IN RE RAMAN VELU v. . — 1972 DIGILAW 226 (KER)

Judgment :- 1. This reference, on a report by the District Magistrate. Trivandrum, under S.438 of the Code of (Criminal Procedure, has been placed before us, as the question of law involved in the matter, in the opinion of Khalid, J., before whom it came up for hearing in the first instance, deserves to be considered by a Division Bench. The question is whether an accused in a criminal case is entitled to apply for and obtain certified copy of the "remand report" filed by the police, and, if so, whether there is any limitation as to the stage at which such copy could be granted by the court. 2. S.76 of the Indian Evidence Act clothes any person who has a right to inspect a public document in the custody of a public officer, with a right to obtain on demand a copy thereof on payment of the legal fee therefor. The requirements in terms of this section for the grant of a certified copy are: (1) the document in respect of which the copy is applied for should be a public document; (2) it must be in the custody of a public officer; (3) the applicant should have a right to inspect it; and (4) the applicant should pay the prescribed legal fee for the certified copy. 3. We proceed on the assumption that the accused in this case was prepared to pay the legal fee and, therefore, the question regarding the payment of legal fee need not be gone into in this reference. The investigating police officer, who submitted the "remand report", and the Sub Divisional Magistrate who has the custody of the report, in this case, are public officers as defined in S.2(17)(d) of the Code of Civil Procedure, which substantially corresponds to the definition of "public Servant,' as defined in S.21 of the Indian Penal Code. This aspect of the matter also does not, therefore, require any detailed consideration. 4. This leads us to the question whether the "remand report" is a public document. Neither S.167 nor S.344 of the Code of Criminal Procedure, which contains the provisions for remand land extension of remand of the accused respectively, contemplates expressly any report by the police, which in practice is called the "remand report". 4. This leads us to the question whether the "remand report" is a public document. Neither S.167 nor S.344 of the Code of Criminal Procedure, which contains the provisions for remand land extension of remand of the accused respectively, contemplates expressly any report by the police, which in practice is called the "remand report". S.167(1) states: "Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by S.61, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police-station or the police officer making the investigation if he is not below the rank of Sub-Inspector shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate." 5. The "diary hereinafter prescribed relating to the case" referred to in sub-S. (1) of S.167 refers to the diary of proceedings in the investigation under S.172(1) which is known as the 'case diary'. Sub-s. (3) of S.167 requires that a Magistrate authorising detention in the custody of the police shall record his reasons for so doing. 6. In terms of S.167 Crl. P.C., it is imperative that the police officer should send along with the accused a copy of the entries in the case diary which he is bound to keep under S.172. This obviously is for the purpose of afford-ring the Magistrate information upon which he can decide whether or not he should authorise detention of the accused person in custody. Neither Sri. K. A. Abdulsalam, learned counsel for the revision petitioner nor the learned Government Pleader has brought to our notice any provision in the Code requi-ing the police officer to submit a "remand report" as such, apart from furnishing the copy of the entries in the case diary. Therefore, the petitioner's application for the copy of the "remand report", if it relates to remand under S.167 Crl. P.C., is virtually one for the grant of a certified copy of the entries in the case diary furnished to the court by the police officer while producing the accused for remand. 7. Therefore, the petitioner's application for the copy of the "remand report", if it relates to remand under S.167 Crl. P.C., is virtually one for the grant of a certified copy of the entries in the case diary furnished to the court by the police officer while producing the accused for remand. 7. It may, however, be noted that remand to custody of the accused by the Magistrate under S.167 of the Code cannot be for a period exceeding 15 days in the whole. If, on the expiry of the period of remand, in terms of the order under S.167 Crl. P. C. the police officer finds that further time is required for the completion of investigation, he has again to produce the accused before the Magistrate as provided under S.344 of the Code of Criminal Procedure, which reads as follows: "344 (1) In every inquiry or trial, the proceedings shall be held as expeditiously as possible and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. (IA) If, from the absence of a witness, or any other reasonable cause it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same on such terras as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: 8. Though the learned Sub Divisional Magistrate and the learned District Magistrate appear to have treated the petitioner's application to be one for the grant of a certified copy of what is purported to be a "remand report" submitted to the Magistrate while producing the accused for remand under S.167 Crl. Though the learned Sub Divisional Magistrate and the learned District Magistrate appear to have treated the petitioner's application to be one for the grant of a certified copy of what is purported to be a "remand report" submitted to