Madras High Court

T.Arunkumar vs State Of Tamil Nadu on 24 April, 2023

                                                               1

                                   BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                     Dated: 24/04/2023

                                                          CORAM:

                                         THE HON'BLE MR JUSTICE G.ILANGOVAN

                                         Crl.OP(MD)Nos.7273 and 7298 of 2023


                     1.Crl.OP(MD)No.7273 of 2023:-


                     T.Arunkumar                               : Petitioner/Victim

                                                            Vs.

                     State of Tamil Nadu
                     Represented by the Inspector of Police,
                     VK Puram Police Station,
                     Ambasamudram Taluk,
                     Tirunelveli District.
                     (Crime No.65 of 2023)        : Respondent/Complainant

Prayer: Criminal Original Petition has been filed under section 482 of the Criminal Procedure Code, to set aside the docket order, dated 06/04/2023 and consequently direct the Judicial Magistrate, Ambasamudram to issue a certificate copies of the available documents sought for by the petitioner in CA No.164 of 2023 and pass such further or other orders.

For Petitioner : Mr.Henri Tiphagne

For Respondent : Mr.T.Senthil Kumar Additional Public Prosecutor

https://www.mhc.tn.gov.in/judis

2.Crl.OP(MD)No.7298 of 2023:-

                     T.Arunkumar                                : Petitioner/Victim

                                                            Vs.

                     State of Tamil Nadu

Represented by the Inspector of Police, VK Puram Police Station, Ambasamudram Taluk, Tirunelveli District.

(Crime No.65 of 2023) : Respondent/Complainant

For Petitioner : Mr.Henri Tiphagne

For Respondent : Mr.T.Senthil Kumar Additional Public Prosecutor

COMMON ORDER

Both these criminal original petitions are filed to

set aside the orders, dated 06/04/2023 passed by the

Judicial Magistrate, Ambasamudram in the Copy Application

Nos.163 and 164 of 2023 and for direction to the Judicial

Magistrate, Ambasamudram to issue the certified copies of

the available documents.

https://www.mhc.tn.gov.in/judis

2.A simple copy application.

But a lot of sensation, sensitivity and argument

right from the Full Bench decision of this court reported

in the case of Selvanathan @ Raghavan and 9 others Vs.

State by Inspector of Police, Madras and others

[1989(1)MWN (Cr) 117] and down to the recent judgment in

the case of Karthik Dasari, Deputy Director, Directorate

of Enforcement, Government of India, Ministry of Finance,

Department of Revenue, IV Floor, Shastri Bhavan, No.26,

Haddows Road, Chennai-600 006 Vs. The State by the

Inspector of Police, Central Crime Branch, Chennai and

others (Crl.OP Nos.5725 to 5727 of 2022, dated

30/03/2022).

3.At the time of hearing, this court found even the

Senior Police Officers briefing the Additional Public

Prosecutor in this matter. The reason for the above said

unusual, this is yet another case of brutality alleged to

have been exhibited by the Senior Police in the IPS rank,

to the accused in both the matters.

https://www.mhc.tn.gov.in/judis

4.No doubt, it has been widely published in the

newspapers and now action has been initiated against the

concerned officer Departmentally, an IAS Officer is

appointed to conduct the enquiry. Apart from that, CBCID

enquiry has also been ordered.

5.While moving these petitions, the learned counsel

appearing for the petitioner would submit that without

sensitivity to the issue involved and without prompt

spirit, the copy applications that have been filed by the

petitioner in both Crime numbers namely Crime Nos.49 and

65 of 2023 returned.

6.On going through the order, this court could not

find the nature of the order.

7.So, report was called for from the concerned court

and it submitted stating that both the petitions have

been returned since the petitioner is not entitled for

copies of the documents sought for since no final report

has been filed in both matters.

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8.Against which, these petitions have been filed.

9.It is seen that without referring to the

documents, which are available in the records and also

the right of the petitioner to get copies of the

documents, the above said return order has been made.

10.It is one thing to say that the above said order

itself is per se illegal for the simple reason that the

new Criminal Rules of Practice came into force in 2019

and elaborate procedures have been set out in it with

regard to the entitlement of the parties and third

parties to get the certified copies. So the trial court

ought to have entertained the petitions and heard the

petitioner as to the entitlement and the availability

also. But nothing was done and a cryptic administrative

order was passed by the trial returning the copy

application. So the manner in which the above said matter

has been dealt with the trial court, as mentioned

earlier, is per se illegal.

