Central Information Commission
Cdr. Mukesh Saini (Retd.) vs Deputy Commissioner Police (Dcp), ... on 30 October, 2008
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2008/01059 dated 9-6-2008
Right to Information Act 2005 - Section 19
Appellant: Cdr. Mukesh Saini (Retd.)
Respondent: Deputy Commissioner Police (DCP), Special Cell, Delhi
FACTS
By an application of 14-2-08 Cdr. Mukesh Saini (Retd.) housed in Central Jail No.1, Tihar, New Delhi applied to the CPIO, Office of Commissioner of Police (Hqrs.) New Delhi seeking the following information:
"(A) Whether Shri O. P. Shrivastav, Inspector posted at the Special Cell, Lodhi Road in year 2006, is a Govt.
Scientific Expert or a private cyber Forensics Expert for undertaking expert examination of Computer/ hard disks/ electronic records/ electronic evidences? If he was the authorized Govt. expert, please provide copy of the Central Govt. letter authorising the same.
(B) The officers of Cyber Lab/ Special Cell (NDR) are not listed under section 293 (4) (a to f) of the Code of Criminal Procedure, 1973 to be the Govt. Scientific Expert. Therefore please provide the copy of the specific Notification issued by the Central Govt. in accordance with section 293 (4) (g) Cr PC authorizing specific appointments of police officers of Special Cell to under take Scientific examination of computer.
(C) Is there any order authorizing any officer of Cyber lab/ Special Cell (NDR) to DESEAL the electronic evidences, which had been sealed by the Investigating officer for the purpose of collection and Cyber Forensics Analysis of such evidences? If yes, please provide copy of such letter/ authorization?
(D) Please provide the name/ brand of Cyber Forensic Tools used by the Cyber Laboratory of Special Cell New Delhi range during June 2006. Also inform whether these tools were legally purchased or pirated.
(E) Is there any order/ guidelines issued to Delhi Police for handling computer/ electronic/ cyber evidences during search and seizure by the Investigation officers? If yes, please provide the copy of the same.
1(F) What is minimum rank of the police officer, collecting and/ or investigating anything related to the electronic evidence?
In this application Cdr. Mukesh Saini has sought invocation of Proviso to Section 7 (1) on grounds of "life and liberty".
To this appellant received a reply on 25-3-08 from PIO, Shri Alok Kumar, DCP, Special Cell, Delhi point-wise as below:
a. Whether Shri O. P. The information can not be Shrivastav, Inspector supplied to you as per posted at the Special Cell, exemption u/s 8 (1) (h) of Lodhi Road in year 2006, is the right to information Act a Govt. Scientific Expert or 2005, which provide: -
a private cyber Forensics (a) Information, which would Expert for undertaking impede the process of expert examination of investigation or Computer/ hard disks/ apprehension or electronic records/ prosecution of offenders. electronic evidences? If he was the authorized Govt.
expert, please provide copy of the Central Govt. letter authorising the same.
b. The officers of Cyber Lab/ Vide section 293 (4) Cr PC Special Cell (NDR) are not exemption from appearance listed under section 293 (4) before the court is granted (a to f) of the Code of to the persons mentioned in Criminal Procedure, 1973 'a' to 'f'. Scientific expert as to be the Govt. Scientific mentioned in this Para (b) Expert. Therefore please does not fall in this provide the copy of the category.
specific Notification issued
by the Central Govt. in
accordance with section
293 (4) (g) Cr PC
authorizing specific
appointments of police
officers of Special Cell to
under take Scientific
examination of computer/
Cyber evidences.
c. Is there any order No authority is required
authorizing any officer of while de-sealing the articles
Cyber lab/ Special Cell by an examiner. It is a part
(NDR) to DESEAL the of the investigation.
electronic evidences, which
2
had been sealed by the
Investigating officer for the
purpose of collection and
Cyber Forensics Analysis
of such evidences? If yes,
please provide copy of
such letter/ authorization?
d. Please provide the name/ The information can not be
brand of Cyber Forensic supplied to you as per
Tools used by the Cyber exemption u/s 8 (1) (h) of
Laboratory of Special Cell the right to information Act
New Delhi range during 2005, which provide: -
June 2006. Also inform (h) Information, which would
whether these tools were impede the process of
legally purchased or investigation or
pirated. apprehension or
prosecution of offenders.
e. Is there any order/ The powers of I. O. are
guidelines issued to Delhi define in Cr PC.
Police for handling
computer/ electronic/ cyber
evidences during search
and seizure by the
Investigation officers? If
yes, please provide the
copy of the same.
f. What is minimum rank of It is mentioned in the
the police officer, collecting Information Technology Act
and/ or investigating 2000 the offences falling in
anything related to the chapter XI will be
electronic evidence? investigated by the officer
not below the rank of ACP.
