7 Jan 2010

Copy of FIR can be obtained under RTI: High Court

Deciding a bunch of petitions, the Delhi High Court has 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 was inter alia ruling on the writ petition filed by the Police before the High Court challenging the order of CIC where the police had been directed to provide a copy of FIR relating to Balta incident. The High Court however declined the disclosure of post-mortem report holding that release of such details would hamper pending investigations.

The High Court declared as under;
85. Mere pendency of investigation, or apprehension or prosecution of offenders is not a good ground to deny information. Information, however, can be denied when furnishing of the same would impede process of investigation, apprehension or prosecution of offenders. The word "impede" indicates that furnishing of information can be denied when disclosure would jeopardize or would hamper investigation, apprehension or prosecution of offenders. In Law Lexicon, Ramanatha Aiyar 2nd Edition 1997 it is observed that the word " 'impede" is not synonymous with 'obstruct‘. An obstacle which renders access to an inclosure inconvenient, impedes the entrance thereto, but does not obstruct it, if sufficient room be left to pass in and out. 'Obstruct‘ means to prevent, to close up."
86. 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. 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 a end point i.e. when process of investigation is complete or offender has been apprehended and prosecution ends. 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. 87. 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.
88. First Information Report as per Section 154 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Code, for short) 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. Copy of the First Information 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 cognizance 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. Inspection 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 can apply for copies of any judgment or order of the criminal court.
As regard the disclosure of post-mortem report, the High Court declared as under;
90. However, disclosure of post mortem reports at this stage when investigation is in progress even without names of the doctors falls in a different category. It has been explained that 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 when investigation is still in progress is likely to impede investigation and also prosecution of offenders. It is the case of the petitioners that enquiries/investigation are in progress and further arrests can be made. Furnishing of post mortem report at this stage would jeopardize 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.
The High Court, in coming to this conclusion, repelled the argument of the Government that information could be denied even on the grounds not provided for under the Right to Information Act. The High Court declared as under;
49. It was urged by Mr.A.S. Chandhiok, learned Additional Solicitor General of India that Section 8(1) of the RTI Act is not the complete code or the grounds under which information can be refused and public information officers/appellate authorities can deny information for other justifiable reasons and grounds not mentioned. It is not possible to accept the said contention. Section 22 of the RTI Act gives supremacy to the said Act and stipulates that the provisions of the RTI Act will override notwithstanding anything to the contrary contained in the Official Secrets Act or any other enactment for the time being in force. This non-obstante clause has to be given full effect to, in compliance with the legislative intent. Wherever there is a conflict between the provisions of the RTI Act and another enactment already in force on the date when the RTI Act was enacted, the provisions of the RTI Act will prevail. It is a different matter in case RTI Act itself protects a third enactment, in which case there is no conflict. 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 Public Information Officer or the appellate authorities cannot add and introduced new reasons or grounds for rejecting furnishing of information.
Have a look at the decision.

Post-Script Rejoinder

After having written this post, we came across a later decision of a Division Bench of the Delhi High Court itself wherein the High Court has directed the Police authorities to device a system wherein the FIRs are available online itself. We have covered this decision in a subsequent post and would recommend our readers to have a look.

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