Central Information Commission
Ms. Anita J. Gursahani vs Cooton Corporation Of India/Cbi on 24 June, 2010
Central Information Commission
2nd Floor, August Kranti Bhawan,
Bhikaji Cama Place, New Delhi - 110 066
Website: www.cic.gov.in
Decision No. 5561/ IC (A)/2010
F. No. CIC/MA/A/2007/00386 &
CIC/MA/C/2008/00032
Dated, the 24th June, 2010
Name of Appellant: Ms Anita J. Gursahani &
Shri Jagdish V Gursahani
Name of Public Authority: Cotton Corporation of India/
Central Bureau of Investigation (CBI)
Appeal heard 10.05.'10
Decision announced 24.06.'10
Facts:
Ms. Anita Gursahani and Jagdish V. Gursahani vide their RTI request dated 18.4.2007 had sought following documents from CPIO, Cotton Corporation of India: -
(a) Letter dated 20-04-1994 of CBI-ACB, Bombay bearing Ref. No. 3/58(A)/91/AC-Bom. addressed to Mr. D.G. Jugran (IPS), Div. Vig, Air India Building, Nariman Point, Bombay-21, a copy endorsed to CMD, CCI, Air India Building, Nariman Point, Bombay.
(b) Letter Dated 05-10-1995 bearing Ref. No. 3/58(A)/91/Bombay addressed by SP-CBI/ACB, Bombay to CMD, CCI Ltd., Air India Building., Nariman Point, Bombay.
(c) Letter dated 4-01-1995 bearing Ref. No. 3/58(A)/91/Bom/C-17 addressed by SP-CBI/ACB, Bombay to CMD, CCI Ltd., Bombay.
(d) Letter dated 25-01-1996 bearing Ref. No. CCI/VIG/RECT/684 Vol. II/95-
96/941/12609 addressed to SP-CBI/ACB, Tanna House, N.P. Road, Bombay-39 issued by Mr. R.K. Kedia, the then G.M., CCI, Bombay in response to above three letters of SP-CBI/ACB, Bombay.
2. The 2nd appeal was disposed of by the Commission after hearing appellant no.2 in a Decision of 26..09.'07 by observing:-
1"The CPIO is, therefore, directed to furnish the information asked for after obtaining the concurrence of the CBI u/s 11(1) of the Act, at the earliest. As the CBI is a public authority, the appellants are also advised to directly approach the CPIO of the CBI for the required information.
The CPIO of the CBI is directed to examine the request of the appellants for disclosure of information asked for, as there is no ongoing investigation in the matter. The claim of exemption u/s 8(1)(h) of the Act, may not be justified, as the matter has already been disposed of by the court."
3. In response to these directions, the appellant filed an RTI request to CPIO, SP CBI and CGM (Finance), CPIO, CCI on 5/10/2007. The information asked for was contained in Para 5 of the RTI request:-
(a) Certified copies of letter Ref. No. 3/58(A)/91/AC-Bom.dated 20.4.1994 along with SP's report addressed to Mr. D.G. Jugran (IPS), Div. Vig - Air-India Building, Nariman Point, Bombay-
400021 by Mr. S.C. Jha, SP/CBI/ACB, with a copy marked to CMD, CCI, Air-India Building, Bombay. Mr. S.C. Jha enclosing draft Sanction Order for Appellants for signature from sanctioning authority with a request to treat SP's report sent herewith may be treated as "Confidential Documents" and no reference to it may be made charge-sheeting the accused - Sd/- S.C. Jha, SP Police, CBI/ACB/Bom.
(b) Certified copies of the letter Ref. No. 3/58(A)/91/AC-Bom. C- 4887 dated 5.10.1994 along with its enclosures addressed to CMD, CCI, Air India Building, Nariman Point by Mr. Y.P. Singh, SP, CBI/ACB/Bom. Mr. Y.P. Singh making reference of earlier endorsement No. 3/58(A)/91/AC-Bom/C-1662 dated 20.4.1994 (referred at "a") "Sending against draft Sanction Order" for Applicant No.1 for necessary action with a request to acknowledge the receipt.
(c) Certified copies of the letter Ref. No. 3/58(A)/91/Bom. C-17 dated 4.1.1995 along with its enclosure wherein Mr. Y.P. Singh SP/CBI/ACB informing CMD, CCI Ltd., that he is sending back the Sanction Order as certain discrepancies have been noticed and after correction "revised draft sanction order" is sent for sanction for filing charge sheet against Appellant No.1 in the Court.
