# Subhash Chandra Vishwakarma v. Chief Information Commissioner U.P. State

- **Citation:** (2016) 1 ILRA 8
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-01-14
- **Case number:** Misc. Bench No. 69 of 2016
- **Bench:** Amreshwar Pratap Sahi, Attau Rahman Masoodi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subhash-chandra-vishwakarma-v-chief-information-commissioner-u-p-state-43463
- **Pages:** 4

## Headnote

Constitution
of
India,
Art.-226-Petition
against order-by National Forum under RTI
Act-petitioner being accused in criminal
case
charge-sheet
filed-against
that
application for fresh investigation-upon in
1 All. Subhash Chandra Vishwakarma Vs. Chief Information Commissioner U.P. State Information & Ors.
9
action-sought information under Section of
the Act-than in second appellate authorityorder impugned-held-matter beyond Actrightly no response given-such process
amounts to complete abuse the process of
law-petition dismissed without exemplary
cost taking very lenient view.
Held: Para-10
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.

## Text

8
 INDIAN LAW REPORTS ALLAHABAD SERIES
life of the society. The said incident may
be said to be related to law and order
problem and it certainly not the public
order. The detaining authority in exercise
of power under 'NSA' must act strictly
within the limitations provided under the
Act, so that grant of liberty is not
imperilled
beyond
the
Constitution.
Individual liberty is a cherished right, one
of the most valuable fundamental rights
provided by our Constitution to the
citizens of this country. Such right may be
envied only strictly in accordance with
law. The authorities cannot be expected to
deal with the liberty of individual in a
causal manner.
As
per
the
statement
of
the
complainant recorded under section 161
Code of Criminal Procedure, there was
enmity between the parties due to election
of Pradhani. Therefore, it was an
individual act on the part of the petitioner,
which cannot be said to have affected the
public order.
18. In the present case, the petitioner
and his father are named in the first
information report but admittedly, no
detention order has been passed against
the father of the petitioner, which
establishes the discrimination with the
petitioner.
19.
In view of the aforesaid
discussions, we are of the view that on the
date of passing of the detention order, there
was no subjective satisfaction of the District
Magistrate Gonda and there was no
possibility of being released on bail because
on the date of passing of the detention order,
any application for bail was not pending and
even the bail of the similarly placed named
co-accused, who is the father of the petitioner
had also not been granted. The delay of 96
days in passing the impugned detention order
also looses its importance. There is no
explanation to this inordinate delay and no
such evidence is there that after lapse of 96
days of arrest, the petitioner was trying to
disturb the public order again by any of his
overt action. Therefore, the chain of
connection between the dangerous activities
relied on and the detention order passed is
snapped by this long and unexplained delay.
In these peculiar facts and circumstances of
this case, the detention order dated
30.01.2015 is liable to be quashed.
20. Thus, the detention order dated
30.01.2015
and
the
consequential
approval order dated 09.02.2015 passed
under National Security Act, 1980 are
hereby quashed.
21. The petition is allowed.
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ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.01.2016
BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.
THE HON'BLE ATTAU RAHMAN MASOODI, J.
Misc. Bench No. 69 of 2016
Subhash Chandra Vishwakarma . Petitioner
Versus
Chief Information Commissioner U.P. State
Information & Ors.
...Respondents
Counsel for the Petitioner:
Siddhartha Srivastava
Counsel for the Respondents:
C.S.C., Shikhar Ananad
Constitution
of
India,
Art.-226-Petition
against order-by National Forum under RTI
Act-petitioner being accused in criminal
case
charge-sheet
filed-against
that
application for fresh investigation-upon in
1 All. Subhash Chandra Vishwakarma Vs. Chief Information Commissioner U.P. State Information & Ors.
9
action-sought information under Section of
the Act-than in second appellate authorityorder impugned-held-matter beyond Actrightly no response given-such process
amounts to complete abuse the process of
law-petition dismissed without exemplary
cost taking very lenient view.
Held: Para-10
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.
(Delivered by Hon'ble Attau Rahman
Masoodi, J.)
1. 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.
2.
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.
3. 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.
4. 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.
10
 INDIAN LAW REPORTS ALLAHABAD SERIES
5. 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:
6. 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 subsection (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 subsections(2) to (6) shall, as far as may be,
apply in relation to a report forwarded under
sub-section (2). "
7. 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;
8.
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
1 All. Manna Singh & Ors. Vs. State of U.P.
11
investigation and the protection of section 8
(f) comes into play.
9. 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.
10.
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.
11. 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.
12. The writ petition lacks merit and
the same is hereby dismissed.
-------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.01.2016
BEFORE
THE HON'BLE HULUVADI G. RAMESH, J.
THE HON'BLE SHAMSHER BAHADUR
SINGH, J.
Criminal Appeal No. 213 of 1983
Manna Singh & Ors.
 ..Appellants
Versus
State of U.P.
...Opp. Party
Counsel for the Appellants:
R.P. Singh, S.L. Singh
Counsel for the Respondents:
D.G.A.