ALL.ES, J.—Arumugam v. Officer-in-Charge, Police Station,
1969Present :Alles, J., and de Kretser, J.
P. ARUMUGAM, Petitioner, and THE OFFICER-IX-CHARGE,POLICE STATION, MIR I HAN A, Respondent
S. C. 633J6S—Application for a Mandate in the nature of aWrit of Mandamus
Criminal Procedure Code, as amended by Act No. 42 of J9Gl~~Scction 122A(1)— Rightof an accused person to obtain certified copies of “first information ”—Meaningof expression "first information ”—Sections 121 (1), 121 (2), US.
Section 122 A (1) of the Criminal Procedure Code does not enable a personaccused of a cognizable offence to obtain certified copies of the '* notes andobservations ” made by a police officer concerning the offence, if the notes andobservations do not relate to any part of the first information in record to the~~ offoncel
A report under section 14$ (1) (6) of the Criminal Procedure Code need notalways bo preceded by information recorded under section 121 (1). Section 121 (2)of the Criminal Procedure Code contemplates the institution of proceedings•without a first information being recorded under section 121 (l)„.
Panditaratne v. The Assistant Superintendent of Police, Kegalle (72 N. L. R. 273)considered.
Application for a writ of mandamus on the officer-in-chargeof the Mirihana Police Station.
Mark Fernando, for the petitioner.
K.Ratnesar, Crown Counsel, for the respondent
Cur adv. vult.
January 25, 1969. Alles, J.—
This is an application for the issue of a mandate in the nature of a writof mandamus ordering and requiring the respondent, who is the Officcr-inCharge of the Mirihana Police Station to furnish to the petitioner acertified copy of the “ notes and observations ” of Sub-Inspector Silvaof the Mirihana Police made in the course of the investigation in M. C,Colombo South Case No! 87S75/B. The petitioner who was charged inM.C. Colombo South Case No. S7875/B with having sold a pound ofBombay onions above the controlled rate to Police Constable Siriwardeneof the Mirihana Police, maintained that under section 122A (1) of theamendment to the Criminal Procedure Code introduced by OrdinanceNo. 42 of 1961, the “notes and observations” of Sub-Inspector Silvaconstituted a first information given under sub-section (1) to section 121in consequence of which proceedings were instituted against him in theMagistrate’s Court of Colombo South under section 148 of the Criminal
AISLES, J,-~Arumugam v. Officer-in-Charge, Police Station,
Procedure Code. The application for the certified copy of this informationand the statement made by Police Constable Simvardene in the course ofthis investigation was made to the Magistrate, who, by his order of the4th of March 19GS, stated that the petitioner was entitled to the firstinformation given to the Officer-in-Charge of the Mirihana Police Stationin consequence of which proceedings were instituted against the petitioner.He also stated in his order that the petitioner was entitled to obtain acertified copy of the statement of Police Constable Siriwardene to whomthe accused is alleged to have sold the article in contravention of theControl of Prices Act. The latter statement has been furnished to thepetitioner and the only matter presently in issue is whether the petitioneris entitled to the “notes and observations ” of Sub-Inspector Silva underthe provisions of the law.
It would appear from the proceedings furnished to Court and thesubmissions of Counsel that the prosecution launched against the petitionerfor a contravention of the Control of Prices Act was the result of someinformation that was received by the Officer-in-Charge of the MirihanaPolice Station that the petitioner was suspected to be profiteering in thesale of Bombay onions. This information it is conceded cannot be thefirst information recorded under section 121 (1) of the Criminal ProcedureCode. . In Emperor v. Nazir Ahmad 1 it was held that
In the case of cognizable offences, receipt and recording of a firstinformation report is not a condition precedent to the setting in motionof a criminal investigation. No doubt in the great majority of cases,criminal prosecutions are undertaken as a result of information receivedand recorded in this way, but there is no reason why the police, if inpossession through their own knowledge or by means of crediblethough informal intelligence which genuinely loads them to the beliefthat a cognizable offence has been committed, should not of their ownmotion undertake an investigation into the truth of the mattersalleged .”
