Central Information Commission
Mr.Brijkishore Maniyar vs Cbec on 28 October, 2010
CENTRAL INFORMATION COMMISSION
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F.No.CIC/AT/A/2010/000611 F.No.CIC/AT/A/2010/000673
Total : 2 Appeals
Dated, the 28 October, 2010.
th
Appellant : Shri Brijkishore Maniyar
Respondent : Customs, Central Excise & Service Tax
s These are two identical appeals with identical request for information filed by appellant ― copies of notings and correspondence relating to M/s.Peninsula Technologies with Siliguri Commissionerate of the public authority.
2. Hearing was held through videoconference (VC) on 20.10.2010 with the appellant present at NIC VC facility at Nagpur and the respondents represented by the CPIO at NIC VC facility at Siliguri. Commission conducted the hearing from its New Delhi office.
3. Appellant's RTIapplication dated 14.12.2009 contained a request for accessing information in a matter in which the public authority, viz. Central Excise Department was investigating the appellant's Firm, viz.M/s.Peninsula Technologies.
4. CPIO, through his communication dated 12.01.2010, cited Section 8(1)(h) to decline to disclose the requested information on the ground that the disclosure was likely to hamper and impede the ongoing investigation against the firm.
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5. Appellate Authority, in his order dated 11.03.2010, noted that appellant had filed his RTIapplication before CPIO/Asst Commissioner (T), Siliguri, who transferred the application to the Deputy Commissioner, Central Excise Gangtok Division under Section 6(3) of the RTI Act.
6. AA upheld the decision of the CPIO, Asst. Commissioner Central Excise Gangtok that disclosure of the requested information could impede the ongoing investigative process.
7. Appellant has argued that respondents had construed the mere pendency of the investigation as the reason that disclosure of the information would impede the investigation, whereas under Section 8(1)
(h), they were required to specifically state as to how the ongoing investigation would be impeded by disclosing the type of information appellant may have asked for.
8. Section 8(1)(h) of the RTI Act in respect of prosecutions came up for consideration of a Division Bench of the Delhi High Court in SP Singh Vs. CIC, in which the matter for consideration was whether documents and records relating to a matter which was before a Trial Court in prosecution, should be disclosed. The finding of the High Court in that matter was 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 chargesheet 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 CIC_AT_A_2010_000673_M_44926.doc Page 2 of 5 the process of investigation or 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."
9. The ratio of the High Court's above judgement would also apply to matters under investigation ― when certain records and documents or an information was closely related to an ongoing internal investigation, the disclosure of the above type of information, have had the potentiality to impede the process. Commission has to be extremely cautious in allowing disclosure of information which related to ongoing investigations by departments and public authorities for alleged wrongdoings which they were competent to investigate under given statutes or rules.
10. It has been argued on behalf of the appellant that the show cause notice in the matter under investigation has already been issued and hence the investigation should be construed to have been concluded.
11. In my view, mere issuance of the show cause notice cannot be said to conclude investigation. What it implies is that having completed one CIC_AT_A_2010_000673_M_44926.doc Page 3 of 5 part of the investigative action in a given matter, the public authority was continuing the process further by giving to the party a show cause notice. On receiving the reply from the party, the process of investigation shall be taken forward. In that sense, mere issuance of the show cause notice cannot be cited as conclusion of an investigation.
12. In view of the ratio of the above judgement of the Delhi High Court, it is my view that any disclosure of documents and records and information relating to an ongoing investigation has had the potentiality to impede the process. It is not possible for the investigating authority to precisely judge as to how the disclosure of the requested information would impede the process while the process itself was ongoing.
13. The Commission in its decision in Shankar Sharma & Others Vs. DGIT; Appeal No. CIC/AT/A/2007/0007, 10, 11; Date of Decision:
10.7.2007 has held that when the matter is under investigation, either before the issue of show cause notice or after its issuance, any disclosure of relevant information would impede investigative process.
14. Another factor which needs to be appreciated is that, as per appellant's own statement in this matter the show cause notice has been issued on what appellant believes to be the conclusion of investigation. But, after the show cause notice, the statutory process of determining guilt under given Sections of the Central Excise laws, would now begin. The matter, therefore, now comes within the jurisdiction of the judicial authority. As per Commission's decision in Bholeshwar Mahabhoi Vs. MCL; Appeal No. CIC/AT/A/2008/01302; Date of Decision: 19.02.2009 any disclosure of information in a matter before a judicial authority, decision has to be made by that authority alone.
15. From that point of view as well, this information cannot be authorized to be disclosed.
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16. As such, it is held that there shall be no disclosure of the requested information.
17. Appeals closed.
18. Copy of this direction be sent to the parties.
( A.N. TIWARI ) CHIEF INFORMATION COMMISSIONER CIC_AT_A_2010_000673_M_44926.doc Page 5 of 5