Central Information Commission
Dinesh Singh vs Central Vigilance Commission on 24 September, 2018
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग
, मुिनरका
Baba Gangnath Marg, Munirka
नई द
ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No. CIC/CVCOM/A/2017/146980
Dinesh Singh
....अपीलकता
/Appellant
VERSUS
बनाम
The CPIO/Director, Central Vigilance Commission
Satarkta Bhawan, GPO Complex,
Block A, INA, New Delhi - 110023. ... ितवादीगण /Respondent
Dates
RTI application : 23.01.2017
CPIO reply : 14.03.2017
First Appeal : 07.03.2017
FAA Order : 03.04.2017
Second Appeal : 10.07.2017
Date of hearing : 07.09.2018
Facts:
The appellant vide RTI application dated 23.01.2017 sought information on five points as under;
1. Whether any first stage advice (FSA) has been tendered/issued by the Commission in matters concerning him. Copies of the letter of FSA and notesheet/order sheet notings related to the consideration of the FSA were sought.
2. On whose reference the FSA has been considered and issued. Copy of the reference received for the FSA.
3. Other related information.
The appellant on not receiving any reply on time filed first appeal on 07.03.2017. The CPIO replied on 14.03.2017. The First Appellate Authority (FAA) vide order dated 03.04.2017 disposed of the first appeal. Aggrieved with the Page 1 of 8 non-supply of the desired information from the respondent authority, the appellant filed second appeal under the provision of Section 19 of the RTI Act before the Central Information Commission on 10.07.2017.
Grounds for Second Appeal The CPIO did not provide the desired information.
Order Appellant : Absent Respondent : Shri Rakesh Desai, Director cum CPIO, CVC During the hearing, the respondent APIO submitted that they had provided the requisite reply vide their letter dated 14.03.2017 and the First Appellate Authority (FAA)'s order dated 03.04.2017.The replies furnished to the appellant are just and proper and hence the case might be dismissed.
The appellant was not present to plead for this case. The CPIO reiterated the First Appellate Authority (FAA)'s order dated 03.04.2017 which reads as follows:
" I have gone through the relevant records and find that a timely reply as per the provisions of RTI Act was provided to the RTI applicant/appellant. It is observed that as per available records, a final view in the matter has not been taken and the case has not reached its logical conclusion. Therefore, the case is to be considered as "under investigation", as upheld by Central Information Commission in the case of Shri Shankar Sharma and other Vs Income Tax Department in case no. CIC/AT/A/2007/00007/10/11, in which CIC stated that "investigation would mean all actions of law enforcement, disciplinary proceedings, enquiries, adjudications and so on, Logically, no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken". In such cases, where the investigation is not complete, that is, the Page 2 of 8 cases have not been taken to their logical conclusion, the disclosure of information/documents is exempt from disclosure, as upheld by the CIC in case no. CIC/AT/A/2008/01500 in the case of Shri N.Saini vs LIC of India in which CIC stated that "there is also public interest in keeping the proceedings of an enquiry against the public servant confidential as any premature disclosure of the contents of such enquiry can compromise its objectivity as well as integrity. In fact, confidentiality is a key element of the enquiry". Hence, the appellant's request is not acceptable. The issues raised by the appellant in his appeal dated 07.03.2017 (received on 14.03.2017) have thus been addressed, appropriately. However, if appellant is not satisfied with the above decision, he may make an appeal with the Central Information Commission, B-Wing, 2nd Floor, August Kranti Bhavan, Bhikaji Cama Place, New Delhi-110066."
The decision of the Delhi High Court in WP( C ) 3616/2012 and 405/2014 dated 22.04.2015 reads as follows:
12. This brings me to the other question, which is: whether the petitioner can take recourse to the provisions of Section 8(1)(h) of the Act to deny information to the respondent. The relevant provisions of Section 8(1)(h) of the RTI Act read as follows:-
"8. Exemption from disclosure of information. --
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,-- ...
