Central Information Commission
Shri Vijendra Rana vs Central Bureau Of Investigation (Cbi) on 24 June, 2009
CENTRAL INFORMATION COMMISSION
Appeal Nos.CIC/WB/A/2009/000417 & 609 dated 28.3.2009 and 1.6.2009 respectively.
Right to Information Act 2005 - Section 19
Appellant - Shri Vijendra Rana
Respondent - Central Bureau of Investigation (CBI)
Facts:
These are two appeals moved by Shri Vijendra Rana, Ex. Commander Indian Navy, at present in Central Jail No. 3, Tihar, New Delhi.
FILE NO. CIC/WB/A/2009/000417 By an application of 6.1.07 Shri Rana sought the following information from the CPIO CBI:
"In light of these facts as mentioned at Para 2 to 4 above, kindly provide Para / sub Para wise information to the under mentioned queries along with certified copies of supporting documents:
a) Kindly provide information on whether any incriminating items / articles / documents contravening the Official Secrets Act1923 were seized / recovered from the Residence of Vijendra Rana, 701, Saksham Aptts. Sec. 10 Dwarka, New Delhi by CBI on the intervening night of 05/06 April 2006 or ever. If yes, please provide supporting documents. If No., kindly specify so.
b) Kindly provide information on whether any incriminating items / articles / documents etc. that contravene the provisions of Official Secrets Act, 1923 or any laws, were ever seized / recovered from any of the premises or personal body of Vijendra Rana during any Search conducted by CBI authorities on the intervening night of 05/06 Apr, 2006 or there after. If yes, please provide supporting documents. If no, kindly specify so.
c) Kindly provide information on whether any incriminating items / articles / documents contravening the provisions of Official Secrets Act 1923 or any other laws, were ever seized / recovered at the behest / disclosure of Vijendra Rana by the CBI authorities on the intervening night of 05/06 April 1 2006 or thereafter. If yes, please provide supporting documents. If no, kindly specify so.
d) Kindly provide information on whether any incriminating items / articles / documents contravening the provisions of Official Secrets Act 1923 besides as alleged at Para 27, 28 and 30 of the charge sheet in case FIR No. RC 2(A)/06-
ACU-IX have ever been seized / recovered from or at the behest of Vijendra Rana by the CBI authorities. If yes, please provide supporting documents. If no, kindly specify so.
e) Kindly provide information on whether any incriminating items / articles / documents contravening the provisions of Official Secrets Act 1923 besides as alleged at Para 27, 28 and 30 of the charge sheet in case FIR No. RC 2(A)/06- ACU-IX to be recovered / seized by Naval Authorities in July and August 2009 - have ever been seized // recovered from or at the behest of Vijendra Rana by the CBI or any other authorities except Naval Authorities. If yes, please provide supporting documents. If no, kindly specify so.
IMPORTANT The subject matter of the RTI queries have long back been investigated and already charge sheet has been filed based on these Investigations. Infact the period of time to which these queries relate to is specifically July, August 2005 and April 2006 i.e. more than three years back. Thus the subject matter of the sought information does not impede the process of investigation or prosecution. On the contrary this information would put the whole matter in a correct perspective and truthful manner. This would also assist the prosecution in conducting the ongoing trial in fairness. In this regard, kindly refer to Para 10 and 11 of my RTI application dated 5.1.09.
LIFE & LIBERY MATTER: It is reiterated that the information sought, directly affects the Liberty of the applicant and it is, therefore, requested that the same be provided within 48 hours of receipt of this Application."
To this Shri Rana received a response dated 29.1.09 from Shri Sunjay Kumar Singh, SP, CBI/ACU-IX refusing the information as follows:
2"It is intimated that information sought by you pertain to CBI case RC 02(A)/2006-ACU-IX, New Delhi (Naval Ware Room Leak Case) registered under the official secrets Act 1923 and presently pending in the Court of Ld. ASJ/Shri Brijesh Sethi, Tis Hazari Delhi at the stage of argument on charge. Since the matter is sub-judice, the information sought for can not be supplied to you under the RTI Act, 2005 as the same will impede the process of prosecution of the offenders. An exemption is, therefore, sought under sec. 8(h) of the RTI Act."
