Central Information Commission
.C. Seetharamiah vs Department Of Revenue on 7 June, 2010
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/AT/A/2008/01238 dated 19.09.2008
Right to Information Act 2005 - Section 19
PARTIES TO THE CASE:
Appellants : Shri C. Seetharamaiah
Public Authority : Commissionerate of Customs & Central
Excise
Thirdparty : Central Bureau of Investigation
Date of Decision : 07.06.2010
FACTS OF THE CASE:
This secondappeal by Shri C. Seetharamaiah is against the order of the Appellate Authority, Office of the Commissioner of Customs, Central Excise & Service Tax, Guntur, dated 09.04.2008, in which the Appellate Authority upheld the CPIO's reply dated 13.02.2008 to appellant's RTIapplication dated 25.01.2008.
INFORMATION SOUGHT BY THE APPELLANT:
2. Appellant's RTIapplication dated 25.01.2008 read as follows: "My son C.S. Srinivas is working in Central Excise, Guntur Commissionerate as an Inspector. He had worked in Gujarat on CIC_AT_A_2008_01238_M_37032.doc Page 1 of 39 deputation in 20012002 and joined his duties in Parent Department i.e. Central Excise Commissionerate, Guntur in November, 2002.
It is learnt that the CBI had sought for prosecution of my son with regard to matters pertaining to discharge of official duties while on deputation and the same was sanctioned.
In this regard I request you to kindly provide the information under the Right to Information Act, 2005 in respect of the following:
• The correspondence of CBI (the authority seeking the prosecution) with the Additional Commissioner (P&V) requesting for sanction of prosecution and thereafter till the sanction of prosecution by the disciplinary authority. • Certified photocopies of the entire file proceedings for the sanction of prosecution against my son including the note side pages. It is pertinent here to submit that there are several decisions with regard to the permissibility of issue of note sheets also under the RTI Act, 2005. (A copy of the latest judgement dt.26.12.2007 of Central Information Commission in the case of Shri A.N. Gupta is enclosed for ready reference). Two similar judgements dt.23.06.2006 and 25.04.2007 are also enclosed.
• The details of telephone conversation if any, the disciplinary authority had with CBI in this issue."
3. CPIO, through his reply dated 13.02.2008, quoted Section 8(1)(h) of the Act to deny the information to the appellant stating that as appellant's son, Shri C.S. Srinivas, working as Inspector of Central Excise in Guntur Commissionerate, was facing prosecution under the Prevention CIC_AT_A_2008_01238_M_37032.doc Page 2 of 39 of Corruption Act, 1988 in the CBI Court, the requested information, if disclosed, would impede the process of such prosecution.
4. In his order dated 09.04.2008, Appellate Authority noted as follows: "I observe that the applicant's request in this case was for supply of copies of information / documents / file notings and correspondence as well as Telephonic conversations had by the Competent Authority of this department who accorded a sanction for prosecution of the applicant's son by the Centre Bureau of Investigation, Gandhinagar, Gujarat.
As the information sought for also includes the Third party's investigation report i.e. CBI's report, the matter was referred to the investigating agency i.e. CBI (Third party) for their views / advice in terms of Sec.11 of RTI Act, 2005. The CBI, DIG (Appellate authority), Mumbai had informed that the documents pertaining to communication with CBI regarding the instant case may not be revealed as case is under trial and parting with these documents at this stage would impede the prosecution of offenders vide their letter dated 02/04/2008 and requested to deny the information under the provisions of section 8(h) of RTI Act, 2005. Now, the issue that remains to be decided is whether that part of the correspondence and note file that was dealt with by this office in connection with the proceedings relating to sanction of prosecution against the applicant's son. The investigation report forms part of the material that has been duly considered by the Competent Authority, i.e., the Additional Commissioner (Personnel and Vigilance) of Guntur Commissionerate while sanctioning the prosecution is an inseparable part of the correspondence file. Providing any kind of access with the same, at this juncture, is equally impede the criminal proceedings that was already launched and in progress before the Court of Law at CIC_AT_A_2008_01238_M_37032.doc Page 3 of 39 Ahmedabad, but also runs counter to the opinion tendered by the investigating agency, CBI.
As of now, the matter is subjudice and of the opinion that there is due process of law under which the affected party himself can obtain documents to defend him through the Honourable Court. Hence, exemption from disclosure of information under section 8(1)(h) has correctly been invoked by the CPIO in as much as the criminal prosecution launched against the several persons including the appellant's son Shri C.S. Srinivas is in progress. The decisions passed by the Hon'ble Central Information Commission and cited by the Appellant are distinguishable to the appeal before me as the facts discussed in the decisions cited by the applicant are materially different from the facts and circumstances from the present appeal. The appeal is accordingly rejected."
5. This matter initially came up for hearing before the Single Bench of Shri A.N. Tiwari, Information Commissioner on 03.02.2009 and 06.04.2009, when the matter was referred to a ThreeMemberBench comprising Shri A.N. Tiwari, Shri Satyananda Mishra and Shri Shailesh Gandhi, Information Commissioners, due to the fact that certain important points of law needed to be decided.
6. The first hearing before the ThreeMemberBench was held on 07.08.2009 through videoconferencing when the matter was adjourned for fresh hearing following submissions by both parties.
