Ram Jethmalani vs The Director, CBI, 1987 Cr LJ 570 (Del.)
Before Delhi High Court
Decided on: 25 November 1986
Bench: M Narain
Brief facts and procedural history–
The petitioner, in this case, has come to the Court, seeking a writ of mandamus or any other suitable writ, direction or order for permitting the petitioner for inspection of statements and documents in possession of the respondent relating to the investigation and final report under S. 173, Criminal P.C., and to grant the petitioner copies of the following documents:
(a) Statements of Mr J. S. Gill Dt. 21-11-1977 and any further statements thereafter.
(b) Statements of Mr Nissim Gaon of Noga, Switzerland.
(c) Correspondence between the State Trading Corporation of India and the said Mr Nissim Gaon and/or his Company called Compagnie Noga d’Importation et d’Exportation.
(d) Documents in the shape of draft statements and telex messages procured during the course of the said investigation.
The petitioner states that he is the plaintiff in a libel action instituted by him in the Queen’s Bench Division of the High Court of Justice in England. The action is numbered as 1983-J No. 6467 against Swaraj Paul of London, and that the cause of action arises out of the statements made by Swaraj Paul in London to the correspondents of ‘The Hindustan Times’ and ‘The Daily’ which appeared on 28th August 1983 and 1st September 1983, respectively. The defendant in that suit had made counter-claim arising out of the petitioner’s statement which appeared in ‘The Indian Express’ dated 30th August 1983.
The petitioner states that during the course of the litigation in England, the petitioner has been called upon to furnish particulars of certain allegations made by the petitioner. He further asserts that these detailed particulars are available in the statements and documents in the possession of the respondent. It is also asserted that the statements and documents form part of the record of an investigation which had been conducted by the Delhi Special Police in Crime No. 8/77-CIA (I) FIR of which was registered on 22nd October 1977.
The petitioner asserts that unless inspection of the documents above mentioned, is permitted to him or copies furnished to him, it will be impossible for him to furnish the particulars which are required to be furnished by him in the case which is pending adjudication in England.
The petitioner had applied to the respondent by his letter Dt. 3rd March 1986 for being permitted to inspect or given certified copies of the above-said documents. The respondents did not allow the petitioner to access the documents on the ground that- the documents mentioned were not available with them in original and secondly because the documents were not public documents it was not allowed to the petitioner to use them.
Arguments of the petitioner:
The petitioner has contended that the reputation of an individual, the petitioner herein, is an element of a fundamental right of personal liberty guaranteed to the petitioner under Art. 21 of the Constitution.
It is also contended by the petitioner that the respondent is bound to render assistance to the petitioner, a citizen of India, who is seeking to enforce his right to reputation, which has been impinged upon by a foreign citizen and an action with regard thereto against a foreign citizen is pending in a foreign Court. The petitioner asserts that he has a substantial and urgent interest in securing copies and/or inspection of the above said documents and statements.
It is urged by him that the statements which are recorded by a police officer are either an act of the police officer, or record of an act of police officer, and as such, they are public documents within the meaning of S. 74, Evidence Act.
It is also asserted by him that every citizen has a right to inspect and obtain copies on payment of legal fee, therefore. The petitioner says that the proceedings with respect to Crime No. 8/77-CIA (I) resulted in judicial order of the Court, on the basis of the report filed by the police under S. 173, Cr.P.C., and under S. 363, Cr.P.C., the petitioner has a right to obtain the copy of the final order made by the Court.
The petitioner has contended that by virtue of Art. 19(1)(a) and Art. 21 of the Constitution, he has a right to get information so that he can effectively defend his litigation in London.
The petitioner also relies on the:
- The preamble to the Constitution of India which secures to all its citizens “Justice – social, economic and political.”
- Provisions of 51-A, which was added by Forty-second Constitutional Amendment; this article enjoins that “it shall be the duty of every citizen of India to abide by the Constitution and respect its ideals and institutions ……….”
- 39-Aof the Constitution which is one of the directive principles to the effect that “the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other (manner) and to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
and states that “it is the duty of the State in India to secure justice to all its citizens. He is entitled to such assistance from the State, which will ensure him social justice in the shape of protection of his name and reputation which has been impinged by the statements made in the aforestated publications, particularly as he is an Indian citizen, and the attack on his reputation is a person who is not an Indian citizen.”
The contention of the respondents:
Mr P. P. Khurana who appears for the respondent contends that S. 74, Evidence Act, has to be read with S. 76 of the Act.
It is contended by Mr Khurana that the petitioner herein has no right to inspect, and, therefore, even if the documents which he seeks inspection of, are public documents, no copy can be supplied. According to Mr Khurana, right to inspect has to be direct and tangible interest. There is no direct and tangible interest when the documents which are sought to be inspected are needed for success in another proceedings statements made under S. 161, Cr.P.C., are not public documents. written statements recorded by a police officer in the course of the investigation did not come within the description of record within the meaning of S. 35. Evidence Act. If the statement as recorded by the police officer is not a record within the meaning of S. 35, it follows that it cannot be a public document within the meaning of S. 74
A perusal of S. 35 indicates that the record postulated thereby was in the shape of a book or register or record, which was required to be maintained by law. This provision would be confined to statutory books and registers, and similar records cannot be looked at for the purpose of giving meaning and colour to the provisions of S. 74 of the Evidence Act.
Section 74 of the Evidence Act does not postulate record contemplated by S. 35 but relates to acts or records of the acts. The records of the acts in S. 74 mean something different from the public or other statutory books, public register which is required to be kept by law, postulated by S. 35.
In the Cr.P.C., 1973, S. 175(5) and (7) when reading together, indicates that all statements recorded under S. 161 of the Code are to be furnished to the accused. There was no such provision in the old Code. The accused has now a right to the documents. Besides this, S. 207 of the Code requires furnishing the police reports, F.I.R., statements under S. 161(3), etc., to the accused. The legislative thinking has, therefore, changed from secrecy to giving out information. The records of acts mentioned in S. 74 are something different from the records mentioned in S. 35.
The petitioner has invoked the constitutional provisions of the preamble, Art. 14, Art, 19, Art. 21, Art. 39 and Art. 51A. These provisions of the Constitution make out a stronger case in favour of the petitioner. These provisions of the Constitution impose superior obligations and confer better rights than are furnished by the statute as the constitutional obligations and rights are basic rights and basic obligations. The said constitutional provisions mandate that State should assist in securing justice to its citizens.
In the instant case, an Indian citizen has got a right on the basis of the aforesaid provisions to invoke the aid of the State for successfully prosecuting, legal proceedings against foreign citizens in a foreign country. The statutory rights of the petitioner herein will be established on an examination of the provisions of S. 161, Cr.P.C.
Section 161, Cr.P.C., imposes a statutory obligation on police officers to examine orally any person supposed to be acquainted with the facts and circumstances of the case. Section 161(2) imposes an obligation on all persons examined by police officers; to answer truly all questions except those which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture. By S. 161(3) the police officer has got the statutory obligation to reduce into writing any statement made to him in the course of an examination under this section. Every such statement of separate persons has to be separately recorded. In view of these statutory provisions, it is not possible to say that the statements which are recorded by the police officer under S. 161, Cr.P.C., are not acts of a police officer, or public officer, or record of acts of public officers. All documents which may be handed over to such police officer to substantiate the statements made to the police officer would also be part and parcel of the record of acts of the police officer. The statements recorded and documents filed in support of the statements with public officers would be public documents.
Every citizen is entitled to seek vindication of his reputation which is a part of life with which, Art. 21 of the Constitution is concerned