Shri Rana then moved his first appeal on 31.1.09 before Shri A. C. Awasthi, Jt. Director / AC HQ CBI in which he had cited the decision of Ravinder Bhat J. of the Delhi High Court in Bhagat Singh vs. Central Information Commission in W.P. 3114/2007 to contest the claim that disclosure would impede the process of prosecution. He has also submitted as follows:
"The sought information is regarding the appellant personally, and as such has not been forbidden from disclosure by any Court of Law including the Court of Hon'ble ASJ, Shri Brijesh Sethi, where the matter is sub-judice."
The First Appellate Authority Dr. M. M. Oberoi has then examined the case in greater detail and provided a para-wise response as follows:
"The para-wise reply to the points raised or information sought in the original application, addressed to the CPIO, is as under:
a) Kindly provide information on whether any incriminating items/articles/documents contravening the Official Secrets Act, 1923 were seized / recovered from the residence of Virender Rana, 701Saksham Apartment, Sector 10, Dwarka, New Delhi by CBI on the intervening night of 05 / 06.04.06 or ever. It yes, please provide supporting documents. If no, kindly specify so.
Ans. It is intimated that during the search conducted by CBI conducted by CBI on 06.04.06, as many as 5 articles had been seized from the house of Shri Vijendra Rana, Flat No. 701, Saksham Apartment, Plot No. 40-B, Sector 10, Dwarka, New Delhi. A copy of the search list is supplied to the appellant free of cost. The documents/ articles seized during the searches on 6.4.06 or thereafter in this case are case properties. On the basis of the total facts emerged during the investigation CBI has launched the prosecution. The matter is sub-judice before the trial court. Copies of Charge Sheets and complaints filed in he court have already been provided 3 to the accused including the appellant free of cost. Copy of the other documents have been supplied to Shri Vijender Rana, as he is an accuse of this case, copies of some of the relied upon documents have not been supplied, these being classified documents, in a case of Official Secrets Act. The trail court has upheld the contentions of prosecution. The accused persons have approached the Hon'ble High Court in this regard and the matter is being argued by both parties on this issue. Copies of seizure memos of searches made by CBI have already been provided to Shri Vijender Rana, as he is an accused in this case.
b) Kindly provide information on whether any incriminating items / articles/documents etc. that contravene the provisions of Official Secrets Act, 1923 or any laws, where ever seized / recovered from any of the premises or personal body of Vijender Rana during any search conducted by CBI authorities on the intervening night of 5/6 April 06 or thereafter. If yes, please provide supporting documents. If no, kindly specify.
Ans: It is intimated that after the personal search conducted by CBI on 5/6.4.06 while arresting Shri Vijendra Rana, a memo was prepared a copy of the same has been provided to Shri Vijender Rana. The documents/ articles seized during the searches on 6.4.06 or thereafter in this case are case properties. On the basis of the total facts emerged during the investigation, CBI has launched the prosecution. The matter is still sub judice. Copies of charge sheets and complaints filed in the court have been provided to the accused including the appellant free of cost. Copy of the other documents have been supplied to Shri Vijendra Rana, as he is an accused of this case, copies of some of the relied upon documents have not been supplied, these being classified documents, in a case of Official Secrets Act. The trail court has upheld the contentions of prosecution. The accused persons have approached the Hon'ble High Court in this regard and the matter is being argued by both parties on this issue. Copies of seizure memos of searches made by CBI have already been provided to Shri Vijendra Rana, as he is an accused in this case.
c) Kindly provide information on whether any incriminating items/articles/documents contravening the provisions of official Secrets Act, 1923 or any other laws, were ever seized/recovered at the behest/disclosure of Vijendra Rana by the CBI authorities on the intervening night of 5/6 April 06 4 or thereafter. If yes, please provide supporting documents. If no, kindly specify so.