the Magistrate while producing the accused for remand under S.167 Crl. P. C., we have reason to believe that the application really relates to the grant of a certified copy of a report seen to have been submitted by the police for extension of remand after the expiry of the period of remand fixed by the learned Sub Divisional Magistrate. In his objection statement to the application for the grant of certified copy of the document applied for by the accused, the learned Assistant Public Prosecutor, Grade II, Attingal, has stated as follows: "The remand report is not strictly judicial unless and until it is duly proved in a judicial proceedings. The Case is only at the stage of investigation and several entries to the clues to the investigation are stated in the remand application. If copies arc given to the accused then there will be some possibility of tampering with the national and peaceful course of investigation. The remand application submitted contains more or less a summary of the caseeiare such as the investigations done and to be done in the case. The accused is not entitled to get copy of the case diary under S.172 Crl. P. C. The remand application forms part of the case diary. For the reasons stated above I submit the copy of the remand application (extension) may not be given to the accused at this stage." From what has been extracted above, it is fairly clear that the application for certified copy by the accused related to a report submitted by the police for extension of remand, after the expiry of the period of 15 days in terms of the order under S.167 Crl. P.C. 9. Even under S.344 of the Code, we do not find any provision for filing a "remand report" as such. Assuming that it is a practice in vogue to submit a report containing such particulars, as indicated in the objection statement of the learned Assistant Public Prosecutor, we have to consider what the purpose of the report is in relation to the remand of the accused. Assuming that it is a practice in vogue to submit a report containing such particulars, as indicated in the objection statement of the learned Assistant Public Prosecutor, we have to consider what the purpose of the report is in relation to the remand of the accused. Where, under S.167 or S.344 of the Code, the Magistrate passes an order of remand of the accused to custody, he performs a judicial act. That being so, the report, if any, submitted by the police is to furnish necessary information, on the perusal and examination of which the Magistrate has to take a decision as to whether or not the accused is to be committed to custody, or continued to be kept in custody, as the case may be. The purpose of the "remand report" is a relevant consideration in construing whether it is a 'public document' or not. What forms the basis of a judicial decision, or what is used to any extent in aid of a judicial decision, cannot but be a public document in our view. We are, therefore, of the opinion that the remand report submitted by the Police, whether in relation to the remand under S.167, of extension or remand under S.344 of the Code, is a public document within the meaning of S.74 of the Evidence Act, What is expected to be furnished to the court at the time of moving for the remand or for the extension of the remand, are the entries in the case diary which is a document forming acts or record of acts of the investigating officer. 10. We have now to consider whether the accused has a right to inspect the document, of which the certified copy has been applied for. Bearing in mind the purpose and significance of the "remand report" in relation to the orders passed or to be passed under S.167 and 344 Crl. P.C., we are of the opinion that the accused, who has a tangible interest in the matter, has right to know the reason for his being committed to custody or prison. It is the duty of the court to jealously guard the liberty of citizens in order that there may not be an abuse of the power by the police. The Magistrate, in terms of S.167 and 344 of the Crl. It is the duty of the court to jealously guard the liberty of citizens in order that there may not be an abuse of the power by the police. The Magistrate, in terms of S.167 and 344 of the Crl. P.C., has to apply his mind to satisfy himself whether on the material placed before him there are reasonable grounds to commit the accused to custody or to extend the remand. The accused has a right to move for bail, and for this purpose he is interested in knowing on what grounds the order of remand has been passed against him. The order passed by the Magistrate on an application for bail may be open to challenge in revision. The revisional court also is to consider the order under attack and has to satisfy itself whether or not it could be sustained on the materials that have been placed before the Court S.76 of the Evidence Act, no doubt does not define or specify the expression "person entitled to inspect" the document. However, it is well settled, as observed by Shephard J., in Queen Empress v. Arumugam (ILR. 20 Madras 189): "the Legislature intended to recognise 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." 11. We have found that the requirements in term of S.76 of the Evidence Act are satisfied here. The only other point to be considered is whether there is any other statutory barer prohibition against the grant of the certified copy of the document applied for. The learned Government Pleader has drawn our attention to the provisions contained in R.322 of the Criminal Rules of Practice (Travancore-Cochin ), which reads as follows: "322. Copies of non judicial and confidential papers:-Copies of correspondences, of notes of evidence and of proceedings which are either confidential or not strictly judicial will not be granted." The proceeding relating to the remand of an accused is neither a confidential nor a non judicial act. The document also cannot be called to be notes of evidence. We do not, therefore, find any merit in the contention that there is a statutory bar against the grant of certified copy in R.322 of the Criminal Rules of Practice (Travancore Cochin). 