Daily Archives: March 21, 2017

States to upload FIR in ALL cases except POSCO etc in max 72 hours! Supreme court!

States to upload FIR to police website or state government website in ALL cases except sensitive cases like POSCO etc 24. Hours. If not possible within 24 hours, the same shall be uploaded in max 72 hours! Supreme court of India!

///d) The copies of the FIRs, unless the offence is
sensitive in nature, like sexual offences, offences
pertaining to insurgency, terrorism and of that category, offences
under POCSO Act and such other offences, should be uploaded on the
police website, and if there is no such website, on the
official website of the State Government, within twenty-four
hours of the registration of the First Information Report so that the
accused or any person connected with the same can download the FIR
and file appropriate application before the Court as per law for
redressal of his grievances. It may be clarified here that in case
there is connectivity problems due to geographical location or there
is some other unavoidable difficulty, the time can be extended up to
forty-eight hours. The said 48 hours can be extended maximum up to
72 hours and it is only relatable to connectivity
problems due to geographical location.
/////


WP(Crl.) 68/2016

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRL.) NO.68 OF 2016

Youth Bar Association of India Petitioner(s)

Versus

Union of India and Others Respondent(s)

O R D E R

 

  1. Issue Rule.
  2. 2. In this writ petition, preferred under Article 32 of the Constitution of India, the petitioner, Youth Bar Association of India, has prayed for issue of a writ in the nature of mandamus, directing the Union of India and the States to upload each and every First Information Report registered in all the police stations within the territory of India in the official website of the police of all States, as early as possible, preferably within 24 hours from the time of registration.
  3. 3. After the writ petition was entertained by this Court, notices were issued to the Union of India and the States.
  4. 4. It is submitted by Mr. Sanpreet Singh Ajmani, learned counsel appearing for the petitioner that after registration of the First Information Report if it is uploaded in the official website of police, that will solve many unnecessary problems faced by the accused persons and their family members. Learned counsel would contend that when the criminal law is set in motion and liberty of an individual is at stake, he should have the information so that he can take necessary steps to protect his liberty. In this context, he has drawn our attention to a passage from the judgment rendered in State of West Bengal and others vs. Committee for Protection of Democratic Rights, West Bengal and others (2010) 3 SCC 571, wherein it has been observed:- “Article 21 of the Constitution in its broad perspective seeks to protect the persons of their lives and personal liberties except according to the procedure established by law.  The said Article in its broad application not only takes within its fold enforcement of the rights of an accused but also the rights of the victim. The State has a duty to enforce the human rights of a citizen providing for fair and impartial investigation against any person accused of commission of a cognizable offence, which may include its own officers. In certain situations even a witness to the crime may seek for and shall be granted protection by the
    State.”
  5. 5. In Som Mittal vs. Government of Karnataka (2008) 3 SCC 753, the Court has ruled thus: – “ The right to liberty under Article 21 of the Constitution is a valuable right, and hence should not be lightly interfered with. It was won by the people of Europe and America after tremendous historical struggles and sacrifices. One is reminded of Charles Dickens novel `A Tale of Two Cities in which Dr. Manette was incarcerated in the Bastille for 18 years on a mere lettre de cachet of a French aristocrat, although he was innocent.”
  6. 6. In D.K. Basu vs. State of West Bengal AIR 1997 SC 610 it has been opined that:- “ The rights inherent in Articles 21 and 22(1) of the Constitution required to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture of cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during
    investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchanism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal court of human rights jurisprudence. The answer, indeed, has to be an emphatic ‘No’. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicted undertrials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted by law.”
  7. 7. Learned counsel for the petitioner has also drawn our attention to a Division Bench decision of Delhi High Court rendered in Court on its Own Motion through Mr. Ajay Chaudhary vs. State (2010) 175 DLT 110 (DB).
  8. 8. On being asked, Mr. Tushar Mehta, learned Additional Solicitor General appearing for the Union of India, has submitted that the directions issued by the High Court of Delhi can be applied with certain modifications. Learned Additional Solicitor General has also drawn our attention to paragraph 4 of the affidavit filed in an interlocutory application in the present writ petition. The said paragraph reads as under:- “ 4. That is it respectfully submitted that Central Government is supporting all the states to set up a mechanism for online filing of complaints under the protect ‘Crime & Criminal Tracking Network & Systems (CCTNS)’.”
  9. 9. Mr. Saurabh Trivedi, learned counsel appearing for the State of Uttarakhand has submitted that the First Information Report in respect of certain offences which are registered, like sexual offences and the offences registered under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), may be difficult to be put on the website.
  10. 10. Mr. Ranjan Mukherjee, Mr. Shikhar Garg, and Mr. Yusuf Khan, learned counsel appearing for the States of Meghalaya, Mizoram and Sikkim respectively, have submitted that insurgency would be a sensitive matter and, that apart, it may not be possible on the part of the said States to upload the First Information Reports within 24 hours.
  11. 11. Mr. Uddyam Mukherji, learned counsel appearing for the State of Odisha has submitted that whether a matter is sensitive or not, the Court may say no reasons should be given because the allegation in the F.I.R. shall speak for itself.
  12. 12. Having heard learned counsel for the parties, we think it appropriate to record the requisite conclusions and, thereafter, proceed to issue the directions:-  
    • (a) An accused is entitled to get a copy of the First Information Report at an earlier stage than as prescribed under Section 207 of the Cr.P.C.
    • (b) An accused who has reasons to suspect that he has been roped in a criminal case and his name may be finding place in a First Information Report can submit an application through his representative/agent/parokar for grant of a certified copy before the concerned police officer or to the Superintendent of Police on payment of such fee which is payable for obtaining such a copy from the Court. On such application being made, the copy shall be supplied within twenty-four hours.
    • (c) Once the First Information Report is forwarded by the police station to the concerned Magistrate or any Special Judge, on an application being filed for certified copy on behalf of the accused, the same shall be given by the Court concerned within two working days. The aforesaid direction has nothing to do with the statutory mandate inhered under Section 207 of the Cr.P.C.
    • (d) The copies of the FIRs, unless the offence is sensitive in nature, like sexual offences, offences pertaining to insurgency, terrorism and of that category, offences under POCSO Act and such other offences, should be uploaded on the police website, and if there is no such website, on the official website of the State Government, within twenty-four hours of the registration of the First Information Report so that the accused or any person connected with the same can download the FIR and file appropriate application before the Court as per law for redressal of his grievances. It may be clarified here that in case there is connectivity problems due to geographical location or there is some other unavoidable difficulty, the time can be extended up to forty-eight hours. The said 48 hours can be extended maximum up to 72 hours and it is only relatable to connectivity problems due to geographical location.
    • (e) The decision not to upload the copy of the FIR on the website shall not be taken by an officer below the rank of Deputy Superintendent of Police or any person holding equivalent post. In case, the States where District Magistrate has a role, he may also assume the said authority. A decision taken by the concerned police officer or the District Magistrate shall be duly communicated to the concerned jurisdictional Magistrate.
    • (f) The word ‘sensitive’ apart from the other aspects which may be thought of being sensitive by the competent authority as stated hereinbefore would also include concept of privacy regard being had to the nature of the FIR. The examples given with regard to the sensitive cases are absolutely illustrative and are not exhaustive.
    • (g) If an FIR is not uploaded, needless to say, it shall not enure per se a ground to obtain the benefit under Section 438 of the Cr.P.C.
    • (h) In case a copy of the FIR is not provided on the ground of sensitive nature of the case, a person grieved by the said action, after disclosing his identity, can submit a representation to the Superintendent of Police or any person holding the equivalent post in the State. The Superintendent of Police shall constitute a committee of three officers which shall deal with the said grievance. As far as the Metropolitan cities are concerned, where Commissioner is there, if a representation is submitted to the Commissioner of Police who shall constitute a committee of three officers. 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 grieved person.
    • (i) The competent authority referred to hereinabove shall constitute the committee, as directed herein-above, within eight weeks from today.
    • (j) 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/his authorized representative/parokar to file an application for grant of 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.
    • (k) The directions for uploading of FIR in the website of all the States shall be given effect from 15 th November, 2016.
  13. 13. Let a copy of this order be sent to all the Home Secretaries and the Director Generals of Police of the States concerned.
  14. 14. The writ petition is, accordingly, disposed of.

