Central Information Commission
Mrgulab Singh Rana vs Indian Overseas Bank on 21 April, 2016
Central Information Commission, New Delhi
File No. CIC/SH/A/2015/001081
Right to Information Act2005Under Section (19)
Date of first hearing : 19th February 2016
Date of first order : 9th March 2016
Date of second hearing : 18th April 2016
Date of second order : 21st April 2016
Name of the Appellant : Shri Gulab Singh Rana
General Manager, O/o. the Indian
Overseas Bank, Central Office,
P. B. No. 3765, 763, Anna Salai,
Chennai 600002
Name of the Public : Central Public Information Officer,
Authority/Respondent Indian Overseas Bank,
Central Office, P. B. No. 3765, 763, Anna Salai, Chennai 600002 RTI Application filed on : 30/09/2014 CPIO replied on : 13/10/2014 First Appeal filed on : 27/10/2014 First Appellate Authority order on : 16/12/2014 2nd Appeal received on : 30/03/2015 Attendance during the hearing on 19.2.2016.
The Appellant was present at the NIC Studio, Chennai along with Advocate S. Sathiaseelan.
CIC/SH/A/2015/001081 On behalf of the Respondents, Shri P. Madhavan, DGM was present at the NIC Studio, Chennai.
Attendance during the hearing on 18.4.2016.
The Appellant was present at the NIC Studio, Chennai along with Advocate S. Sathiaseelan.
On behalf of the Respondents, Shri P. Madhavan, DGM was present at the NIC Studio, Chennai.
Shri Prashant Srivastava, DSP was present in person on behalf of the Central Bureau of Investigation.
Information Commissioner : Shri Sharat Sabharwal This matter pertains to an RTI application filed by the Appellant, seeking information on the following nine points: "1. Copy of request letter received from CBI for seeking sanction for my prosecution.
2. Copy of internal office memorandum containing the opinion / views of my Disciplinary Authority for giving sanction for my prosecution based upon my reply date 01.12.2012 to the first explanation letter dated 18.10.2012 issued to me.
3. Copy of first advice given by CVC, New Delhi.
CIC/SH/A/2015/001081
4. The outcome of the reconciliatory meeting between my Disciplinary Authority and CBI called by Central Vigilance Commissioner at the office of CVC, New Delhi.
5. The copy of any further clarification sought by CVC after the reconciliatory meeting and if so, copy of Bank's reply thereto.
6. The copy of internal office memorandum containing the opinion/ views of my Disciplinary Authority for giving sanction for my prosecution based upon my reply dated 03.07.2014 to the second explanation letter dated 20.06.2014 issued to me.
7. The copy of latest correspondence from CVC requesting / advising the bank again for sanction of my prosecution.
8. The copy of internal office memorandum containing the opinion / views of my present Disciplinary Authority based upon which the permission is given by the Bank to CBI for my prosecution.
9. Copy of Draft sanction supplied by CBI."
2. The CPIO responded on 13.10.2014 and stated the following: "Please note that the public authority within the meaning of Section 2 (n) of the RTI Act is itself a thirdparty relating to any information which it holds confidentially. Therefore, disclosure of the records and documents as sought by you, which are potential of detrimental to the interest of the organization, cannot be shared with anyone.
CIC/SH/A/2015/001081 Also, the copies of such records and documents attracts exemption under Sec 8 (1) (d), (g) and (h) of RTI Act 2005."
3. Disposing of the first appeal dated 27.10.2014, the FAA, in his order dated 16.12.2014, stated that the information was exempted from disclosure under Section 8 (1) (d), (g) and (h) of the RTI Act.
4. Not satisfied with the order of the FAA, the Appellant filed an appeal under Section 19 of the RTI Act to the Commission. In the grounds for appeal, he has stated that the CPIO has not been able to establish that disclosing the information would impede the process of prosecution. In this context, he has cited the following observations made by the High Court of Delhi in Bhagat Singh vs. CIC [W.P.(C) No. 3114/2007]: "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 itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an 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 CIC/SH/A/2015/001081 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." The Appellant has further stated that as per Section 19 (5), the onus to prove that a denial of request was justified shall be on the CPIO who denied the information. According to him, the investigation by the CBI is already over, since a charge sheet has been filed against him and others, the offenders are apprehended and prosecution was initiated. He contends that disclosure of the information sought by him would neither impede the process of investigation or apprehension nor prosecution of offenders.
