Central Information Commission
Shri Vijendra Rana vs Ministry Of Defence (Navy) on 4 August, 2008
CENTRAL INFORMATION COMMISSION
Appeal Nos.CIC/WB/A/2008/00970 & 812 dt. 9.6.2008 & 2.5.2008 respectively.
Right to Information Act 2005 - Section 19
Appellant - Shri Vijendra Rana
Respondent - Ministry of Defence (Navy)
Facts:
These are two appeals from Shri Vijendra Rana, Ex-Commander Navy, at present in Central Jail, Tihar, New Delhi.
1) FILE NO. CIC/WB/A/2008/00970 By an application of 7-3-2008 Shri Vijendra Rana, Ex. Cdr. Navy, applied to the Cdr.-at-Arms Shri S.K. Gupta, CPIO, Navy, Ministry of Defence (Navy) seeking the following information:
"(a) Confirm whether the BOI was convened to collect evidences or to report completely on the issue as laid down in Regulation 200 (G) of Regs. Navy Part II.
Accordingly, please also provide the convening order of this BOI.
(b) Was at any stage of BOI it came to the notice of the Board that this inquiry may affect the character or reputation of the applicant or may result in any imputation of liability and any blame may be attributed to him?
(i) If yes, please specify at what stage was the
applicant afforded an opportunity to be
present through out the BOI and make any
statement and of giving any evidence in
his favour and cross examine witnesses in
accordance with Regs. 205- Regs. Navy Part-II.
Also provide a copy of certificate to this
effect as given at Para 31 of Navy Order (Spl)
2/2002 regarding Board of Inquiry.
(ii) If no- please specify so.
(c) During and for the conduct at this BOI, were all the
material evidences used against the applicant collect handled and stored according to the Indian Evidence act 1872 as also envisaged at Section 130 of the Navy Act 1957?
1(d) During and for the conduct of this BOI, were all cyber related material evidences used against the applicant collected, handled and stored according to procedures laid down in Information Technology Act 2000?
(e) Please refer to Para 44 and 49 of the Navy order (Spl) 2/2002 and please provide information on the following:-
a. Were all the material evidences/ exhibits against the applicant collected with the help of experts?
b. Were these material evidences/ exhibits sealed on seizure and the same recorded in the BOI proceedings?
c. Were these material evidences/ exhibits
examined and reported upon by authorised
laboratories?
d. On completion of the BOI, did the Board sealed
and preserved all the material evidences (used against the applicant) with an appropriate office of the Dte of Personnel Services?
e. Please provide chain of custody, seizure
memos and handing/ taking over records.
f. Was at any stage, any attempt ever made by
the BOI to call/ summon any civilian
witness(s) to depose before the Board? If yes, please provide copy of the summon order or any other communication in accordance with Reg. 233 of Regs. Navy Part II. If No, please specify so.
(g) Has the Navy at any stage informed the Central Bureau of Investigation about Regulation 207 of Regs. Navy Part-II which specifically debars the proceedings of a board or any confession, statement or answer to a question made or given before a board, from being used/ admissible in evidence? If yes, please provide a copy of such a letter. If no, please specify so.
(h) Please provide a copy of chapter VIII, discipline-
miscellaneous provisions of Regs. Navy part II.
3. It is reiterated that the liberty of the applicant is being affected due to the information being sought and accordingly the information may please be provided within 48 hours of receipt of this request, by speed-post, as stipulated at Section 7 of the RTI Act 2005."
Although in his reply of 18-3-08 Cdr. At Arms Shri S.K. Gupta provided the copy of Chapter VIII Discipline & Miscellaneous Provisions of Regulation 2 for Navy Part-II, the disclosure of other information regarding the Board of Inquiry Report was denied u/s 8 (1) (h) of the RTI Act, which was upheld in his first appeal and reinforced with exemption from disclosure u/s 8(1) sub- section (a). This issue has become the substance of Shri Rana's prayer before us which is as follows:
"To be provided with information sought on the conduct of Naval Board of Inquiry held in July/ August 2005 as per attached details.' This prayer is supported with the following request:
"The appeal has been compiled and is being sent from jail where the appellant is bounded by lots of extraneous factors beyond his control. Accordingly, it is humble request that if at all any requirements are overlooked by the appellant, the same may please be condoned.
