1 Answer
Dear Client,
Legal considerations to initiate criminal proceedings against a PIO under BNS for providing false records will result in complex issues of law and a premature result at the First Appeal level.
Section 21 of the Right to Information Act, 2005, expressly provides for PIOs to have statutory immunity from criminal prosecution for any good faith actions. To successfully invoke the criminal provisions of Bharatiya Nyaya Sanhita against a public servant providing incorrect records (or creating false records), you will have to prove beyond a reasonable doubt that the PIO acted with malicious intent by a high standard of proof. In addition to proving the PIO’s criminal actions, you will also need approval for prosecution prior to bringing proceedings against a public servant, pursuant to Bharatiya Nagarik Suraksha Sanhita.
The courts have consistently determined that the Right to Information Act is a complete code in itself, and thus, your best course of action is to use the Right to Information Act as the basis for your First Appeal. Therefore, when filing your First Appeal, you should attach to the First Appeal the government document from the state government confirming that the record previously existed and that the response provided by the PIO is factually inaccurate.
After exhausting your First Appeal in the court, and if unsuccessful, appeal to a Second Appeal to the Information Commissioner (IC). If the IC finds that the PIO knowingly provided “false information”, it has the authority under Sec. 20 of the Right to Information Act, 2005, to impose penalties and to recommend disciplinary proceedings. It is very necessary to first exhaust your administrative remedies provided before pursuing criminal action. I hope this answer helps. If you have any further queries, kindly do not hesitate to contact us. Thankyou