Central Information Commission
Mr. Rajesh Harshwal vs Govt. Of Nct Of Delhi on 17 November, 2009
CENTRAL INFORMATION COMMISSION
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Decision No. CIC/SG/A/2009/002422/5562
Appeal No. CIC/SG/A/2009/002422
Relevant Facts emerging from the Appeal:
Appellant : Mr. Rajesh Harshwal S/o Sh. Sita Ram,
R/o Plot no. A-516, Tara Nagar-A,
Jhotwara, Jaipur - 12
Respondent : Mr. Mukul Koranga
Public Information Officer & Dy Secretary Home (General), Govt. of NCT of Delhi 5th Level, A-Wing, Delhi Sachivalaya, I.P.Estate, New Delhi - 110002 RTI application filed on : 09/03/2009 PIO replied : 09/04/2009 First appeal filed on : 05/05/2009 First Appellate Authority order : 29/05/2009 Second Appeal received on : 25/09/2009 Date of Notice of Hearing : 13/10/2009 Hearing Held on : 17/11/2009 Sl. Information Sought PIO's Reply
1. On what basis an on whose instance the The request for withdrawal was received from major process for withdrawal of the case R.K.Kaushal through the office of Hon'ble L.G. The initiated and final decision was taken for competent authority while exercising the powers issuing order / directions for withdrawal conferred u/s 321 Cr.P.C. ordered withdrawal of case of case against Major General (Retd.) only in respect of Maj.R.K.Kaushal. As the R.Kauashal? Please provide the entire application of the State Government for withdrawal material. In this regard. of case against Maj. Genl Kaushal is sub-judice and also that the information sought relates to third party the same cannot be given under section 8(1)(j) of the RTI Act.
2. What are standing orders/written The state government is employed to move guidelines available with the application through APP in the respective court for Government of NCD of Delhi, on the withdrawal of the cases as per provision of 321 basis of which sanction is accorded for Cr.P.C. However, court is final authority to accept or withdrawal of the case, as per the reject the recommendation of the State government. provision of Section 321 Cr.P.C.? As regards to the guidelines the same being a Please provide the copies of the said confidential documents cannot be provided. standing orders/ written guidelines. To the applicants in this regard.
3. Why no notice and/ or any letter was 3 & 4: There is no provision to consult or call the issued to the complainants before taking other parties while examining / recommending the the final decision for issuing order / case for withdrawal by the screening committee. As directions for withdrawal of case against on the suggestion of Screening committee, the Major General (Retd.) R.K.Kaushal ? competent authority only recommends to make please respond. application before the competent court for
4. Why was the rule of principle of natural withdrawal of case. The respective court decides the justice not followed before taking the issue of withdrawal after having views and having final decision for issuing order / heard arguments of all the parties related with the directions for withdrawal of case against case.
Major General (Retd.) R.K.Kaushal ?Please respond.
5. Which officer and from which The Home Department conducts meeting of concerned department participated in all screening committee consisting of the officers of the the meeting / committee, before taking following departments to examine the request of the final decision for issuing order / withdrawal of FIRs / cases and submit its directions for withdrawal of case against recommendation through competent authority:-
Major General (Retd.) R.K.Kaushal ? 1- Home Department please inform and respond accordingly. 2- Law & Judi Department 3- Police Department.
4- Directorate of Prosecution Accordingly the said case was also considered along- with the other cases by the Secreening Committee consisting of offcers from the above said department.
6. Please supply copies of all the Transferred to EOW/DCP/HQ.
comments/ replies/office noting issued and received by this office from the office of Joint Commissioner of Police (Crime) and EOW, Crime Branch, New Delhi, submitted in the Screening Committee, before taking the final decision for issuing order/ directions for withdrawal of case against Major General (Retd.) R.K.Kaushal?