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11.When this court pointed out this to the learned

counsel appearing for the petitioner, the learned

Additional Public Prosecutor rose to argue matter on

behalf of the prosecution. I put a question to him,

whether he is entitled to be heard. He replied that some

of the documents that have been sought for cannot be

granted to the petitioner. On that score, he wanted to

argue the matter to enlighten this court about the issue

involved by citing the above judgement in the case of

Selvanathan @ Raghavan and 9 others Vs. State by

Inspector of Police, Madras and others [1989(1)MWN (Cr)

117]. So on that score, the petitioner was also heard

about his entitlement.

12.At the initial stage, finding that the above said

return is per se illegal, this court wanted to remit back

the matter to the trial court to consider the application

on its own merit by giving opportunity to the petitioner.

But when objection has been raised by the prosecution,

then this court wanted to go into the right.

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13.Now coming back to the facts, this petitioner is

an accused in Crime No.65 of 2023. He was arrested and

remanded to custody. Now he was released on bail, as per

the information furnished by the petitioner. Crime No.65

of 2023, was registered for the offences punishable under

sections 147, 148, 341, 294(b), 307, 324, 323 and 506(2)

IPC. But he is a third party in Crime No.49 of 2023,

wherein six persons have been shown as accused. So the

purpose and relevancy of the documents that are available

in Crime No.49 of 2023 must be satisfactorily explained

by the petitioner as to his entitlement.

14.Now let us first take Crl.OP(MD)No.7298 of 2023

in respect of Crime No.49 of 2023. The documents sought

for in the copy application are:-

1.First Information Report.

2.Remand Report.

3.Arrest Memo.

4.Arrest Card.

5.Medical Examination Report.

6.Footnotes of the Judicial Magistrate in the case

documents and in the case.

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15.This also shows the defective manner in which the

copy application has been filed. But the description of

document, number of copies required are not mentioned.

When this was pointed out to the learned counsel

appearing for the petitioner, he would submit, had

proper opportunity been given to him, he would have

rectified the mistakes. But without seeking any

clarification or rectification, the above said order of

return has been made.

16.As to the entitlement, I put a question to him

since he is not an accused in this matter, the purpose of

the documents. He would submit that he was arrested in

Crime No.65 of 2023 and taken to the police station where

case in Crime No.49 of 2023 was registered, was brutally

attacked and the teeth have been pulled out, sustained

bleeding injuries. So he wants to prosecute the above

said custodial torture matter. The accused in Crime No.49

of 2023 were also similarly brutally attacked and they

have also sustained injuries. So according to him, in the

very same place and room, where no CCTV camera was

available, brutal attack happened. To support his case,

he wants the above said documents.

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17.As mentioned earlier, no proper description has

been made with regard to the documents namely remand

report of whom, medical examination report of whom, the

above said copies are sought for. This got to be

rectified by the petitioner properly before the trial

court.

18.Now coming back to Crl.OP(MD)No.7273 of 2023, he

is an accused in Crime No.65 of 2023. In the copy

application also, he has not properly mentioned the

description of documents required. He has simply stated

as First Information Report, Remand Report, Arrest memo,

Arrest card, Medical examination report. So here also,

the description has also been not properly mentioned as

to the number of the copies required, the persons, the

remand report of whom, arrest memo, arrest card, medical

report of whom, are not properly mentioned. So, that also

got to be rectified by the petitioner before the trial

Court.

19.This court would have simply remitted back the

both the matters to the trial court for considering the

copy application of its own merit, with regard to the

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entitlement. But for the reasons stated above, I do want

to discuss about the entitlement also. So the matter can

be disposed of by this court finally.

20.The learned counsel appearing for the petitioner

would submit that the main purpose for which the above

said copies, as mentioned above, to pursue the matter

since no other documents are available or can be

collected from any other sources. On the face of it, this

request is a genuine one. But the question, which arises

for consideration Rules in granting the above said

entitlement. This has been pointed out by the learned

Additional Public Prosecutor, during his argument as

mentioned earlier.

21.Before we go into the judgment, let us go the

Rule 231 of Criminal Procedure Code, 2019, which would

run thus:-

"231.Grant of certified copies of

other documents,-(1)Certified copies of the

following documents shall be given to the

accused on payment of necessary charges,

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before the filing of the final report

(charge sheet) by the police:-

(i)Orders made on the remand report.

(ii)Affidavit filed by the police

officer for police custody of the accused

and the orders passed by the Magistrate

thereon. Until the Magistrate passes the

order for police custody, the accused is

not entitled to a copy of that affidavit.