7. Final hearing was held on 15.10.2009 at 05.00 p.m. through videoconferencing. CBI represented by Shri Deepak M. Damor, CIC_AT_A_2008_01238_M_37032.doc Page 4 of 39 Superintendent of Police, as thirdparty were present at CIC's Conference Room No.314 at August Kranti Bhawan, New Delhi, from where the Commission conducted its hearing. Respondents represented by Shri Ravi Selvan, Appellate Authority were present at the NIC VC facility at Hyderabad and so was the appellant.
8. In response to Commission's notice, thirdparty, viz. CBI made the following submissions: "4. As per CBI's Crime Manual 2005, CBI sends 'Superintendent of Police's Report' to the Ministries / Departmental authorities for getting sanction for prosecution. The SP's Report contains all useful and relevant information about the case based on which CBI is seeking Prosecution Sanction. Copy of relied upon documents is also supplied along with the report.
5. On receipt of such report from CBI, Department concerned put up the report before the competent authority to issue Prosecution Sanction. Departments follow certain procedure while processing the file. On enquiry, a Senior Officer of Central Excise Department (Department to which this case is concerned) informed about the procedure generally followed in the Department, as mentioned below:
'In Central Excise Department, issue of Prosecution Sanction for the officers upto the rank of Superintendent is dealt in Commissioner's Office where on receipt of SP's Report from CBI, Vigilance Section of Commissioner's Office processes it. After initiation of Superintendent / Inspector (Vigilance), Asstt. Commissioner (Vigilance) and Joint Commissioner (Vigilance) send the proposal to Commissioner with their noting. Based on which CIC_AT_A_2008_01238_M_37032.doc Page 5 of 39 competent authority takes its decision for issuance of Prosecution Sanction of otherwise. With regard to ClassI Officers, on receipt of SP's Report, CVO / DG (Vigilance) of the Department asks opinion of the Office where the occurrence occurred. After that Asstt. Director (Vigilance), Additional / Joint Director (Vigilance) process the file and send it to DG (Vigilance) who in turn send it to Member, CBEC and Chairman, CBEC and it goes upto Ministry where the competent authority issues the sanction.'
6. While dealing with the issue of Prosecution Sanction every officer in tow offers his opinion with a bonafide belief that his opinion would be kept confidential. With this belief, he gives objective opinion about the issue in question. This confidentiality saves them from any tangible or intangible fear of getting victimized at later stage. Such free and fearless atmosphere is necessary while dealing sensitive issues such as Prosecution Sanction which is essential in the Vigilance functioning of vigilance.
7. In its considered opinion, CBI feels that correspondence of CBI with concerned department while seeking Prosecution Sanction against accused person should not be disclosed to accused / or any other person who otherwise does not have authority, due to following reasons:
(i) The SP report is a privilege and confidential document being exempted under Section 8(e) of RTI Act which can not be disclosed either fully or in part.
(ii) The purpose of SP's Report is to place relied upon documents and evidences in favour and against the prosecution. It also discusses the result of investigation and analysis of quality of evidence. It also discusses the possible pleas that may be taken by the accused and CIC_AT_A_2008_01238_M_37032.doc Page 6 of 39 grounds for rebuttal of such pleas. The SP report is a confidential document containing summary of case diaries which are recorded under section 172 of Cr.P.C. As per the provision of section 172 Cr.PC, the accused or any other person on his behalf is not entitled for perusal of case diaries unless such case diaries are referred by the IO during his deposition for refreshing his memory. Thus the disclosure of SP report would defeat the subject of provision of section 172 Cr. PC.
(iii) SP's Report and correspondence in the possession of Ministry / department are furnished by CBI in fiduciary capacity hence Exemption u/s. 8(1)(e) of RTI Act.
8. As mentioned above, there are many officers in tow who offer their opinion about the prosecution or otherwise of the accused officer based on which competent authority make up their mind. Vigilance Section of any organization is a backbone of the organization. As such, exposing officials, who are dealing the file, to the accused would not be in public interest. Considering this, CBI seeks Exemption u/s. 8(1)(h) of the RTI Act.
9. As CBI discusses all relevant evidences (or lack of it) pertaining to the case, frankly and in detail, with the Department. Sending such documents and correspondence related to this into public domain, even prior to the judicial pronouncement on the case, would put prosecuting agency in disadvantageous position. This has apprehension of having premature media exposure to the confidential documents. While telling so, it is also to mention that copies of all the relied upon documents are provided in all the cases to the accused in compliance to the provisions of Section 207 of Cr.P.C. Hence, CBI seeks Exemption u/s. 8(1)(h) of the RTI Act.
10. While seeking such Exemption, CBI wish to make humble submission before C.I.C. that Criminal Procedure Code and CIC_AT_A_2008_01238_M_37032.doc Page 7 of 39 Criminal Jurisprudence in India has provided all necessary protection to the accused to ensure principle of natural justice and to give full opportunity to the accused to defend his case as per provision of Section 91 of Cr PC. Hence, CBI request that disclosure or otherwise of the documents pertaining to the issues under trial may be left to the Hon'ble Court trying the case and should not be decided on par with other administrative matters."