Further, it is requested that the appeal may please be expedited as the information requested is Life and Liberty issue and directly affects the personal liberty of the appellant."
The appeal was heard on 16-7-2008 at Central Jail No 1, Tihar, New Delhi. The following are present:
Appellant Shri Vijendra Rana, Ex. Cdr.
Shri Ravi Kant Sharma, C/o Tihar.
Cdr (Retd) Mukesh Saini, C/o Tihar.
Respondents Cdr A. Ghosal, PDPS.
Cdr H. Gupta, JAG (N).
Cdr-at-Arms S. K. Gupta, PIO (Navy).
Whereas the appellant has pleaded that under Regulation 209 (a) of Chapter VII of Board of Inquiry of Regulation Navy Part II would allow for the disclosure of this information which is moreover supported by the fact that the charge sheet against him states that the Board of Inquiry Report was the basis of his dismissal, respondents have on the other hand submitted that the dismissal of appellant Shri Vijendra Rana may have been influenced by the Board of Inquiry but this Board of Inquiry Report was, in fact, not the basis of the dismissal, the latter having been by an order dated 26-10-05 issued by Ministry of Defence, shown to us in the hearing. Respondents have also pleaded that under Regulation 209 cited above, the Chief of the Naval Staff 3 may see reason not to allow access to the report of Board of Inquiry and so order otherwise which is the case in the present application.
Under the judgment of Delhi High Court in W.P.(C) No.3114/2007 - Shri Bhagat Singh Vs. Chief Information Commissioner & Ors it has been clearly enunciated by Justice Ravindra Bhat that the disclosure under the RTI Act 2005 is the rule an exemption u/s 8 (1) only the exception. In light of this, before we take a decision as to whether the conclusion of MoD (Navy) to exempt disclosure of the proceedings of the Board of Inquiry to appellant Shri Vijendra Rana is justified we will require to inspect the Board of Inquiry file This report, together with requisite file, was therefore directed to be presented to us on 28-7-2008 at 4.00 p.m. in confidential cover by a representative of the Navy (Hq.) who will after the inspection carry this file, again in a sealed cover, back to Navy (Hq.).
2) FILE NO. CIC/WB/A/2008/00812 By an application of 6-3-2008 Shri Vijendra Rana, Ex. Cdr. Navy, at present in Central Jail, Tihar, New Delhi applied to the Cdr. at Arms Shri S.K. Gupta, CPIO, Ministry of Defence (Navy) seeking the following information:
"I may please be provided with a copy of the BOI proceedings since I am under trial for the subject matter reported by the board and also was subject to penal law when the board proceedings were drawn."
It is reiterated that the liberty of the applicant is affected due to the information being sought and, therefore, the information may please be provided within 48 hours of receipt of this request by Speed Post, as stipulated at Sec 7 of RTI Act, 2005."
Although in his reply of 18-3-08 Cdr-at-Arms Shri S.K. Gupta provided the copy of Chapter VIII Discipline & Miscellaneous Provisions of Regulation for Navy Part-II, the disclosure of other information regarding the Board of Inquiry Report was denied u/s 8 (1) (a) of the RTI Act, which was upheld in the first appeal. This issue has become the substance of Shri Rana's prayer before us which is as follows:
"To be provided with a certified copy of the Naval Board of Inquiry held in July/ August 2005."4
This prayer is supported with the following request:
"The appeal has been compiled and is being sent from jail where the appellant is bounded by lots of extraneous factors beyond his control. Accordingly, it is requested that if at all any requirements are overlooked by the appellant, the same may please be condoned. Further, it is requested that the appeal may please be expedited as the information requested is affecting the personal liberty of the appellant."
The appeal was heard on 16-7-2008 at Central Jail No 1, Tihar, New Delhi. The following are present:
Appellant Shri Vijendra Rana, Ex. Cdr.
Shri Ravi Kant Sharma, C/o Tihar.
Cdr (Retd) Mukesh Saini, C/o Tihar.
Respondents Cmdr A. Ghosal, PDPS.