(d) Further, the Appellant would like to take the certified photocopies of the required file notings, extracts, information, calculations, inward and outward entries of receipt and dispatch records of registers maintained by CCI for the information/documents referred hereinabove at Para 5(a), (b) & 2
(c) when the applicants carry out the above inspection pertaining to Sanction Order dated 31.1.1995.
4. This RTI request was replied to by CPIO Shri RK Kedia, CGM (Fin), Cotton Corporation of India on 26.10.2007 stating "Considering the above facts and circumstances, the undersigned concludes that the information sought by the applicants regarding the 3 correspondences is exempted from disclosure under Section 8(1)(h) and 8(1)(j) of the RTI Act, 2005 and accordingly, inspection of the connected record and supply of certified photocopies of the same are denied u/s 8(1)(h) and 8(1)(j) of the RTI Act, 2005". SP, CBI/ACB Mumbai Shri Praveen Salunke being CPIO also rejected the request in a letter of 24/10/'07stating "The requisite information sought by you cannot be provided as it falls under Section 8(1)(h) and (j) of the RTI Act".
5. A complaint of non-compliance was preferred by appellants u/s 18 of the RTI Act against the orders of CPIO/CBI-ACB as well as orders of CPIO/CCI on 15.11.2007
6. The Central Information Commission vide its order dated 01/04/2008 recorded that the CPIO of the Cotton Corporation of India Limited has stated that the information asked for and not furnished relates to CBI and cannot be furnished because CBI has not given concurrence for disclosure of the said information. The Commission in its order of 1.4.'08 advised appellant "to directly approach the CBI for disclosure of information, which is due to the CBI. The appellant is advised accordingly and the appeal is thus disposed of".
7. Against the decision of the Commission, the appellants approached the High Court of Delhi. The High Court of Delhi remanded the matter back to CIC with the following observations:
"6. The Central Information Commission by the impugned order dated 1st April, 2008 records that the CPIO of Cotton Corporation of India Limited had stated that the information asked for and not furnished relates to CBI and cannot be furnished because CBI has not given concurrence for disclosure of the said information. The Central Information Commission thereafter passed the following order :-
"Decision:
The information sought for relate to the CBI's investigation. The CBI is a public authority. The appellant is advised to 3 directly approach the CBI for disclosure of information, which is due to the CBI. The appellant is advised accordingly and the appeal is thus disposed of."
7. As noticed above, the CBI has already contended that the information sought for by the petitioners cannot be provided as it falls under Sections 8(1)(h) and 8(1)(j) of the Act. The Central information Commission was required to consider and examine the stand of the CBI whether or not the said exemption provisions apply to the facts of the present case. The impugned order passed by the Central Information Commission dated 1.4.2008 does not deal with the said contention. The matter is remanded back to the Central Information Commission to adjudicate and decide the stand of the CBI that the information sought for cannot be furnished and supplied in view of Section 8(1)(h) and 8(1)(j) of the Act."
8. The appellant vide letter dated 25.11.2009 informed the Registrar, CIC that he has been appearing before the trial court at Bombay on daily basis as per order dated 09.09.2009 passed by Hon'ble Bombay High Court, Appellate Side in appellant's Criminal Application No. 3765 of 2009. In view of the above, the appellant is unable to attend the office of the CIC on 1.12.2009 as per Delhi High Court Decision.
9. On 19.4.2010, the appellant sent a fax to Central Information Commission upon receipt of notice of hearing) stating that CBI matters are supposed to be heard by the Chief Information Commissioner and sought issuance of necessary directions and or an order for withdrawing the notice of Hearing under reference and by refixing the hearing of the CBI case of the subject matters before Hon'ble CIC under intimation to him in the interest of principles of natural justice and fair play. Chief Information Commissioner acceded to the request and decided to reconstitute the Bench hearing the case. The case was finally heard on 10.5.2010 after one adjournment on 17.2.2010, the following were present during the hearing:-
Appellant/s Absent
Respondent Shri Praveen Salunke DIG-ACB, CBI Mumbai.
Shri Ejaz Khan Sr. P.P. ACB, Mumbai (under Sec 5(4) of the RTI Act).