9. The sumtotal of the thirdparty's submission is that: "SP's report sent to the sanctioning authority can not be disclosed. The SP report is a confidential document containing summary of case diaries which are recorded under section 172 of Cr.P.C. As per the provision of section 172 Cr.P.C., the accused or any other person on his behalf is not entitled for perusal of case diary's unless such case diary referred by the IO during his deposition for refreshing his memory. Thus the disclosure of SP report would defeat the subject of provision of section 172 Cr.P.C."
10. It is their (CBI's) case further that allowing appellant to access a set of material, which Prosecution has chosen not to bring before the Trial Court and which appellant was free to seek to be provided to him through the Trial Court through an RTIproceeding would inflict substantial harm on the Prosecution's case and disturb the entire structure of their argument before the Court. Providing such information to the appellant through RTI will deny the respondents the right to lead arguments before the Trial Court as to why the requested information should not be disclosed to the appellant/the accused in the prosecution. This will be compromising the respondents' right under the criminal law of CIC_AT_A_2008_01238_M_37032.doc Page 8 of 39 the land; would also amount to interfering with the course of justice extant before the Trial Court. Once the prosecution had been started before a Trial Court, all matter related to that trial come under the control of the Court. It follows from it, that any claim by the accused (appellant in the present appeal) to access information, material or evidence relating to the prosecution, held by the public authority (prosecutors before the Trial Court and respondents in the present appeal), should be arbitrated only by the Court, who alone has the power and the competence to weigh respective positions of the prosecutors and the accused, to decide whether the latter should be allowed to receive any material germane to the prosecution as held by the prosecuting public authority. They cited a decision of the Commission in Appeal No.01/IC(A)/2006 dated 16.02.2006 in support of their contention.
11. According to the appellant, the CPIO "had not made out any case for denial of information............." No reasons were furnished by the CPIO in declining to disclose the requested information to the appellant. The Appellate Authority did nothing more than uphold CPIO's decision without assigning any reasons as to why he was rejecting appellant's first appeal.
12. On behalf of the appellant, a case decided by CIC in Appeal No.CIC/WB/A/2007/00116 dated 05.02.2007 was cited, in which it was held that a mere pendency of prosecution or investigation was not CIC_AT_A_2008_01238_M_37032.doc Page 9 of 39 enough reason to deny an information requested by a petitioner under Section 8(1)(h) of the RTI Act. What was needed to be proved was disclosure of such information would 'impede' the process of investigation or prosecution, etc.
13. Appellant has argued that in his RTIapplication, he had sought to be apprised of the basis on which sanction for prosecution was accorded against his son, Shri C.S. Srinivas by the competent authority. This was necessary to prove the innocence of his son in the ongoing prosecution in the Trial Court. Appellate Authority refused to accept appellant's argument that his present request for information was identical to the earlier such requests, which were approved by the CIC in independent appellate proceedings.
14. According to the appellant, a series of events were completed before the chargesheet was filed by CBI before the Trial Court. These events included 1. CBI completed the investigation; 2. sanction for prosecution was sought by CBI from the competent authority, i.e. Commissioner of Customs, Central Excise and Service Tax and
3. competent authority accorded sanction.
15. From the above, it is the appellant's inference that "decision making as far as the sanction of prosecution by the competent authority was complete and over, there is no reason why the same should be CIC_AT_A_2008_01238_M_37032.doc Page 10 of 39 withheld by the public authority." Appellant had stated that he was "apprehensive" that proper sanction for prosecuting his son, Shri C.S. Srinivas was not obtained before filing the chargesheet before the Trial Court. He also believes that sanction was possibly obtained through frivolous and vexatious presentations by the prosecuting agency.
16. Appellant had reiterated that the CPIO and the Appellate Authority were to provide to the appellant specific and not general reasons for denial of the requested information. He cited in support of his contention a CIC decision dated 14.02.2008 in R.K. Meena Vs. Joint Director (Employment), New Delhi. Appellant has also cited Delhi High Court decision in the Bhagat Singh case in W.P. No.3114/2007.
17. Appellant has further argued that "it is seen from the decision of the appellate authority dt. 9.4.2008, that the CBI, DIG (Appellate Authority) vide letter 2/4/2008 had informed that the documents pertaining to the communication with CBI may not be revealed. The appellate authority avers in his decision that the investigation report forms part of the material that has been duly considered by the competent authority while sanctioning the prosecution is an inseparable part of the correspondence file. For the sake of the argument even if this is taken into account, the CBI did not object to revealing the note side pages and the telephone conversation, the disciplinary authority had with the CBI on the matter."
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18. He has also made a general plea that "continuation of trial/prosecution is taken for denial of information under the Section 8(1)
(h) of the Act, considering the crores of criminal cases pending in various courts of this country and the appellate jurisdiction with regard to such cases, the very purpose of RTI Act, 2005 will be defeated in such circumstances. The officers, who are being prosecuted for matters pertaining to discharge of their official duties, if innocent, have to go through the vexatious prosecution for years together. Revealing of information, as provided under the Right to Information Act, 2005, may hasten the judicial process and help the innocent. As already held by the Central Information Commission, there can not be misuse of the truth and the information available to a prosecutor should be made available to the alleged offender also. It would be appreciable for every one if the pace of the judicial process is increased with the help of information obtained under spirit of democracy."