7. Did the office of the investigating Yes, in all such cases, views of police as well as agencies i.e. EOW, Crime Branch, New Directorate of Prosecution are called on receipt of Delhi, placed on record, in writing or any request for withdrawal of the case. However, the otherwise their point of view in Screening committee recommends the case for watching the final decision for issuing withdrawal or otherwise on the basis of deliberations order / directions for withdrawl of case taking place during the meeting. Since the copies of against Major General (Retd.) documents sought by you contains the views of the R.K.Kaushal? The said information / police EOW, therefore the same has been transferred Comments may also be supplied to the to DCP/HQ and DCP/EOW for taking further undersigned complainants. necessary action.
8. On what grounds/ reason has the final After considering all the aspects of the case the decision taken for withdrawal of the Competent Authority in exercise of the powers case against Major General (Retd.) conferred under the provision of 321 Cr.P.C. the R.K.Kaushal, who is the main and competent authority ordered the withdrawal of case principal accused in the case. The said against Maj.Gen. (Retd.) R.K.Kaushal only and information (Grounds and reasons for accordingly the Directorate of Prosecution was taking final decision) be also supplied to requested to move an application through the the undersigned complainants. concerned APP for the withdrawal of case FIR no 671/2004, PS Karol Bagh only in respect of Maj.
Genl. Retd R.K. Kaushal.
9. The copy of final order passed by the Copy of the letter written to DOP cannot be provided office of Lt. Governor, for taking the u/s/ 8(1)(j) as it contains information in respect of final decision for issuing order / other cases also. directions to the office of DOP, Delhi for instruction the withdrawal of case against Major General R.K.Kaushal be also supplied.
First Appeal:
Incomplete & Incorrect information provided.
Order of the FAA:
The First Appellate Authority in his order states that, "On the perusal of the contents of the appeal, reply submitted by the SPIUO and also the case file the reply furnished by the SPIO vide letter no. F14/7/2009/HG/1344-1345 dated 9.4.09 was found to be correct and the SPIO has rightly invoked the provisions of Section 8(1)(j) of RTI Act 2005."
Ground of the Second Appeal:
Answer to query no. 3, 4 & 5 are not yet given by the PIO.
Relevant Facts emerging during Hearing:
The following were present:
Appellant : Mr. Rajesh Harshwal;
Respondent : Mr. Vineet Kumar on behalf of Mr. Mukul Koranga, PIO & Dy. Secretary(H.G.);
The Commission is looking at the queries where information has not been provided as under:
Query-1: The material based on which the decision was taken to withdraw the case against Major General (Retd.) R.K.Kaushal has not been provided claiming that it is subjudice, third party and covered under Section 8(1) (j). This will include the reasons given by EOW or any other reasons.
The PIO is asked to justify how Section 8(1)(j) would apply. The PIO had offered no justification initially or before the Commission. In view of this the minutes of the committee and file notings if any of the Lt. Governor and any other material based on which the decision for withdrawal of the case could have been taken.
Query-2: The PIO states that the guidelines have been made for the internal assessment of the screening committee recommendations. However he states that there are internal orders stating that these guidelines should not be made public. This order is illegal and cannot be used to deny any information. Citizen certainly have a right to know the guidelines based on which decisions are taken to withdraw cases, grant paroles and all such matters. The PIO is directed to give the copy of the guidelines based on which the internal assessment of the screening committee recommendations are used for deciding which cases to withdraw.
Query-5: The PIO is directed to give the names of the officer with designations who participated in the meeting/committee in which the decision was taken to withdraw the case against Major General (Retd.) R.K.Kaushal.
Query-9: The PIO is directed to give the copy of the final order of the Lt. Governor.
The PIO is directed to ensure that some justification and reasons are given in his order whenever he wishes to deny the information.
Decision:
The Appeal is allowed.
The PIO is directed to give the information as directed above to the Appellant before 30 November 2009.
This decision is announced in open chamber.
Notice of this decision be given free of cost to the parties. Any information in compliance with this Order will be provided free of cost as per Section 7(6) of RTI Act.
Shailesh Gandhi Information Commissioner 17 November 2009 (In any correspondence on this decision, mention the complete decision number.)(RM)