Queen-Empress vs Arumugam And Ors.

on 30 April, 1897

Madras High Court Madras High Court Queen-Empress vs Arumugam And Ors. on 30 April, 1897 Equivalent citations: (1897) ILR 20 Mad 189 Author: Collins Bench: A J Collins, Shephard, S Ayyar, Benson JUDGMENT Collins, C.J. 1. In answering this reference to the Full Bench, I intoned to follow the exact words of the reference. The question is whether the accused had, from the moment of his accusation, a right to inspect and obtain copies of the documents in question for the purpose of his defence. These documents are certain police reports including a charge sheet. The reference assumes that the documents are records of the acts of public officers submitted by them as required by law--see Sections 157, 168 and 173, Code of Criminal Procedure--and that they are public documents within the meaning of Section 74 of the Indian Evidence Act, and that any person interested in the subject-matter of a public document has a right to inspect it and under Section 76, Evidence Act, has also the right to have a copy of such document supplied to him; but that is really the point the Full Bench has to decide There appears no doubt that a person accused is a person interested in the documents referred to in Sections 157, 168 and 173 of the Code of Criminal Procedure, if the reports relate to the accusation against him; and if such reports are public documents he would be entitled to inspect and have copies of such documents. I would remark that the accused person would thus be in a position to know before any evidence is given against him all the information the Police have collected relating to the offence and their reasons for suspecting the accused. The accused would, if he had the above information, have every opportunity of making a successful defence--even if he was guilty--in fact, he has a copy of the brief for the prosecution. 2. The question to be decided is, are these reports made under Section 157--the occurrence report--and Section 168--the report made by a subordinate Police officer to the station-house officer--public documents, and further is the charge-sheet drawn up under Section 173 a public document? 3. The definition of a public document is (so far as it relates to the question before me) a document forming the acts or records of the acts of a public officer. It must be conceded that a Policeman is a public officer. 4. Section 157 enacts that if, from information received or otherwise, an officer in charge of a Police station has reason to suspect the commission of an offence which he is empowered to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a Police report and shall proceed in person or shall depute one of his subordinate officers to proceed to the spot and investigate the facts.... 5. Now, can it be said that this report is a document forming the acts or records of the acts of a public officer? I am of opinion that it is not. It is the reasons the officer in charge of the Police station has for suspecting the commission of an offence. 6. Section 168 directs that a subordinate Police officer who has made any investigation shall report the result of such investigation to the officer in charge of the Police station. I am of opinion that reporting the result of an investigation cannot be said to be the act or record of an act of a public officer. 7. Section 173 directs that, after the investigation under this chapter shall be completed, the officer in charge of the Police station shall forward to a Magistrate ... a report in a prescribed form setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and shall also state whether the accused person is in custody or released on his bond
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with or without sureties. This information, usually called the charge-sheet, stands in a somewhat different position from the reports under Sections 157 and 168, and it is possible to argue that the latter portion does relate to the act or record of the act of a public officer, viz., keeping the accused in custody or releasing him on bail; but as that information would not be of the slightest use to the accused, and as in my opinion, the other information does not contain either an act or record of an act by a public officer, I hold that it is not a public document as defined by Section 74 of the Evidence Act. 8. The acts and record of the acts of the public officer, while the investigation against the accused is carried on, are contained in the Police diary, but by Section 172, Criminal Procedure Code, the accused is not entitled to call for such diary. I give no opinion whether the accused can call for the reports and charge-sheet during the progress of the trial, but I answer in the negative the question referred to the Pull Bench. 