Central Information Commission
Shashi Kant Sharma vs Ministry Of Defence on 29 March, 2023
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सच ु ना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मु नरका, नई द ल - 110067
Munirka, New Delhi-110067
File no.: CIC/DODEF/A/2023/110193
In the matter of
Shashi Kant Sharma
... Appellant
VS
CPIO / Under Secretary (Vigilance),
Ministry of Defence, D (Vigilance),
Room No. 341 - A, B - Wing,
Sena Bhawan,
New Delhi - 110011
... Respondent
RTI application filed on : 23/10/2022 CPIO replied on : 23/11/2022 First appeal filed on : 02/12/2022 First Appellate Authority order : 04/01/2023 Second Appeal filed on : 01/03/2023 Date of Hearing : 21/03/2023 Date of Decision : 29/03/2023 The following were present:
Appellant: Present in person alongwith Adv Ritam Agarwal Respondent: Bhupesh Pillai, US(Vig.)/CPIO, present in person Information Sought:
The Appellant has sought the following information pertaining to sanction of prosecution against the appellant sought by CBI in case No.RC-217/2013/A- 0003:
- Provide copies of the related files including all note sheets and correspondences done by the Ministry of Defence in the said matter with/ to various Departments / Ministries including, but not limited to Department of Personnel and Training, Office of the Chief Vigilance Commissioner and any other as applicable.1
Grounds for Second Appeal The CPIO did not provide the desired information u/s 8(1)(h) of the RTI Act. Submissions made by Appellant and Respondent during Hearing: The appellant vide his written submissions dated Nil submitted that he was provided no response within the stipulated time period even after the clause of "life and liberty" was invoked. He also submitted that the reply dated 23.11.2022 was a denial u/s 8(1)(h) of the RTI Act without any reasoning.
He further submitted that the FAA also failed to provide any reasoning and further alleged that the denial of information was totally unjustified and baseless as it is abundantly clear from the DoPT order dated 28.02.2022, vide which the sanction of prosecution against the appellant under the relevant laws was accorded by the competent authority, that at the time of seeking the information the investigation in the matter was already completed and over and also a chargesheet had been filed by the investigation agency i.e CBI before the competent court, hence, the process of investigation would not be impeded by disclosing the information sought for.
He further submitted that as per Sec 19(5) the onus is on the CPIO to justify the denial of information. He relied on a order of the Delhi High Court in WP( C) 12428/2009 in the matter of (Deputy Commissioner of Police vs D.K Sharma), in which it was held as follows:
"..........The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case...."
He further relied on a Delhi High Court order in the matter of Sudhirranjan Senapati vs UOI and Ors W.P (C ) 7048/2011 vide order dated 05.03.2013 where it was held as under:
""11.3 ........................... It is trite that an accused can challenge the order by which sanction is obtained to trigger a prosecution against the accused. If that be so, I do not see any good reason to withhold information which, in one sense, is the underlying material, which led to the final order according sanction for prosecution of the petitioner. As a matter of fact, the trial court is entitled to examine the underlying material on the basis of which sanction is accorded when a challenge is 2 laid to it, to determine for itself as to whether the sanctioning authority had before it the requisite material to grant sanction in the matter. Therefore, the said underlying material would be crucial to the cause of the petitioner, who seeks to defend himself in criminal proceedings, which the State as the prosecutor cannot, in my opinion, withhold unless it can show that such information would hamper prosecution."
He also relied on the decision of the CIC dated 17.09.2019 in case no. CIC/DOTEL/A/2018/119472 (K.B Sharma vs DoT, Sanchar Bhawan, New Delhi) where, the present bench had held as under:
"A bare perusal of the order passed by the FAA also indicates that the aspect as to how the disclosure of information would impede the prosecution has not been considered. Merely citing that the information is exempted under Section 8(1)(h) of the Act would not absolve the public authority from discharging its onus as required to claim such exemption. Thus, neither the CPIO nor the FAA had justified satisfactorily as to how the disclosure of information would impede the prosecution.