19. Appellant has further pointed out that under Section 8(2), RTI Act supersedes the Official Secrets Act and nothing which could be cited as reasons for keeping the requested information confidential should, therefore, come in the way of authorizing the disclosure of information as requested by the appellant through his RTI application dated 25.01.2008. DECISION NOTICE:
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20. We have carefully considered the submissions made by the appellant, the respondents and the thirdparty, viz. the CBI.
21. The respondents and the CBI have argued that an accused or anyone representing the accused in an ongoing prosecution should not be allowed to access any information which may be evidence in that prosecution independent of the Trial Court. An accused in an ongoing prosecution is free to demand access to any information he considers necessary and appropriate for his defence and the Trial Court after considering the matter in which the prosecuting side is also given a chance to present its arguments makes a decision about whether or not to abide by an accused's request. This is a matter which is entirely within the jurisdiction and the discretion of the Trial Court. To allow an accused access to a set of information known to be related to an ongoing prosecution proceeding through action under the RTI Act, would amount to prejudging the matter for the Trial Court and hence would impede the prosecution in progress. In that sense, it would attract Section 8(1)(h) of the RTI Act. According to the respondents and the thirdparty, any action under the RTI Act which have had the effect of interfering with the discretionary judgement of the Court in an ongoing prosecution, undoubtedly impairs the proceeding and hence impedes it. CIC_AT_A_2008_01238_M_37032.doc Page 13 of 39
22. The respondents and the thirdparty's arguments are based upon a plea for maintaining the integrity of proceeding under a Trial Court in a given prosecution trial, which should not be allowed to be interfered with through any process outside the provisions of the criminal law. According to them, action under RTI Act to access an information germane to a prosecution proceeding is one such action whose net impact would be to impede the ongoing prosecution.
23. Respondents have argued that it is an incorrect assumption conveniently made by the appellant the cause of justice and his own defence could not be served by an autonomous court proceeding before a Trial Court, unless he initiates independent action under the RTI Act to lay his hands on information which he would even otherwise be entitled to summon through the Trial Court. According to the respondents' submission, appellant and his accused son were entirely free to approach the Trial Court for access to the very same information they now wish to be provided to them through the RTI Act. By bringing this matter under the RTI Act, appellant's design was to deny the respondents the right to argue against the disclosure of information before the Trial Court, who alone had the power and the discretion to make a decision in a matter such as this. Apart from seeking tactical gains for himself visàvis the respondents, appellant had also indirectly cast aspersions on the objectivity and the judgement of the Trial Court.
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24. We note that appellant has skirted these submissions of the respondents and has focused on the fact that disclosure of this information to him could not in any way impede the ongoing prosecution proceeding against his son, Shri Srinivas. Therefore, in appellant's argument, Section 8(1)(h) was not attracted to the information requested by him.
25. In our view, the word 'impede' used in Section 8(1)(h) holds the key to whether information requested by the appellant should be allowed to be disclosed.
26. We note that the essential information which appellant wants is all that happened between the CBI and the competent authority records of discussion, telephonic conversations, filenotings, etc. which led to the sanction of prosecution dated 02.08.2007 against appellant's son, Shri Srinivas for action under prevention of corruption Act. We have been informed that this sanction of prosecution is an absolute requirement for a Trial Court to allow prosecution proceedings against an accused, who happens to be a government employee. 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 point. Such evidence would include every single item of information appellant has now demanded through RTI CIC_AT_A_2008_01238_M_37032.doc Page 15 of 39 proceeding. The Court's decision, whether to allow the appellant access to such evidence, is taken after hearing both sides.
27. It is thus obvious that in the matter of access to the requested information, appellant is not all that helpless. He can seek the same information through the Trial Court in full measure and should he succeed in persuading the Court he would have received the records and documents which he is wanting now to access through RTI Act. 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 CIC_AT_A_2008_01238_M_37032.doc Page 16 of 39 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 discretion of the Court, thereby impeding an extant prosecution proceeding. In S.M.Lamba Vs. S.C.Gupta and another Delhi High Court has held "This court would like to observe that under the Code of Criminal Procedure, 1973 once the stage of an order framing charges have been crossed, it would be open to the accused to make an appropriate application before the learned trial court to summon the above documents in accordance with the law."
29. Since the information requested by the appellant is under the control of the Trial Court, it is open to the appellant to approach that Court through an appropriate proceeding under the criminal laws or if he so wishes, under Section 6(1) of the RTI Act. The Court can then take action under Section 2(f) of the RTI Act in case it decides that the petitioner should be allowed access to the information he had requested. The key point is that either of these two actions has to be before the Trial Court and not the respondentpublic authority (viz. Office of Commissioner of Customs, Central Excise and Service Tax) or the third party (viz. CBI) as in this case. We agree with the respondents that the CIC_AT_A_2008_01238_M_37032.doc Page 17 of 39 integrity of a criminal proceeding before a Trial Court in matters of what to allow to be produced as evidence should be taken by the Court itself and not otherwise. We also note the fact that under criminal laws, a public authority is authorized not to produce a certain information or record in the Trial Court unless so directed by the Court itself. Forcing the public authority to part with any such information which it would otherwise not have disclosed before the Trial Court through an RTIproceeding would amount to imposing on the prosecuting public authority, obligations which it was not obliged to bear.
30. It is, therefore, important that all determinations about disclosure of any information relating to an ongoing prosecution should be through the agency of the Trial Court and not otherwise.