10. The appellants submitted a written submission on 23.4.2010 part of which is reproduced to understand the intention of appellants "The Applicant No. 2 vide 4 his 3 request letters Dated 19.3.2010, 7.4.2010 and 19.4.2010 prayed before the Commission that as per the work allocation of CIC Commissioners, the hearing of CBI case of the appellants be placed before Shri Wajahat Habibullah, the Chief Commissioner, if not then the appellants do not wish to appear before I.C. Prof M.M.Ansari." The Appellant also prayed for the following "Information sought at Paras 5a, 5b, 5c and at Para 5d be provided. At Para 5d both CPIOs are connected as per the records of their respective notings-inwards/outward records and calculations etc, while framing false case against the appellants are different and be ordered to furnish along with other information sought free of cost u/s 7(6) of the RTI Act, 2005. Penal Action u/s 20(1) and 20(2) be taken against FAA, PIOs with intimation to the Appellants. Cost and Compensation of Rs. One Lakh be ordered for payment to the Appellants."
11. The Commission also has before it the judgment of High Court of Judicature of Bombay dated 9.9.2009 in Jagdish Gursahani (appellant No. 2 in the present case before us) vs. Asst Collector of Customs (Preventive) & Anr. wherein it is ordered as follows:
(i) The Respondent No. 1 will examine their witnesses on a day-to-
day basis before the trial Court. The trial Court shall allow such examination, subject to any work of an emergent nature.
(ii) Both the parties undertake not to seek adjournment on any count. The undertaking is accepted.
(iii) The trial Court shall dispose of the trial within a period of 3 months from the date parties appear before it. The parties are directed to appear before the trial court on 22.09.2009.
12. The Central Bureau of Investigation submitted that the denial of information u/s 8 was justified because appeal in High Court is a continuation of prosecution until it reaches finality and therefore disclosing information sought would impede the process of prosecution of offenders. CBI also stated that nowhere during the course of trial, which commenced in the year 2002 and concluded in the year 2003, the appellant applied before the court for producing such documents under the provisions of the Cr.PC. Even during the examination 5 of sanctioning authority, they did not call for these documents and therefore at this stage the documents are being called for the purpose which is clearly prohibited by law as per Section 19(1)(4) of PC Act 1988 and also they have given a different ground on their RTI application for seeking information.
13. CBI has hence relied on Section 19 of Prevention of Corruption Act 1988 which states:-
Previous sanction necessary for prosecution (1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,--
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed. (3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(a) no finding, sentence or order passed by a special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of 6 revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings. (4) In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.
Explanation.--
For the purposes of this section,--
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature".
14. The Central Information Commission has considered the rival contentions of the parties Decision Notice
15.The facts as these exist on date are:-
1. That CBI, ACB Mumbai has registered an offence u/s 13(1)(e) r/w 13(2) of PC Act against the Appellants for possessing property disproportionate to their known sources of income. After completion of the investigation the charge sheet was filed in the Court of Special Judge Mumbai vide special case No. 19/1995.
2. Both the appellants were individually convicted for the offence punishable under section 13(2) r/w section 13(1)(e) of PC Act 1988 and are sentenced to suffer R.I. for one year each and to pay a fine of Rs. One Lakh each and in default of payment of fine, to suffer further R.I. for 6 months each.
3. Both the appellants have filed appeal in Bombay High Court Mumbai vide Criminal Appeal No. 942/2003.
16. Central Information Commission has recently held in Appeal No. CIC/AT/A/2008/01238 -
"It is their (CBI's) case further that allowing appellant to access a set of material, which Prosecution has chosen not to bring before the Trial Court and which appellant was free to seek to be 7 provided to him through the Trial Court through an RTI- proceeding would inflict substantial harm on the Prosecution's case and disturb the entire structure of their argument before the Court. Providing such information to the appellant through RTI will deny the respondents the right to lead arguments before the Trial Court as to why the requested information should not be disclosed to the appellant/the accused in the prosecution. This will be compromising the respondents' right under the criminal law of the land; would also amount to interfering with the course of justice extant before the Trial Court. Once the prosecution had been started before a Trial Court, all matter related to that trial come under the control of the Court. It follows from it, that any claim by the accused (appellant in the present appeal) to access information, material or evidence relating to the prosecution, held by the public authority (prosecutors before the Trial Court and respondents in the present appeal), should be arbitrated only by the Court, who alone has the power and the competence to weigh respective positions of the prosecutors and the accused, to decide whether the latter should be allowed to receive any material germane to the prosecution as held by the prosecuting public authority."
