Central Information Commission
Shri Vinod Kumar vs Central Bureau Of Investigation on 30 September, 2009
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2008/00963 dated 2.6.2008
Right to Information Act 2005 - Section 19
Appellant - Shri Vinod Kumar
Respondent - Central Bureau of Investigation
Decision announced: 30.9.2009
Facts:
By an application of 24.1.08 Shri Vinod Kumar of Umred Road, Nagpur applied to SP, CBI, Bhopal seeking the following information:
"1. Whether original documents collected during above said enquiry were send by post or by hand to the sanctioning authorities i.e. to CPFC as well as to RPFC-1 Indore- information.
2. Copy of both postal receipts, in case it was send by post; or;
name or the person who carried the documents, and amount paid along with the copy of all TA bill authorized, in case it was send by hand.
3. List of documents sent to get sanction (original, attested, and only photocopies) as above mentioned.
4. The date when last enquiry (last time when any accused or witness was called by I/O) in the said case was held by Inquiry Officer in the said case.
5. All the dates when I was called for enquiry.
6. The date when the inquiry officer submitted his final enquiry report to SP, CBI.
7. Copy of the letter of CBI No. 8130/Rc/00882003 A0014/CBI/BPL dated 18.11.04.
8. Copy of CBI Letter No. 00317/RC0082003a/0003/CBNI/BPL dated 19.1.2005.
9. Copy of CBI letter No. 2093/RC0082003A0014/CBI/BPL/ dated 21.4.2005.
10. Copy of letter of PNB Bansi Lalitpur dated 1.8.2003 that was received in Gwalior office on which seal of inward section was stamped with date (in case it was received in Gwalior Office), as you have provided the office copy of PNB in the court.
11. The date of receipt of the above said letter (At no. 9) in inward section in Gwalior Office.
12. The name of officers/ employees of EPF Office Gwalior to whom this letter was presented (may be written in inward 1 register or on the letter itself) along with dates when it was put up to those employees as per inward and other registers of the office.
13. Copy of the said inward register page.
14. Copy of letter No. 2898/3/14(A)/2003-BPL/BR-05.
15. What is the meaning of 3763, 22.11.2005 CBI. Endt. No. 3181/3/14(A)/03-BPL/BR-05. (Written at the bottom on forwarding letter with the sanction order signed by Shri S. M. Sharma, Director Vigilance, Central Office) and 3764, 22.11.2005 CBI. Cndt. No. 3180/3/14(A)/03-BPL/BR-05 (Written at the bottom on forwarding letter with the sanction order signed by Shri P. U. Kulkarni, RC II Indore).
16. Copy of my statements recorded during inquiry.
17. Copy of statements of other accused recorded during enquiry."
To this Shri Vinod Kumar received a response pointwise dated 29.2.08 from CPIO Shri M. C. Sahni, SP, CBI, Bhopal who had received the application on 31.1.08, as follows:
'1. Information sought is not covered under section 2 (f) of RTI Act, 2005.
2. Information/ document sought could not be provided as disclosure of such information may impede the process of prosecution. Hence, the exemption is claimed under section 8 (1) (h) of RTI Act, 2005.
3. List of documents send to get sanction required by you can be given to you. Above list consists of 14 pages. As per section 7 (3) of RTI Act 2005, for supply of copy of above list, you are advised to send Rs. 28/- @ Rs. 2/- per page to this office.
4. No such information is available in this form.
5. Information sought is not covered under section 2 (f) of RTI Act, 2005.
6. Information sought is not covered under section 2 (f) of RTI Act, 2005.
7. Copy of letter required by you can be given to you. Above letter consists of 01 page. As per section 7 (3) of RTI Act 2005 for supply of copy of above statement, you are advised to send Rs. 2/- @ Rs. 2/- per page to this office.
8. Copy of letter required by you can be given to you. Above letter consists of 02 pages. As per section 7 (3) of RTI Act 2 2005 for supply of copy of above statement, you are advised to send Rs. 4/- @ Rs. 2/- per page to this office.
9. Copy of the said letter is readily not available. Efforts are being made to trace the same.
10. Copy of letter required by you can be given to you. Above letter consists of 01 page. As per section 7 (3) of RTI Act 2005 for supply of copy of above statement, you are advised to send Rs. 2/- @ Rs. 2/- per page to this office.
11. Information sought is not covered under section 2 (f) of RTI Act, 2005.
12. Information sought is not covered under section 2 (f) of RTI Act, 2005.
13. Information/ document sought could not be provided as disclosure of such information may impede the process of prosecution. Hence, the exemption is claimed under section 8 (1) (h) of RTI Act, 2005.
14. Information/ document sought could not be provided as disclosure of such information may impede the process of prosecution. Hence, the exemption is claimed under section 8 (1) (h) of RTI Act, 2005.