31. Commission's attention has been drawn to the decision of a TwoMember Bench of the Delhi High Court in S.P. Singh Vs. UOI & Ors, in which the Court held as follows: "5. We have heard learned counsel for the appellant. It is submitted that the aforesaid grant of sanction against the appellant is illegal.
6. The appellant in our considered opinion has sufficient scope and option to raise the issue of sanction in the trial. This cannot be a ground to direct furnishing of information contrary to Section 8(1)
(h) of the Right of Information Act. The authorities under the CIC_AT_A_2008_01238_M_37032.doc Page 18 of 39 aforesaid Act cannot examine and hold that sanction is valid or bad in law.
7. The respondents herein have sought exemption from furnishing the information sought for by the appellant in view of provisions of Section 8(1)(h) of Right to Information Act 2005, which provides that notwithstanding other provisions in the Right to Information Act, no application to give specific information which would impede the process of investigation or apprehension or prosecution of offenders will be entertained and furnished. Section 8(1)(h) of the Act is an overriding and a nonobstante clause. It cannot be denied that the aforesaid clause is attracted. The concerned authorities have right to deny information once Section 8(1)(h) of the Act is attracted.
8. The information, which is sought for, is in our opinion would impede the prosecution of the offender and, therefore, the respondents are justified in invoking clause 8(1)(h) of the Right to Information Act and claim exemption from furnishing such information. In view of the said provision, we find no reason to interfere with the aforesaid orders by the concerned authorities and interfere with the order passed by the learned Single Judge. Appeal has no merit and the same is dismissed."
32. The burden of the above decisions of the TwoMemberBench of Delhi High Court and Single Member bench of the same Court were that any material connected with an ongoing prosecution cannot be accessed through the RTI Act. In our view, this was the correct caselaw in the matter such as the one before us in the secondappeal. CIC_AT_A_2008_01238_M_37032.doc Page 19 of 39
33. According to the Preamble to the RTI Act, one of the purposes the Act was designed to subserve was to combat corruption. We look askance at any effort to convert the RTI Act into a tool to weaken the edifice of law which seeks to bring to book errant public servants, especially when such public servants have all the means available to them to present their case before the Trial Court and seek from it the very information they now want them to be provided through RTI Act.
34. We have also taken into consideration certain other Sections of the RTI Act to come to the decision that the information as requested by the appellant should not be allowed to be disclosed. It is an admitted fact the CBI as thirdparty, seeking prosecution of the accused Shri C.S. Srinivas, the son of the present appellant had handed over to the Chief Commissioner of Central Excise & Customs, Vadodara evidence collected by it against the accused in an anticorruption matter. Transmission of this evidence was done in confidence for the exclusive purpose of helping the public authority make up its mind regarding whether there was a case to order prosecution against the accused public servant the son of the appellant. This brings the whole matter within the ambit of Section 11(1) read with Section 7(7) of the Act since it "relates to or has been supplied by a thirdparty and has been treated as confidential by that thirdparty..."
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35. When the matter is within the ambit of Section 11(1), a CPIO is required to consult the thirdparty about whether to disclose the requested information and was obliged to keep in view any submission as made by that thirdparty in this case the CBI.
36. Disclosure can be allowed in such matters only if "public interest in disclosure outweighs in importance any possible harm an injury to the interests of such thirdparty".
37. CBI has argued that there was no public interest except the personal interest of the son of the appellant who is in accused in an anti corruption prosecution and what was more any disclosure of this information to the appellant at this stage would undoubtedly cause injury to the CBI's presentation of the case on behalf of the prosecution before the Trial Court. Forcing CBI to provide to the appellant evidence, records and documents it otherwise would not provide to him or provide to him only through the directive of the Trial Court, would have the effect of interfering with the CBI's right to marshall evidence and to present it in the manner or in the sequence, which in its judgment, would be necessary to prove the guilt of the accused. This is CBI's right as the complainant before the Trial Court, which would be seriously compromised if the accused were allowed to force it to give out information and documents through the RTI Act.
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38. The central point of this line of argument is that no attempt to harm the integrity of the prosecution proceeding before the Court as already laiddown in several laws of the land, should be allowed to succeed by casting on the public authority or the prosecuting agency obligations which criminal and evidence laws do not assign to them. No public interest is served by such actions. On the contrary, public interest is positively harmed when interested parties are given the privilege of interrogating a prosecuting agency about its actions visàvis that party through an RTIproceeding when the prosecution before a Trial Court is already extant.
39. We see the merit of this argument and we endorse it.
40. In our view, therefore, neither the provisions of the RTI Act, nor the canons of justice, or equity commend disclosure of information as requested by this appellant.