Ans: It is informed that details of all relied upon documents / articles seized during investigation of this case have been mentioned in the Charge Sheet 1 , a copy of which has already been provided to Shri Vijender Rana. The documents/ articles seized during the searches on 6.4.06 or thereafter in this case are case properties. On the basis of the total facts emerged during the investigation, CBI has launched the prosecution. The matter is still sub judice. Copies of charge sheets and complaints filed in the court have already been provided to the accused including the appellant free of cost. Copy of the other documents have been supplied to Shri Vijendra Rana, as he is an accused of this case, copies of some of the relied upon documents have not been supplied, these being classified documents, in a case of Official Secrets Act. The trial court has upheld the contentions of prosecution. The accused persons have approached the Hon'ble High Court in this regard and the matter is being argued by both parties on this issue. Copies of seizure memos of searches made by CBI have already been provided to Shri Vijendra Rana, as he is an accused in this case.
d) Kindly provide information on whether any incriminating items/articles/documents contravening the provisions of Official Secrets Act 1923 or any other laws besides as alleged at Para 27,28,30 of the Charge Sheet in case FIR No. RC 02(A) 06-ACU (IX), to be recovered/seized by Naval authorities in July and August 2005-have ever been seized/recovered from or at the behest of Vijender Rana by CBI or any other authorities except Naval authorities. If yes, please provide supporting documents. If no, kindly specify so.
Ans: It is informed that details of all relied upon documents / articles seized during investigation of this case have been mentioned in the charge sheet including article seized by CBI/Navy / any other authority. The charge sheet clearly mentions the details of such seizures. A copy of charge sheet has already been provide to Shri Vijender Rana, being an accused of this case.
After going the appeal and record of this case, I do not find any merit / reason to allow your appeal."
1Emphasis added by us for ease of reference 5 Appellant Shri Rana has then moved his second appeal before us with the following prayer:
a) Kindly direct the CBI to provide information sought at Para 5(a) to Para 5(e) of RTI application dated 06 Jan 09.
b) Kindly direct Superintendent, Central Jail No.3/DIG (Prisons), Tihar to ensure attendance of the appellant at the Commission for hearing of the instant appeal, n exercise of Powers vested upon the Commission under Sec 18(3) clause (a) of the RTI Act. It is further, humbly requested that the hearing may kindly not be conducted through video conference view complexities of the issues, no. of documents to be referred during the hearing. To complicate matters further, the quality of Video Conferencing facilities available are extremely poor with frequent breakdowns, poor voice quality, extreme time lags in reception / transmission etc, thus rendering prolonged hearings futile.
c) Kindly adjudicate the instant appeal expeditiously, as the same concerns LIFE OR LIBERTY issues.
In response to our appeal notice Dr. M. M. Oberoi, DIG, CBI, AC-III New Delhi has submitted detailed comments but in this he has stated as follows:
"In reply to the appeal, he was again informed vide order dated 27.02.09 about this matter being sub-judice and also that CBI has provided him copies of Charge Sheet, relied upon documents allowed by the court. He has also been allowed inspection of all the documents including classified ones, as per court order. It is submitted that in this matter, CBI has placed before the Ld. Trial Court the entire material on the basis of which Complaints and Charge Sheet have been filed against the accused and the Ld. Court is yet to form an opinion whether charges can be framed under the Official Secrets Act or the accused are liable to be discharged".
Dr Oberoi has then gone on to describe the para-wise reply, which he has sent to appellant. On the question of charge-sheet he has submitted as below:
"The contention of the appellant in Para '7 f', is incorrect about preparation of the Charge Sheet. It is submitted that Charge Sheet is the opinion of the Investigating Officer on the basis of which the trial proceeds. The Charge Sheet filed by CBI against the accused including the appellant is based on sufficient evidence collected by the IO. In any way, the appellant is not entitled to seek opinion / 6 clarification on the Charge Sheet. It is reiterated that Charge Sheet itself is the opinion of Investigating Officer and CBI cannot give separate opinion on the desired documents sought by the appellant. The matter is sub-judice and Ld. Trial Court, on the basis of material placed by CBI, is infact in the process of forming an opinion in the case".