(h) information which would impede the process of investigation or apprehension or prosecution of offenders; (emphasis is mine)
13. A careful reading of the provision would show that the holder of the information can only withhold the information if, it is able to demonstrate Page 3 of 8 that the information would "impede" the process of investigation or apprehension or prosecution of the offenders.
14. In the present case, the facts, as set out hereinabove, clearly demonstrate that the investigation is over. The charge sheet in the case was filed, as far back as on 31.12.2010.
14.1 The question then is, would the information sought for by the respondent "impede" the respondent's apprehension or prosecution. The respondent is in court and he says that he has been granted bail by the competent court. Therefore, prima facie, the view of the competent court, which is trying him, is that there is no impediment in apprehending the respondent, and that he would be available as and when required by the court. The petition makes no averments as to how the information sought for by the respondent would prevent his prosecution.
14.2 In that view of the matter, according to me the provisions of Section 8(1)(h) of the RTI Act will not help the cause of the petitioner. Accordingly, the information, as directed by the CIC, will have to be supplied to the respondent. It so ordered. In support of this proposition, I may only advert to the following judgments of this Court (See Bhagat Singh v. Chief Information Commissioner [2008 (100) DRJ 63]; B.S. Mathur v. Public Information Officer of Delhi High Court [180 (2011) DLT 303]; Adesh Kumar v. Union of India and Ors. [216 (2015) DLT 230]; Director of Income Tax (Investigation) and Anr. v. Bhagat Singh and Anr. [(2008) 168 TAXMAN 190 (Delhi)]; Sudhir Ranjan Senapati v. Addl. Commissioner of Income Tax, W.P.(C) 7048/2011 dated 5.3.2013; and Pradeep Singh Jadon v. UOI, W.P.(C) 7863/2013 dated 2.2.2015, which have taken similar view on this issue.
15. The petitioner will comply with the order of the CIC.
Page 4 of 816. The writ petitions are dismissed accordingly. Parties are, however, left to bear their own costs.
The respondent relied on the decision of the Delhi High Court in the case of LPA 213/2007 dated 23.03.2007 as follows:
"3. The appellant filed an application under the Right to Information Act praying for furnishing certain information leading to grant of sanction for his prosecution under the Right to Information Act. CPIO, Appellate Authority and the Central Information Commission have declined the said request in view of Section 8(1)(h) of Right to Information Act. The aforesaid authorities have held that the prosecution of the appellant, who is an accused, is pending before the Special Judge and the information sought for cannot be furnished in view of exception carved out under Section 8(1)(h) of the Act.
4. Aggrieved, the appellant filed a writ petition in this Court, which was rejected, inter alia, holding that since prosecution of the appellant is still pending and judgment has not been pronounced, diverging of information would impede the prosecution and, therefore, the respondents were justified in denying information in view of Section 8(1)(h) of Right to Information Act, 2005.
5. We have heard learned counsel for the appellant. It is submitted that the aforesaid grant of sanction against the appellant is illegal.
6. The appellant in our considered opinion has sufficient scope and option to raise the issue of sanction in the trial. This cannot be a ground to direct furnishing of information contrary to Section 8(1)(h) of the Right to Information Act. The authorities under the aforesaid Act cannot examine and hold that sanction is valid or bad in law.
7. The respondents herein have sought exemption from furnishing the information sought for by the appellant in view of provisions of Section 8(1)(h) of Right to Information Act 2005, which provides that notwithstanding other Page 5 of 8 provisions in the Right to Information Act, no application to give specific information which would impede the process of investigation or apprehension or prosecution of offenders will be entertained and furnished. Section 8(1)(h) of the Act is an overriding and a non-obstante clause. It cannot be denied that the aforesaid clause is attracted. The concerned authorities have right to deny information once Section 8(1) (h) of the Act is attracted.
