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:

172. Diary of proceedings in investigation

  1. Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth 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.
  2. 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. 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.

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.

Section 8 of the RTI Act, 2005 provides Exemptions from disclosure of information. Section 8(1)(g) of the 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:

  1. What is the basis of the Investigating Officer time and again expressed the view that theft has been committed by only (S.I.C.) out of three persons?
  2. In what manner these three have been examined?
  3. Please give date-wise details of each and every investigation step/s overall taken to solve the case; and
  4. What is the result/status of this case now?

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.

Hence, the Commission in the said case directed the P.I.O. to provide the information sought by the appellant in the said manner:
  1. The dates on which the Investigation Officer actually Investigated the case;
  2. Dates on which actions, such as searches, etc., connected with the investigation, were taken;
  3. A gist of the depositions of those examined by the police without disclosing names of details which could compromise witness/source of confidentiality and safety.

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.

Section 8(1)(h) of the RTI Act, 2005 provides

8. (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,—

(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.

What is the manner in which a case diary is to be maintained?

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.

Facts to be incorporated in the Case Diaries:

  • Details of timings at which the information reached the Investigating Officer
  • Timings of the initiation as well as closure of the Investigation
  • Places visited by the Investigating Officer for conducting his Investigation
  • Details of statements of facts and circumstances determined from Investigation

Facts not to be incorporated in the Case Diaries:

  • Opinions of Investigating Officer and other concerned law officers
  • Recommendations made in concluding report of Investigating Officer
  • Comments of law officers and supervisory officers
  • Any conflict of interest between Investigating Officer, Superintendent of Police, Deputy Inspector General or any head office.

  • SCD (Supplementary Case Diary): This diary is maintained by the Investigating Officer who is entrusted with the duty of doing part investigation. The Investigating Officer is required to submit his SCD to Chief Investigating Officer without any delay.
  • It is important the case diaries must be properly numbered as well as dated. For each date there will be a different case diary. The same is to be prepared in duplicate, of which one copy will go before I.O and the other before S.P.
  • The S.P. of the concerned branch is entrusted with the duty of scrutinizing the case diary once the I.O. submits him. The case diary is to be written on the day of investigation itself.
  • The case diaries are required to be kept in safe custody as they are of due importance. Once the S.P. scrutinizes the case diary, it shall be then the duty of the person allotted with the task of keeping the case diaries at safe and secure places.
  • Progress Reports are furnished to monitor the progress made in investigation. The Progress Reports are made on the basis of case diaries that are submitted by the Investigating Officer.

What is the meant by Zero FIR, Second FIR, Common FIR and Separate FIR?

Zero FIR
  • The term ‘Zero FIR’ implies that an FIR can be filed in any police station irrespective of the place of incident or jurisdiction of where the complaint is being filed. Once the zero FIR is filed in any police station, it can be further transferred to the police station having competent jurisdiction.

  • The concept of Zero FIR emerged from the recommendations of Justice Verma Committee Report taken into due consideration after the incident of 2012 gang rape of a 23-year-old girl took place in the territory.

  • A Zero FIR is different from normal FIR in the sense as in case of normal FIR it is registered by a serial number in the concerned police station falling in its jurisdiction whereas in case of Zero FIR, it is instituted at any police station irrespective of the place of incident or jurisdiction of the police station. Hence, the Zero FIR gets registered in any police station but it does not gets numbered. This unnumbered FIR is numbered once it reaches to its jurisdictional police station.

  • In case the police officials fail in complying with the registration of Zero FIR, then in such case they would be charged under Section 166A of the Indian Penal Code, 1860 as well as also other stringent departmental action would be taken against them.

Second FIR
  • As it can be perceived from the name itself that a Second FIR is one which is filed after the police have registered an initial FIR for an offence that has already been committed.

  • The second FIR is filed on the lines of same offence by a different complainant and there might be a chance that the second FIR may have different details regarding the case.

  • The Hon’ble Supreme Court in its number of judgments has laid down that all those complaints that are related to similar offences and having the same subject matter, then such complaints are entitled to be quashed. But at the same time, if the subsequent complaint bring out opposing and undiscovered contentions then such complaints would be categorised as counter-complaint and would be considered valid for registration.

  • In Upkar Singh v. Ved Prakash it was held that subsequent FIRs on same incident are not permitted by law but at the same time counter-complaints are validated and can be filed.

Common FIR

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.

Separate FIR

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.

What is the procedure of recording FIR?