Claiming the answers to questions (c) and (e) as misleading, and the refusal of answers to questions (a) and (d) as unjustified appellant moved his first appeal before the Commissioner of Police (Hq.) on 10-4-08, upon which he received orders from Shri Karnal Singh, JCP, Special Cell, Delhi, in whose office the appeal was received on 24-4-08,on 19-5-08 as follows:
"Para -1. Your application requesting information under sections 7 (1) of the RTI Act, 2005 does not fall under the proviso of 7 (1) since the information sought by you does not concern the life or liberty (As you are already in judicial custody since 2006 1 in case FIR No. 42/06 u/s 3/4/5/9 O. S. Act & 409/201/120-B IPC PS Special Cell), therefore, the information sought is not required to be 1 Underlined by us for attention 3 furnished within 48 hours and PIO had replied within the stipulated time of one month.
Para -2 The PIO had inadvertently missed the name and designation of the appellate authority in the reply given to you. However, your appeal has been received by the appellant authority and being replied.
Para-3. In this Para no information as defined in section 2
(f) of RTI Act 2005 has been sought by you, hence this Para does not require any reply.
Para-4. In response to Para 2(a) and 2(d) of your application, the PIO had rightly concluded that information, which would impede the process of investigation or apprehension or prosecution of offenders can not be supplied as per exemption u/s 8 (1) (h) of the Right to information Act 2005.
Para-5. Inspr. Om Prakash was recruited as SI (Computer) in 1983 and is now working as Inspector (Computer) in Special Cell. He de-sealed the articles for mirroring in order to facilitate the investigation.
Para-6. The concerned staff has been imparted suitable training.
Para -7. The reply has already been given in Para 1."
Appellant has then moved his second appeal before us with the following prayer:
"It is thus most humbly prayed that the information on following issue be provided to me through Police is the right spirit of Fair and just application of law by law enforcement agencies. These questions are the repetition of questions to CPIO at 2(a), 2(c), 2
(d) and 2 (e)."
The appeal was heard on 30-10-2008 in Jail No. 1, Tihar Jail, New Delhi. The following are present.
Appellants Cdr. Mukesh Saini (Retd.).
Shri Ravi Kant Sharma, assisting appellant.
Respondents Shri Karnal Singh, Jt CP/ Special Cell.
Shri Alok Kumar, DCP/ Special Cell.
4Appellant Cmdr Saini presented a written statement starting with a statement on information sought, the reply of the CPIO and the order of the 1st Appellate Authority thereon. He has then gone on to quote Para 13 of the ruling of Ravindra Bhat J. in Delhi High Court WP No. 3114/2007 in Bhagat Singh vs. CIC & Ors. He has also submitted a copy of the seizure memo and copy of the report of IO Shri O.P. Srivastav, Inspector Cyber /Special Cell of 29-5-06 on the basis of which he states he has been prosecuted. This report reads as follows:
"Case FIR No. 42/06 dated 11.6.2006 u/s 3/9 OS Act & 120B IPC PS Special Cell.
The exhibits of the case were received for analysis. Amongst those one Hard Disk bearing serial number SEDOXNKL make SEAGATE Capacity 20 G Bytes (Sealed in cloth parcel sealed with seal of 'SSY') IS CHECKED using Cyber tools and many documents/ date were found stored in the HDD. They were displayed in the Monitor and two documents relating to NSCS namely were noted down.
1. No. 46/12/2003-NSCS (CS) NATIONAL SECURITY COUNCEIL SECRETARY Proposal for the creation of information sharing network amongst agencies marked 'SECRET" on each page/ Total pages 10.
2. Minutes of Meeting Indo-US Cyber Security Forum 28th February 2003.
Print out of both the documents is taken out and handed over to IO SI Sajjan Singh.
Further analysis is in progress."
Appellant Cmdr Saini has also submitted a statement quoting different sources including this Commission on the outdating Official Secrets Act 1923 and its irrelevance to the modern state.
On this basis we have proceeded to examine the questions asked and response given in light of the RTI Act, 2005.
In the case of question (c) what has been sought are orders authorising an officer of the Cyber Lab/Special Cell to de-seal electronic evidence. We find that the response of PIO Shri Kumar DCP is clear in this matter by which 5 he has indicated unequivocally that the public authority which is the DCP, Special Cell considers that no authority is required while de-sealing the Cyber lab and that they treat this as part of the investigation. Shri Ravi Kant Sharma assisting appellant argued vigorously that this is in violation of the law. However, it was explained to him that this Commission could only ensure that information held by a Public Authority be provided, which in this case has been done. The legality or otherwise of any action under the Cr C is for the appropriate authority, not this Commission, which is required to administer only the RTI Act, to decide Under question (e) appellant has asked for orders or guidelines issued to Delhi Police for handling computer/cyber evidence etc. In this case it has been clearly indicated by both CPIO and 1st public authority that there are no such orders/guidelines and they take their cue from the Cr. PC relying on what they deem "suitable training".
