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