 

…………………J. [Dipak Misra]

…………………J. [C. Nagappan]

New Delhi

September 07, 2016.

Passport cannot be denied just because 498a FIR against husband, applicant !! HC 

///// Therefore, it is clear that unless the Judicial Magistrate takes cognizance of the offence, on filing of charge-sheet on completion of investigation against the applicant, it cannot be said that the proceedings are pending before the Criminal Court. Therefore, in my considered opinion, the 3rd respondent cannot mechanically refuse to issue passport to the petitioners, merely for the reasons that the FIRs are pending against the petitioners. On receipt of the application for passport, the 3rd respondent shall consider the same and pass appropriate orders.////

/// Following the abovesaid decision, the respondent is directed to consider the application for re-issuance of passport submitted by the petitioner without reference to the FIR lodged against him and issue passport, if he is otherwise eligible for the same.////

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT               
DATED: 13.03.2017  
CORAM   
THE HONOURABLE MR.JUSTICE V.PARTHIBAN           
W.P.(MD) No.3927 of 2017  

Abdul Razik :

Petitioner
                                                 Vs.

The Regional passport Officer,

Regional Passport Office,

Bharathi Ula road,

Racecourse Salai, 

Madurai District. :

Respondent  

Prayer : This Petition filed under Article 226 of Constitution of India for

the issuance of Writ of Mandamus to direct the respondent to issue passport

to the petitioner by considering his application taken on file as file

No.MD.2079877643917 in light of the judgement made by this Court in W.Jaihar 

William Vs State of Tamil Nadu, 2014 2 CWC 684 within the time that may be 

stipulated by this Court.