Appellant Cdr. Mukesh Saini submitted that in his capacity as an official of the National Security Council Secretariat he had issued instructions to the MHA with draft guidelines for this purpose. He assumes, therefore, that this was conveyed to the Home Ministry and there from the Delhi Police and has therefore, come to the conclusion that the response given by Delhi Police is misleading. Upon this JCP Shri Karnal Singh offered to re-examine whether any such instructions have, in fact, been received from MHA but stated clearly that no such instructions have been issued by Delhi Police to Cyber Lab of the Special Cell.
On the question of responding to the questions under (a) and (d) and in light of the decision of Ravindra Bhat J. in case "Bhagat Singh Vs. CIC & Ors." cited above, respondent JCP Shri Karnal Singh contended that identifying an 'expert' would have to be in accordance with Section 45 of the Indian Evidence Act and is, therefore, debatable and best left to the court to decide. It is for this reason that the public authority did not wish to hazard an opinion at this stage on the kind of expert, if any, they deem Inspector Shri 6 O.P. Srivastav to be. On the question at (d) however respondents agreed that information sought can be provided.
DECISION NOTICE Having examined the record and heard arguments we can find no way to justify refusal of information sought in points (a) and (d) of the RTI application. Whereas the response of CPIO & First Appellate Authority in this case is not in accordance with ruling of Ravindra Bhat J. cited above which is in this Commission's view the definitive ruling on the subject, respondents were unable to come up in the hearing with any justification other than arguing that the issue of the definition of expert is debatable and best left to the court.
In this case the judgment of the Delhi High Court in W.P.(C) No.3114/2007 - Shri Bhagat Singh Vs. Chief Information Commissioner & Ors referred to by appellant Cmdr Saini is germane, since it deals with the application of sec. 8(1)(h):
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 remarked 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 U.P. 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.
712. 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 power. 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 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 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."
In this case the Court took serious notice of the two-year delay in releasing of information and the lack of adequate reasoning of the orders of 8 PIO and appellate authority. 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 2 . The CIC, even after overruling the objection, should not have imposed the condition that information could be disclosed only after recovery was made 3 "
Inspector Shri O.P. Srivastav was indeed deemed an expert in the matter since on the basis of his report the criminal case has been launched against appellant Cdr. Mukesh Saini. It would become the responsibility of an investigating agency to justify why they have so deemed. This is all that has been asked in question 2 (a) and whereas indeed it is for the court to decide that the basis on which they have so deemed is justifiable or not, it is not understandable how providing the basis of this conclusion would impede either the process of investigation, which in this case at any rate is complete or the prosecution which is nearing completion, since respondents have themselves conceded that they intend to argue this matter before the trial court.
We, therefore, set aside the order of the CPIO in refusing a response to questions (a) and (d). CPIO will provide a response to both questions to appellant Cdr. Mukesh Saini within 10 working days from the date of issue of this decision notice.
On the question at (c) we find that in fact the question asked has been answered. Similarly, the specific question asked at (e) has also been answered. However, to lay at rest any doubt that this answer is misleading PIO Shri Alok Kumar, DCP, Special Cell and JCP Shri Karnal Singh will verify whether or not guidelines in this matter have been received from the MHA. If they have, they must indeed then act upon them, although that area takes this beyond the jurisdiction of the RTI Act. However, whether or not such 2 Emphasis ours 3 Para 15 of the judgment.9
instructions have been received will be intimated to appellant within 10 working days from the date of issue of this decision notice with a copy endorsed to Shri Pankaj K. P. Shreyaskar, Jt. Registrar, CIC for the information of this Commission.
We have also found that although the application was made on 14-2-08 the response of the PIO is dated 25-3-08. From the response of PIO we find that this was received by him from the Addl. CP/ GA, PIO, Police Hqrs. through letter dated only 7-3-08. Therefore, we cannot consider the PIO to have been in violation of the time limit mandated u/s 7 (1) of the RTI Act. There will, therefore, be no penalty. Office of Addl CP, CP's office, being a conduit for the flow of much information, is however cautioned to adhere closely in future to time limits mandated for transfer u/s 6 (3) of the Act This Appeal thus stands allowed in part, but without costs. Announced in the hearing in respect of all points except point (A) of the original request, regarding which the decision has been announced in open chamber subsequently the same day. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 30-10-2008 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 K.P. Shreyaskar) Joint Registrar 30-10-2008 10