Till the time a woman can walk into a police station all alone and file a First Information Report (FIR), the police are a long way away from ensuring participation.

So, although the State Director General of Police (DGP) issued a circular directing all police stations in the state to restrain them from avoiding complaints by not registering first information reports (FIRs) for the complaints disclosing cognisable offences, they’ve yet got miles to go.

Now, according to the circular, strict action would be taken against erring police personnel who refuse to register an FIR in accordance with law.

Following the next few months, a Right to Information query on the same issue could reveal whether any “action was initiated against any police personnel at all,” and statistics of FIRs filed to reveal corresponding increase in ‘the’ period.

 The circular has been issued by inspector general of police Gulabrao Pol on February 17, pursuant to earlier directions of the court which was hearing a petition filed by a Worli resident, AnusuyaPatil, an elderly widow allegedly beaten up by a small-time builder and his aides.

When an officer attached with the Dadar police refused to register an FIR and turned her away after recording a non-cognisable offence, the court took a stern note of the mushrooming of complaints leveled against the police to refuse filing FIRs.Coming down heavily on the city police, the court had questioned as to whom were they serving. Public or Builders and asked if the poor and helpless had any right at all?

Because there were diverse judgements by the Apex court over the years on the same issue, a three-judge bench of Justices said that the issue needed to be settled by a Constitutional bench. According to the bench, in some cases, the apex court had ruled that the registration of FIR?was mandatory while in several others held that the police officer had the discretion in registering an FIR as he can conduct a preliminary inquiry on the veracity of the complaint.

"In view of the divergent opinions in a large number of cases decided by this Court, it has become extremely important to have a clear enunciation of law and adjudication by a larger bench of this court for the benefit of all concerned, the courts, the investigating agencies and the citizens.

Consequently, we request the Chief Justice to refer these matters to a Constitution Bench of at least five judges of this Court for an authoritative judgment," said Justice Bhandari, writing the judgement.  The apex court was referring to a Habeas Corpus petition filed by the father of a six-year-old girl allegedly kidnapped by miscreants in UP's Ghaziabad district. The police had reportedly demanded money to register an FIR.

FIR copy to be given under the RTI Act

The Delhi High Court recently declared that a copy of the FIR?can be given under the Right to Information Act unless it is shown in strict terms as to the effect that giving such information would hamper investigation.

The High Court held the mere pendency of investigation or apprehension or prosecution of offenders is not a good ground to deny information. If furnishing the same information would impede the process of investigation, apprehension or prosecution of offenders, it could be denied.

The word ‘impede’ indicates furnishing of information can be denied when disclosure would jeopardise or would hamper investigation, apprehension or prosecution of offenders. In Law Lexicon, RamanathaAiyer 2nd Edition 1997 it is observed the word ‘impede’ is not synonymous with ‘obstruct’. The word ‘impede’ therefore does not mean total obstruction and compared to the word ‘obstruction’ or ‘prevention’, the word ‘impede’ requires hindrance of a lesser degree.

It is less injurious than prevention or an absolute obstacle. Contextually in Section 8(1)(h) it will mean anything which would hamper and interfere with procedure followed in the investigation and have the effect to hold back the progress of investigation, apprehension of offenders or prosecution of offenders.

However, the impediment, if alleged, must be actual and not make belief and a camouflage to deny information. To claim exemption under the said Sub-section it has to be ascertained in each case whether the claim by the public authority has any reasonable basis.

The onus under Section 19(5) of the RTI Act is on the public authority. The Section does not provide for a blanket exemption covering all information relating to investigation process and even partial information wherever justified can be granted.

Exemption under Section 8(1)(h) necessarily is for a limited period and has an end point i.e. when process of investigation is complete or offender has been apprehended and prosecution ends. The protection from disclosure will also come to an end when disclosure of information no longer causes impediment to prosecution of offenders, apprehension of offenders or further investigation.

An FIR and post mortem reports are information as defined under Section 2(f) of the RTI Act as they are material in form of record, documents or reports which are held by the public authority. Also, a FIR as per Section 154 of the Code of Criminal Procedure, 1973 is the first information recorded in writing by an officer in-charge of a police station and read over to the informant.

The substance of the said information is entered in a book / register required to be maintained as per the form prescribed by the State Government. Also, a copy of the First Information Report has to be furnished forthwith and free of cost to the informant and under section 157 of the Code the same has to be sent forthwith to the Magistrate empowered to take cognisance of the said offence. There are judicial decisions in which FIR has been held to be a public document under the Evidence Act, 1872.

Under Sections 74 and 76 of the Evidence Act, 1872 a person who has right to inspect a public document also has a right to demand copy of the same. Right to inspect a public document is not an absolute right but subject to Section 123 of the Evidence Act,1872.

The inspection of a public document can be refused for reasons of the State or on account of injury to public interest. Under Section 363(5) of the Code any person affected by a judgment or an order passed by a criminal court, on an application and payment of prescribed charges is entitled to copy of such judgment, order, deposition or part of record.

Under Sub-section (6) any third person who is not affected by a judgment or order can also on payment of a fee and subject to such conditions prescribed by the High Court, apply for copies of any judgment or order of the criminal court.

As regard the disclosure of post-mortem report, the High Court declared disclosure of post mortem reports at a stage when investigation is in progress even without names of the doctors falls in a different category.  Post mortem reports contains various details with regard to nature and type of injuries/wounds, time of death, nature of weapons used, etc.

Furnishing of these details at a time when investigation is afoot is likely to impede investigation and prosecution of offenders. Disclosure may be prevented if furnishing of postmortem report could jeopardise and create hurdles in apprehension and prosecution of offenders who may, once information is made available, take steps which may make it difficult and prevent the State from effective and proper investigation and prosecution.

Once an applicant seeks information as defined in Section 2(f) of the RTI Act, the same cannot be denied to the information seeker except on any of the grounds mentioned in Sections 8 or 9 of the RTI Act. The PIO or the appellate authorities cannot add and introduce new reasons or grounds for rejecting furnishing of information.

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