Cmdr. H. Gupta, JAG (N).
Cdr-at-Arms S. K. Gupta, PIO (Navy).
Whereas the appellant has pleaded that Regulation 209 (a) of Chapter VII of Board of Inquiry of Regulation Navy Part II would allow for the disclosure of this information which is moreover supported by the fact that the charge sheet against him states that the Board of Inquiry Report was the basis of his dismissal, respondents have on the other hand submitted that the dismissal of appellant Shri Vijendra Rana may have been influenced by the Board of Inquiry but this Board of Inquiry Report was, in fact, not the basis of the dismissal, the latter having been by an order dated 26-10-05 issued by the Ministry of Defence, the file copy of which was shown to us. Respondents have also pleaded that under Regulation 209 cited above, the Chief of the Naval Staff may see reason not to allow access to the report of Board of Inquiry and so order otherwise, which is the case in the present application.
Under the judgment of Ravindra Bhat J, Delhi High Court in W.P.(C) No.3114/2007 - Shri Bhagat Singh Vs. Chief Information Commissioner & Ors it has been clearly enunciated that disclosure under the RTI Act 2005 is the rule, and exemption u/s 8 (1) only the exception. On Section 8 (1) (h) Justice Ravindra Bhat has specifically held as follows:
Para 13. "Access to information under Section 3 of the Act, is the rule and exemptions under Section 8, the exception.5
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."
In light of the above we find that since the prosecuting agency in this case is CBI which, as respondents have submitted during the hearing had in fact sought the clearance of the Navy (Hq) to disclose the Board of Inquiry report at the time of filing charge sheet, which was turned down by Navy Hq., and the CBI is in fact the prosecuting agency in this case, there could be no justification for withholding disclosure u/s 8 (1) (h) of the RTI Act, 2005.
The point at issue is therefore the application of Sec 8(1) sub-section. As decided in file No. CIC/WB/A/2008/00970, before we can determine as to whether the conclusion of MoD (Navy) to exempt disclosure of the report of the Board of Inquiry to appellant Shri Vijendra Rana is reasonable we will require inspecting the Board of Inquiry Report. This report, together with requisite file, was therefore directed to be presented to us on 28-7-2008 at
4.00 p.m. in confidential cover in our office chambers by a representative of the Navy (Hq.) who will after the inspection carry this file, again in a sealed cover, back to Navy (Hq.).
Accordingly, the complete file on the Board of Inquiry including the Board of Inquiry Report was submitted on 28.7.2008 by the following :
Cmde. A Ghosal, PDPS Cmd. H. Gupta, JAG (N) CDR-at-ARMS S. K. Gupta PIO(N) On a clarification sought by us Cmde. A. Ghosal, PDPS submitted that the case concerning Shri Surve, Ex-Wg Cmdr which apparently was disclosed 6 to Shri Surve under High Court Orders in WP(Civil) 3391 0f 2007 was a different case and the Board of Inquiry was also different. Shri Surve was court martialled by the Air Force but the present case before us is a Board of Inquiry leading to a regular trial.
Thereafter the file was inspected by us. At Exhibit No. 6 and 8 of the file are statements in the hand of appellant Shri Rana. The first statement is undated, but is perhaps also of an early date in Aug. 2005. The second carries a date of 10.8.05. Respondents pleaded that given the admission of guilt contained in these statements, disclosure of the proceedings of the Board of Inquiry will disclose the modus operandi of the entities inimical to the nation's security interests and will identify the agencies handling different subjects.
The recommendations of this Board of Inquiry are contained at page 193, which were examined. Respondents, however, submitted that the dismissal order of 26.10.05 was the order on the basis of which appellant Shri Rana was dismissed and not the recommendations on page 193 of the file. The full documents concerning the Board of Inquiry proceedings with supplements were submitted for our inspection. These contain information on the circumstances leading to the breach of information security and the manner in which security was so grievously compromised. In the view of respondents, disclosure of these documents would enable future hostile elements to the ideas of how they may access any information sought.
