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What are the RTI disclosures of the contents of Case Diary?
Justice K.K. Mathew in the case of the State of U.P. v. Raj Narain, (1975) 4 S.C.C. 428 categorically stated that the Right to Information is our fundamental right as given under Article 19(1)(a) of the Constitution of India. Keeping in mind the aforementioned statement, the Apex Court pronounced several judgments following which the Right to Information Act, 2005 came into being. Thus, the significance of providing public access to the requisite information has been enshrined under the RTI Act, 2005.
In legal parlance, the term ‘Case Dairy’ implies a dairy wherein the police officials are mandated to keep a record of a daily investigation conducted by an Investigating Officer with respect to a particular case. The prominence/relevance of a case diary has been enshrined under Section 172 of the Code of Criminal Procedure, 1973. Section 172 (2) provides that a court possesses the option of seeking a case diary considering it necessary for enhancing investigation and inquiry during the trial. However, the case diary is mere assistance to the trial and shall not be used as evidence during the trial.
Section 172 of the Code of Criminal Procedure, 1973 provides:
In the case of Kuldeep Kumar v. B.S. Brar, Joint Commissioner of Police as decided on 11.05.2006, the scope of Section 8(1)(g) of RTI Act, 2005 with respect to the police case diary was discussed in detail. However, before going into the details of the case, it is important to understand what Section 8(1)(g) of the RTI Act states.
8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—
(g) information, the disclosure of which would endanger the life or physical safety of any person or identify' the source of information or assistance given in confidence for law enforcement or security purposes;
In this aforesaid case, the appellant served an RTI Application on P.I.O., Delhi Police, Parliament Street, dated 22.11.2005 thereby asking for the below-mentioned information:
The appellant preferred to get the said information to which he referred as an untraced case. However, it certainly appeared that the police authorities verbally informed the appellant regarding the case by showing the appellant the untraced report and other relevant information. But, the appellant was not satisfied with the provided information and he filed the first appeal under the RTI Act. The reply of the A.I.P.O. read that ‘the concerned authorities have already provided the appellant with sufficient information’. Hence, the Appellate Authority dismissed the First Appeal.
In the present case, the appellant requested getting a date-wise investigation rather than a para-wise data which he received in replies to his RTI Applications. The Central Information Commission in its decision observed that although disclosing the details of the case diary would have extensive consequences in respect of the confidentiality of the information received by the Police authorities, however, the Commission in the aforementioned case viewed that some more information can also be provided to the appellant without duly compromising the investigation or the witness.
The Commission further stated that “while recognizing the requests for information under the R.T.I. Act, particularly when the same pertains to law enforcement authorities, it becomes necessary to strike a fine balance between the imperatives of the confidentiality of the sources of the information, witness protection, and so on with the right of the citizen to get information”. The Commission further added that it is an accepted fact that the police authorities have concerns regarding the implications on the dissemination of information like details of the investigation, details of the witnesses, etc; to the public. Thus, as stated by the Commission, the same has to be decided independently on the basis of the facts specific to each case.
In Sanjay Bhardwaj v. Delhi Police, South Distt., as decided on 14.08.2010, wherein an RTI Application dated 25.03.2010 was filed by the appellant seeking information regarding the case diary. However, the P.I.O. denied access to the case diary thereby stating relying on section 172(2) of the CrPC. The P.I.O. further stated that as the case was subjudice, the information sought, if any, shall be given in accordance with the directions of the Trial Court.
The Appellant aggrieved by the reply of P.I.O filed a First Appeal which was also denied on the reasoning that the P.I.O had taken reliance on section 172 of CrPC whereas the denial of the said RTI Application was required to be taken under Section 18(1) of the RTI Act. It was further stated in the first appeal that as the matter is subjudice and thus providing the case diary will impede the process of trial.
Hence, the Commission passed a decision in favour of the P.I.O. thereby highlighting the fact that CrPc debars the disclosure of case diaries. Furthermore, any information provided to the information seeker will impede the process of the prosecution, and such information is also exempted under Section 8(1)(h) of the RTI Act, 2005.
In Surender Pal Singh v. U.O.I., it was observed by the Delhi High Court that since the prosecution of the offender is pending before the Special Judge, in such case disclosing the case diary to the appellant would certainly impede the prosecution of the offender. Even if the charge sheet is filed by the concerned authorities, the exemption from disclosure of information as given under Section 8(1)(h) of the RTI Act, 2005 can be claimed for any information which may impede the process of investigation or apprehension or prosecution of offenders.
(h) information which would impede the process of investigation or apprehension or prosecution of offenders;
The Hon’ble Delhi High Court in Deputy Commissioner of Police v. D.K. Sharmaheld that “in order to deny the information under the RTI Act the concerned authority would have to show justification with reference to one of the specified clauses under Section 8(1) of the RTI Act, 2005. Only giving a mere reason that a criminal case is pending may not be sufficient in denying of disclosure of information”. In the present case, the appellant was seeking information on his own criminal case after the trial was concluded by serving the RTI Application. The information which the appellant sought was D.D. entry concerning his arrest, the information collected during the investigation, and the copies of case diaries. Hence, the court held that the appellant’s request for such information cannot be barred by any provision of CrPC. Lastly, Section 22 of the RTI Act supports the appellant’s claim for seeking information.