This observation is in conformity with the provisions of section 121 (2}of the Criminal Procedure Code. That section conteuqfiatcs that thereport to the Magistrate’s Court should be preceded by the informationrecorded under section 121 (1) or otherwise. Section 121 (2) therefore-contemplates the institution of proceedings without a first informationbeing- recorded under section 121 (1). If, for instance, an offence iscommitted in the precincts of the Police Station, and in the presenceof the Officer-in-Charge of the Police Station, it can hardly be said that.any information was given in regard to the commission of a cognizableoffence. – In this connection, I must admit that I was in error when I madethe observation in Pandilaratne v. The Assistant Superintendent of Police,ICegalle 2 that the report under section 14S (1) (6) should be preceded byinformation recorded under section 121 (1) of the Code.
1 A..I. R. (31) 1015 P. C. IS. * (10G7) 72 N. L. R. 273 at 276. ; 75 C. L. IF. 40 at 42..
ALLES, J.—Arumugam v. Officer-in-Charge, Police Station,
In the instant case, can it be said that the ** notes and observations ”of Sub-Inspector Silva constituted the first information in regard to whichthe petitioner was charged with the offence of profiteering ? The offencein respect of which proceedings were instituted against the petitionerpresumably took place when the petitioner sold the article to PoliceConstable Siriwardcne. It was after the completion of the sale thatstatements would have been recorded by the Police officers in connectionwith the detection. In Maui Mohan Ghose v. Emperor1 the CalcuttaHigh Court gave some useful directions as to what constituted a firstinformation under section 154 of the Indian Criminal Procedure Code,which corresponds to section 121 (1) of our Code. According to Ghose, J.,four conditions have to be satisfied before an information can bodesignated as a first information :
(а)The information must relate to the commission of a cognizable
offence ; —
(б)It must be given to the Officer-in-Cliarge of a Police Station
It must be put into writing. If already written it must be signed
by the person giving it; if it is oral, it must bo taken down in
writing and read over to the informant;
The substance of the information should be entered in the
It does not appear to me that in the present case those conditions havebeen satisfied in regard to the “notes and observations ” of Sub-InspectorSilva. It may be that these observations, even if they can be termed aninformation, were entered by Sub-Inspector Silva for his ora guidanceand to help him in the course of his investigation and probably madebefore the offence was committed by the petitioner. They were thereforenot information in relation to the commission of a cognizable offenceand cannot be termed a first Information.
Learned Counsel for the petitioner strongly relied on my judgment inPanditaratnev. The Assistant Superintendent of Police, Kegalle 2, but in myview, the facts of that case can be distinguished from the facts of thepresent case. In that case, the Police officer went to the Kegalle Best-houseto investigate the non-cognizable offence of insult. When the Police partyarrived at the Rest-house, the accused whom they sought to apprehend,commenced to insult the Police party, offered resistance to his arrest andkicked the Police officers while he was being taken to the Police Station.The events that transpired after the arrival of the Police party at theRest-House and the offences committed by the accused subsequently,formed the subject matter of a separate report to the Magistrate. TheSub-Inspector who was in charge of the Police party, when he arrived atthe Police Station, entered his observations in the Information Book andinformed the Officer-in-Charge of the Police Station of the subsequent
» 33 Cr.L. J. 1932, 13S at 141.* (1967) 72 N. L. JR. at 273 ; 75 C. L. W. 40.
Punchinona v. Leelaivathie
offences committed by the accused at the Rest-House. I held that inthat case the Police being the victims of the attack by the accused and thecomplainants in the case, were the first informants in regard to the offencescommitted by the accused after the arrival of the Police party at the RestHouse and that the observations of the Sub-Inspector in Charge'whichwere contained in the Information Book constituted the first informationin that case and that the accused under setion 122 A (1) was entitled tothose “ observations In this case, the position is different. The notes•and observations whether made before the offence was committed or after,did not constitute any part of the first information in regard to the chargeof profiteering. Indeed, in my view, there was no first information inthis case and therefore the petitioner is not entitled to the “ notes andobservations” of Sub-Inspector Silva under section 122A (1) of theCriminal Procedure Code. We therefore refuse the application-of thepetitioner with costs fixed at Rs. 52/50.
jde ICbetser, J.—I agree.
P. ARUMUGAM, Petitioner, and THE OFFICER-IN-CHARGE, POLICE STATION , MIRIHANA, R