According to Section 19(5) of RTI Act, 'the onus to prove that a denial of a request was justified shall be on the CPIO who denied the request'. The CPIO did not discharge that burden by showing that disclosure of the file notings of sanction of prosecution would impede the process of investigation. It is unimaginable that disclosure of file notings of sanctioning the prosecution would obstruct the prosecution. If the sanction is justified, it would strengthen the prosecution. Even if there is anything irregular in the sanction of prosecution, that will not straight away result in acquittal of the accused. The conviction of charge-sheeted officer for corruption or disproportionate assets would solely depend on the strength of evidence, as per law.
In the matter mentioned above, the information pertaining to prosecution was directed to be disclosed. In parity the appellant also sought relief in this case. He also relied on a Delhi High Court order in the case of Union of India vs Manjit Singh Bali, WP(C) 6341/2015 & 1803/2018 order dated 06.08.2018, where CIC direction was upheld by the Court as under:
"24. In the present case, the petitioner has not indicated any possible reason or ground to establish that the disclosure of information as 3 sought by the petitioner would impede prosecution of the offender. It is also relevant to observe that denial of any information available with a public authority, which could assist an alleged offender from establishing his innocence or for pursuing his defence may, in fact, impede the course of justice. After the investigations are complete, the information as sought by the respondent can be denied under Section 8(1)(h) of the RTI Act only if the public authority apprehends that such disclosure would interfere with the course of prosecution or in apprehending the offenders. It will not be open for the public authority to deny information on the ground that such information may assist the offender in pursuing his defence (and therefore impede his prosecution). This is clearly not the import of Section 8(1)(h) of the RTI Act."
He summed up stating that in the light of the above judgments and observations made, it is essential for the CPIO to indicate as to how the disclosure of information sought for would impede the process of investigation or apprehension or prosecution of offender. However, the CPIO has not specified any possible reason or ground to establish that the disclosure of information sought for would impede the prosecution of the offender. Further, the disclosure of information would not impede the prosecution of offender in the present case, however, denial can impede the course of justice. During the hearing, the appellant's representative submitted that the investigation as against the appellant is complete. He further submitted that the documents on the basis for which sanction was claimed should be disclosed. He also alleged that the CBI/MoD, CPIO has not shown how disclosure would impede the investigation.
He further referred to the decision of the Delhi High Court in the matter of Union of India vs Manjit Singh Bali. The relevant para of the order was extracted below:
"20. Mr Sinha had contended that the question whether the information was excluded from the purview of the RTI Act is a question of law and, therefore, could be raised at any stage. This contention is bereft of any merit as well. It is well settled that all information is covered under the purview of the RTI Act, unless it is expressly exempt from disclosure under Section 8 of the RTI Act or excluded from the purview by virtue 4 of Section 24(1) of the RTI Act. The question whether the information is exempted under Section 8(1)(h) of the RTI Act or is excluded under Section 24(1) of the RTI Act has to be founded on certain factual premises. In order to claim exclusion under Section 24(1) of the RTI Act, the public authority must establish that the information sought for by the information seeker had been provided by an organization listed in the Second Schedule to the RTI Act. There is no indication that the notings relating to sanction of prosecution - which is sought to be denied to the respondent - is information that was received from an organization listed in the Second Schedule of the RTI Act. That absence of the public authority expressly affirming so, the question of claiming exclusion from the RTI Act would not arise. Even if it is assumed that certain information, which has been denied to the respondent, was received from the CBI, the question of withholding the same would not arise if such information related to human rights violation or corruption. In the present case, prima facie, the information as sought for by the respondent relates to an allegation of corruption. Such information has been carved out from the exclusion under Section 24(1) of the Act and, therefore, would squarely fall within the cover of the RTI Act. Since, the factual foundation for claiming exclusion under Section 24 (1) of the RTI Act was not laid by the public authority or the CPIO before the CIC, it would not be apposite to permit the petitioner to raise this issue in these proceedings."
He also submitted that the underlying material on which sanction was obtained is required by the appellant and is not barred under Schedule-II of the RTI Act. As far as the MoD is concerned, their part is over therefore nothing should be concealed.
