Can an accused be denied a copy of the FIR?

A new trend is emerging, of not furnishing copies of first information reports to the accused. This is against settled law and the fundamental rights guaranteed under India's Constitution, argues Paras Nath Singh.

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A trend has emerged recently whereby every time a first information report (FIR) is filed under the Unlawful Activities (Prevention) Act (UAPA), 1967, the police choose to withhold it from the accused.

In some cases, a copy of the FIR starts making the rounds of social media before the accused gets a copy from the police.

The latest example of this trend is the Delhi police refusing to share a copy of the FIR with the accused in the Parliament security breach case.

Such is the reluctance among the Delhi police to share the copy of the FIR that it went on appeal against an Order passed by an additional sessions judge directing that one of the accused, Neelam Devi, be provided a copy of the FIR.

Even in the Newsclick case, also under the UAPA, a copy of the FIR was supplied to the accused only on the direction of the court, which the police chose not to challenge in the Delhi High Court.

These two instances are not the only examples where the police have been dragging their feet in providing copies of the FIR to the accused persons.

Many a counsel representing the accused under the UAPA says that the investigating agencies have been routinely denying their clients copies of FIRs.

Youth Bar Association case

Coming back to the Parliament security breach, Justice Swarna Kanta Sharma of the Delhi High Court stayed the Order passed by the additional sessions judge Dr Hardeep Kaur on December 21 directing the Delhi police to supply a copy of the FIR to the accused Neelam.

Also read: Parliament breach case: Delhi High Court stays supply of FIR to accused Neelam Devi

It is important to spell out the arguments made by the Delhi police against the disclosure of the FIR and how Justice Sharma appreciated them. First and foremost, the Delhi police argued that the FIR is sensitive.

The police also argued that the accused ought to follow the procedure prescribed by the Supreme Court in Youth Bar Association of India versus Union of India and Others for obtaining a copy of the FIR.

In the Youth Bar Association, the Supreme Court observed that copies of FIRs should be uploaded on the police website within twenty-four hours of the registration of the FIR so that the accused or any person connected with the case can download the FIR and file an appropriate application before the court as per law for redress of his grievances.

However, the court spelled out certain exceptions to this general rule. When the offence is sensitive, such as a sexual offence, an offence under the POCSO Act, or one related to terrorism and insurgency, the court held that the general rule need not be followed.

The court went on to state that in case a copy of the FIR is not provided on the ground of the sensitive nature of the case, a person aggrieved by the said action can submit a representation to the superintendent of police or any person holding the equivalent post in the state, who will in-turn constitute a committee of three officers which shall deal with the said grievance.

The committee so constituted shall deal with the grievance within three days from the date of receipt of the representation and communicate it to the aggrieved person.

In cases wherein decisions have been taken not to give copies of the FIR, regard being had to the sensitive nature of the case, it will be open to the accused to file an application for the grant of a certified copy before the court to which the FIR has been sent and the same shall be provided by the concerned court not beyond three days of the submission of the application.

Also read: Newsclick case: Opposing furnishing copy of FIR violates the right to fair trial of accused

Justice Sharma, based on the observations in the Youth Bar Association observed that the FIR in question is sensitive since Sections 16 and 18 of the UAPA have been invoked.

She also observed that the FIR could not have been given to the accused without following the procedure established in the Youth Bar Association.

The procedure she was referring to is that the accused ought to have first applied for a copy of the FIR with the SSP and if not given, then apply to the concerned court.

The flip side

What Justice Sharma did not notice is that the very same judgment emphatically held that an accused is entitled to get a copy of the FIR at an earlier stage than as prescribed under Section 207 of the Code of Criminal Procedure (CrPC).

On receiving a police report and other supporting documents, the concerned magistrate issues a summons for the appearance of the accused.

On the appearance, Section 207 of the CrPC mandates supplying to the accused a copy of certain documents relied upon by the prosecution, without delay and free of cost, which also includes the FIR and the chargesheet.

What thus follows is that an accused is entitled to a copy of the FIR even before the condition under 207 CrPC can apply.

Moreover, the judgment in the Youth Bar Association makes it clear that the accused can obtain a copy of the FIR from the court to which the FIR has been sent if the same has been denied to him citing the 'sensitivity' of the FIR.

To this effect, the Supreme Court had observed: "In cases wherein decisions have been taken not to give copies of the FIR, regard being had to the sensitive nature of the case, it will be open to the accused or his authorised representative or parokar to file an application for grant of a certified copy before the court to which the FIR has been sent and the same shall be provided in quite promptitude by the concerned court not beyond three days of the submission of the application."

Also read: Explained: The revised criminal law Bills

The words "same shall be provided in quite promptitude by the concerned court not beyond three days of the submission of the application" make it clear that at the end of the day, the accused is entitled to a copy of the FIR.

The accused's right to obtain a copy of the FIR cannot be frustrated at the altar of procedural rigmarole as sought to be made by the Delhi police. A constitutional court such as the Delhi High Court ought to have applied the judgment in the Youth Bar Association in the right perspective.

When the court to which the FIR was sent found it fit to supply a copy of the FIR to the accused, then there cannot be any good reason for a high court to stay the Order, more so when, as per the Youth Bar Association itself, the FIR has to be given to the accused eventually.

Wealth of precedent

Indeed, the CrPC does not expressly provide for sharing of a copy of the FIR with the accused. However, in a series of judgments, the courts have recognised the right of the accused to obtain a copy of the FIR at the earliest.

As far back as 1917, the Patna High Court in Dhanpat versus Emperor held that it was vitally necessary that an accused person should be granted a copy of the FIR at the earliest so that he may seek legal advice.

The Kerala High Court, in Jiju Lukose versus State of Kerala, held that a copy of the FIR can be obtained either from the concerned police station or office of SSP or can also be obtained by an accused from the court of the concerned magistrate where the report has already been sent within two working days from the date of making the application.

There is no gainsaying that the right to life and personal liberty guaranteed to every person under Article 21 of the Constitution of India, cannot be curtailed except according to procedure established by law.

Also read: What is Section 207 CrPC, an essential piece of the Bhima Koregaon case puzzle?

The Supreme Court, in Maneka Gandhi versus Union of India, held that the procedure established by law is the due procedure in that it must be fair, just and reasonable.

The main objective of filing an FIR is to set the criminal law in motion. With the registration of an FIR, there originates the right to legal remedies against the FIR and also the arrest or arrest in anticipation. An accused cannot effectively exercise their right to such legal remedies if they are denied a copy of the FIR.

Article 22(1) of the Constitution provides that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest.

The mode of conveying information on the grounds of arrest must necessarily be meaningful to serve the intended purpose. The FIR, which contains the gist of the allegations against the accused, is undoubtedly a crucial document for an accused to persuade the magistrate that there is no case against him and, as such, their remand is not warranted.

Even during police interrogation, a person must surely have the right to know what is held against them. They must be told of the allegations against them. After all, under our Constitution, an accused has the right against self-incrimination under Article 20(3).