Central Information Commission
Shri Ajay Ganesh Ubale vs Central Bureau Of Investigation (Cbi) on 29 January, 2008
ORDER
Wajahat Habibullah, C.I.C.
1. In our Interim Decision of 6.12.2007, we had decided as follows:
1. The plea of Section 8(1) (h) has been taken at the level of appellate authority. Whereas appellant has submitted that investigation and prosecution are now complete and over, respondents Shri Surender Pal submitted that he has no information on this having long since demitted office as SP, SCB Mumbai. On this issue, therefore, DIG Shri V.V. Lakshmi Narayanan, Chennai and Shri S.N. Saxena, SP, CBI, SCB Mumbai will appear before us through video conferencing on 21.1.2008 at 1.00 p.m. to confirm whether the investigation is complete as sworn in affidavit by appellant Shri Ajay Ganesh Ubale, or in the alternative, and if so claimed, submit evidence that in fact the matter is still under investigation/prosecution.
2. In the present case SP, CBI SCB Mumbai Shri S.N. Saxena will arrange for inspection of the Gate Registers by appellant Shri Ubale within fifteen working days of the date of issue of this Notice under intimation to Shri Pankaj K.P. Shreyaskar, Joint Registrar of this Commission.
2. Upon this we have received a compliance report both from CPIO Shri S. N. Saxena SP, CBI, SCB Mumbai and Shri V.V. Lakshmi Narayana, DIG of Police, CBI, SCR formerly from Chennai and now in Hyderabad. Shri Saxena has submitted as follows:
In this context your kind attention is requested on the following two letters addressed to you by Superintendents of Police of respective branches:
1. Letter No. DPEE1/2006/5103/RTI -Act/2005 dt. 29.11.06 of SP CBI EOW.
2. Letter No. DP 026 2006/12795/27/01 dt. 4.12.06 of SP CBI ACB.
The Xerox copies of the above referred letters are enclosed for your ready reference. In the letter addressed to you by SP, CBI EOW Mumbai, it has been mentioned categorically that Visitors Register of EOW Kitab Mahal Mumbai has been weeded out and destroyed being more than five years old in the letter of SP ACB CBI Mumbai, it has been clarified that such register was not maintained in MTNL Cell. It has further been clarified to me by SP ACB Tanna House that Gate Register of the period requested by you is not traceable.
Under these circumstances the requested records are not in existence and hence they cannot be made available for your perusal as requested by you in your appeal. It will not be out of place to mention here that perhaps the correspondence addressed to you by S P ACB CBI and SP EOW CBI was not brought to the notice of the Hon'ble Commission at the time of hearing the appeal.
3. Shri V. V. Lakshmi Narayanan has in his letter of 12.1.08 submitted as follows:
The Hon'ble ACMM, 19th Court, Mumbai had discharged all the accused in RC-BAI/2001/A0027-MUM on 13.3.2007. Against this impugned order, CBI filed Revision Application No. 651/2007 dated 19.6.2007 before the Hon'ble Sessions Court dismissed the said Criminal Revision Application filed by CBI vide its order dated 1.8.2007. Against the said order, CBI is taking steps to file petition Under Section 482 Cr. P. C. by following due procedure and S. P. has contended that the prosecution of this case is still pending.
He has, therefore, argued that disclosure would impede the process of prosecution of an offender Under Section 8(1) (h).
4. The matter was heard by Video Conference on 21.1.2008.The following are present:
Appellant Shri Ajay Ganesh Ubale at NIC studio Mumbai Respondent Shri V.V. Lakshmi Narayana, DIG, CBI at NIC studio Hyderabad.
Shri S. N. Saxena, SP, CBI at NIC studio Mumbai.
5. Appellant Shri Ubale, while not contesting the response of Shri S. N. Saxena of 20.12.2007, has submitted that as conceded by DIG CBI the revision petition before the Hon'ble Session Court Mumbai stands dismissed. Under Section 482 Cr.P.C. no second revision is permissible. Moreover, there is no stay from the Hon'ble High Court, or indeed even notice issued. In response Shri S. N. Saxena SP SCB Mumbai submitted that a petition has been moved before the Hon'ble High Court, Mumbai on Friday the 18th January, 2008. No number has thus far been assigned nor notice issued. However, this would mean the matter is still under prosecution and, therefore, Section 8(1) (h) will apply.