He also submitted that the case against him is concluded and sharing any information related to the case will not impede the process of the on-going investigation. He again reiterated that he wants complete documents related to MoD.
The CPIO relied on the letter received from the CBI dated 21.03.2023 recording their objection from disclosure of information related to the prosecution as the investigation as a whole is not yet over.
5Observations:
Based on a perusal of the record, it was noted that the CPIO vide letter dated 23.11.2022 replied to the appellant and denied the information sought u/s 8(1)(h) of the RTI Act stating that "there shall be no obligation to give any citizen the information which would impede the process of investigation or apprehension or prosecution of offenders".
The FAA vide order dated 04.01.2023 disposed of the first appeal and held that the subject matter is yet to attain finality and also relied on a order of the CIC dated 10.07.2007 in case no. CIC/AT/A/2007/00007, where it was held that "the term investigation used in Sec 8(1)(h) in the context of the Act should be interpreted broadly and liberally. We cannot import into the RTI Act the technical definition of investigation one finds in criminal law. Here 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 had reached a point where the final decision on the basis of the investigation is taken. In that sense, an investigation can be extended investigation". In light of the same, he reiterated the exemption claimed u/s 8(1)(h) and also stated that there is no malafide intent on the part of the CPIO in denying the information sought. The Commission noted that Sec 8(1)(h) exemption was not explained by the CPIO as well as the FAA. Mere reliance on a case law is not sufficient to accept the exemption claimed.
The Commission came to a conclusion that the matter is pending further investigation. It appears that the investigation in respect of the appellant is over , however, the case is not yet concluded. It is a case where supplementary charge-sheet was submitted and to prevent the proceedings to be vitiated due to media trial etc, the confidentiality claimed by the investigating authority needs to be considered and kept in view. The SP, CBI had addressed a letter dated 21.03.2023 to the US, Vigilance, Ministry of Defence which was informed to the CIC by the CPIO during the hearing . From this letter the CPIO stated that further investigations with regard to money trail and other aspects is still continuing u/s 173(8) of CrPC and efforts are being made to expedite the trial proceedings.
6. Considering the overall facts and circumstances and the serious nature of accusations, the gravity of the offence, and as the CBI, in its charge sheet, has alleged an estimated loss of 398.21 million euros (about Rs 2,666 crore) to the exchequer , it emerged from the materials available that the probe was "multi- layered" and spread across several countries as various companies were allegedly used to "camouflage the bribe money".
The Commission therefore , in view of the facts above ,came to a conclusion that the matter is still pending further investigation. Therefore, while the investigation in respect of the appellant's part may be over, the case was not yet concluded.
The Hon'ble Supreme Court in case of Mardia Chemicals Ltd. vs. Union of India had observed that:
"66. ............. Therefore, wherever public interest to such a large extent is involved and it may become necessary to achieve an object which serves the public purposes, individual rights may have to give way. Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio- economic drive of the country..........."
Taking note of the above decision, the CPIO was asked to explain the reasons for non-disclosure of information , to which he relied on the CBI letter dated 21.03.2023 where it was categorically stated that after receipt of the sanction of prosecution from MoD they filed second supplementary chargesheet on 16.03.2022 against the appellant and 4 others. The Trial Court vide separate orders dated 11.04.2022 and 18.07.2022 issued process against the above- mentioned persons. The Commission observed that the above facts are already in public domain.
Moreover, Sec 173(8) of the CrPC reads that (8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub- section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub- sections (2) to (6) shall, as far as may be, apply in relation 7 to such report or reports as they apply in relation to a report forwarded under sub- section (2).
The CBI as a investigating body which clearly and categorically as on date stated that further investigation is still continuing and efforts are being made to expedite the trial proceedings. The Commission finds that investigation is not yet complete in respect of the case as a whole. The appellant's argument that investigation in respect of him is over due to the fact that charge-sheet was submitted in March 2022 is an assumption of the appellant. However, a case which is pending trial and there are instances of new facts and evidences emerging over the years and period of time, rejecting the claim of the respondent that Sec 8(1)(h) is applicable seems unrealistic and untenable.
