Central Information Commission
Mr. Md Shahid Anwar Advocate vs Cbi on 17 January, 2011
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2009/000750 dated 30.12.2009
Right to Information Act, 2005 - Section 19
PARTIES TO THE CASE:
Appellant : Mr. Shahid Anwar, Advocate, Supreme Court of India
Public Authority : Central Bureau of Investigation
Date of Decision : 17.01.2011
FACTS OF THE CASE:
1. This second appeal by Mr. Shahid Anwar is against the order of the First Appellate Authority, Deputy Director General of Police, Central Bureau of Investigation, EO-II, Delhi (hereinafter "the FAA") dated 24.04.2009, in which the FAA upheld the CPIO's reply dated 18.03.2009 to the Appellant's RTI application dated 28.11.2008. However, the FAA directed to CPIO to provide the details of RC nos. to the Appellant. It is against the FAA's Order that the Appellant has filed a second Appeal before the Central Information Commission. INFORMATION SOUGHT BY THE APPELLANT:
2. Through his RTI application dated 28.11.2008, the Appellant sought the following information:
"Kindly provide all the letters or documents on which the competent authority had issued sanction for the investigation under Section 6A of the DSPE Act, 1946."
3. The CPIO, in his reply dated 18.03.2009, declined to furnish the requested information on the ground that the information pertained to a case which was sub judice and furnishing of the required information would impede the prosecution of offenders. The CPIO thus relied on Section 8(1)(h) of the Right to Information Act, 2005.
4. In its order dated 24.04.2009, the FAA while upholding the CPIO's reply to the Appellant, further observed as follows:
"Though there was no request for supply of RC numbers by the Applicant in his first Application filed under Section 6 of the RTI Act, still the CPIO is directed to provide the details of RC numbers as mentioned in reply to the Appellant. It has already been clarified by the CPIO that since these cases were registered on the directions of the Hon'ble Delhi High Court, therefore there was no need to have the requisite permission as provided under Section 6A of the DSPE Act, 1946 for investigation / inquiry against Shri R.K. Srivastava, the then RCS.
XXX XXX XXX The Appeal of the Appellant is disposed of with the above observations."
5. The Appellant preferred a second appeal dated 25.06.2009 to the Central Information Commission challenging the Order of the First Appellate Authority. DECISION NOTICE:
6. We have carefully considered the submissions made by the Appellant and the Respondent.
7. It is apposite to understand the expression "prosecution of offenders" appearing in Section 8(1)(h) of the RTI Act, 2005. Section 8(1)(h) of the RTI Act, 2005 exempts from disclosure the following information:
"information which would impede the process of investigation or apprehension or prosecution of offenders;"
The phrase "prosecution of offenders" means the conclusion of trial resulting in final conviction or acquittal of the accused. The expression "Prosecution" has been defined as "the institution or commencement of a criminal proceeding, the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment on behalf of the State or Government or by indictment or information. A Prosecution exists until terminated in the final judgment of the Court, which results in the sentence, discharge or acquittal." [Advanced Law Lexicon, 3rd ed. Reprint 2007], [Criminal Justice India Series, Volume 20 pondicherry 2005, p.132], (See also 7 Calcutta Weekly Notes 883). Hence, prosecution culminates only with the finality of the judgment rendered in a given case. It is also well settled that the Court should examine every word of a statute in its context and to use context in its widest sense. In Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd. (1987) 1 SCC 424 it is observed that:
"That interpretation is best which makes the textual interpretation match the contextual." In this case, Chinnappa Reddy, J. noting the importance of the context in which every word is used in the matter of interpretation of statutes held thus:
(SCC p. 450, para 33) "Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place."
8. It is now important to understand that the word "prosecution of offenders" and "process of investigation" have to be understood in the context of "impede". It is inconceivable to comprehend that after "investigation", the discretion of the trial court can be impeded by disclosure of information. The Division Bench of the CIC in Ms. Anita J. Gursahani vs. Cotton Corporation of India (Decision No.5561/ IC (A)/2010) decided on 24.06.2010 has elaborated further on this point in paragraphs 17 and 18 as follows:
"the information, which is being sought, can be had from the competent court trying the case. Any discretion exercised under RTI Act would amount to impeding the process of investigation or apprehension or prosecution of offenders. The appellate authority and the CPIO, CBI has correctly taken the stand that the information is exempt from disclosure under Section 8(1) (h) of RTI Act, 2005. An accused in an ongoing prosecution is free to demand access to any information he considers necessary and appropriate for his defense and the trial court after considering the matter- in which the prosecution side is also given a chance to present his argument - makes a decision about whether or not to abide by any request of the accused. It has been so succinctly held in the ruling of Bombay High Court in Jagdish V Gursahani case quoted by us above; this is a matter that is entirely within the jurisdiction and discretion of the trial court. To allow an accused access to set of information known to be related to an ongoing prosecution proceeding is through action under RTI act, would amount to prejudging the matter for the trial court and hence would impede the prosecution in progress. In that sense, it would attract Section 8(1)(h) of the RTI Act.
