An important judgement of the apex court useful for RTI activists for taking action on malafide actions of PIO and appellate authority

[vsprajan]

Enclosed in this post, an important judgement of the apex court on the basis of which the following procedures can be instituted on the PIO and appellate authorities for their malafide actions, punishable as offences under IPC, during their disposal of RTI applications and appeals.

1. Administrative / Departmental proceedings on PIO and appellate authority

2. Lodging of FIR and investigation AGAINST THE MALAFIDE ACTIONS ( WHICH CONSTITUTES OFFENCES UNDER IPC ) OF THE PIO AND APPELLATE AUTHORITY BEFORE THE STAGE OF COGNIZANCE OF THE OFFENCE ( WHICH MEANS THE STAGE BEFORE CRIMINAL PROSECUTION ) BY THE COMPETENT COURT.

In this connection, I hereby place on record the Section 52 of the Indian Penal Code, 1860 and Section 21 of the RTI act, 2005 and explain how the protection guaranteed by Section 21 of the RTI Act, is not a bar for the initiation of criminal proceedings by the rti applicant / appellant.

Section 52 of the Indian Penal Code, 1860 - “ Good faith - Nothing is said to be done or believed in "good faith" which is done or believed without due care and attention.”

Section 21 of the RTI act, 2005 - “ Protection of action taken in good faith -21.No suit, prosecution or other legal proceeding shall lie against any person for anything which is in good faith done or intended to be done under this Act or any rule made thereunder.”

From a plain reading of Section 21 of the RTI Act, 2005 along with Sectin 52 of the Indian Penal Code, 1860 it is clearly conveyed that THE STATUTORY PROTECTION UNDER SECTION 21 OF THE RTI ACT, IS AVAILABLE FOR THOSE OFFICIAL ACTIONS WHICH ARE DONE UNDER GOOD FAITH ( WITH DUE CARE AND ATTENTION) .

WITH REGARD TO THE TERM “ LEGAL PROCEEDINGS” USED IN SECTION 21 OF THE RTI ACT, 2005, THE SAID TERM WAS CLARIFIED BY THE HONORABLE SUPREME COURT IN CRIMINAL APPEAL NO. 257 of 2011 – GENERAL OFFICER COMMANDING VERSUS CBI & ANR- PARA.12-


‘Legal proceedings’ do not include the administrative proceedings. In Maharashtra Tubes Ltd. v. State Industrial & Investment Corporation of Maharashtra Ltd. & Anr., (1993) 2 SCC 144, this Court dealt with the expressions ‘proceedings’ and ‘legal proceedings’ and placed reliance upon the dictionary meaning of expression ‘legal proceedings’ as found in Black Law Dictionary (Fourth Edition) which read as under:


“Any proceedings in court of justice ... by which property of debtor is seized and diverted from his general creditors .... This term includes all proceedings authorised or sanctioned by law, and brought or instituted in a court of justice or legal tribunal, for the acquiring of a right or the enforcement of a remedy.”

The Court came to the conclusion that proceedings before statutory authorities under the provisions of the Act do not amount to legal proceedings.

‘Legal proceedings’ means proceedings regulated or prescribed by law in which a judicial decision may be given; it means proceedings in a court of justice by which a party pursues a remedy which a law provides, but does not include administrative and departmental proceedings.”

HENCE, BASED ON THE AFORESAID JUDGMENT OF THE APEX COURT, IT IS CLEARLY EVIDENT THAT THE PROTECTION GIVEN UNDER SECTION 21 OF THE RTI ACT, 2005 IS NOT A BAR FOR THE INSTITUTION OF DEPARTMENTAL , ADMINISTRATIVE PROCEEDINGS AGAINST THE PIO / APPELLATE AUTHORITY, FOR HIS/HER OFFICIAL ACTIONS PUNISHABLE AS OFFENCES UNDER INDIAN PENAL CODE, 1860.


MOREOVER, WITH REGARD TO THE SCOPE OF THE PROTECTION UNDER SECTION 197 OF THE CODE OF CRIMINAL PROCEDURE, 1973, FOR THE PUBLIC SERVANTS AGAINST CRIMINAL PROSECUTIONS, I HEREBY PLACE ON REORD, THE RELEVANT PORTION OF THE JUDGEMENT OF THE SUPREME COURT IN CRIMINAL APPEAL NO. 257 of 2011 – GENERAL OFFICER COMMANDING VERSUS CBI & ANR-IS PLACED ON RECORD -


“ 23. THE QUESTION TO EXAMINE AS TO WHETHER THE SANCTION IS REQUIRED OR NOT UNDER A STATUTE HAS TO BE CONSIDERED AT THE TIME OF TAKING COGNIZANCE OF THE OFFENCE AND NOT DURING ENQUIRY / INVESTIGATION. THERE IS A MARKED DISTINCTION IN THE STAGE OF INVESTIGATION AND PROSECUTION.”


HENCE, THE STATUTORY PROTECTION UNDER SECTION 21 OF THE RTI ACT, 2005 IS NOT A BAR FOR THE INITIATION OF CRIMINAL PROCEEDINGS ( ENQUIRY / INVESTIGATION ) UNDER THE CODE OF CRIMINAL PROCEDURE, 1973, BY THE UNDERSIGNED, ON THE PIO / APPELLATE AUTHORITY, FOR HIS OFFICIAL ACTIONS PUNISHABLE UNDER SECTION 167 OF THE INDIAN PENAL CODE, 1860.


Rajan.