Hearing on 19.2.2016
5. The matter came up on 19th February 2016. The Respondents stated that criminal proceedings against the Appellant are in progress in the court of Special Judge, CBI, Saket, New Delhi. The Appellant has sought details concerning the sanction for prosecution granted to the CBI. In this context, they referred to the Second Schedule to the RTI Act, read with Section 24, and argued that the RTI Act does not apply to the CBI. They further submitted that the information sought by the Appellant is exempted from disclosure under Section 8 (1) (g) and (h) of the RTI Act. Elaborating invocation of Section 8 (1) CIC/SH/A/2015/001081
(g), they stated that disclosure of the details concerning the process of grant of sanction for prosecution could endanger the officers who participated in the process. Further, the information is exempted from disclosure under Section 8 (1) (h) as its disclosure would impede the ongoing process of prosecution in the CBI Court.
6. Speaking on behalf of the Appellant, Advocate S. Sathiaseelan stated that the information has been sought by the Appellant from the bank and not from the CBI. In this context, he cited the Commission's decision No. CIC/SM/A/2013/000693/SS dated 24.4.2014. He further stated that the information is required by the Appellant to defend himself and this would be in the interest of a fair trial. Moreover, the matter also concerns the human right of the Appellant to defend himself. Advocate S. Sathiaseelan challenged invocation of Section 8 (1) (g) and stated that the information sought is regarding the process of granting sanction for prosecution and not regarding any information provided by informers etc. He argued that the invocation of Section 8 (1) (h) by the Respondents is not justified as it has not been established that disclosure of the information would impede the process of investigation, which is already over and a charge sheet has been filed, or prosecution. He claimed that similar information was disclosed by the bank in CIC/SH/A/2015/001081 another case in 2011. The Respondents stated that they were not aware of the case referred to by Advocate S. Sathiaseelan and, in case a mistake was made in one case, it could not become a justification for making the same mistake in another case.
7. Advocate S. Sathiaseelan cited the following cases in favour of the Appellant's request for information contained in the RTI application dated 30.9.2014:
(a) CIC order No. CIC/BS/A/2012/001056/3264 dated 20.8.2013.
(b) Delhi High Court judgment dated 16.12.2014 in Adesh Kumar vs. UOI & Ors. [W.P.(C) 3543/2014].
(c) Delhi High Court judgment dated 3.6.2011 in B. S. Mathur vs. PIO of Delhi High Court [W.P.(C) 295/2011].
(d) CIC decision No. CIC/AD/C/2011/000793/SG/16694 dated 30.12.2011.
(e) Supreme Court judgment dated 31.1.2006 in State of Karnataka and Ors. vs. C. Lalitha [Civil Appeal 919 of 2002].
8. The Respondents have cited the following decisions of the Commission in favour of denial of information by them:
(a) CIC/SH/A/2014/000202 dated 3.2.2015.
CIC/SH/A/2015/001081
(b) CIC/SH/A/2014/000085 dated 16.12.2014.
9. Having considered the records and the submissions made by both the parties, we note that the central issue for consideration in this case is whether invocation of Section 8 (1) (h) of the RTI Act by the Respondents is justified or not. This is also the crux of the judgments / decisions cited by Advocate S. Sathiaseelan. On the other hand, the Respondents have cited two decisions of the Commission, mentioned in the preceding paragraph. In our view, since the matter has gone to the prosecution stage, a conclusion regarding applicability of Section 8 (1) (h) cannot be arrived at without giving an opportunity to the prosecuting agency, CBI, to make their submissions in the matter.
10. In view of the foregoing, the matter is adjourned to be heard again on 18 th April 2016 at 2.00 p.m. The CPIO of the Respondents is directed to forward a copy of this order, immediately on its receipt, to the CPIO concerned of the CBI, by registered post, under intimation to the Commission. While doing so, he should also forward to the CPIO of the CBI a copy each of the RTI application, the appeal of the Appellant to the First Appellate Authority, the reply of the CPIO and the order of the FAA, informing them to be represented at the hearing on 18.4.2016 in case they wish to make any submissions in the matter.
CIC/SH/A/2015/001081 The venue for appearance of the Appellant, the Respondents and the CBI for the hearing on 18.4.2016 will be as follows: For the Appellant and the Respondents District Informatics Officer, Collectorate, 32 Rajaji Salai, Chennai - 600001 The Contact OfficerMs. Jayashree Hariharan, ScientistE and Contact No. is 04425264205.
