Central Information Commission
Mr.Dhirendra Kumar Jha vs Cbdt on 8 December, 2011
1
Central Information Commission
Room No.307, II Floor, B Wing, August Kranti Bhawan, Bhikaji Cama Place, New
Delhi110066
Telefax:01126180532 & 01126107254 websitecic.gov.in
Appeal: No. CIC/DS/A/2011/000643
Appellant /Complainant : Shri Dhirender Kumar Jha Shimoga
Public Authority : Income Tax Department, N.Delhi
(Sh. Adarsh Kumar Modi, Addl.DIT(Vig.)
CPIO)
Date of Hearing : 08 December 2011
Date of Decision : 08 December 2011
Facts:
1. Shri Dhirendra Kumar Jha presented RTI application dated 6 July 2010 before the CPIO/Deputy Secretary (V&L), CBDT, New Delhi to obtain (1) a copy of note sheets relating to granting permission to CBI, Bangalore to file prosecution against the appellant in the trial court at Bangalore and (2) a copy of note sheets relating to approving of chargesheet issued to the appellant in the departmental proceedings.
2. Vide CPIO order dated 16 July 2010, disclosure of information was denied under the provisions of section 8 (1) (j) of the Act as disciplinary proceedings and prosecution proceedings were pending. It was also stated that the case against the appellant was based on the report of the CBI (thirdparty) and therefore the information could not be given to the applicant in terms of the provisions of section 11 of the RTI Act.
3. Appellant preferred appeal dated the 22 July 2010 before the first appellate authority.
Appeal: No. CIC/DS/A/2011/000643 2
4. Matter was decided vide FAA order of 25 August 2010 by upholding the order of the CPIO.
5. Being aggrieved and not being satisfied by the above orders, appellant moved the Commission in second appeal. Matter was heard today. Both parties as above were present in person and made submissions. Appellant was present via videoconferencing from Mumbai.
6. Appellant argued his case with great thrust and force while relying on certain orders of the Commission, more particularly Commission's order dated 28 July 2009 in the matter of Shri SK Srivastava versus CBDT, decision of honourable Supreme Court in PA Mohandas versus State of Kerala, 2003 - (009) -SCC - 0504 - SC, State of Karnataka versus Ameer Jan, 2008 AIR 108 and order of the High Court in the Bhagat Singh case.
7. Appellant, on the other hand argued in favour of nondisclosure of the requested information to the appellant on the grounds that the departmental disciplinary proceedings and the criminal case instituted by the CBI were yet not concluded and are pending and disclosure of information at this stage would be detrimental to the Department. He stated that disclosure would have vide ramification as the appellant would then know the line of investigation and would try to influence/impede the process and being premature would be injurious to the process of investigation. Appellant places reliance on these decisions of the Commission particularly in the case of Smt Durgesh Kumari versus Income Tax Department dated 26 August 2011 and Shri C Seetharamaiah versus Commissionerate of Customs and Central Excise dated 7 June 2010.
Decision notice
8. Commission has heard both parties and after weighing the arguments presented by both sides notes that in the present case, the Appeal: No. CIC/DS/A/2011/000643 3 material sought by the appellant undoubtedly relates to an ongoing court proceeding (and also a departmental enquiry) and hence it can be rightly said to be under the control of the Trial Court who alone can decide how the information is to be dispensed. Therefore any action under the RTI act for disclosure of that information to the very party who is arraigned before the trial court would have the effect of interfering with the discretion of the court, thereby impeding an extant prosecution proceeding.
9. In a two bench decision of the Delhi High Court in SP Singh versus Union of India and Ors have ruled that any material connected with an ongoing prosecution cannot be accessed through the RTI Act. Further, in the Commission's view, forcing the CBI to provide to the appellant, evidence, records and documents it otherwise would not provide to him or provide to him only through the directive of the trial court, would have the effect of interfering with the CBI's right to marshal evidence and to present it in the manner or in the sequence, which in its judgement, would be necessary to prove the guilt of the accused. This is CBI's right before the trial court, which would be seriously compromised if the appellant were allowed to force it to give out information and documents through the RTI Act.
10. The argument made by the respondent that unless the sanction for prosecution was disclosed to him, he would not be in a position to know if prosecution is not in accordance with law in which case prosecution must fail and officer must be exonerated and therefore he is entitled to get the records pertaining to grant of sanction, once that process is over. However while furthering this argument, appellant has ignored the fact that The Criminal Procedure Code and criminal jurisprudence in India has provided all necessary protection to the accused to ensure principle of natural justice and to give full opportunity to the accused to defend his case as per provision of section 91 of Cr PC.
Appeal: No. CIC/DS/A/2011/000643 4 Therefore after carefully weighing the arguments made by both parties, Commission upholds the orders of the CPIO and the first appellate authority in denying the disclosure of the requested documents. Appeal is dismissed.
(Smt. Deepak Sandhu) Information Commissioner (DS) Authenticated true copy:
(T. K. Mohapatra) Dy. Secretary & Dy. Registrar Tel. No. 01126105027 Copy to:
1. Shri Dhirender Kumar Jha ACIT - Shimoga Range No. 75, 100 Feet Road Gopalagowda Extension Shimoga577201 (Karnataka)
2. The CPIO Directorate Genl. Of Income Tax (Vig.) 1st. Floor, Deen Dayal Upadhayaya Marg New Delhi110002
3. The Appellate Authority Directorate Genl. Of Income Tax (Vig.) 1st. Floor, Deen Dayal Upadhayaya Marg New Delhi110002 Appeal: No. CIC/DS/A/2011/000643