However, as in the case of B.S. Mathur vs. Public Information Officer of Delhi High Court, (2011) 125 DRJ 508, it was held:
"..The scheme of the RTI Act, its objects and reasons indicate that disclosure of information is the rule and non-disclosure the exception. A public authority which seeks to withhold information available with it has to show that the information sought is of the nature specified in Section 8 RTI Act. As regards Section 8(1)(h) RTI Act, which is the only provision invoked by the Respondent to deny the Petitioner the information sought by him, it will have to be shown by the public authority that the information sought "would impede the process of investigation." The mere reproducing of the wording of the statute would not be sufficient when recourse is had to Section 8(1)(h) RTI Act. The burden is on the public authority to show in what manner the disclosure of such information would 'impede' the investigation."
Hon'ble Delhi High Court in the matter of Adesh Kumar vs Union of India [WP (C) No. 3543/2014 dated 16.12.2014] held:
" 6. A plain reading of the aforesaid provision indicates that information which would impede the process of investigation or apprehension or prosecution of offenders could be denied. In order to deny information, the public authority must form an affirmative opinion that the disclosure of information would impede investigation, apprehension or prosecution of offenders; a mere perception or an assumption that 8 disclosure of information may impede prosecution of offenders is not sufficient. In the present case, neither the FAA nor the CIC has considered as to how the information as sought for would impede the process of investigation or apprehension or prosecution of the petitioner and other accused."
In view of the above, the CPIO was asked to explain the apprehension and the applicability of Sec 8(1)(h) of the RTI Act. To this, he again relied on the CBI letter dated 21.03.2023 and stated that only the investigation agency is aware of the method and mechanism they are adopting to conclude the investigation and once they state that the investigation is not yet over, this has to be accepted .
The Commission observed that the modus operandi used to identify the offenders and further investigate such high profile cases are a prerogative of the CBI or any such investigating agency. Any interference at this stage with disclosure of any kind of documents related to the prosecution shall be inappropriate.. To ensure effective identification and prevention of such offences by law enforcement agencies, the Commission also needs to balance the right to information with the scheme of the RTI Act.
Hon'ble Delhi High Court in the matter of Delhi Subordinate service ... Board vs Naveen Yadav[WP (C) No. 8960/2018 decided on 27.08.2018] held:
" 7. Ms Ahlawat, further submits that since the matter is under investigation with Anti Corruption Branch of GNCTD and an FIR has been registered, no information in the matter could be provided as it would impede the process of investigation. This contention is also unpersuasive. This Court in number of cases has held that the public authority denying information on the ground of Section 8(1)(h) of the RTI Act would necessarily have to briefly indicate as to how the disclosure of any information would impede the progress of any investigation."
The onus lies on the public authority claiming the exemption to demonstrate in what manner disclosure of such information could impede the investigation and this has been done during the hearing, particularly relying on the CBI's latest views which were informed to the Commission duringthe hearing.
9Decision:
In view of the above, the CPIO hereby is directed to examine the complete file and provide a revised reply with proper explanation and justification for invoking the exemption clause of Sec 8(1)(h) and also categorically inform in case the file relating to the prosecution sanction for the appellant is a separate document and the notings related to this also are not having any details of the other individuals. It is to be clearly stated in the revised reply how the notings are exempted u/s 8(1)(h) of the RTI Act .
The CPIO is directed to examine the information sought and provide a revised reply with a proper explanation and justification as discussed above for invoking the exemption clause of Sec 8(1)(h) failing which the information will have to be provided. The order shall be complied with within 10 days from the date of receipt of this order.
The appeal is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना)
Information Commissioner (सच
ू ना आयु त)
Authenticated true copy
(अ भ मा णत स या पत त)
A.K. Assija (ऐ.के. असीजा)
Dy. Registrar (उप-पंजीयक)
011- 26182594 /
दनांक / Date
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