On this basis he has submitted that :
"The Charge Sheet contains the details of seizure and recovery of incriminating material in the case".
While indicating that all bail applications of Shri Rana have been rejected by the concerned Courts, Dr. Oberoi has contested each ground relied upon by appellant Shri Rana in making his appeal as follows:
A} "The averments made in Ground as in (A), are wrong and hence denied. It is respectfully submitted that since CBI has already placed all the material relating to this case and since the Trial Court, on the basis of the same, is hearing arguments on day to day basis to decide whether on the basis of material placed before the court by the prosecution, charges can be framed against the accused or not, the accused can not compel the prosecution to opine out of court, as to what is the evidence against him and which material is incriminating and/or which material is not incriminating. A judicial process is already underway to decide this issue".
B} "The averments made in ground as in (b), it is submitted that the entire process of investigation and trial is governed by the Criminal Procedural Code 1973. This issue whether the prosecution is fair or not can be decided only be the competent courts established under the law". C} "The ground as in (C) is wrong and denied. It is submitted that the process and procedure of trial will be decided and regulated only be the Trial Court".
It is respectfully submitted that the relied upon documents, which have not yet been provided to the appellant, have been withheld by CBI as allowed by the Court on the ground that disclosure of information contained therein is prejudicial to the safety and security of our nation, as opined by the Chief of Naval Staff, Chief of Air Force and other concerned authorities. The supply of such information is also exempted under the RTI Act, 2005.7
We have also received a reply from Shri Sanjay Kumar Singh, SP, CBI ACU-IX who has summarized his contentions in the following words:
"At this stage of trial, the prosecution can not be compelled to bring on record its line of arguments to prove the case."
Shri Sanjay Kumar has also submitted that all the applications under RTI have been attended to on priority and disposed of expeditiously but none of these applications fell in the ambit of information sought concerning appellant's life & liberty.
FILE NO. CIC/WB/A/2009/000609 In this case Shri Rana applied to the CPIO CBI on 5.1.09 seeking the following information:
(a) "Kindly provide following documents in support of conduct of search of the residence of (Cdr Vijendra Rana, 7/73 Arjun Vihar, New Delhi - 10 on 12.07.05 by Naval Authorities" -
(i) Search Orders
(ii) Composition of Search Party.
(iii) Details of Independent Witness present during the search.
(iv) Report submitted on completion of search.
(v) Any other document / evidence in support of conduct of this search.
In case there are No documents(s)/evidence in support of conduct of this search, kindly specify so.
(b) "Kindly provide following certified documents in support of Seizure of articles/Items (including a computer) during the search of the Residence of Cdr Vijendra Rana, 7/73 Arjun Vihar, New Delhi - 10 on 12.7.05 by Naval Authorities -
i) Seizure Memo / Panchnama.
ii) Details of articles / items seized.
iii) Details of Seizing Officer and Personnel present
during this seizure.
iv) Details of Independent witnesses present during
this seizure.
v) Details of Person from whom these Items were
seized including his signatures on Seizure Memo on handling over the items.
vi) Details of physical sealing of these items including description of seals used.
8i) Details of Electronic Forensic Experts present during seizure of electronic items viz mobile phones, computers, pen-drives etc.
ii) Details of File Structure of Hard Disk of Computer seized (so as to rule out fabrication and tampering).
iii) Details of Digital Signatures and HASH function value of electronic items seized.
iv) Any other document/evidence in support of seizures made.
In case, there are No documents/evidence in support of seizure(s) made or no items were seized, kindly specify so.
(C) Kindly provide documents as listed at Para 9(a) (i) to 9(a) (V) above - in support of conduct of search at the office of Cdr Vijendra Rana between 12.7.05 and 28.10.05 by Naval authorities.
In case there are No documents/evidence in support of conduct of search, kindly specify so.