15. Information sought is not covered under section 2 (f) of RTI Act, 2005.
16. Copy of statement required by you can be given to you.
Above statement consists of 08 pages. As per section 7 (3) of RTI Act, for supply of copy of above statement, you are advised to sent Rs. 16/- @ Rs. 2/- per page to this office.
17. Information/ document sought could not be provided as disclosure of such information may impede the process of prosecution. Hence, the exemption is claimed under section 8 (1) (h) of RTI Act, 2005."
However, not satisfied with response to questions 1, 2, 4 to 6, 13 to 15 & 17, Shri Vinod Kumar moved an appeal before DIG of Police, CBI, Bhopal Region on 4.3.08. In his order of 10.4.08 Shri Alok Kumar Pateria DIG, CBI Bhopal Region, after detailed examination, has found as follows:
"6. The SP, CBI, Bhopal/ CPIO has rightly mentioned that the required information at point nos. 1, 5, 6 and 15 is not covered under the definition of information as per section 2
(f) of RTI Act 2005. Similarly, with regards to information of point no. 4 the SP, CBI, Bhopal/ CPIO has rightly mentioned that no such information is available in this form. As per the provisions of RT I Act, the CPIO is not expected to create and generate a fresh information because it has been ought by an appellant. If the required information exists, in the 3 form in which it is sought by the appellant, then only it may be provided. This has also been held in the decisions of Hon'ble CIC in appeal No. 285/IC(A)/2006 and appeal No. 65/IC(A)/2006.
7. The appellant ahs cited the decision of Hon'ble Central Information Commission No. CIC/1328/IC(A)/2007 dated 11.10.2007 that u/s 2 (f) of the Act, the information seeker should ask for information, which should be available 'in any material form. However, this decision of Hon'ble CIC is not applicable in this case, as the appellant has sought the information in the form of queries. The Hon'ble Central Information commission has held in para No. 6 of the said decision that 'in the instant case, the appellant ahs sought information in the form of various queries. He is advised to clearly specify the required information. He should avoid seeking opinion or elicit views of the CPIO through different forms of queries.' Moreover, as mentioned above, if the required information exists, in the form in which it is sought by the appellant then only it may be provided. As the information sought by the appellant in his application at point Nos. 1, 5, 6 & 15 was not available with the CPIO in the form in which it was sought by the appellant SP, CBI, Bhopal/ CPIO has rightly concluded that the above information is not covered u/s 2 (f) of RTI Act.
8. With regards to information at point nos. 2, 13, 14 and 17 SP, CBI, Bhopal / CPIO has claimed exemption under section 8 (1) (h) of RTI Act, 2005, as the charge sheet has been filed in the court of Special Judge, CBI Cases, Bhopal on 29.11.2005 against the appellant Shri Vinod Kumar and others, which is pending under trial. The SP, CBI/ CPIO has clearly mentioned that the disclosure of information/ documents sought by the appellant may impede the process of prosecution of offenders, which is exempted under section 8 (1) (h) of RTI Act, 2005.
9. The decision taken by the Hon'ble Central Information Commission in CIC/AT/A/2007/00383 dated 29.6.2007 cited by the appellant, is not applicable in this case, as in the said appeal the CPIO had not provided the information on the ground that the matter is subjudice and pending before the Hon'ble High Court, New Delhi and the CPIO had not claimed any exemption u/s 8 (1) (h) of RTI Act, 2005. Therefore, the Hon'ble Central Information Commission has held in para No. 10 of the above mentioned decision that 'there is no exemption which bars matters connected with investigation from disclosure. Only when disclosure of an information is shown to impede the process of investigation, 4 that the exemption under section 8 (1) (h) can be invoked. Similarly, there is no provision in the RTI act which prohibits disclosure of subjudice matter'. Whereas, in the present case, SP, CBI, Bhopal/ CPIO has not provided the information of point No. 2, 13, 14 and 17 claiming the exemption under section 8 (1) (h) of RTI Act, 2005 on the ground that the disclosure of said information may impede the process of prosecution. In the present case, the charge sheet against the appellant and others has already been filed in the court of Special Judge, CBI Cases, Bhopal on 29.11.2005 and the trial is continuing.
10. The decision taken by the Hon'ble Central Information Commission in Adjunct to No. CIC/WB/C/2009/00072 dated 26.12.2007, cited by the appellant is also not applicable in this case, as the Hon'ble Central Information Commission has held in the above cited decision that, 'information can only be denied if it would impede the process of investigation or apprehension or prosecution of offenders. The Public authority had not cared to describe in what way the application can now impede prosecution since it sought information already 10 to 20 years old starting with the proposal for prosecution in 1987,' whereas, SP, CBI, Bhopal/ CPIO has clearly mentioned that the d disclosure of information/ documents sought may impede the process of prosecution, while claiming exemption under section 8 (1) (h) of RTI Act, 2005. Moreover, in the present case, the charge sheet against the appellant and others has been filed in the court of Special Judge, CBI, Cases, Bhopal only on 29.11.2005 and pending under trial.