41. Appeal rejected.
(A.N. TIWARI) (SATYANANDA MISRA)
Information Commissioner Information Commissioner
Dissenting Decision Notice:
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42. I have read the decision being given by my colleagues by Mr. Satyananda Misra and Mr. AN Tiwari and most respectfully have to disagree with it. The facts of the case have been stated in the majority decision, hence I am not repeating them. I have come to the conclusion that the information sought by the appellant must be disclosed, since there are no reasons in law to deny the information. The Commission's decisions have been unanimous so far, and I am hesitant to break this tradition. But I believe when there are different views on transparency, it is worthwhile to voice them. I am inspired by Justice Mathew who had said in the Supreme Court in State of UP vs Raj Narain (1975), 'In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing. The right to know, which is derived from the concept of freedom of speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for transactions which can, at any rate, have no repercussion on public security. To cover with veil of secrecy, the common routine business, is not in the interest of the pubic. Such secrecy can seldom be legitimately desired. It is generally desired for the purpose of parties and politics or personal selfinterest or bureaucratic routine. The responsibility of officials to explain and to justify their acts is the chief CIC_AT_A_2008_01238_M_37032.doc Page 23 of 39 safeguard against oppression and corruption." I sincerely believe that India could benefit immensely from RTI which is but a search for the truth as it exists on the records of public authorities. Denial of information must be an exception, since it is a denial of the fundamental right of the sovereign Citizen of India, and must rigorously meet the requirements of the exemptions of Section 8 (1) of the RTI Act. I cannot agree to views which I feel do not reflect the law in letter and spirit. I am giving the reasons for arriving at this conclusion.
43. The CBI has raised the following arguments to claim exemptions from disclosure:
a. The SP report is a privileged and confidential document and is exempt under Section 8(1)(e) of the RTI Act. SP's report is submitted by the CBI to the departmental agencies in fiduciary capacity therefore exemption is claimed under Section 8(1) (e).
b. The disclosure of the SP' report would defeat the objective of Section 172 of the CrPC.
c. Disclosure of the information (the SP's report) would expose officials who are dealing with the file to the accused. Therefore, exemption has been claimed under Section 8(1)(h).
d. The CBI discusses all the relevant evidences (or the lack of it) pertaining to the case, frankly and in detail, with the Department. Therefore, such correspondence in the public domain would put the CIC_AT_A_2008_01238_M_37032.doc Page 24 of 39 prosecuting agency in a disadvantageous position and open the matter to media exposure. Hence, exemption has been claimed under Section 8(1)(h).
e. The information sought by the Appellant can be made available to the accused (the Appellant's son) in accordance with the provisions of the Criminal Procedure Code Disclosure of the documents should be a decision that is taken by the Trial Court and should not be decided on par with other administrative matters.
f. The CBI is third party and hence if it objects to disclosure of information under Section 11 the information can only be disclosed if a larger Public interest is demonstrated.
The majority decision accepts the CBI's stand and upholds the nondisclosure of information. I respectfully express my dissent with the majority decision for reasons stated below:
44. For Section 8(1)(e) of the RTI Act to apply there must be a fiduciary relationship and the holder of information must hold the information in his fiduciary capacity. The traditional definition of a fiduciary is a person who occupies a position of trust in relation to someone else, therefore requiring him to act for the latter's benefit within the scope of that relationship. In business or law, we generally mean someone who has specific duties, such as those that attend a particular profession or role, CIC_AT_A_2008_01238_M_37032.doc Page 25 of 39 e.g. financial analyst or trustee. The information must be given by the holder of information when there is a choice as when a litigant goes to a particular lawyer, or a patient goes to particular doctor. It is also necessary that the principal character of the relationship is the trust placed by the provider of information in the person to whom the information is given. An equally important characteristic for the relationship to qualify as a fiduciary relationship is that the provider of information gives the information for using it for the benefit of the giver. All relationships usually have an element of trust, but all of them cannot be classified as fiduciary. Only that information can be considered as "available to a person in his fiduciary relationship", which is available to a person in an explicit relationship of trust (typically that of a lawyer, medical practitioner of financial advisor), where the trustee has been given access to the information on the mutual understanding that it is solely to be used for protecting the interests or promoting the welfare of the person giving the information, and where the withholding (or not proactively making public) of such information is not contrary to the law of the land. In the present case, the information the Appellant is seeking is that which has been sent by the CBI to the Department for the grant of the sanction of prosecution. This is a procedural requirement in the CBI's Crime Manual 2005 as mentioned in the submissions made by the CBI and therefore, the CBI does not have choice with regard to who they would submit this report to. Furthermore, the Department would not be CIC_AT_A_2008_01238_M_37032.doc Page 26 of 39 acting on this report based on any loyalty towards the CBI but because of the statutory duties entrusted with the Department. These duties require the Department to grant or reject the sanction of prosecution based on the facts in the report. The element of trust involved in such a situation is not the one required for a fiduciary relationship. The CBI trusts the Department to take action and to discharge its statutory duty. Traditionally, lawyerclient relationship and doctorpatient relationship have been considered to be examples of fiduciary relationship. In these relationships, the lawyer and the doctor act on behalf and in the interest of their client and patient. But in the present case the Department would not be considering the report on behalf of CBI or in the interest of any particular entity or individual.
Therefore exemption under Section 8(1)(e) claimed by the CBI is not tenable under the Right to Information Act.
45. Section 22 of the Right to Information Act categorically states that the provisions of the Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act or any other law for the time being in force. Therefore, if there are any provisions of the Criminal Procedure Code which are inconsistent with the provisions of the RTI Act, as far as disclosure of information is concerned, they would undoubtedly be overruled by the RTI Act. The RTI Act makes no CIC_AT_A_2008_01238_M_37032.doc Page 27 of 39 exception to this provision of overruling and therefore the question of non disclosure of documents in accordance with the Cr.P.C. does not arise in the present case. Parliament does not provide for a specific overriding clause in all laws but it has done so in the form of Section 22 in the RTI Act. Section 22 would be rendered redundant if provisions of previously enacted laws were to be relied on to claim exemption from disclosure. It is a rule of statutory interpretation that a legislature does not introduce unnecessary clauses in an Act. Therefore, it is imperative that Section 22 is applied and not rendered ineffective.