(d) Kindly provide documents - as listed at Para 9 (b) (i) to 9 (b) (X) above - in support of Seizure of articles/Items and classified / Sensitive /Secret document during the search of the Office of Cdr Vijendra Rana between 12.7.05 and 28.10.05 by Naval Authorities.
--- In case, there are No documents/evidence in support of Seizure(s) made or no items were seized, kindly specify so.
(e) Kindly provide documents - as listed at Para 9(a) (i) to 9(a) (V) above - in support of conduct of search on Personal Body of Cdr Vijendra Rana between 12.7.05 and 28.10.05 by Naval Authorities.
--- In case there are No documents or evidence in support of conduct of this search, kindly specify so.
(f) Kindly provide documents - as listed at Para 9(b) (i) to 9(b)(X) above-in support of Seizure or Recovery of any articles/Items {including Jet Flash Pen drive (256 MB)} from Cdr Vijendra Rana in August 2005 by Naval Authorities .
(g) Kindly provide details on correspondence (verbal, written or otherwise) from Naval Authorities to CBI informing them of the stipulations listed at Regulation 207 of the regulations for the Navy Part II (Statutory). In case, the Naval Authorities have failed to share this information with the CBI, kindly specify so. "
9To this he received a response only on 26.2.09 refusing the information as follows:
"It is informed that any clarification or information about the contents of a charge sheet pending before a Court can be obtained in the courts itself through the prescribed procedure. Since the matter is sub-justice, the information sought for can not be supplied to you under the RTI Act, 2005 as the same will impede the process of prosecution of the offenders. An exemption is, therefore, sought under section 8 (h) of the RTI act. "
Shri Rana then moved his appeal on 17.3.09 before Dr. M. M. Oberoi, DIG, CBI who in his order of 31.3.09 directed as follows:
"The copy of the complaint and charge sheet in which allegations are leveled against you have already been supplied under section 207 Cr. P.C. The matter is at the stage of framing of charge and is subject matter of prosecution case of CBI. The entire procedure of trial is governed under the code of Criminal Procedure, 1973 and the trial is going on day to day basis. Various Revision Petitions, bail matters and other connected issues arising out the said court case are pending and under active consideration of the Hon'ble High Court, Delhi. Para-wise reply to your appeal is as under:"
Dr. Oberoi has then gone on to examine and comment on each of the questions put by appellant in his application but concluding with the following remarks on each question:
"This case was registered by CBI on 20.03.06. For searches conducted by Navy prior to registration of this case, the reply may be sought from CPIO, Navy. A copy of your application is being sent to naval authorities."
Appellant's prayer before us in his second appeal is as below:
(a) Kindly direct CPIO - CBI : ACU - IX to provide information sought at Para 9 (a) to (g) of the RTI application dated 05 Jan 2009.
(b) In accordance with Sec 20 of the RTI Act, kindly pass orders as deemed fit so as to deter any gross delays in replying/providing information to RTI applications especially relating to matters concerning LIFE & LIBERTY.
(c) In exercise of Powers vested upon the Commission Under Sec 18(3) clause (a) of the RTI Act, Kindly direct 10 Superintendent, Central Jail No 3/DIG (Prisons) to ensure personal appearance of the appellant, at the Commission during the hearing of the instant appeal. It is most humbly submitted that the hearing may not be conducted through video conferencing view complexities of the issues, no. of documents to be referred to during the hearing.
(d) Kindly adjudicate the instant appeal expeditiously, as the same concerns LIFE AND LIBERTY matters.
