Hon'ble Attau Rahman Masoodi,J.
(Delivered by Hon'ble Attau Rahman Masoodi,J.) This writ petition is directed against the order dated 24.11.2015 passed by the State Chief Information Commissioner, U.P. whereby the appeal filed by the petitioner arising out of non furnishing of information in response to his application dated 28.01.2015 filed under Section-6 of the Right to Information Act has been consigned to record for not being maintainable.
The brief facts giving rise to the present writ petition are that the petitioner's brother viz Sri Shiv Poojan Vishvakarma is implicated in a Criminal Case no. 1311 of 2014. The investigation in respect of the said criminal case on completion resulted into filing of charge-sheet dated 07.01.2015 before the competent court having criminal jurisdiction. It appears that subsequently on 23.01.2015 an application was filed by the petitioner under Section 173 (8) of the Code of Criminal Procedure before respondent no.2 praying for fresh investigation in the matter on some grounds stated in the application which still remain available to an aggrieved person by availing the remedy of protest petition or otherwise in the regular course of enquiry and trial.
Soon after filing the application for fresh investigation, the petitioner chose to file an application under Section 6 of the Right to Information Act (hereinafter referred to as the Act) on 28.01.2015 praying for information to the effect as to what action was taken by the respondent no.2 on his representation made on 23.01.2015. Failure on the part of Information Officer to furnish the information within the statutory period is said to have given rise to first appeal filed on 05.02.2015 and the said appeal not yielding any result became the cause of filing second appeal before the commission on 16.03.2015.
On a close scrutiny of the present case, it is seen that the petitioner's application dated 28.01.2015 filed under Section 6 (1) of the Act is said to have been dealt with on 03.02.2015 and 09.03.2015 by the Information Officer and without disclosure of this fact, the petitioner chose to file the first and second appeals before the higher forums. After issuance of notices the Information Officer came to know about the appellate proceedings and by letter dated 02.09.2015 all these facts were brought to light.
We find that the information in response to the petitioner's representation dated 28.01.2015 was refused on the ground of exemption as envisaged under Section 8 (1) (h). Section 8 (1) (h) of Right to Information Act is extracted below for ready reference:--
"8.Exemption from disclosure of information.-(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-
(h) information which would impede the process of investigation or apprehension or prosecution of offenders:
In the instant case, it is an undisputed fact that a criminal case was registered against the petitioner's brother wherein after completion of investigation a charge-sheet has been submitted before the competent court on 07.01.2015. The petitioner appears to have filed an application under Section 173(8) of the Code of Criminal Procedure praying therein for fresh investigation. Section 173(8) of the Criminal Code of Procedure, for ready reference, is also extracted below:--
"8. Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, whereupon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections(2) to (6) shall, as far as may be, apply in relation to a report forwarded under sub-section (2). "
From a plain reading of the above provision, it is clear that an application for fresh investigation is not maintainable at the instance of an accused person and respondent no.2 even otherwise not being the Investigation Officer could not enter into any investigation within the purview of Section 173 (8) of the Code of Criminal Procedure on any such application being filed by the petitioner who happens to be the brother of the accused. The information to be furnished under Right to Information Act may broadly fall under two categories i.e. action and inaction:
(1) Actions of the State Government culminating into an information are to be understood in the light of definition provided under Section 2 (f) which reads as under:-
(f)"information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
The aforesaid provision defining information makes it clear that an inaction on a non-statutory representation filed by any person does not fall within the strict sense of definition of information. On a close scrutiny of the other provisions of definition clause, it is further seen that inaction on the part of the authorities cannot be construed to be an information unless and until there is a statutory obligation on the part of the competent authority to take a decision on any representation or complaint filed by an aggrieved person and even if such an inaction is noticed, the representation remains at the stage of investigation and the protection of section 8 (f) comes into play.
In the instant case, we have already extracted the provision under Section 173(8) hereinabove and we are of the considered opinion that once the charge-sheet was filed before the Court of competent jurisdiction, fresh investigation could not be ordered by respondent no.2 on a mere application filed by a third party, as such the application filed by the petitioner was rightly rejected by the Information Officer on 03.02.2015 and 09.03.2015 which orders have not been assailed in the Ist or IInd appeal. It is also not the case of the petitioner that respondent no.2 was ever entrusted with any further investigation of the case registered against his brother under the provisions of Section 158 of the Code of Criminal Procedure, therefore, his application was maintainable due to that reason. The application filed by the petitioner on 23.01.2015 rather makes a prayer for fresh investigation and the said jurisdiction as per law vests in the State Government but no such application was ever filed by the accused person before the State Government either himself or in representative capacity.
We have no hesitation to record that inaction on non-statutory applications/complaints filed by any person where the State Authorities are not obliged to take a decision would not fall within the definition of information giving rise to a cause under Section-6 of the Act. If all such inactions are construed to be cognizable under the Right to Information Act, the misuse of the Act would become rampant and the provisions of the Act in that view of the matter would result into an abuse of the process of law. Once it is held that the application filed by the petitioner did not fall within the scope of information under the Right to Information Act, the impugned order passed by respondent no.1 on 24.11.2015 does not call for any interference and the writ petition being devoid of merit deserves to be dismissed.
We may also put on record that in various cases it is noticed that cognizance of proceedings under Section 18 of the Act is taken without discharging the obligation to examine the maintainability of appeals and complaints. Once the Information Officers either fail to discharge their duties or there is some other grievance which is amenable to the remedy of first appeal, the provisions of Section 18 of the Act have to be scrupulously applied so that the purpose of Section 19 of the Act is not frustrated but is rather strengthened to serve better. Needless to say that exceptions carved out under Section-8 of RTI Act, 2005 remain protected under the Official Secrets Act, 1923 or any other law for the time being in force.
The writ petition lacks merit and the same is hereby dismissed.
Order Date :- 14.1.2016 Shahnaz