Section 22 provides The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. Justice Sanjeev Khanna of the High Court of Delhi has held in Union of India v Central Information Commission WP (C) 8396/2009, 16907/2006, 4788/2008, 9914/2009, 6085/2008, 7304/2007, 7930/2009 and 3607/2007:
"49. It was urged by Mr.A.S. Chandhiok, learned Additional Solicitor General of India that Section 8(1) of the RTI Act is not the complete code or the grounds under which information can be CIC_AT_A_2008_01238_M_37032.doc Page 28 of 39 refused and public information officers/appellate authorities can deny information for other justifiable reasons and grounds not mentioned. It is not possible to accept the said contention. Section 22 of the RTI Act gives supremacy to the said Act and stipulates that the provisions of the RTI Act will override notwithstanding anything to the contrary contained in the Official Secrets Act or any other enactment for the time being in force. This nonobstante clause has to be given full effect to, in compliance with the legislative intent. Wherever there is a conflict between the provisions of the RTI Act and another enactment already in force on the date when the RTI Act was enacted, the provisions of the RTI Act will prevail. It is a different matter in case RTI Act itself protects a third enactment, in which case there is no conflict. Once an applicant seeks information as defined in Section 2(f) of the RTI Act, the same cannot be denied to the information seeker except on any of the grounds mentioned in Sections 8 or 9 of the RTI Act. The Public Information Officer or the appellate authorities cannot add and introduce new reasons or grounds for rejecting furnishing of information. It is a different matter in case what is asked for by the applicant is not 'information' as defined in Section 2(f) of the RTI Act." (emphasis added) CIC_AT_A_2008_01238_M_37032.doc Page 29 of 39
46. According to Section 8(1)(h) information may be exempt from disclosure if such information would impede the process of investigation or apprehension or prosecution of offenders. In the present matter, the process of investigation is over as the matter has now reached the stage of prosecution. The issue is not of impediment to investigation and therefore, the public authority and/or the third party have to establish before the Commission that the process of prosecution would be impeded if the information sought for by the Appellant is disclosed. The argument made by the CBI to claim exemption under Section 8(1)(h) is flawed for two reasons. First, the submission that disclosing names of the officials involved in the report to the accused, would impede the prosecution itself is not tenable. The officials may claim exemption under Section 8(1) (g) but this would again be open to judicial scrutiny by the Commission and would not be necessarily accepted. Even if this were accepted, the Commission under Section 10 could direct severance of the names of the officers mentioned in the report.
Secondly no reasons have been advanced showing how the prosecution would be impeded by disclosing the information. When denying a right to the citizen, it has to be established beyond doubt that prosecution or apprehension of an offender would be impeded. This has not been done. If Parliament wanted to exempt all information which was CIC_AT_A_2008_01238_M_37032.doc Page 30 of 39 the subject matter of a prosecution, it would have said this. Parliament has specifically exempted only the information which would 'impede' the process of investigation or prosecution.
47. It has been said :
29. Since the information requested by the appellant is under the control of the Trial Court, it is open to the appellant to approach that Court through an appropriate proceeding under the criminal laws or if he so wishes, under Section 6(1) of the RTI Act. The Court can then take action under Section 2(f) of the RTI Act in case it decides that the petitioner should be allowed access to the information he had requested.
30. It is, therefore, important that all determinations about disclosure of any information relating to an ongoing prosecution should be through the agency of the Trial Court and not otherwise. The argument that the information can be made available to the Appellant's son in accordance with the provisions of the Criminal Procedure Code is in itself selfdefeating. This is because it establishes that CBI and the prosecuting agencies have no objection in the Appellant's son accessing the information per se. Their objection is to the route adopted and to the fact that the Commission may order the disclosure of information. The majority decision appears to CIC_AT_A_2008_01238_M_37032.doc Page 31 of 39 subscribe to this. With regard to the Right to Information Act, the Commission is the final decision making body. The Trial Court has jurisdiction over matters coming before it but not over Appeals and Complaints under the Right to Information Act. The Commission cannot abdicate its responsibility and authority in deciding about disclosure of information under the RTI Act to any Court. The existence of an alternative route to access information, does not in itself provide an exemption to disclosure under Section 8 (1) of the RTI Act. Unless the information sought is proven to be exempt under Section 8(1) or 9 of the RTI Act, the Commission cannot accept any other exemption external to either of these provisions. The CBI has not advanced any specific argument to show how the prosecution would be impeded to claim exemption from disclosure under Section 8 (1)
(h).
48. It has been stated regarding Section 2 (j) of the RTI Act :
28. It is significant that this Section uses two expressions about the location of given information, i.e. "held" and "under the control of". In our view, expression 'held' implies that a public authority has physical possession of given information. The work "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.
CIC_AT_A_2008_01238_M_37032.doc Page 32 of 39 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 discretion of the Court, thereby impeding an extant prosecution proceeding. We, therefore, hold that such actions would attract the exemption under Section 8(1)(h) of the RTI Act.