!For Petitioner : Mr.E.MareesKumar

For Respondent :Mr.G.Rajaraman  
                        

              

:ORDER  
This writ petition has been filed for the issuance of a Writ of Mandamus directing the respondent to issue passport to the petitioner by considering his application taken on file as file No.MD.2079877643917 in light of the judgement made by this Court in W.Jaihar William Vs State of Tamil Nadu, 2014 2 CWC 684.
2.According to the petitioner, he is a resident of Tuticorin. He was issued passport on 15.07.2012 and the same is valid upto 14.07.2022. He was employed in Bahrain. He married on 04.09.2013. After marriage, the petitioner had surrendered his passport for change of status from bachelor to married and reapplied for reissue of passport on 30.12.2016. In the meantime, the petitioner’s wife had given a police complaint against the petitioner under Section 498-A of IPC and Section 4 of the Domestic Violence Act. Taking note of the FIR lodged by the petitioner’s wife, the respondent vide proceedings dated 21.02.2017 sought for an explanation from the petitioner. According to the communication dated 21.02.2017, the petitioner was involved in the offence as stated supra and called for explanation within 30 days. As per proceedings, the petitioner seems to have suppressed the material information in his passport application. In response to the column No.8 of the show cause notice, the petitioner had submitted his explanation on 24.02.2017 as follows:-

?8.1Have you ever been charged with criminal proceedings or any arrest warrant/summons pending before a court in India?’ From the reading of the above question it would be clear that, an applicant is warranted to answer in affirmative only if he has been charged of a criminal proceedings or any warrant/summons have been issued and are pending any court of India. In other words the said question does not cover a stage prior to filing of a charge sheet as a person is said to have been charged with a criminal proceedings only when a competent criminal court of jurisdiction, charges a accused of the offence after taking cognizance of the same. As the criminal case against me is in the stage of an FIR alone and as no court has taken cognizance of the same, I cannot be considered to have been charged with a criminal proceedings and therefore, the answering of the said question in question No.8.1 in negative is not suppression but is rather a true statement. It would have been a misleading or a false statement if I had answered the said question in affirmative. Therefore, there is no suppression as alleged in the proceedings stated supra. In the like manner, as no court has taken cognizance of the said criminal case, there is no question of either summons or warrant being pending against me.?
3.That answer to be given in the form only when a person had been charged of criminal proceedings under the Code of Criminal Procedure and taking cognizance of the same. Mere pendency of the FIR cannot be construed as pendency of criminal proceedings. Therefore, the petitioner had not suppressed any material information in his passport application.
4.Notwithstanding the explanation given by the petitioner, no action has been taken by the respondent for re-issuance of passport and there is no communication received from the petitioner. Hence, the petitioner has come before this Court with the relief as stated supra.
5.Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
6.The learned counsel appearing for the petitioner placed on a decision reported in 2014(2) CWC 684 (M.Jaihar William vs. State of Tamil Nadu). According to the said decision, mere pendency of the FIR cannot be construed as pendency of criminal proceedings, unless the Judicial Magistrate takes cognizance of offence on filing of charge sheet of complaint and investigation against accused.
7.The learned Judge of this Court taking note of various decisions rendered on the subject matter, categorically concluded that mere pendency of the FIR cannot be a bar for consideration of the claim for issuance of passport. The learned Judge has clearly held in paragraph 10 of the said decision as follows:- ?10.For the same proposition of law, the learned counsel for the petitioners has also relied upon the judgment delivered by the Andhra Pradesh High Court reported in 1994 Cri.L.J.257 [Mathumari China Venkatareddy and others Vs. State of Andhra Pradesh], wherein it has been held that until the charge-sheet has been filed, a Magistrate cannot be said to have taken cognizance of any offence and that the Magistrate can take cognizance of the offence and direct the issue of process only on receipt of a police report and that till that stage is reached, he is said to be acting only as a Magistrate controlling the investigation made by the police. It has been further held in the said judgement as follows:-

“….The judicial act commences only when the charge-sheet is in order and the Magistrate proceeds further under Chapter XVI. Unless the charge-sheet is in the official custody of the Court together with its accompaniments to be furnished to the accused, it cannot be construed that there is a filing of charge-sheet. Chapter XVI relates to commencement of proceedings before Magistrates, process to be issued when Magistrate takes cognizance of the offence. Therefore, it is clear that unless the Judicial Magistrate takes cognizance of the offence, on filing of charge-sheet on completion of investigation against the applicant, it cannot be said that the proceedings are pending before the Criminal Court. Therefore, in my considered opinion, the 3rd respondent cannot mechanically refuse to issue passport to the petitioners, merely for the reasons that the FIRs are pending against the petitioners. On receipt of the application for passport, the 3rd respondent shall consider the same and pass appropriate orders…..”
8.From the above, it could be seen that the present issue is squarely covered in the above said decision rendered by the learned Judge of this Court.
9.Following the abovesaid decision, the respondent is directed to consider the application for re-issuance of passport submitted by the petitioner without reference to the FIR lodged against him and issue passport, if he is otherwise eligible for the same. The respondent shall comply with the said direction on merits and in accordance with law, within a period of four weeks from the date of receipt of a copy of this order.
10.With the above direction, this Writ Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
To The Regional passport Officer, Regional Passport Office, Bharathi Ula road, Racecourse Salai, Madurai District..