8. The information, which is sought for, is in our opinion would impede the prosecution of the offender and, therefore, the respondents are justified in invoking clause 8(1)(h) of the Right to Information Act and claim exemption from furnishing such information. In view of the said provision, we find no reason to interfere with the aforesaid orders by the concerned authorities and interfere with the order passed by the learned Single Judge. Appeal has no merit and the same is dismissed.
He further relied on the decision of the High Court of Punjab and Haryana at Chandigarh dated 16.05.2014 in case no. LPA no. 257 of 2013 as follows:
"That being so, the provisions of Section 8(1)(h) attracts itself to the matter. Respondent no. 1, is well within its right to claim exemption from disclosure of information under the said clause. Provisions of Sec 8(1)(h) are clear, conscious and incapable of any misconstruction. The same postulates that the information that would impede the process of investigation or apprehension or prosecution of offenders, notwithstanding anything contained in the Act, there shall be no obligation to give the said information to any citizen.
We are reminded to point out at this juncture, learned counsel for respondent no. 1 submits, that the investigation in the matter is complete. So much so, the CBI has even submitted a final report/charge-sheet in the Court of Chief Judicial Magistrate, Chandigarh and the matter is now posted for Page 6 of 8 recording the prosecution evidence on 28.07.2014. Needless to assert, the provisions of clause (h) does not take only the process of investigation within its sweep but also the prosecution of offenders as well. In the wake of the position as has been noticed above, we are dissuaded to interfere in the order passed by the learned Single Judge. The appeal being bereft of merit is, accordingly, dismissed. The parties are left to bear their own costs."
On perusal of the relevant case record, it was noted by the Commission that the respondent's only plea was that a final view in the matter has not been taken and the case has not reached its logical conclusion. Therefore, the case is to be considered as "under investigation". The same plea is not maintainable under law as the respondent failed to submit any proof on record that the corresponding investigation was pending or that it would impede the prosecution and its apprehension. In the view of this Commission, a vigilance enquiry in which applicability and/or quantum of penalty has not been decided upon but the charge sheet has been served on the charged officer and the departmental enquiry proceeding is underway and has reached a certain stage during its a fairly long journey towards the finalization of the report of the enquiry officer, does not mean that the case can be construed to be considered as "under investigation" or that it would mean that any disclosure of this case can impede the process of investigation and prosecution. A plain reading of the Sec 8(1)(h) of the RTI Act makes it clear that the Section 8(1)(h) includes in its ambit pending investigation and any fact which impedes the process of investigation or prosecution. In the present case the respondent has not been able to substantiate this.
In view of the above, it is clear that the CPIO failed to justify that the proposed disclosure of the sought for information relating to the appellant would impede the process of investigation or apprehension or prosecution of appellant as per Sec 8(1)(h) of the RTI Act.
Page 7 of 8Be that as it may, since no desired information was provided to the appellant in the present case, the respondent CPIO is directed to provide revised point wise reply complete in all respects to the appellant as available on record in the form of certified true copies of the documents sought e.g. note sheets, letters, correspondences, e-mails etc.(legible copies), free of charge u/s 7(6) of the RTI Act within 15 days of the receipt of the order. For this purpose, the concerned CPIO/PIO, can take assistance of any other office/department u/s 5(4) of the RTI Act.
The respondent CPIO is further directed to send a report containing the copy of the revised reply and the date of despatch of the same to the RTI appellant within 07 days thereafter to the Commission for record.
With the above direction, the appeal is disposed of. Copies of the order be sent to the concerned parties free of cost.
अिमताभ भ टाचाय)
Amitava Bhattacharyya (अिमताभ टाचाय
Information Commissioner ( सूचना आयु )
Authenticated true copy
(अिभ मा णत स या पत ित)
Ajay Kumar Talapatra (अजय कु मार तलपा )
Dy. Registrar (उप-पंजीयक)
011- 26182594 / [email protected]
दनांक / Date
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