Central Information Commission
.Shri S. Kumar, vs Cbi on 26 April, 2010
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/000436 dated 23.3.2007
Right to Information Act 2005 - Section 19
Appellant - Shri S. Kumar
Respondent - Central Bureau of Investigation (CBI)
Decision announced on : 26.4.2010
Facts:
Shri S. Kumar of Kanpur made an application on 8.12.06 to SP CBI ACB Lal Sagar, Manjara Punjala, Jodhpur, Rajasthan seeking the following information:
"1. Copy of Final Report of inquiry/ investigation submitted to CBI by Sri. S. M. Tiwari, Investigation Officer before his repatriation to his parent department based on which the decision for filing charge sheet was taken in the above case.
2. Copy of progress report submitted by Dr. B. R. Meghwal, Sp. P. Jodhpur before repatriation to his parent department based on which the decision for filing charge sheet was taken in the above case.
3. Copy of statement of Sri. K. R. Gupta, Stamp Vender which has been shown to be submitted in the court and shown in the list of witness but not given to the applicant.
4. Circular/ order regarding calculation of kitchen and other non-verifiable expenditure in DA cases. What is the basis for calculation of kitchen and other non-verifiable expenditure?"
To this he received a response from CPIO, SP, CBI/SPE/Jodhpur Shri Kaushal dated 14.12.06 denying him the information sought u/s 8(1) (h) of the Right to Information Act. Not satisfied with this response Shri Kumar moved his first appeal on 28.12.06 before DIG CBI Jaipur upon which Shri Arun Kumar, DIG (Police), CBI Jaipur in his order of 5.1.07 held as follows:
"I have gone through the appeal. As per Sec 8(1) (h) of RTI Act which reads "Not withstanding anything contained in this act, there shall be no obligation to give any citizen: (h)- Information which could impede the process of investigation or apprehension or prosecution of offenders", the information asked vide Sl. No. 1 to 3 above, cannot be made available because the case is pending trial in the court of Special Judge, CBI Cases, Jodhpur at the stage of 1 charge arguments and sharing of information at this stage may impede the process of prosecution of offenders.
Information asked vide Sl. No. 4 i.e. "Circular/ order regarding calculation of kitchen and other non-verifiable expenditure in DA case. What is the basis for calculation of kitchen and other non- verifiable expenditure?" is a general matter and in no way can effect the trial of the case. The calculation is done as per circular order of CBI which has backing of the rulings of constitutional courts. SP, CBI, Jodhpur is instructed to provide the relevant copy of the circular regarding calculation of kitchen and other non- verifiable expenditure to the applicant."
Shri S. Kumar has then moved his second appeal before us with the following prayer:
"It is prayed that commission may kindly advise the CPIO to supply all the information/ documents sought vide application dated 8.12.06 copy enclosed. Which is essential in the public interest and for the life and liberty of the appellant information/ documents sought are those collected during enquiry by CBI related to the appellant and person affected has e very right to know the facts of the enquiry. Once documents are produced before any court they become public documents and every citizen has right to access the same as per provisions of the statute in the public interest as no public authority may take action arbitrarily. Appellant may kindly be given opportunity to hear in person as per principle of natural justice.' In this letter Shri S. Kumar has argued that the First Appellate Authority had allowed the last information to be disclosed but the appellant had not received "Circular No. 27.2.78 PD dated 28.2.78 hence it is denied partially."
The appeal was heard by videoconference on 05.5.2008. The following are present:
Respondents Sh. Shatrujeet S. Kapur DIG, CBI at NIC Studio New Delhi. Sh. O.P. Gaur, SP CBI at NIC Studio Jodhpur Appellant Sh. S. Kumar had been informed by Notice dated 22.4.2008 regarding the hearing, but he has opted not to be present.2
Shri O.P. Gaur, now SP CBI replacing Sri Kaushal submitted that a similar case had been received from Ms. Shashi Tyagi also a co-accused in the same case on 7.6.06. This had been denied on the grounds of sec. 8(1)(h) both in application and first and second appeal and that denial had been upheld with the order of Central Information Commission's No. 250/IC(A)/2006 dated 7th Sept., 2006.