Issue for determination:
(i) Whether the prosecution can be held to be still continuing in view of the facts and circumstances of the case?
(ii) Whether the denial of information Under Section 8(1) (h) can be held to be justified?
The issue regarding inspection of gate registers stands closed, there remaining none to inspect.
Decision and reasons:
6. The word "investigation" has been defined distinctly in the Criminal Procedure Code, and it includes all proceedings for the collection of evidence conducted by a Police Officer or by any officer other than a Magistrate authorized in this behalf.
7. Investigation begins on receipt of information by a police officer/other authorized officer relating to commission of an offence. It generally ends with the filing of the charge sheet in the court of law.
8. Technically speaking, the prosecution is said to commence as soon as the prosecutor moves the court for action against the accused person. According to Webster's dictionary, 'prosecution' means to prosecute a right or a claim in a court of law. It also means to pursue a person by legal proceedings for redress or punishment or to pursue for redress or punishment of a crime of violation of law before a legal tribunal. According to Wharton's Law Lexicon, it means a proceeding either by way of indictment or information, in the criminal courts, in order to put an offender upon his trial. In all criminal prosecutions, the State is nominally the prosecutor. The word 'prosecution' occurring in Article 20 was discussed by the Supreme Court in AIR 1953 SC 325 and in this context the Hon'ble Court observed "prosecution would mean an initiation or starting of proceedings of criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure".
9. Prosecution ends either in acquittal or conviction of the accused. It may also end with discharge of the accused.
10. Insofar as this case is concerned, from what has been submitted by the DIG, CBI, it appears that the trial court, i.e. the Court of Additional Chief Metropolitan Magistrate, Mumbai has discharged all the accused on 13.3.2007. Against this order, CBI filed a revision application before the Sessions Court, Mumbai which has been dismissed. CBI has again filed a revision petition before the High Court under Section 482 Cr.P.C, (subsequently stated to be under Section 397 Cr.P.C). The appellant on the other hand has submitted that there is no provision of a 2nd revision petition in law and as such, there cannot be any further review petition in the High Court as stated by the respondents. This Commission cannot be concerned with whether there is provision in law for a second revision or not, or indeed as to whether the revision petition can be entertained by the High Court or not. This Commission needs only determine as to whether with the filing of the revision petition in the High Court, the prosecution can still be deemed to be continuing. The legal position in this regard is well settled as the legal pursuit of a remedy, suit, appeal, and second appeal are really steps in a series of proceedings, all connected by an intrinsic unity and are to be regarded as one legal proceeding (Supreme Court in Garikapati v. Subbiah Choudhry - 65 AIR 1957 SC 540). Thus, a revision petition, if already admitted by the High Court, will go on to establish that the prosecution still continues. This disposes of issue (i).
11. This brings us to the question of disclosure of information sought in the present case. Section 8(1) (h) exempts from disclosure any information which would "impede the process of investigation or apprehension or prosecution of offenders". The language used in the provision indicates that mere continuation of prosecution or process of investigation is not enough to deny information to an information seeker under the RTI Act, unless the disclosure of such information would impede the process of investigation or apprehension or prosecution of offenders. Insofar as this case is concerned, a revision petition has been filed before the High Court which is still pending. Mere pendency of a revision petition is not enough to substantiate that the disclosure of information would in any way impede the prosecution. The respondents have failed to establish before us that the disclosure of information would in any way do so. The Commission is, therefore, of the view that the denial of information under Section 8(1) (h) in the present case cannot be held to be justified. The issue is decided accordingly.
12. The CPIO is now, therefore, directed to provide the information to the appellant within 3 weeks from the receipt of the decision, and will submit a report to this Shri Pankaj Shreyaskar Jt Registrar of this Commission certifying the manner in which the decision has been complied with.
Reserved in the hearing, the decision is announced in open chamber on the twenty ninth day of January, 2008.
Notice of this decision be given free of cost to the parties.