9. I may add that I have not considered the English Criminal Procedure in relation to this case. The powers and duties of Magistrates and Police are so different in India to the powers and duties of the same officials in England, that I consider any reference to English Criminal Procedure unnecessary. Shephard, J. 10. Neither in the Criminal Procedure Code nor in the Evidence Act is there any provision declaring or limiting the right of private persons interested in criminal proceedings to inspect documents in the hands of third parties. A right to inspect public documents is, however, assumed in Section 76 of the Evidence Act; and, having regard to the authories cited in the order of reference, I think it may be inferred that the Legislature intended to recognize the right generally for all persons who can show that they have an interest for the protection of which it is necessary that liberty to inspect such documents should be given. Within that limit the right appears to be recognized according to the English authorities. In the present case there can be no question as to the interest of the party who claims inspection. It is plain that a person charged with an offence is legitimately interested in knowing beforehand the particulars of the charge made against him, and the names of the witnesses who are going to support it. His interest is none the less a legitimate one, because some persons might make improper use of the information so obtained. If, therefore, the documents sought to be inspected are public documents, and if they are unprotected by special privilege, it follows that the claim to inspection must be allowed. If any of the documents is not a public document, the claim must clearly be disallowed. Documents of three sorbs are mentioned in the order of reference. There is the report which the officer in charge of a Police station is bound, under the provisions of Section 157 of the Code, to send to the Magistrate. There is the report which a subordinate officer is under Section 168 bound to send to the officer in charge of the station, and there is the final report which under Section 173 the officer in charge of the station has, on completing his investigation, to send to the Magistrate. Section 74 of the Evidence Act defines public documents, and if any of these reports is a public document, it must be because it forms the act or the record of the act of a public officer. Now, taking the first of them commonly called the occurrence report and applying the language of the Evidence Act, I cannot see how it can possibly be called a public document. In obeying the provisions of Section 157 of the Criminal Procedure Code, the Police officer, as far as regards the Magistrate, docs no act except the act of writing and despatching a report founded on information received by him. It is clear that this report does not form an act of the station-house officer within the meaning of the Section, and it cannot be the record of an act, because there has been no act on his part to record. In popular language any report which a subordinate officer is bound to send in to his superior officer and which is not confidential may be called a public document; but the Evidence Act lends no support to this view. 11. It is necessary to examine the language of the 74th, Section more closely in considering the report which the subordinate Police officer, is, under Section 168 of the Code, directed to send to the station-house officer. It is a report of the result of the investigation held under the provisions of chapter XIV of the Code. No doubt, there may, in this instance, be said to be a record of acts done by a public officer. Nevertheless, I do not think the report is a public document within the meaning of Section 74. In construing that Section, I think it may fairly be supposed that the word 'acts' in the phrase " documents forming' the acts or records of the acts" is
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Queen-Empress vs Arumugam And Ors. on 30 April, 1897

used in one and the same sense. The act of which the record made is a public document must be similar in kind to the act which takes shape and form in a public document. The kind of acts which Section 74 has in view is indicated by Section 78 of the same Act. The acts there mentioned are all final completed acts as distinguished from acts of a preparatory or tentative character. The inquiries which a public officer may make, whether under the Criminal Procedure Code or otherwise, may or may not result in action. There may be no publicity about them. There is a substantial distinction between such measures and the specific act in which they may result. It is to the latter only, in my opinion, that Section 74 was intended to refer. Unless this line of distinction is drawn, I do not see where the right of discovery is to stop. If the report which a subordinate Police officer sends to the station-house officer may be inspected before the trial, what is there to prevent inspection of the report which any other officer furnishes for the information of the Public Prosecutor? It is true that the Police officer acts in performance of a statutory duty, but Section 74 makes no distinction between such acts and other official acts. If an investigation amounts to an act of a public officer within the meaning of that Section, and the report of it is, in consequence, a public document, it practically follows that the accused is at liberty to look into the brief of the counsel for the prosecution. 