12. The document also cannot be called to be notes of evidence. We do not, therefore, find any merit in the contention that there is a statutory bar against the grant of certified copy in R.322 of the Criminal Rules of Practice (Travancore Cochin). 12. The learned Government Pleader further submits that under S.172(2) of the Crl. P. C., there is a bar against the accused calling for the case diary or seeing it even where the court, during the course of an enquiry or trial sends for and uses such diary in aid of such enquiry or trial. This prohibition, as we view it, is only against the use by the accused of the case diary as such, but not against "remand report" submitted by the investigating officer. It has to be noted that the use of the case diary by the Court in the course of a trial or enquiry is not as evidence in the case, but only in aid of such enquiry or trial. If any portion of the case diary is used against him, the accused, even in terms of sub-s. (2) of S.172 Crl. P. C., has the right to see or know the statement to the extent to which it is used or intended to be used against him in evidence. The legislature has consciously provided a safeguard with respect to the claim for inspection of the case diary by the accused. The same safeguard, there would have been, with respect to the "remand report" also, if the legislature had any intention to treat it as a privileged document beyond the reach of the accused. The correct position seems to be that the prohibition contained in sub-s.(2) of S.172 Crl. P.C., against the right of the accused to inspect the case diary, does not extend to the "remand report". 13. It is next contended that, under S.173 (4) of the Code of Criminal Procedure, copies of documents which the prosecution intends to make use of against the accused are to be made available to him before the commencement of the trial, and that this is indicative of the fact that at a stage earlier to this the accused is not entitled to apply for or obtain the certified copy of any of the documents contained in the case diary. We are unable to accept this reasoning. We are unable to accept this reasoning. The provisions contained in S.173(4), mandatory in character, direct the prosecution to furnish the accused, free of charge, with copies of the documents, statements, etc., which are intended to be used against him in the trial. That does not expressly or even impliedly mean that the accused is prevented from applying for or obtaining a certified copy of those documents on his own accord and on payment of the legal fee. We are unable to accept the contention of the learned Government Pleader that till the charge sheet is filed, in any event, the copies applied for cannot be granted because of the provisions contained in S.173(4) Crl. P. C. 14. The decisions reported in Queen Empress v. Arumugam (ILR. 20 Madras 189) and State of Madras v. G. Krishnan (AIR. 1961 Madras 92 F.B.) have been cited before us by the learned Government Pleader in support of his contention that, applying similar reasoning as contained in those decisions, the certified copy applied for cannot be granted. What came up for consideration in Queen Empress v. Arumugam (ILR. 20 Madras 189) was whether copies of reports under S.157,168 and 173 of the Code of Criminal Procedure could be granted to the accused. In State of Madras v. G. Krishnan (AIR. 1961 Madras 92 FB.), the Court had to consider whether a certified copy of the statement recorded under S.164 Crl. PC. could be granted to the accused before the charge sheet was filed in court. In none of these decisions the question relating to the right of the accused to apply for and obtain certified copy of the "remand report" was in issue. Learned counsel appearing for the petitioner has cited before us the decision reported in V.J. Thomas v. State of Kerala (1970 KLT.175), in which case the question that came up for consideration was whether a person interested in a refer charge sheet under S.173(1) Crl. PC. was entitled to get a certified copy thereof on payment of the legal fee. This decision also has no direct bearing to the point in issue before us. 15. PC. was entitled to get a certified copy thereof on payment of the legal fee. This decision also has no direct bearing to the point in issue before us. 15. We have not been shown any decision in which the question of accused's right to apply for and obtain a certified copy of the remand report came up directly for consideration, and for that reason, we do not feel inclined to consider in detail the reasoning given in the decisions, having no direct bearing to the case on hand, cited before us. The accused must be presumed to have a right in common law to know the reasons urged in support of his detention, and to turn down the prayer for the grant of a certified copy of the remand report may amount to denial of natural justice and adequate opportunity to protect the liberty of the citizen, particularly in the context that no specific statutory inhibition in that behalf has been brought to our notice. 16. Having considered the matter in its various aspects, we are of the opinion that the accused is entitled to apply for and obtain certified copy of the remand report. In this view, the order passed by the learned Sub Divisional Magistrate for the grant of the certified copy applied for is upheld and the reference by the learned District Magistrate is rejected.