The appeal was heard on 18.6.09 in Tihar Jail. The following are present :
Appellant Shri Vijendra Rana Shri Kulbhushan Respondents Dr. M. M. Oberoi, DIG, CBI, AC-III Sh. Sanjay Kumar Singh, SP, CBI, ACU-IX Sh. D.S. Chauhan, Inspector, CBI, ACU (IX) FILE NO. CIC/WB/A/2009/000417 Appellant Shri Rana submitted that he has been in custody for several years but that his trial has not commenced. He invited our attention to the orders of the High Court of Delhi on his bail application No. 65/2009 in which Dr S Murlidhar J has observed as follows:
"This Court however finds merit in the submission that with three years having elapsed and no order on charge yet being passed, there is little prospect of the trial commencing and concluding at an early date. "
This has also been observed in Para 43 of order of 9.4.09 on bail application No. 874/2008. The key issue on which Shri Rana seeks information is the question of 'incriminating' items / articles/ documents said to have been seized from his residence. To this DIG Dr. Oberoi respondent submitted that in the view of the Investigating Officer all the documents / material presented to the trial Court and listed in the charge sheet are incriminating documents / material. However, whether they will be incriminating or not is a matter of opinion to be arrived at by the trial Court and not by the prosecuting agency. Therefore, appellant's insistence on identifying what documents are incriminating is not 11 information that can be provided under the definition of information u/sec. 2(f), by the prosecuting agency. Moreover, Dr Oberoi submitted that all the relevant material / documents, even those that may or may not have been disclosed to appellant, have in fact been submitted to the trial Court. In answer to a question by us he also submitted that he cannot disclose any content of this information without the orders of the trial Court.
On the observation of Justice Murlidhar quoted by appellant Shri Rana. Dr Oberoi submitted that the quotation is out of context and offered to submit a complete copy of the ruling of the High Court of Delhi in Bali application No 65 of 2009. This we received on the following day.
FILE NO. CIC/WB/A/2009/000609 In this case the stand of appellant Shri Rana is that he has obtained information from the Navy that no searches whatever were conducted. He has referred to a letter of 29.8.08 in response to an RTI application addressed to the Integrated HQ Navy in which he was informed by CPIO Cmdt. S. K. Gupta as follows:
"As per records, there is no evidence regarding search conducted at your residence, 7/73, Arjun Vihar, New Delhi-110010."
Similarly Vice Admiral Shekhar Singh in his order on appeal of Oct 7, 2008 has given further details in answer to each question in the application as follows:
"For Para 2(a) & (d) As per available records, no search was conducted at the residence of Commander Vijendra Rana namely 7/73, Arjun Vihar, New Delhi-10 by Navy between 12 Jul 05 to 28 Oct.05 For Para 2(b) & (e) As per available records, no search was conducted at the office of Commander Vijendra Rana by Navy between 12 Jul 05 to 28 Oct
05. For Para 2(c ) & (f) As per available records, no search was conducted on Commander Vijendra Rana by Navy between 12 Jul 05 to 28 Oct 05.12
As the answer to your queries is 'no', therefore the information at sub Para which flows from main query becomes nugatory."
Dr. M. M. Oberoi on the other hand responded by saying that some of the information sought is classified under the Official Secrets Act and cannot be given to appellant but is indeed in the possession of the trial Court. The arguments on the charges are proceeding.
We have also received the detailed rulings of the Supreme Court of India in Criminal Appellate Jurisdiction in an SLP 4035/2009 CBI vs. Sh. V. K. Jha & Another in the form of Paper Book. In this the synopsis setting the questions of law is as follows:
"The substantial questions of law which arises for this Hon'ble Court's kind consideration are :
a) Whether the High Court has failed to notice the settled position of law as laid down by this Hon'ble Court in Saiyad Mohammad Vs. Abdul Habib (1998) 4 SCC 343 and Dhanalal v Kalavathi (2002) 6 SCC 16, that procedural law is subservient to substantive law and cannot be interpreted in a manner that would defeat the object to be achieved ?
b) Whether under the facts and circumstances of the case, the Hon'ble High Court is right in directing the Petitioner to hand over the classified and sensitive documents to the respondents herein, which is against the Section 14 of the Official Secrets Act, 1923 ?
c) Whether the Hon'ble High Court ought to consider the opinion of Chief of Naval Staff and Chief of Air Force, which clearly states that the documents relied upon, are connected with the safety and security of Defence matters of the country ?