12. The charge-sheet which is prepared under Section 173 of the Code stands on a different footing When the charge-sheet is sent to the Magistrate, the preliminary stage of investigation and preparation is over. Upon the receipt of it the Magistrate may, under Section 191, take cognizance of any offence that has been charged. The transmission of the charge-sheet with a view to that result, accompanied by a statement as to the accused person whether he is forwarded in custody or not, may therefore properly be called an act of a public officer, and the charge-sheet itself may properly be said to form a record of that act. It is only reasonable that an accused person should, when once the Magistrate is seized of the case, have access to the report stating the names of the parties, the nature of the information and the names of the persons who appear, to be acquainted with the circumstances of the case. On the other hand, there are good and obvious reasons why, in the case of communications prior to that stage between Police officers themselves, or between such officers and the Magistracy--communications which may or may not result in a charge and may relate to third parties and extraneous matters--discovery should not be allowed. 13. The conclusion at which I arrive is that an accused person is entitled to inspect, and, therefore, to have a copy of the charge-sheet before the trial, but that he is not entitled to inspect the other documents. Whether he is entitled to call for them at the trial is a different question with which we are not now concerned. It was on that question that the cases in Sheru Sha v. Queen-Empress I.L.R. 20 Cal. 642 Bikao Khan v. Queen-Empress I.L.R. 16 Cal. 610 turned. Subramania Ayyar, J. 14. The further consideration, which I have bestowed on the question referred for decision, has not led me to think that the view, expressed in the order of reference, is erroneous. But some arguments, not urged before DAVIES, J.., and myself prior to the date of the reference, have been advanced since and the most important of them call for some notice. 15. One of the arguments is that a right, similar to that put forward now on behalf of the accused, does not exist in England. But this ignores an essential difference which exists between the circumstances of the Police in England and of the Police in this country. There the law does not sanction an investigation by the Police as is allowed by the Code of Criminal Procedme here. This is pointed out by the James Stephen in the " History of Criminal Law ", where he observes: " The second way in which proceedings may begin is by a Police investigation. This process ( Sections 154-172, Criminal Procedure Code) is unknown in England. It is not altogether unlike part of the French procedure, but it is still more like what would exist in England if the course usually taken in fact by the Police were to be taken under a legal sanction, the Police being invested by law with special powers to take evidence for their own information and guidance." (Vol. 3, page 332.) Owing to this difference between the two systems official documents corresponding to "charge-sheets " and " occurrence report " under our Code are unknown to the law in England, and consequently no question as to
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inspection cf such document has or could have arisen there. 16. The next argument appears to be that as in England a person accused of an offence falling under the description ' felony ' is not entitled to a copy even of tho indictment, it ought not to be held that an accused person in this country is entitled to copies of such documents as the charge-sheet, etc. With reference to this argument, the first observation to be made is that the solo point for our determination being whether the documents in question are public documents within the meaning of Section 74 of the Evidence Act, one is unable to see any connection between that question and the fact that in England persons accused of a particular class of offence are disentitled to a copy of the indictment. In the next place, supposing the doctrine of English law as to copies of indictment in cases of felony is somehow germane to the presont discussion, it is clear even in England that that doctrine is much disapproved of, if it has not already ceased to be law [vide Greave's Note (o) at page 463, Russell on "Crimes", 6th edition]. But granting that it is well recognized in English Criminal Procedure, can it be defended as a just and sound rule whilst admittedly a man accused of a misdemeanour is under the same law treated better? Tho characteristics of reasonableness and of good sense, which alone would justify our adopting a rule of English common law, being wanting in the particular instance relied on, a reference to it would seem scarcely calculated to throw true light on the question at issue. 17. Another argument was urged with reference to the law as to grant of copies of depositions in England. In arguing thus by analogy, the peculiar nature of the theory which prevailed in England (before salutary changes were introduced by 6 and 7 Will. IV., cap. 114), as to a prisoner's position with reference to everything done in connection with the charge against him prior to the trial, must not be lost sight of. That theory was that, in enquiring into and committing a person charged with an offence, a Magistrate was acting inquisitorially, that his enquiries should be conducted in private and behind the back of the prisoner if that is considered necessary and that the prosecutor or his solicitor alone might have access to the depositions taken by the Magistrate, but not the party accused, who, strangely enough it was thought, should not before the actual trial be enabled to know