accused to get a copy of such affidavit which does not

form part of the case diary. Needless to say that the police officer swearing to such affidavit should be extra cautious in drafting the affidavit with

the particulars only necessary for that purpose. In view of this legal position, we hold that after an order is passed by the Magistrate on the basis of

the said affidavit the accused will be entitled to get a copy of the same as well as the order passed thereon, on application and on payment of the

prescribed charges.

Incidentally, Mr. N.T. Vanamamalai advanced an argument that the accused are entitled to copies of statement recorded u/s 161 of the Code

on payment of charges, even before the final report is forwarded, u/s 173(2)(i) of the Code, on the ground, firstly those statements are public

documents within the meaning of Section 74 of the Evidence Act, and secondly, in view of Section 173(7) of the Code. Though this question does

not arise in these references the above argument cannot be countenanced for the elaborate reasons given in the preceding paragraphs of this order.

In the result, the references are answered as indicated above.

Before parting with this order we feel that we would be failing in our duty if we do not place on record our appreciation of the valuable

services rendered by the learned Additional Public Prosecutor, Special Public Prosecutor for Central Bureau of Investigation, learned senior

counsel and other learned counsel both appearing for the petitioners and as amicus curiae in lucidly analysing and presenting the various

propositions of law which have been of immense help to us in rendering this order.