11. In view of the above, SP, CBI, Bhopal/ CPIO has rightly claimed exemption under section 8 (1) (h) of RTI Act, 2005 from disclosure of information sought vide point nos. 2, 14 & 17 on the grounds that disclosure of information may impede the process of prosecution. However, since the information sought at point No. 13 i.e. copy of the said Inward Register page' was not available with SP, CBI Bhopal/ CPIO he should have transferred the application in respect of this point to the CPIO of concerned EPFO Office under intimation to the applicant as per the provisions of section 6 (3) of RTI Act. Accordingly, SP, CBI, Bhopal/ CPIO is directed to transfer the application in respect of point No. 13 to the concerned CPIO of concerned EPFO Office under intimation to the appellant.
12. With regards to information of point ;No. 3 SP, CBI, Bhopal/ CPIO has mentioned in the order that the list of documents sent to get sanction as required by you can be given to you.
5The appellant was requested to send Rs. 28/- for the supply of 14 pages of the said list. The above list has been provided to the appellant by SP, CBI, Bhopal/ CPIO, vide letter dated 18.3.2009. thus, the decision of SP, CBI, Bhopal/ CPIO is as per the provision of RTI Act. However, if the appellant requires further information with regard to this point, he may approach the CPIO afresh."
As will be seen, therefore, it was only with regard to Point No. 13 that First Appellate Authority allowed the appeal but upheld the CPIO's response in the case of all other questions. In his prayer before us in second appeal, Shri Vinod Kumar has pleaded as follows:
"I. Direction to the CPIO to provide that information which is available on record in whatever form.
II. To inform in clear term if a particular information is not available on the record."
In short appellant Shri Vinod Kumar has challenged the refusal of disclosure made by CPIO both under sub sec. (f) of Sec. 2 and sub sec. (h) of Sec. 8(1). The appeal was heard on 30.9.09. The following are present:
Respondents at NIC Studio, Bhopal Shri Hemant Priyadarshi , DIG CBI Bhopal Shri Yatinder Goyal, SP, CBI Bhopal Although arrangement had been made for video conference in Nagpur, appellant Shri Vinod Kumar opted not to be present. We then proceeded to examine the information sought by Shri Vinod Kumar and responses given in the context of exemptions sought by CPIO. Shri Hemant Priyadarshi, DIG, CBI submitted that in response to question No. 1 information would have to be generated by re-examining the dispatch registers. Therefore, he considered that this was not covered u/s 2(f), which carries the definition of information under the Act. Similarly, disclosure of information at point No. 2 from a matter that is now in prosecution could in the view of DIG, disclose the process through which the recommendations for prosecution had been submitted, thereby compromising the process.6
DECISION NOTICE The plea taken by respondents for refusing the information in the present case is wholly without substance. Information, if held by a public authority is expected to be provided. It is only in cases where no such information is held that it is not expected to be created and then provided. In such cases, a bald answer is to be provided that no such information is held by the public authority, which is not the case in the present appeal, where all that is required is that information required is required to be collated, which is the responsibility of the CPIO. Sec 7 (9) clearly mandates that "an information shall ordinarily be provided 1 in the form in which it is sought" allowing for certain allowances to a CPIO which have not been pleaded in this case. It is correct that recourse to sec. 8(1)(h) has indeed been taken w.r.t. certain decisions in this Commission. Nevertheless, such decisions now stand superseded as a result of the definitive ruling of the High Court of Delhi in W.P.(C) No. 3114/2007 - Shri Bhagat Singh Vs. Chief Information Commissioner & Ors . In this case Hon'ble Ravinder Bhat, J. has held as follows with regard specifically to 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 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, 1 Underlined by us for emphasis 7 (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 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."
8For the above reasons, the decision of DIG, CBI Bhopal is set aside. CPIO Shri Yatinder Goyal, SP, CBI, Bhopal will now re-examine the information sought in light of the ruling of Hon'ble Ravinder Bhat J. quoted above and our observations, and provide such information to appellant Shri Vinod Kumar, as is required in light of that judgment with only such information to be excluded from disclosure by the CPIO which in consequence of the prosecution now under process has been submitted to the trial court. In that case, however, a request for information is to be transferred to the CPIO of the trial court which will be the public authority deemed to be holding and in control of the information sought, even though the physical possession of this information may still be with the SP, CBI. The appeal is thus allowed. There will be no costs.
Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 30.9.2009 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 30.9.2009 9