what the evidence to be adduced against him was [vide the procedure adopted by the Magistrate in Thurttell's case 1 Step., " H. Criml. Law", 227 and the observations of Justice J.A. PARK in the same case. Referring to the working of a practice of this extraordinary description, Sir James Stephen justly observes: "I do not think any part of the old procedure operated more harshly upon prisoners than the summary and secret way in which Justices of the Peace acting frequently the part of detective officers took their examinations and committed them for trial." (Ib., p. 225.) No doubt all this is now happily changed. But that such was the law and procedure even in the early part of this century ought to make one hesitate to look for light to the English practice under the common law in a matter like this. If we turn to the English statute law on the point, it cannot be denied that, so far as it goes, it affords reasonable facilities to the accused. The substance of it is this: a person under trial is entitled, subject to payment of cartain fees, to copies of depositions, provided he applies for the same before the day appointed for the commencement of the Assize or Sessions at which he is to be tried. If, however, he is nob diligent in the matter and applies later, he can get them only if the Judge considers that the copies may be made and delivered without delay and inconvenience to such trial. Nor are persons under trial who have not taken the precaution of securing copies of depositions thereby precluded from ascertaining before their trial the nature of the evidence recorded against them by the Magistrate, for they possess the righb of inspecting without fee or reward all depositions or copies thereof which have been taken against them and returned into the Court before they are tried (3, Russell on Crimes and Misdemeanours, 6th edition, pages 404 to 466, and especially note V at page 466). What is there in these provisions to suggest anything against the granting of copies of the papers in question? 18. Turning now to the provisions of the Criminal Procedure Code relating to those papers, it is necessary in order to understand their real import and nature to see why such provisions came to be enacted. Prior to the passing of the first Criminal Procedure Code, viz,,, that of 1861, the powers of the Police were different from those now exercised by them. Complaints in cases of the more serious offences were usually laid before them. They were authorized to examine the complainant, to issue process of arrest, to summon witnesses, to examine the accused and to forward the case to the Magistrate or submit a report of the proceedings according as the evidence may, in their judgment, warrant the one or the other course. These large powers were
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grievously abused for purposes of extortion and oppression, and it was a question for the determination of Her Majesty's Commissioners appointed to consider the reform of the judicial establishments, procedure and laws in 1856, whether the powers should not be greatly abridged. The Commissioners, however, came to the conclusion that considering the extensive jurisdiction of the. Magistrates in this country, the facilities which exist for the escape of parties concerned in serious crimes and the necessity for the immediate adoption in many cases of the most prompt and energetic measures, it was requisite to arm the police with some such powers as they then possessed. (See page 181 of the Selections from the Records of Government: Papers relating to the Reform of the Police of India, 1861.) The original draft of the Criminal Procedure Code, therefore, sought to give effect to the above conclusion. But when the matter came before the Legislative Council much difference of opinion prevailed among the members of the Council in respect of some of the provisions inserted to carry out the view of Her Majesty's Commissioners. On the one side, it was contended that to allow the Police to record statements of parties and witnesses and to place them before the Magistrate would be productive of much mischief. On the other side, it was urged that in the interest, not only of the prosecution, but also of the defence, it was necessary that such statements should be immediately recorded and laid before the Magistrate at once. (See Proceedings of the Legislative Council, Vol. V, pages' 515 to 545 and 570 to 574.) The substance of the existing provisions of the law respecting the submission of reports by the Police seems to have been devised to avoid the evils apprehended by one set of the members and to ecure in a measure some of the advantages to which the other members attached so much importance. 