DECISION NOTICE From the above it will be clear that the proceedings of the Board of Inquiry and the Board of Inquiry Report itself are a part of a single file and a single process. The information sought in both files, therefore, is identical because a copy of the Naval Board of Inquiry would include a copy of the proceedings sought in the second file. However, to determine whether any part of this information can be disclosed under the principle of severability as contained in Section 10(1) of the RTI Act, 2005, we have also examined the report in the case of Shri Surve, ex-Wg Cmdr. In this case a Division Bench of 7 the Delhi High Court has ruled in a decision of Shri T.S.Thakur J. and Shri S.N. Aggarwal, J of May 8, 2007 in the case of ex-Wing Cdr. S. L. Surve vs. Union of India and another as follows:
"We have heard the learned counsel for the parties at some length and perused the record. Mr. Puneet Khurana, Counsel for the respondents placed before us the official file to show that the denial of the court of inquiry proceedings was preceded by a proper consideration of the issue at different levels in the Air Force hierarchy including the Chief of the Air Staff. He submitted that although the proposal initially put up to the Chief of the Air Staff was that the sensitive portion of the Court of Inquiry proceedings which contained information, disclosure whereof would adversely affect the country's security, could be withheld and the rest of the proceedings furnished to the petitioner, the denial of the Court of Inquiry proceedings eventually came on account of the CBI apprehending that the ongoing prosecution would be affected by the disclosure of the information contained in such proceedings 1 . He further submits that the Court of Inquiry proceedings excluding the part which contains sensitive information can be furnished to the petitioner even now in compliance with the requirements of Rule 156(7) of the Rules mentioned above and the petition disposed off finally. A plain reading of Rule 156(7) of the Air Force Rules extracted earlier would show that the opinion of the Chief of the Air Staff regarding desirability of furnishing the copies of the proceedings is final. In the circumstances, if the respondents do not consider it desirable to furnish to the petitioner any information which is, in their opinion sensitive to the security of the country, no direction can be issued to them to necessarily furnish the said information.2 The rest of the proceedings of the Court of Inquiry which do not involve any security hazards can however, be safely provided to the petitioner to enable him to seek appropriate legal remedy in a competent Court as was agreeable to the respondents also in the course of the hearing.
In the circumstances, therefore, we allow this petition but only in part and to the limited extent that the respondents shall furnish to the petitioner the Court of Inquiry proceedings held against him excluding such portion from the same as are considered to be sensitive from the security point of view. We make it clear that the Chief of Air Staff shall be free to take a proper decision regarding the portions of the Court of Enquiry proceedings to be withheld from the petitioner which decision shall be final and binding on the petitioner."1
Emphasis ours for ease of reference 2
-do-
8The Hon'ble High Court has come to this decision after specifically considering rule 156 (7) of the Air Force Rules 1969 which are identical to Regulation 209 of Chapter 7 of Board of Inquiry Regulation (Navy) Part-II. It would seem that in the Surve case the Air Force had indeed held an identical Court of Inquiry, but while the Air Force had withheld disclosure under the advice of CBI, as highlighted in the quote above, in the present case the opposite is the principle followed. However, it is not for this commission to substitute its opinion on what would or would not compromise national security for that of an authority actually charged with defending India's maritime defence, provided that such a decision is in fact arrived at after careful thought at the highest levels of that authority. Therefore, in light of the decision of the Hon'ble High Court of Delhi in W.P. (Civil) No. 3391 of 2007 dated May 8, 2007 and in accordance with the principle of severability u/s 10(1) both appeals are allowed in part in that the Chief of the Naval Staff will re-examine, with specific reference only to Sec 1 sub-section (a), and not Sec 8(1) (h) the disclosure of the recommendations of Board of Inquiry contained in Page 193, a copy of which will, if so agreed, be provided to appellant Shri Vijendra Rana within ten working days of the date of receipt of this Decision Notice. On the other hand, the Chief of Naval Staff shall be free to take a decision regarding any other portions of the Board of Inquiry proceedings that he feels can be disclosed to appellant Shri Vijendra Rana in light of the exemption u/s 8(1) (a) and provide him copies of the same, or. At any rate, a letter of refusal also to be served by the above date.
Both appeals are disposed of accordingly. Announced in the open chamber on 4.8.08.
Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 4.8.2008 9 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 4.8.2008 10