For the CBI Room No. 305, 2nd Floor, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110066 Hearing on 18.4.2016
11. The matter came up again on 18.4.2016.
12. Speaking on behalf of the CBI, Shri Prashant Srivastava, DSP stated that a charge sheet was filed against the Appellant in 2013, the court has taken cognizance of the matter and it is at precharge stage. He further submitted that in case the Appellant needs any documents to defend himself, he can CIC/SH/A/2015/001081 request the court for the same at the appropriate stage of the trial. Since the matter is pending in a court, disclosure of the information sought by the Appellant, under the RTI Act, would adversely affect the due process of law. Shri Prashant Srivastava also stated that the CBI is included in the Second Schedule to the RTI Act as an organization to which the provisions of the Act do not apply. Therefore, even the Respondent Bank cannot part with the documents sought by the Appellant under the RTI Act, because these relate to the sanction for prosecution accorded to the CBI and exchanges between the CBI and the Respondents.
13. The Respondents stated that they stood by the submissions already made by them during the hearing on 19.2.2016.
14. Speaking on behalf of the Appellant, Advocate Sathiaseelan stated that the information has been sought by the Appellant from the CPIO under the RTI Act and this matter should not be linked to the trial before the court. He also asked the representative of CBI whether the information in question had been submitted to the court, hinting that this had not been done. Advocate Sathiaseelan did not respond to our query as to why the court could not call for such documents, as it deemed fit to provide to the Appellant for his defence. He questioned the invocation of Section 8 (1) (h) for denial of information.
CIC/SH/A/2015/001081 Referring to the second proviso to Section 24 (1), he stated that approval of the CIC is required only in cases where information sought is in respect of allegations of violation of human rights. However, the instant case involves allegations of corruption and in such cases, the Act does not necessitate the approval of CIC and the information could have been provided by the Respondents, since the information pertaining to allegations of corruption is not excluded under subsection (1) of Section 24. He further submitted that out of the nine points of the RTI application, points No. 2, 6 and 8 involve only the disciplinary authority; points No. 3, 5 and 7 involve the CVC; point No. 4 is regarding a joint meeting and only points No. 1 and 9 involve information from CBI.
15. Shri Prashant Srivastava, DSP, CBI stated that the first proviso to sub section (1) of Section 24 of the RTI Act is regarding corruption matters involving employees of the CBI only and not all the corruption matters dealt with by the CBI. He also questioned the categorization of points of the RTI application, mentioned by Advocate Sathiaseelan, stating that all the information sought by the Appellant arises out of the sanction for prosecution sought by the CBI. Therefore, all this information pertains to the CBI and is covered by Section 24, read with the second schedule to the RTI Act. Advocate Sathiaseelan stated CIC/SH/A/2015/001081 that the CBI could not add to the words of the first proviso to Section 24 (1), which does not state that it applies to the corruption cases of CBI employees only.
16. Advocate Sathiaseelan has cited certain orders of courts and the Commission in favour of the Appellant's request for information. The crux of all these orders is that denial of information under Section 8 (1) (h) should be justified by the CPIO, who should establish as to how its disclosure would impede the process of investigation or prosecution. This aspect is brought out clearly in the judgment dated 5.3.2013 of the High Court of Delhi in Sudhirranjan Senapati, Additional Commissioner of Income Tax vs. UOI & Ors. [W.P.(C) 7048/2011]. The matter considered in the above judgment pertained to information concerning a sanction for prosecution granted under Section 19 (1)
(a) of the Prevention of Corruption Act, 1988. The information had been denied under Section 8 (1) (h) of the RTI Act. The High Court made the following observations: "11.3 I have no reason to differ with the view taken either in Bhagat Singh case or with the prima facie view taken in the order passed by my predecessor in his order dated 14.10.2010. It is trite that an accused can challenge the order by which sanction is obtained to trigger a prosecution against the accused. If that be so, I do not see any good reason to withhold CIC/SH/A/2015/001081 information which, in one sense, is the underlying material, which led to the final order according sanction for prosecution of the petitioner. As a matter of fact, the trial court is entitled to examine the underlying material on the basis of which sanction is accorded when a challenge is laid to it, to determine for itself as to whether the sanctioning authority had before it the requisite material to grant sanction in the matter. See observations in Gokulchand Dwarkadas Morarka vs The King AIR 1948 PC 82 and State of Karnataka vs Ameerjan (2007) 11 SCC 273. Therefore, the said underlying material would be crucial to the cause of the petitioner, who seeks to defend himself in criminal proceedings, which the State as the prosecutor cannot, in my opinion, withhold unless it can show that such information would hamper prosecution."
"13. Therefore, in my view, in such like cases when, the State takes a stand the information cannot be disclosed; while dilating on its stand in that behalf, the State would necessarily have to, deal with the aspect as to how the information sought, is of such a nature, that it could impede prosecution. Much would thus depend, on the nature of information sought, in respect of which, a clear stand needs to be taken by the State, while declining the information. The burden in this regard is on the State [B. S. Mathur vs. Public Information Officer of Delhi High Court, 180 (2011) DLT 303]."