In Bhagat Singh v Chief Information Commissioner and others,the object of the R.T.I. Act and scope of exemptions given under Section 8(1) of the R.T.I. The act was extensively discussed. The court held that “the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show the satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane and the opinion of the process being hampered should be reasonable and based on some material”. Hence, the authority while denying the disclosure of information taking reliance on provisions under the RTI Act must clearly mention sufficient grounds for such denial.
As discussed under Section 172 of Code of Criminal Procedure, 1973 that every investigating police officer is required to enter his proceedings in the investigation in a diary on a daily basis, mentioning the time at which the 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.
Furthermore, the Criminal Court possesses the power to send these police diaries of a case under inquiry or trial in Court where these diaries can be used in assisting the inquiry or trial but this diary shall not be used an as evidence in the case.
The section also provided that neither the accused nor his agents can ask for such diaries, nor they can see them because they are referred to by the Court. However, the case diary can be referred 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.
In Anuj Chaudhary v. State of U.P. and Another, 2013, it was held that “in circumstances where there is commonalty of purpose and design, proximity of place, proximity of time, continuity of action, then in such case all those persons involved can be accused of the same or different offences committed in the course of same transaction”. Whereas when the aforesaid essentials that constitute a common FIR are missing, then in such case, there is no provision of Common FIR. Hence, for those circumstances that arise from different places, involve different persons and entails no commonality, then in such case, no common FIR is filed.
In Jagati Publication Ltd. v C.B.I., 2013 it was held that while reversal district offences were reported, the Investigating Agencies should issue separate FIR’s under Section 154 (1) of CrPC, 1973.
The procedure of filing an FIR is prescribed under Section 154 of CrPC
First Information Report (FIR) is the first record made after the commission of an offence. It is of utmost significance as after filing the FIR the criminal law sets into motion. It is a written document made by the police officials once the complainant is lodged. Here, the complainant can either be the victim himself or any third party filing complain on its behalf. FIR is filed in cases of a cognizable offences. As it reaches the police at first which answers the question of it being referred to as First Information Report.
A cognizable offence is defined as one wherein the police possess the power to arrest a person without warrant.
A non-cognizable offence is defined as one wherein a police officer possesses no authority to arrest a person without warrant.
I. Non-Registration of FIR
The police possesses the power to deny to lodge an FIR and the same shall be considered as legal where either the concerned police station don’t have jurisdiction or in case the offence is of non-cognizable nature. However, non-registration of FIR may be considered illegal where the police refuses to file the complaint for certain undisclosed reasons.
In Lalita Kumari vs. Govt. of Uttar Pradesh, the question before the Supreme Court was whether a police officer is bound to register a First Information Report (FIR) upon receiving any information relating to commission of a cognizable offence under section 154 of the Code of Criminal Procedure, 1973 or the police officer has the power to conduct a preliminary inquiry in order to test the veracity of such information before registering the same. The court affirming the mandatory registration of FIR made the following observations:
Delay in lodging the FIR raises numerous questions and objections. Filing an FIR timely and expeditiously is crucial for any case. However, due to the urgency in certain circumstances, there must be some allowance granted in filing the FIR. The reasons for delay in lodging must be persuasive and clear. As there is no time fixed for applying the test of reasonableness in lodging the FIR, this totally depends upon the discretion of the judge, who on the facts and circumstances of the case judiciously decide whether there is a delay in filing an FIR or not.
In Om Prakash v. State of U.P. 2009, it was held that delay in lodging the FIR has a great importance in a case of this nature. In Kilakkatha Parambath Sasi v. State of Kerala, 2011, “it is true and if it is so found, that a FIR has been lodged belatedly, an inference can rightly follow that the prosecution story may not be true but equally on the other side if is found that there is no delay in the recording of the FIR, the prosecution story stands immeasurably strengthened”.
In Gurdev Singh v. State of Rajasthan, 2003, it was observed that “it is a well-settled law that law has not fixed any time for lodging the FIR and therefore it can be said that delayed FIR is not illegal. The delay in informing the police of the incident or lodging the FIR is bound to occur for variety of reasons, depending upon the surrounding circumstances existing at the time of the commission of the offence”
Further, in Puran Singh v. State of Haryana, 1985, it was observed that where no explanation has been offered why the report of the incident could not be lodged with the police earlier, it can be legitimately presumed that till the first information report was lodged with the police, the complainant was ignorant of the assailants.
In gruesome offences, like murder, rape or sexual offences, the court understands and presumes the unexplained delay in promptly lodging the FIR with the police. Hence, delay in lodging the FIR per se is not fatal to the case of the prosecution. It is only such delay which is in circumstances of the case raises the possibility of creating false evidence for falsely implicating the accused, can prove fatal to the case of the prosecution because by immediate or within reasonable lodging of the FIR, assurance of the truthfulness to the prosecution case is proved.