2008 Supreme(Bom) 1491

IN THE HIGH COURT OF JUDICATRE AT BOMBAY
BILAL NAZKI AND A.A.KUMBHAKONI, JJ.
Maria Monica Susairaj – Appellant
VERSUS
The State of Maharashtra – Respondent
CRIMINAL WRIT PETITION NO.1337 OF 2008
Decided on : 14-10-2008.

Headnote:Criminal Procedure Code, 1973 - Sections 164 and 173-Confessional statement of accused-Investigative journalism.-The Press and the Judiciary, both, should be independent and free. Both should not have any fetters, but the more freedom you have, the more the responsibilities, and, therefore, both these institutions are required to have self-imposed restriction. Court hopes that the Press, while reporting a crime or an investigation, would not tilt its reports either towards the guilt of an accused or towards his innocence, because if there is tilt, it creates perceptions in the minds of the people, and those perceptions may not be right, and ultimate decision of the Court going against such perceptions may affect the credibility of the Courts.

       It is Court’s duty, as a Court of law to protect everybody’s freedom, especially the Press freedom. Similarly, it is necessary for the Press to ponder over their role, and try to protect the credibility of the Courts, because if people lose faith in the Courts, they lose faith in the judicial system. Then alternative dispute resolution methods will come, and those alternative dispute resolution systems need not be legal, need not be within the parameters of law.

       During the investigation, if the police want to apprise people with respect to the investigation of a case in which people are generally interested, they cannot be faulted; but the information must be specific, and it must be factually correct. Generally, what Court sees in newspapers or TV channels is that sometimes, information is given by police officers directly, and on various occasions, Court has seen the reports reporting news from "informed sources" or "sources close to the investigating agency". This information may be or may not be accurate. Therefore, the police have a responsibility to ensure that any information given to the media should be accurate and not false. Sometimes, half truths are given, which create an impression which is different from the impression that an investigating officer himself has about the culpability of a particular person.

       Criminal Procedure Code, 1973 - Sections 164 and 173-Investigative journalism-Valuable and inseparable facet of freedom of Press.-In a democratic society public must have access to information. There can be no manner of doubt that but for ’investigative journalism’ misdeeds and mischiefs committed in the corridors of powers would never see the light of the day. Over a period of time it is now proved that ’investigative journalism’ is a very valuable and inseparable facet of the freedom of Press. In a democratic country one of the pillars of the freedom is the freedom of Press. However, to be deserving of this freedom, the Press must also demonstrate, from its, so to say, work behaviour and conduct, that it is worthy of such freedom. It is only and only ’a responsible Press’ which can claim not only freedom but also an immunity from being compelled to divulge the source of its information. In Court’s view, it will be too risky to permit media to have a wide and sweeping pretrial publicity of any case, whether criminal or civil, virtually developing ’a trial by Court’ into ’a trial by media’, especially on the basis of undisclosed sources of information.

       Criminal Procedure Code, 1973 - Sections 164, 173 and 207-Evidence Act, 1872, Section 76-Confessional statement of accused-Certified copy.-An accused cannot, as of right, seek and obtain a certified copy of his/her confessional statement recorded by Magistrate at any stage before filing of the charge-sheet.

       Only because an accused is not entitled, as a legal right, to the certified copy of his/her confessional statement recorded by the Magistrate at a stage earlier to the filing of charge-sheet, does not necessarily mean that the prosecution or the Magistrate is prohibited by law from supplying such a copy to the accused.

       Non-entitlement as of a legal right does not always in law necessarily mean a prohibition in law. An express or implied prohibition in law takes away a legal right to do something that is so prohibited. However the converse of it is not necessarily and always that something one cannot do as of a legal right is something that is prohibited by law.

       It is always for the prosecution i.e. the investigation team of the police to take a decision in this regard. If the investigating team of the police is of the view that supply of copy of such a confessional statement of the accused, at a stage prior to the filing of the charge-sheet to the accused, is going to hamper in any manner whatsoever further investigation, then, in that case, such a copy cannot be supplied to the accused. On the other hand, if the investigating agency is of the view that supply of such a copy to the accused at a particular stage of investigation is not going to hamper in any manner further investigation, then it is open for the investigation to supply such a copy to the accused. In such an eventuality, with the no objection from the investigating agency, it will be open for the concerned Magistrate also a supply a certified copy of such a confessional statement to the accused at any stage of investigation, before filing of the charge-sheet.

       Criminal Procedure Code, 1973 - Sections 173 and 164-Confessional statement of accused-Investigating agency.-The investigating agency could not sit with crossed legs and folded arms allowing the media to have a "free for all" kind of attitude for the character assassination of the petitioner. The investigating agency may not disclose to the media the nature of investigation which is so far carried out or its proposed course of action as the same is likely to affect the further course of investigation. Such disclosure may also result into awakening of persons involved in the crime and result into the destruction and/or tampering of evidence as also influencing the witnesses to the crime. Nevertheless, the investigating agency is bound to take steps to clarify the incorrect reporting of a confessional statement of an accused by issuing an appropriate clarifications promptly, especially when, on factually incorrect allegations, it results into character assassination of an accused, who in law is to be presumed to be innocent till on full-fledged trial is found guilty.

       Penal Code, 1860 - Sections 302, 201 and 34-Criminal Procedure Code, 1973, Sections 164 and 439-Investigation-Duty of Court.-During the investigation, if the police want to apprise people with respect to the investigation of a case in which people are generally interested, they cannot be faulted; but the information must not be tailored : the information must be specific, and it must be factually correct. Generally, what we see in newspapers or TV channels is that sometimes, information is given by Police Officers directly, and on various occasions, we have seen the reports reporting news from "informed sources" or "sources close to the investigating agency". This information may be or may not be accurate. Therefore, the police have a responsibility to ensure that any information given to the media should be accurate and not false. Sometimes, half truths are given, which create an impression which is different from the impression that an investigating officer himself has about the culpability of a particular person.

       In these circumstances, we would suggest to the Police Department to lay down norms for its officers regarding sharing of information to the press with regard to the investigation of a particular case. We would appreciate if the Police Department creates a system, by which a responsible Police Officer shares information, rather than each of the investigating officers, as we consider it also a duty of the police to inform the public of the progress in a crime investigation.