19. Now, first, the general report directed to be sent is the daily report called the diary. This the law prescribes should be forwarded to the officers of the department itself, in accordance with the principle insisted upon the reorganization of the Police which took place about the same time as the passing of the Criminal Procedure Code, viz., that dual control should be avoided and policemen should be directly dependent on, and be responsible only to, their own officers (page 250 of the Selections already cited). and this diary, which must contain everything material heard or done by a policeman in the course of the day with reference to his work, was, for obvious reasons, declared not to be subject to inspection by the parties. Next, special reports bearing upon particular cases coming up for investigation were directed to be submitted to the Magistrate. One of the object's, which the Legislature had in view in requiring the submission of these reports to the Magistrates, was manifestly to provide a record with reference to which the action of Police officers engaged in making an investigation may be serutinized during the latet stages of the case. Now, who is more interested in exercising this scrutiny than the accused implicated in the particular case to which the investigation relates? It is impossible to believe that the Legislature intended that persons, so deepy interested in bringing to light any misconduct in connection with the investigation, should not have access to the records in question. If such were really the intention, why, whilst expressly laying down that the general report or diary cannot be called for by the parties, the Legislature singularly enough refrained from declaring that these special reports also are confidential? Why did it not in terms extend the protection accorded to the diaries to the other reports prescribed? It is scarcely necessary to add that to withhold from the accused access to the reports in question would certainly be to deprive those persons of one reliable means of ascertaining the development of the case during the investigation and to disable them from exposing, at the preliminary enquiry to trial, the attempts, if any, made by the Police or other persons connected with the case, to get up false evidence, or other circumstances appearing in the reports and revealing flaws in the case for the prosecution. 20. As to Section 125 of the Evidence Act, that only provides against a Police officer being compelled as a witness to say whence he got any information as to an offence. The Section has clearly no reference to the present case. 21. Lastly, that the documents in question fall strictly within the. language of Section 74 of the Evidence Act seems to my mind to admit of no doubt. First as to the charge-sheet, is it not a ' record ' of at least some of the investigating officer's acts? Again, suppose it is not, is it not unquestionably itself a document forming an ' act' of his, be being enjoined to act in a particular way, that is, submit such a report. The same remark applies to the report under Section 157. Nor is it right to suppose there is no other ' occurrence report " sent by the Police to a Magistrate in the course of an investigation. For, according to the rules of the department, a policeman
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making a search has to send one in respect of it to the Magistrate (Orders of the-Madras Police, Order 140 (h), page 80), and there is the inquest report prescribed by Section 174 of the Code. Copies of these are not unimportant to accused persons, and it cannot be doubted that these reports are records of a public servant's acts within the meaning of Section 74. 22. For all the above reasons, I would answer the question submittted in the affirmative. Benson, J. 23. The question for our decision is, as I understand it, whether a person who is named as accused of an offence in a charge-sheet forwarded by the Police to a Magistrate is entitled before his trial to inspect and obtain copies of certain reports made by the Police in connection with the case, viz.: (1) the occurrence report made under Section 157, Criminal Procedure Code (2) the report made under Section 168, Criminal Procedure Code, by a subordinate Police officer to the station-house officer; and" (3) the charge-sheet drawn up under Section 173, Criminal Procedure Code. 24. It was, I understand, conceded that a copy of the station-house officer's report made under Section 167, Criminal Procedure Code, could not be demanded, inasmuch as it is an extract from the Police diary, which is specially protected by Section 172, Criminal Procedure Code. 25. I am of opinion that the reference must be answered in the negative. 26. It is admitted that the right is nowhere given by any express legislative enactment; but it is argued that the reports in question are public documents within the meaning of Section 74 of the Indian Evidence Act; that every person-interested in the subject-matter of a public document has an inherent right to inspect it, and that, under Section 76 of the Indian Evidence Act, every person entitled to inspect a public document is also entitled, to obtain a copy of it. It will be seen that the whole question depends on whether the documents in question are public documents within the meaning of Section 74 of the Indian Evidence Act. I do not think that they are. The only class of documents specified in that Section within which they could fall is " documents forming the acts or records of the acta of public executive officers." The police officers who send in these reprots are, no doubt, public executive officers, but I do not think that these reports can, with any propriety, be regarded either as forming their acts or as the records of their acts. The diary of a Police officer, which is kept under Section 172, Criminal Procedure Code, is the record of his acts, in the popular sense of the word, in making an investigation under the Criminal