17. The position applies in the present case also. The information, which is being sought, can be had from the competent court trying the case. Any discretion exercised under RTI Act would amount to impeding the process of investigation or apprehension or prosecution of offenders. The appellate authority and the CPIO, CBI have correctly taken the stand that the information is exempt from disclosure under Sec. 8(1) (h) of RTI Act, 2005. An accused in an ongoing prosecution is free to demand access to any information he considers necessary and appropriate for his defence and the Trial Court after considering the matter in which the prosecuting side is also given a chance to present its arguments makes a decision about whether or not to abide by an accused's request. As has been so succinctly held in the ruling of the Mumbai High Court in Shri Jagdish V Gursahani's case quoted by us above, this is a matter that is entirely within the jurisdiction and the discretion of the Trial Court. To allow an accused access to a set of information known to be related to an ongoing prosecution proceeding through action under the RTI Act, would amount to prejudging the matter for the Trial Court and hence would impede the prosecution in progress. In that sense, it would attract Section 8(1)(h) of the RTI Act.
818. Appellants were entirely free to approach the Trial Court for access to the very same information they now wish to be provided to them through the RTI Act. By bringing this matter under the RTI Act, appellant's design was to deny the respondents the right to argue against the disclosure of information before the Trial Court, who alone had the power and the discretion to make a decision in a matter such as this. Apart from seeking tactical gains for himself vis-à-vis the respondents, appellant had also indirectly cast aspersions on the objectivity and the judgment of the Trial Court. It is thus obvious that in the matter of access to the requested information, appellant is not helpless. He can seek the same information through the Trial Court in full measure and should he succeed in persuading the Court he would have received the records and documents that he is now seeking to access through RTI Act.
19. In S.M .Lamba Vs. S.C. Gupta and another Delhi High Court has that This court would like to observe that under the Code of Criminal Procedure, 1973 once the stage of an order framing charges have been crossed, it would be open to the accused to make an appropriate application before the learned trial court to summon the above documents in accordance with the law." This echoes an earlier judgment of Delhi High Court in S.P. Singh Vs. UOI & Ors where the court held as follows:-
"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 of 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 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 9 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."
20. This brings us then to the orders of the Delhi High Court in remanding this case to the Commission with, while stating that the decision did not express any view on the disclosability of the information sought, the express direction "to adjudicate and decide the stand of the CBI that the information sought for cannot be furnished and supplied in view of Section 8(1)(h) and 8(1)(j) of the Act." This ruling must be seen in the context of the judgment of the Delhi High Court in W.P.(C) No.3114/2007 - Shri Bhagat Singh Vs. Chief Information Commissioner & Ors, which is of relevance, since it deals with 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 remarked 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 U.P. vs. Raj Narain, (1975) (4) SCC 428. This view was followed by the Supreme Court 10 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 power. 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 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."
21. In this case the Court took serious notice of the two-year delay in releasing of information and the lack of adequate reasoning of the orders of PIO and 11 appellate authority. S Ravinder Bhat J specifically notes, "As held in the preceding part of the judgment, without a disclosure as to how the investigation process would be hampered by sharing the materials collected till the notices were issued to the assessee, the respondents could not have rejected the request for granting information.1" The simple conclusion that we might draw from this order is that information cannot be refused by simply reference to a clause, without explaining reasons how such disclosure would in fact impede the processes described. To this extent the CPIO CBI can be said to have erred in simply refusing disclosure "as it falls under Section 8(1)(h) and (j) of the RTI Act." Nevertheless, now having heard the respondents' detailed substantiation of their plea u/s 8(1) (h) we are convinced that such disclosure in the present case, particularly in light of our discussion in Para 17 above, could so impede the process of prosecution. We, therefore, dismiss the appeal filed by the Appellants and uphold the stand taken by CBI in refusing the information sought.
22. Reserved in the hearing, this decision is announced on this twenty-fourth day of June 2010 in open chambers. Notice of the decision be given free of charge to the parties Sd/- Sd/-
(Wajahat Habibullah) (Prof. M.M. Ansari)
Chief Information Commissioner Information Commissioner
Authenticated true copy, additional copies of the order shall be supplied against application and payment of charge prescribed under the Act to the CPIO of this Commission.
( M.C. Sharma ) Assistant Registrar 1 Para 15 of the judgment.
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