On the circular No. mentioned in his second appeal by Shri S. Kumar, Shri Gaur held that circular No. 27/2/78 dated 28.2.77 is not the circular dealing with calculations of kitchen and non verifiable expenditure in the case. The actual circular has been sent to appellant Shri S. Kumar on 10.1.07 in compliance with the orders of the First Appellate Authority.
DECISION NOTICE Since the circular in question does not seem to have been received by the appellant Shri S. Kumar till the time of making his second appeal, another copy of the circular together with the basis for calculation of kitchen and other non verifiable expenditure may be sent to appellant by speed post within ten working days of the date of receipt of this Decision Notice.
On the question of seeking exemption u/s 8(1)(h) for the remaining information, it is correct that we had been taking the stand that we do not substitute our judgment for what would impede the process of investigation or prosecution for that of the actual investigating or prosecuting agency which in this case is the CBI which is respondent. In this context, however, the definitive ruling now before us, and subsequent to that of 7.9.'06 is that of Hon'ble Ravindra Bhat J of the Delhi High Court, who in his decision of 3.12.'07 in W.P. (Civil) No. 3114/2007 - Bhagat Singh Vs. Chief Information Commissioner & Ors, with specific regard to Sec. 8(1)(h), has held as follows:3
"11. "The Universal Declaration of Human Rights, adopted by the United Nations in 1948, assured by Article 19, everyone the right "to seek, receive and impart information and ideas through any media, regardless of frontiers". In Secretary Ministry of Information and Broadcasting, Govt. of India and others vs. Cricket Association of Bengal and others (1995 (2) SCC 161) the Supreme Court remarket about this right in the following terms:
"The right to freedom of speech and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an "aware" citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizen to arrive at informed judgment on all issues touching them."
This right to information, was explicitly held to be our fundamental right under Article 19 (1) (a) of the Constitution of India for the first time by Justice K. K. Mathew in the State of UP vs. Raj Narain, (1975) (4) SCC 428. This view was followed by the Supreme Court on a number of decisions and after public demand, the Right to Information Act, 2005 was enacted and brought into force.
12. The Act is an effectuation of the Right to freedom of speech and expression. In an increasingly knowledge based society, information and access to information holds the key to resources, benefits and distribution of powers. Information, more than any other element, is of critical importance participatory democracy. By one fell stroke, under the Act, the make of procedures and official barriers that had previously impeded information, has been swept aside. The citizen and information seekers have, subject to a few exceptions, an overriding right to be given information on matters in the possession of the state and public agencies that are covered by the Act. As is reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the government's and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.
13. Access to information under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right self. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation process cannot be a ground for refusal of the information, the authority withholding information must show satisfactory reasons as to why the release of such information 4 would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, section 8(1) (h) and other such provisions would become the haven for dodging demands for information.
14. A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The Contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms, there is some authority supporting this view (See Nathi Devi vs. Radha Devi Gupta 2005 (2) SCC201, B. R. Kapoor vs. State of Tamil Nadu 2001 (7) SCC 231 and V. Tulasamma vs. Sesha Reddy 1977 (3) SCC 99). Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restrictions on the rights under the Act, which is unwarranted."
Hon'ble S Ravinder Bhat J specifically notes, "As held in the preceding part of the judgment, without a disclosure as to how the investigation process would be hampered by sharing the materials collected till the notices were issued to the assessee, the respondents could not have rejected the request for granting information. The CIC, even after overruling the objection, should not have imposed the condition that information could be disclosed only after recovery was made." Under the situation we have examined whether the CBI's stand in the present matter stands the test of law. Clearly it does not, particularly with reference to this noting. The order of Shri Arun Kumar, DIG (Police), CBI Jaipur, is therefore set aside. Present CPIO SP, CBI/SPE/Jodhpur, will now reexamine the matter in light of the ruling of the High Court of Delhi cited above and if the matter is still pending investigation provide the information sought, or if at present under prosecution, provide such information as would merit disclosure under law. Appellant is advised that should he find the response now received unsatisfactory, he might approach the 1st appellate authority of the CBI under Sec 19(1) of the Act, and consequently if, not satisfied with the information provided by the 1st appellate authority, appellant Shri S. Kumar will be free to move a fresh 2nd appeal before us as per Sec 19 (3).
5Reserved in the hearing this Decision is announced in open chamber on 26.4'10. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 26.4.2010 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj Shreyaskar) Joint Registrar 26.4.2010 6