Central Information Commission
Mr.Sanjay Bhardwaj vs Ministry Of Home Affairs on 14 August, 2010
Central Information Commission
Room No. 5, Club Building, Near Post Office
Old J.N.U. Campus, New Delhi - 110067
Tel No: 26161997
Case No. CIC/SS/A/2010/000525
Name of Appellant : Sh. Sanjay Bhardwaj
(The Appellant present)
Name of Respondent : Delhi Police, South Dist
(Represented by Sh. Nawal Kishor, ACP,
Sh. Jagdish Prasad, SP and Sh. Rajinder Bhatia)
The matter was heard on : 11.08.2010
ORDER
Sh. Sanjay Bhardwaj, the Appellant, vide RTI dated 25.03.2010, sought following information from the Respondent Public Authority: "1. Please provide information regarding my complaint which was received by SHO Sh. Rajinder Bhatia (P.S. Mehraulli) vide D.D. No. 31B, Dated 24.02.2009, along with several documents as annexure and handed over to I.O. Sh. Adesh Praksah, which was pending enquiry and would e finalized shortly. Kindly provide complete information on the same enquiry which was done by SHO Mehraulli and also allow file inspection of the same as per various provisions of RTI Act. Kindly also provide the certified copy of the complete file of proceedings, order, instructions, file notings, recommendation and action taken if any on my complaint which was DD No. 31B dated 24.02.2009
2. Please provide information on Case diary of FIR No. 902 of 2007 u/s 498A & 406 IPC of P.S. Mehraulli which was registered on 30.12.2007 and whose investigation was complete on 1.01.2009. The charge sheet of the same has been filed in court on 23.05.2009. When FIR is recommended, registered, investigation completed and also charge sheet filed in court this means that the concerned documents has become a matter of record. Kindly allow inspection and also provide the certified copy of the same."
Sh. Vijay Singh, the PIO, vide letter dated 22.04.2010, provided the information on point no. 1 of the RTI application. However, the PIO denied the case diary in the following words:
"As per provisions u/s 172 CR.P.C. neither the accused nor his agent is entitled to call for or to see case diary maintained u/s 172 Cr.P.C. Moreover, being the case subjudice, it would be appropriate to seek permission from the trial court in this matter. Accordingly, on receipt of this directions of the trail court, if any, compliance will be made. Nevertheless, you can inspect the relevant complaint file on any day at PS Mehraulli and identify those documents so that the same will be considered and provided to you."
Aggrieved by the reply of the PIO, the Appellant filed an appeal before the First Appellate Authority (FAA). Sh. H. J. S. Dhaliwal, Dy. Commissioner of Police/ FAA, South Dist, vide order dated 4.06.2010 disallowed the first appeal of the Appellant with the observation that, " the PIO has denied the information on plea of Section 172 of Cr.P.C, whreas the PIO should have considered the denial under Section 8(1) of the RTI Act. It is worth mentioning here that the case is pending trial in the concerned court, at this juncture it is not appropriate to provide the case diary, as the disclosure of case diary can impede the process of trial." Hence, the present appeal before the Commission.
During the hearing the Respondents submit that the case diary cannot be provided to the Appellant, as per the Section 172 of Cr.P.C. On the other hand the Appellant pleads that RTI has an overriding effect over other laws and irrespective of bar of Section 172 Cr.P.C., the Case diary has to be disclosed to the Information seeker.
Section 172 Cr. P.C. reads as follows:
"172. Diary of proceeding in investigation (1) Every police officer making an investigation under this Chapter shall day by day enter his proceeding in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply."
Thus, it is clear that the Cr.P.C. specifically debars the disclosure of case diaries. Any deviation allowed will necessarily impede the process of prosecution and such information is exempted from disclosure under Section 8(1)(h) of the RTI Act. It is open to the appellant Shri Vinod Kumar to seek access to these records under the specific provisions of the Indian Evidence Act, 1872 before the Trial Court. It deserves mentioning here that the RTI Act has overriding effect only in case of inconsistency between the RTI Act and other law. However, the case diaries are exempted not only under CrPc, but also under Section - 8(1) (h) of the RTI Act.
Hon'ble Delhi High court in WP (C) No. 16712/2006 (Surender Pal Singh Vs UOI and Ors). Observed as follows:
"The Central Information Commission and the Appellate Authority and CPIO have held that the prosecution of the offender is pending before the Special Judge. If the prosecution of the offender is pending and not yet complete the information which is sought by the petitioner may impede the prosecution of the offender, cannot be faulted. The emphatic argument by the learned counsel for the petitioner that since the process of investigation is already over as the charge sheet has already over as the charge sheet has already been filed by the Central Bureau of Investigation is not correct. Exemption from disclosure of information can be claimed for any information which may impede the process of investigation or apprehension or prosecution of offenders. Since the charge sheet has been filed the process of investigation has been completed but the petitioner cannot contend that there is no apprehension with the respondent that the information sought by the petitioner may impede the prosecution of the offender. Whether the respondents have apprehension or not is to be decided by the respondents in the present facts and circumstances. The apprehension of the respondents is not without any basis. In any case the prosecution of the offender is pending. Since prosecution of the offender is pending and has not been completed, it cannot be inferred that divulgence of information will not impede the prosecution of the offender. The respondents, therefore, are justified in claiming exemption under section 8 (1) (h) from disclosure of information sought by the petitioner. The argument of the learned counsel for the petitioner that since the process of investigation has been completed as chargesheet has already been filed cannot be accepted and is contrary to all the circumstances under which exemption can be claimed under Section 8 (1) (h) of Right to Information Act, 2005."
Undoubtedly, RTI Act prescribes a regime providing for transparency and accountability in the system. It is also true that this law is to be interpreted in a liberal and not in restrictive terms. In other words, disclosure is the norm and nondisclosure, an exception. Yet the exemptions provided in section 8 (1) of the RTI Act have to be factored in while deciding the matter. The present case is squarely covered by the judgment dated 10.11.2006 of the Hon'ble Delhi High court in WP (C) No. 16712/2006 (Surender Pal Singh Vs UOI and Ors).
Hence, in view of the above discussion, the Commission finds no reason to interfere with the replies of the Respondents. The decisions of the Respondents are upheld.
(Sushma Singh) Central Information Commissioner 14082010