Procedure Code. It sets forth his proceedings day by day in making the investigation and inter alia it must record the time at which information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation," but this diary is by Section 172 expressly protected from inspection by the accused and his agents. It may, I think, well be doubted whether the word ' acts ' in Section 74 is used in its ordinary and popular sense, and not rather in the restricted and technical sense in which it is used in Section 78 of the Act, but in either case, I think that the reports in question are not, in any sense, records of the acts of the police officer. This will be clear if their contents, as prescribed by law, are considered. The occurrence report ( Section 157) is a report sent to the Magistrate stating that the officer of police suspects, on information or otherwise, that a cognizable offence has been committed in his jurisdiction, and if the police officer considers it unnecessary to investigate the case, it must state the reasons for such conclusion. It is not a record of his acts, but a report of information given to him. The report under Section 168 is merely a report by a subordinate police officer to the station-house officer of the " result of his investigation " into an alleged or suspected cognizable case. It is not the record of any act of the investigating officer. The charge-sheet is the report sent to the Magistrate under Section 173 when an investigation has been completed. It must contain "the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case," and must state " whether the accused person has been forwarded in custody or has been released " on bail. This report is not the record of the acts of the police officer. It no doubt reports one act of the police officer, viz., whether he forwarded the
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accused in custody, or has released him on bail, but it is not the official record of that act. The record of the act is the proceedings in granting or refusing bail, not the report of those proceedings to the Magistrate. I conclude, then, that none of the reports in question are the acts or the records of the acts of the police officers within the meaning of Section 74 of the Indian Evidence Act. They are not, therefore, public documents, and the accused has no right to inspect them or to obtain copies of them. 27. So far I have referred to the reports as if they contained only the information which they are required by the Code to contain. As a fact, however, they have been enlarged so as to contain much more than the Code requires. For example, in both the occurrence report and the charge-sheet there is a column in which is set forth the name of, the person by whom the information was given. Section 125 of the Indian Evidence Act expressly provides that no Magistrate or police officer shall be obliged to state whence he received the information of any offence. In any view, therefore, an accused person could have no right to inspect or obtain a copy of that entry. So also in the occurrence report the names of persons suspected are entered, and in the charge-sheet the houses searched and other particulars which may not concern the accused person at all are stated. It is obvious that he could have no right to obtain copies of such entries regarding third persons If, however, the accused person was entitled to obtain a copy of the reports so far as they concorned himself, I do not think that his right could be taken away by the insertion in thorn of particulars regarding third parties or matters not required by law to be mentioned in the reports. The Magistrate might, however, grant an extract of so much only as concerned the applicant and was not protected by law from disclosure. 28. It is argued that, if an order has been made on an occurrence report or charge-sheet affecting an accused person, he is, ipso facto, entitled to a copy of the document under Section 548, Criminal Procedure Code. This will be so only if the Magistrate making the order is at the time a 'Criminal Court.' It may, I think, be doubted whether a Magistrate (even when he has jurisdiction to try the offence) can be regarded as a ' Court' before the trial commences. He is certainly not a 'Court' when enquiring into offences which he is not empowered to try, e.g., into sessions cases ( Section 19, illustration (d) and Section 20, Indian Penal Code). In this large and important class of cases, therefore, Section 548 has no application. This, however, is not the question before us, and I need not pursue it further. 29. I am not aware of any statute or practice which enables an accused person in England to obtain, before his trial, copies of reports made by the police in the course of their investigations. No doubt the relations of the police to the magistracy in the two countries stand on a different footing, but it seems improbable that if the Indian Legislature intended to give an accused person access, before his trial, to the police reports connected with his case, this would not have been clearly laid down by law. 30. In my opinion the alleged right is nowhere expressly conferred by law, nor can it be deduced from Sections 74 and 76 of the Indian Evidence Act. 31. I would, therefore, answer the reference in the negative.

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