Appellants were entirely free to approach the Trial Court for access to the very same information they now wish to be provided to them through the RTI Act. By bringing this matter under the RTI Act, appellant's design was to deny the respondents the right to argue against the disclosure of information before the Trial Court, who alone had the power and the discretion to make a decision in a matter such as this. Apart from seeking tactical gains for himself vis-a-vis the respondents, appellant had also indirectly cast aspersions on the objectivity and the judgment of the Trial Court. It is thus obvious that in the matter of access to the requested information, appellant is not helpless. He can seek the same information through the Trial Court in full measure and should he succeed in persuading the Court he would have received the records and documents that he is now seeking to access through RTI Act."
Full Bench of Central Information Commission in C. Seetharamaiah vs. Commissioner of Customs & Central Excise (Appeal No. CIC/AT/A/2008/01238) dated 07.06.2010 by way of majority held :
"27. It is thus obvious that in the matter of access to the requested information, appellant is not all that helpless. He can seek the same information through the Trial Court in full measure and should he succeed in persuading the Court he would have received the records and documents which he is wanting now to access through RTI Act. In our view, an information which is evidence or is related to evidence in an ongoing prosecution comes under the control of the Trial Court within the meaning of Section 2(j) of the RTI Act, which states as follows: '"right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to ..'
28. It is significant that this Section uses two expressions about the location of a given information, i.e. "held" and "under the control of".
In our view, expression 'held' implies that a public authority has physical possession of a given information. The word "under the control of" implies that the information, regardless of which public authority holds it, is under the control of a specific public authority on whose orders alone it can be produced in a given proceeding. In the present case, the material sought by the appellant is undoubtedly related to an ongoing court proceeding and hence it can be rightly said to be under the control of the Trial Court, who alone can decide how the information is to be dispensed. Any action under the RTI Act or any other Act for disclosure of that information to the very party who is arraigned before the Trial Court or to anyone representing that party, would have the effect of interfering with the discretion of the Court, thereby impeding an extant prosecution proceeding. In S.M.Lamba Vs. S.C.Gupta and another Delhi High Court has held "This court would like to observe that under the Code of Criminal Procedure, 1973 once the stage of an order framing charges have been crossed, it would be open to the accused to make an appropriate application before the learned trial court to summon the above documents in accordance with the law."
It is thus settled that the only channel available to the Appellant for seeking the desired information is to request the Competent Court, and the discretion to whether or not allow such a request shall solely vest in that Court. This is also because if otherwise held, it would amount to an encroachment upon the powers of Judiciary.
9. In the case of Maria Monica Susairaj vs. The State of Maharashtra through CID, Unit-VIII (2009 CrLJ 2005), the Bombay High Court has held that:
"20. If we consider the scheme of the Code in its entirety in as much as stage of investigation in the context of supply of copies of documents to the accused is concerned, it becomes clear that the stage for supply of documents to the accused, reaches only after a police report under Section 173 of the Code is forwarded to the Magistrate empowered to take cognizance of the offence in issue. An occasion to submit such a police report under Sub-section 2 of Section 173 r/w Section 2(r) of the Code arises only and only upon completion of investigation. Thus, if considered in this proper perspective, the stages contemplated by the Code are:
i. completion of the investigation;
ii. submission of police report to the Magistrate;
iii. supply of documents which will include police report as also confessional statement, if any, recorded under Section 164 of the Code.
In our view, there does not appear to be any scope for interpreting the provisions of the Code to change the chronology and/or sequence in which these steps are to be taken. In other words, the Code does not permit expressly or even by implication change of sequence in which these steps are to be taken. True it is that there is no express prohibition contained in the Code for altering the sequence in which such steps are to be taken."
10. We agree with the interpretation given as above. The mere fact that the investigation is complete does not mean that the information which forms part of the Investigation process will be outside the purview of Section 8(1)(h) because the same Section also bars the disclosure of that information as it can impede the prosecution of offenders at the same time. Hence, the context of "impede" is attached to both "investigation" as well as "prosecution of offenders" under the RTI Act.
11. In the present case before us, the matter is sub-judice. The prosecution proceedings have neither been finally disposed of nor has the matter been finally concluded. The supply of the requested information, other than the RC numbers of the case, will make the Appellant privy to the extremely confidential information which was meant for the exclusive use of the CBI for the purpose of prosecution. It can be sufficiently concluded that such information clearly falls well within exemption contemplated in Section 8(1)(h) given the fact that the process of "prosecution of offenders" will be impeded if that very information is provided by the CBI at this stage. Thus, the FAA was just and right in refusing to disclose the information sought by the Appellant by invoking Section 8(1)(h) of the RTI Act. In any case, the FAA has taken initiative to furnish some information to the Appellant even though that information was not exactly sought by the Appellant in his original RTI Application dated 28.11.2008. We find no hesitation in upholding the Order of the FAA, with the modification of the order of CPIO, in the present appeal.
12. The Appeal is rejected.
(Satyananda Mishra) Chief Information Commissioner Authenticated True Copies (Vijay Bhalla) Deputy Registrar