I respectfully disagree with this conclusion. Section 2 (j) states:
"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...
The word used in the provision is 'or' and not 'and'. Thus information may be sought either from the public authority holding the information or the public authority having control over the information. Parliament has deliberately drawn this distinction as in some cases these two public authorities may be two entirely different entities. Therefore, if a public authority holds the information, it must provide the same to the RTI Applicant in accordance with the provisions of the RTI Act. It is not CIC_AT_A_2008_01238_M_37032.doc Page 33 of 39 at all necessary for that public authority to control that information as well. In the present case, the Trial Court may have control over the record, but the CBI is the public authority holding the SP report. Therefore, the SP Report can be sought from the Commissioner of Customs & Central Excise or from the Trial Court. Since the Appellant has sought it from the Commissionerate the public authority holding the information must provide the same.
49. Section 11 of the RTI act, which is another basis on which the information is sought to be denied to the appellant in the present case lays down:
'11. (1) Where a Central Public Information Officer or the State Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which. relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within five days from the receipt of the request, give a written notice to such third party of the request and of the fact that the Central Public Information Officer or State Public Information Officer, as the case may be, intends to disclose the information or record, or part thereof, and invite the third CIC_AT_A_2008_01238_M_37032.doc Page 34 of 39 party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information:
Provided that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure out weighs in importance any possible harm or injury to the interests of such third party.
(2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under subsection (1) to a third party in respect of any information or record or part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure.
(3) Notwithstanding anything contained in section 7, the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under section 6, if the third party has been given an opportunity to make representation under subsection (2), make a decision as to whether or not to disclose the information or record or part thereof and give in CIC_AT_A_2008_01238_M_37032.doc Page 35 of 39 writing the notice of his decision to the third party. (4) A notice given under subsection (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under section 19 against the decision.' It is clearly stated at Section 11 (1) that 'submission of third party shall be kept in view while taking a decision about disclosure of information'.
Section 11 does not give a third party an unrestrained veto to refuse disclosing information. It only gives the third party an opportunity to voice its objections to disclosing information. The PIO will keep these in view and take a decision about disclosure of information. If the PIO comes to the conclusion that the exemptions of Section 8 (1) apply, he may refuse to disclose the information.
Section 11 of the RTI Act is a procedural provision which requires the PIO to approach a third party if the information sought relates to such third party. Section 11 is not a substantive provision and therefore is not an exemption in addition to those provided in Section 8(1) and 9. The purpose of Section 11 is to provide an opportunity to a third party to object if information has been sought by an applicant which has been supplied by the third party or relates to him. This is to satisfy the principles of natural justice, since it gives the third party an opportunity to present his submissions arguing why the information may not be disclosed under the RTI Act. According to this provision, once the PIO CIC_AT_A_2008_01238_M_37032.doc Page 36 of 39 receives the objections, raised by the third party, he must keep these in view while deciding whether to disclose the information or not. This decision has to be in consonance with the other provisions of the RTI Act and therefore exemptions claimed by the third party have to be justified by the PIO under Section 8(1) or Section 9. The provision of Section 11 (4) gives the right to a third party to appeal against the decision of the PIO. This would not have been relevant if the mere denial by the third party of disclosure of information were to be considered to be final.
50. It has been stated that "According to the Preamble to the RTI Act, one of the purposes the Act was designed to subserve was to combat corruption. We look askance at any effort to convert the RTI Act into a tool to weaken the edifice of law which seeks to bring to book errant public servants, especially when such public servants have all the means available to them to present their case before the Trial Court and seek from it the very information they now want them to be provided through RTI Act.
I most respectfully disagree with this contention since it appears to propound a principle that an accused in a corruption case can be denied his fundamental right. Right to Information is a fundamental right of the Citizens codified by the RTI Act 2005. A fundamental right cannot be CIC_AT_A_2008_01238_M_37032.doc Page 37 of 39 curtailed arbitrarily and without the sanction of law. It does not matter if the person accessing the information or the person in relation to whom information is sought is a convict or an accused. He cannot be denied his fundamental right. The duty of the Commission is to ensure that the RTI Act is implemented properly and to ensure that it does not take into account extraneous considerations while deciding on Appeals and Complaints before it.
51. To summarise : a. The information sought is not exempt under Section 8 (1) (e) or (h) for reasons explained above.
b. The RTI Act clearly overrides all other prior Acts in matters of disclosure of information as per Section 22.
c. Refusal of information can only be based on the RTI Act, when an application is made under this Act. The Commission is a creation of the RTI Act and can only agree to denial of information which is expressly exempted under Section 8 (1) or 9 of the RTI Act.
d. If there are various routes by which a Citizen can access information, it is his prerogative to use one which he finds convenient. e. Section 11 is not a provision which can be used to justify exempting information from being disclosed, unless it is covered by Section 8 (1). CIC_AT_A_2008_01238_M_37032.doc Page 38 of 39
52. In view of the reasons stated above, I find the arguments put forward for the denial of information to be untenable. Hence I cannot agree with the majority decision, and it is my considered opinion that the information sought by the Appellant is not covered by the exemptions of Section 8(1) of the RTI Act and hence should be disclosed.
Shailesh Gandhi Information Commissioner 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.
(D.C. SINGH) Asst. Registrar CIC_AT_A_2008_01238_M_37032.doc Page 39 of 39