    The procedure of filing an FIR is prescribed under Section 154 of CrPC

  • The registration of a cognizable offence is done by a Police Inspector or Sub-Inspector, whosoever is present at the time of filing the report. In case if the Police Inspector or Sub-Inspector are not present, then the FIR is registered by senior most officer present at the station.
  • When information regarding the cognizable offence is given orally, the police is required to pend down the same.
  • Once the FIR is lodged, the police official reads it aloud to the complainant. The police official is required to note down the date and time of its receipt.
  • Although after the FIR is lodged, a copy of the FIR is given to the complainant, however, it must also be the responsibility of the complaint to ask for the copy. The copy of an FIR is provided free of cost.
  • As soon as the information is recorded by the police officials, the same is signed by the complainant.
  • As soon as the FIR is lodged, the investigation of the alleged offence commences within limited time.
  • The complainant must satisfy himself with the report and verify the information so provided by him and then accordingly sign it.
  • Individuals unable to read or write are required to put their left thumb impression on the document after due verification.
  • The concerned official filing the FIR must avoid overwriting, erasures and corrections. In case of correction, the official must directly strike out the word.
  • In case of a cognizable offence is committed in presence of and officer-in charge of a police station, he is not required to furnish the same in writing and can directly register the case as suo-motu.

What are the features to be incorporated while recording a FIR?

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.

Contents of FIR

What should be included in an FIR?
  • The complainant’s name and address;
  • Details like date, time and location of the incident being reported.
  • Statements and true facts of the incident in a chronological manner i.e. in the manner as they occurred
  • Details including names of the witnesses, if any.
  • Details including names and descriptions of all the persons involved in the offence/incident.

What should not be included in an FIR?
  • One must keep in mind that on no instance a false complaint must be filed. No one must provide false or wrong information to the police. In case, any wrong information is provided , then section 203 of the Indian Penal Code 1860 would come into function and will be charged for misleading the police.
  • It is advised that the facts must not be distorted. Avoid giving over-explanation to the facts.
  • The complainant must strictly avoid using vague or unclear statements.

In what circumstances a FIR cane be filed?

One can file an FIR in the following circumstances:
  • The person against whom the offence has been committed/victim;
  • Any person aware of an offence which has been committed;
  • Any person who have seen the offence being committed.

The police is not required to investigate a complaint even after one filed an FIR, where:
  • The case is not serious in nature;
  • Any vague rumour shall not be reduced to writing
  • The police feel that there is not enough ground to investigate. However, as per Section 157, Criminal Procedure Code, 1973 the police shall record the reasons for not conducting an investigation and in the latter case might apprise the informant.
  • Complaints made by telegraph or telegram are not recorded in an FIR until and unless the information is verified and there is a statement in writing is recorded from the sender or a written and signed complaint is received from the complainant.

What are the Rights of the complainant in case of;

I. Non-Registration of FIR

  • In case of non-registration of FIR by the concerned officer at the police station, the aggrieved complainant can approach the S.P. (Superintendent of Police) under Section 154 (3) of CrPC along with a written complaint or by post. If the Superintendent of Police is satisfied with the aggrieved’s complaint, he shall either investigate the case himself or order an investigation to be made.
  • The other remedy available with the aggrieved is that the complainant can file a private complaint before the court having jurisdiction.
  • The aggrieved can also file a complaint to the Judicial Magistrate/ Metropolitan Magistrate u/s 156(3) read with Sec. 190 of the criminal procedure thereby praying FIR
  • The aggrieved can also file a Writ Petition in the respective High Court thereby issuing a Writ of Mandamus against the defaulting Police officers, for registering the FIR.
  • A complaint can also be made under section 166A of the Indian Penal Code against police officer who refuses to register FIR.
  • A complaint can also be made to the SHRC (State Human Rights Commission or the National Human Rights Commission) in case if the police not acts appropriately for enforcing the law.

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:

  • Registration of FIR is mandatory under section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation.
  • If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not.
  • If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week. It must disclose reasons in brief for closing the complaint and not proceeding further.
  • The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
  • The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
  • As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under: a) Matrimonial disputes/ family disputes, b) Commercial offences, c) Medical negligence cases, d) Corruption cases and e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months delay in reporting the matter without satisfactorily explaining the reasons for delay. The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
  • While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry.
  • Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said Diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.”

II Delay in Lodging FIR

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.

Experience Legal Consultant Dealing In Litigations, Management & Corporate Compliance.