d) Whether the Hon'ble High Court has considered its own judgment in this instant case vide order dated 8.5.2007 in W.P. © No. 3391/2007 in Ex. Wing Comdr. S. L. Surve vs. UOI and Anr, wherein the Hon'ble High Court held that ..."In the circumstances, if the respondents do not consider it desirable to furnish the petitioner any information which is, in their opinion sensitive to the security of the country, no direction can be issued to them to necessary furnish the said information" ?13
e) Whether the learned High Court ought to have considered that the said documents are classified and secret in nature, the recovery of which from the possession of accused persons have brought about the institution of the criminal proceeding against them in the instant case and keeping in context the very object of the Official Secrets Act, the same could not be supplied to the respondent(s) herein ?
f) Whether the learned High Court ought to have considered that in a similar matter SLP (Crl.) No. 3718 of 2008 in the matter of Ujjal Dasgupta Vs. State (NCT of Delhi) under the Official Secrets Act, this Hon'ble Court after considering the facts & circumstances and nature of the relied upon document has stayed direction of the learned High Court to supply its copy of the accused ?
DECISION NOTICE In both cases we find that the information which appellant claims that he has not been given has either been given by implication or is now held by the Court. Thus on his primary request in File No. CIC/WB/A/2009/000417 as to the incriminating material seized from his house, the answer was implied in the reply to his first appeal before Dr. M. M. Oberoi. Curiously, DIG Dr. M.M. Oberoi while stating that the appeal is disallowed had actually provided much of the information sought by appellant Sh. Rana. In the hearing in appeal this has also been clarified by DIG Dr. Oberoi by stating that all the material included in the charge sheet is incriminating in the view of the Investigation Officer. It is now for the Court to decide whether it is incriminating or not, an opinion which obviously the prosecuting agency, which is CBI can neither make nor give. He also clarified that any material not listed in charge sheet even if seized has not been treated as incriminating.
In the File No. CIC/WB/A/2009/00609 again Appellate Authority Dr. Oberoi has submitted that all such information which could be provided has indeed been provided through issue of the charge sheet. In this case, however, he has admitted that some information being of sensitive nature is being protected by 14 the OSA and has, therefore, not been disclosed but is in the possession of the trial Court.
On details of searches however Dr Oberoi has informed appellant Shri Rana, "For searches conducted by Navy prior to registration of this case, the reply may be sought from CPIO, Navy." This is a clear statement that CBI holds no information on the subject other than that provided by the Navy. Shri Rana has applied to and obtained a response from the Navy clearly stating, "no search was conducted at the residence of Commander Vijendra Rana" as quoted, which information he is assuredly free to use in his defence From the above it is quite clear that the case now being under prosecution, all the information sought by appellant Shri Rana in both cases is either in the custody of the Court or if it is not so held, will be assumed to not exist. The Public Prosecutors advice to appellant Dr. Rana during the hearing that he may obtain information from the CBI is misplaced because that agency is no longer in control of information that has been submitted to the Court to support the prosecution even though it may retain physical possession. Access to such information will, therefore, have to be through the authority by which it is held or in the control of, which in this case is the trial Court. This, therefore, is a fit case for transfer to the trial court under sub sec. (3)(ii) of Sec. 6 of the RTI Act of those questions that concern information no longer under the control of CBI and the CPIO of the Trial Court will be required to provide a response to appellant Shri Rana within the time mandated under the RTI Act 2005. However, in doing so, it is expected that the Court will adhere to the requirements of the RTI Act 2006, notwithstanding anything inconsistent therewith contained in the Official Secrets Act 1923, as clearly mandated by Sec 22 of the RTI Act. This is specifically clarified because the cases for which the information has been sought are being pursued under the OSA 1923.
15CPIO Shri Sanjay Kumar Singh, SP, CBI, ACU-IX will, therefore, now make this transfer within ten working days of the date of receipt of this Decision Notice with regard to any questions that have remained unanswered in this light, of the two applications of appellant Shri Rana.
Reserved in the hearing this Decision is announced on this 24th day of June 2009. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 24.6.2009 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 24.6.2009 16