(iii)The accused, notwithstanding the

communication of the full particulars in

writing at the time of arrest or subsequent

thereto, is entitled to a copy of the First

Information Report even before the final

report (charge sheet) is forwarded to the

Magistrate under sub-section (2) of section

173 of the Code on application and on

payment of charges. The accused is not

entitled to certified copies of the inquest

reports, statements recorded under section

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174 of the Code, postmortem certificates,

requisition by the police officer to the

Medical Officer for conducting postmortem

and the medically treating the injured,

wound certificate, rough sketch of the

scene of occurrence and observation mahazar

prepared by the investigating officer

before the final report (charge sheet) is

filed.

                                           (2)On        the      same     principle,           the

                                   statements       of        witnesses      recorded        under

section 161 of the Code and copies of wound

certificates shall not be given to the

accused until the final report (charge

sheet) is filed by the police.

(3)Certified copies of photocopies of

unmarked documents shall not be given.

22.Reading of the above said Rule shows that the

orders on the remand report and FIR can be given to the

petitioner. There can be no quarrel on that. There is no

https://www.mhc.tn.gov.in/judis

problem with regard to the items 1 and 6 mentioned in the

copy application, which he is entitled as a matter of

right.

23.With regard to the remand report, it is not

mentioned in Rule 231 Cr.P.C. Similarly, the arrest memo,

arrest card and medical examination report of the accused

are also not mentioned. So, the learned Additional Public

Prosecutor would submit that even as per the present

Rule, the accused is not entitled for remand report,

arrest card, medical examination report. But careful

reading of the above said Rule will show that it speaks

about only some of the documents and not all the

documents, which are available in the record of the

criminal court. The Wound Certificate, which has been

mentioned in section 231 Cr.P.C is certainly not the

Wound Certificate of the accused. Now the petitioner has

not sought Wound Certificate of the injured. He sought

only his medical examination certificate. Now examination

has to be done as per section 54 of the Criminal

Procedure Code. So there is no prohibition for the above

said four documents, which is also clarified in Full

Bench decision.

https://www.mhc.tn.gov.in/judis

24.Per contra, the learned Additional Public

Prosecutor would submit that since these documents are

not mentioned in section 231 Cr.P.C, certainly this

petitioner is not entitled for such documents. But I am

unable to subscribe to the argument, that was advanced by

the learned Additional Public Prosecutor, the arrest

memo, remand card and medical examination report can be

granted to the petitioner, since there is no prohibition.

These documents cannot be treated either as privileged

or confidential documents. These are the documents

pertaining to the petitioner. So he is entitled for those

documents.

25.Now coming to the matter of remand report. Here

comes the relevancy of the above said document, the

learned counsel appearing for the petitioner would submit

that there will be indication or mentioning regarding

nature and the manner of sustaining injuries in the

remand report, so he is entitled for the document to

prosecute his grievance. So the question which arises for

consideration is, whether on that account, he is entitled

for copies.

https://www.mhc.tn.gov.in/judis

26.The learned counsel appearing for the petitioner

would straightaway rely upon the judgment of the Full

Bench of this Court reported in the case of Selvanathan @

Raghavan and other Vs. State by Inspector of Police,

Madras and others [1981(1)MWN (Cr)117] cited supra, this

judgment is also relied upon by the learned Additional

Public Prosecutor.

27.The learned counsel appearing for the petitioner

would draw the attention of this court to the guidelines

that have been issued by the Hon'ble Supreme Court in

D.K.Basu`s case; would rely upon para 31 of the Full

Bench judgment and would submit that it is his

fundamental right guaranteed under Article 22(1) of the

Constitution of India, when he was arrested, he got every

right to know the reason for the arrest. So he wants to

know the reason mentioned in the remand report for arrest

and this is the second purpose.

28.But for this purpose, the petitioner is not

entitled for the remand report. Because detailed guide

lines have been imposed in D.K.Basu case to furnish the

arrest memo indicating, the reason for the arrest, and

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also duty cast upon the Remanding Magistrate to inform

the accused about the ground of arrest, accusation. It is

not stated by him that he was not furnished with arrest

memo. More over, Judicial duty will take care of this

requirement.

29.To ascertain other facts, the remand report along

with the remand order was called from the trial court, in

both the matters. Wherein, we find that the ground of

arrest has been stated to be informed to the petitioner.

Since this is a judicial act, nothing more is required.

For the second purpose, the request has to fail.

30.With regard to the first purpose, it has its own

genuine reason and meaning. The nature of the injuries

are to be mentioned in the remand report if found on the

body of the accused. So whether the above said injuries

are mentioned in the report report or not, it is his

natural right to know.

31.Right to know, is a human right, need not be

granted by the State in the form of legislation.