17. However, the CBI representative made a plea that the information should not be disclosed because the CBI figures amongst the organizations listed in the Second Schedule to the RTI Act. With regard to the proviso to Section 24 (1) regarding cases involving allegations of corruption, we note that in its CIC/SH/A/2015/001081 decision No. CIC/SM/C/2012/000374 dated 31.10.2012, the Commission observed as follows: "Therefore, there is no escape from the fact that the CBI will have to consider all RTI requests for information which pertain to any allegations of corruption and human rights violation irrespective of the individual against whom such allegations are made."
However, the above decision of the Commission was stayed by the High Court of Delhi vide its order dated 30.11.2012 in CPIO CBI vs. C. J. Karira [W.P.(C) 7439/2012] and the stay has not been lifted.
18. Further, the Respondents have cited two orders of the Commission (reference paragraph 8 above), vide which denial of similar information was upheld. These orders are based on the Commission's decision dated 7.6.2010 on File No. CIC/AT/A/2008/01238, in which a request for similar information regarding sanction for prosecution granted to the CBI was considered. The above decision of a three member bench, arrived at with a split verdict of two to one, upheld the decision of the Respondents in that case to deny the information. The following observations were made in the majority verdict: "26. It is always open to the accused to impeach the sanction of prosecution, in course of which he is free to request the Trial Court to summon all such evidence which may be relevant for him to prove his CIC/SH/A/2015/001081 point. Such evidence would include every single item of information appellant has now demanded through RTI proceedings. The Court's decision, whether to allow the appellant access to such evidence, is taken after hearing both sides.
"27. In our view, an information which is evidence or is related to evidence in an ongoing prosecution comes under the control of the Trial Court within the meaning of Section 2 (j) of the RTI Act, which states as follows: "right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to....."
"28. It is significant that this Section uses two expressions about the location of a given information, i.e. "held" and "under the control of". In our view, expression 'held' implies that a public authority has physical possession of a given information. The word "under the control of" implies that the information, regardless of which public authority holds it, is under the control of a specific public authority on whose orders alone it can be produced in a given proceeding. In the present case, the material sought by the appellant is undoubtedly related to an ongoing court proceeding and hence it can be rightly said to be under the control of the Trial Court, who alone can decide how the information is to be dispensed. Any action under the RTI Act or any other Act for disclosure of that information to the very party who is arraigned before the Trial Court or to anyone representing that party, would have the effect of interfering with the CIC/SH/A/2015/001081 discretion of the Court, thereby impeding an extant prosecution proceeding."
In the above decision, though the majority verdict touched upon the issue of impeding the prosecution proceeding, the decision to uphold the denial of information was based primarily on the observation that an information which is evidence or is related to evidence in an ongoing prosecution comes under the control of the Trial Court and all determinations about disclosure of such information should be through the agency of the Trial Court. There is nothing on record to show that the above decision of the Commission was overturned by a superior court.
19. From the cases cited by the Appellant and the Respondents, it is clear that different decisions have been taken by different benches of the Commission regarding disclosure of information concerning sanction for prosecution. In this context, we note the following observation made by the High Court of Delhi in its judgment dated 9.11.2012 in UOI & Ors. vs. Col. V. K. Shad [W.P.(C) 499/2012]: "The CIC is, however, advised in future to have regard to the discipline of referring the matters to a larger bench where a bench of coordinate strength takes a view which is not consistent with the view of the other."
CIC/SH/A/2015/001081
20. In view of the above, this matter is remanded to the Registrar for placing it before the Chief Information Commissioner for constitution of a bench of at least three members (in view of the fact that the above mentioned decision dated 7.6.2010 was given by a bench of three members) to consider the issues thrown up by this case. It may be noted that the Madras High Court had passed the following order concerning this appeal before the CIC: "3. Considering the above facts and taking note of the prayer sought for in the writ petition, a direction is issued to the respondent to consider and pass appropriate orders in the Second Appeal No. SA/UG/15/f9219ydtm in the File No. CIC/SH/A/2015/001081, within a period of four weeks from the date of receipt of copy of this order.
4. With the above direction, the writ petition is disposed of. No costs." The time limit of four weeks for consideration of case and passing of appropriate orders in the second appeal, specified by the High Court, expired on 24.2.2016. Therefore, urgent further action needs to be taken in this matter.
21. Copies of this order be given free of cost to the parties.
Sd/ (Sharat Sabharwal) Information Commissioner CIC/SH/A/2015/001081 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.
(Vijay Bhalla) Deputy Registrar CIC/SH/A/2015/001081