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32.With this in mind, let us go to the bar alleged

to have been made in Selvananthan's case.

33.The learned Additional Public Prosecutor would

draw the attention of this court to para 43. The

discussion goes upto 47. The Hon'ble Full Bench of this

court of the view that the remand report must be treated

like the case diary. Even though, the remand report is a

public document, the bar under section 172(3) of the

Criminal Procedure Code, must be made applicable to the

remand report also.

34.The Hon'ble Full Bench is of the view that so

many confidential facts, evidences collected, secret

informations used to be mentioned in the case diary,

which may be reflected in the remand report also. If the

copy is given to the accused, there is every likelihood

of him tampering the evidence and hampering the

investigating process by making interference. The

sanctity of the investigation must be maintained to

safeguard the interest of the society at large. According

to the Full Bench, it is not desirable to issue copy.

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35.So the ground on which, the remand report copy

can be rejected is that it may cause serious prejudice to

the investigating process. So the question, which arises

for consideration is whether it can be construed as total

bar or ban in all situations. Now the present case

expressed different situation, than one that has been

dealt in the above said Full Bench decision. The

situation like the present one, was not even in the

contemplation. Here comes the judicial balancing of

rights, on one side the larger interest of the society as

pointed out by the Full Bench, and the right of the

accused to know the contents of the remand report

regarding his injuries as raised here.

36.An judicial act should do no violence to both

rights. This court is duty bound to find out a way out.

37.An extraordinary situation requires extraordinary

remedy.

38.So I am of the considered view that that portion

of the report which contains nature, manner of injuries

found on the body of the accused may be made available to

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the petitioner, rest of the portions not. The portion may

be attracted and supplied to him.

39.So as mentioned above, I called the remand report

also. On going through the remand report, I found that it

contains the narration of facts mentioned in the FIR,

fact of recording the statement of some witnesses, date

of arrest, injuries found on this petitioner. But in

Crime No.49 of 2023, I find no particulars of any

injuries.

40.Here situation satisfies the above said

extraordinary remedy. Rules and regulations are only

tools to achieve the goal. But the tools should not

stand or block the way of achieving the main goal. These

principles repeatedly pointed by the Hon'ble Supreme

Court.

41.So the situation demands supply of copy, which in

my considered view is not barred in the Full Bench

decision of this court in the case of Selvanathan @

Raghavan and others.

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42.Now coming to the third party, a separate rule

has been provided in Rule 210 Cr.P.C.

43.Rule 210 Cr.P.C reads as follows:-

                                              "210.Application        for       copies           by
                                      third     parties.-Application             for            the

grant of copies of judgment or order or any proceeding or document in the custody of a Court by a third party to the proceeding shall be allowed only by order of the Court obtained on a petition supported by an affidavit setting forth the purpose for which the copy is required.

44.With regard to the entitlement, the Division

Bench of this court in the case of Karthik Dasari Vs. The

State (Crl.OP(MD)Nos.5725 to 5727 of 2022, dated

30/03/2022) laid down the following procedure:-

"9.Mr.Sankaranarayanan placed strong

reliance upon this rule and contended that

this rule gives a substantive right to a

third party to obtain certified copies of

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documents from a Criminal Court. We are

unable to subscribe to the above

submission of the learned Additional

Solicitor General for the simple reason

that a complete reading of Rule 210,

ibid., shows that it lays down only the

procedure for making a third party copy

application, in that, it says that a third

party copy application shall be allowed

only by an order of the Court obtained on

a petition supported by an affidavit

setting forth the purpose for which the

copy is required. Just because the

affidavit discloses the purpose for which

the copy is required, it does not mean

that the third party would be

automatically entitled to the certified

copy of the document sought by him. The

expression? shall be allowed only by an

order of the Court? qualifies the

subsequent requirement, viz., obtained on

a petition supported by an affidavit

setting for the purpose for which the copy

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is required. A fortiori, if a person makes

a third party copy application, he is

required to file an affidavit setting

forth the purpose for which the copy is

required. On that affidavit and petition,

the judicial officer is required to pass a

judicial order whether to grant or refuse

to grant the certified copy. In a given

case, the judicial officer can refuse to

grant the certified copy, bearing in mind,

the privacy rights of the victim and the

accused and other factors. Sometimes, the

bona fides of the third party may also be

in a cloud. Therefore, the judicial

officer is not required to mechanically

grant certified copy of documents

available in his Court to a third party,

but is expected to adopt a judicious

approach on a case~to~case basis and pass

a judicial order. If a person is aggrieved

by the order, the same can be subjected to

judicial review by the superior Court.