Central Information Commission
Mr.Jitender Garg vs Ministry Of External Affairs on 3 May, 2010
Central Information Commission
CIC/AD/A/2010/000336
Dated May 3, 2010
Name of the Applicant : Shri Jitendra Garg
Name of the Public Authority : Ministry of External Affairs
Background
1. The Applicant filed an RTI application dated 02.04.2009 with the PIO, Ministry of External Affairs, New Delhi requesting for information against four points, as follows:
a) Copy of the Request made to the UK Govt. for deportation of Lt. Ravi Shankaran I.N (Retd.) Passport no Z 1591442;
b) Copy of the reply from the British Govt. requesting the MEA to forward the formal extradition request for him;
c) Copy of the covering letter only forwarding the formal request for extradition to the UK Government by MEA
d) Copy of the arrest warrant issued by the UK Govt. for Lt. Ravi Shankaran I.N (Retd.)
2. Shri Debraj Pradhan, PIO denied the RTI request on 20.05.09 stating that the Division of the Ministry had conveyed that the information as sought by the Applicant could not be disclosed under Section 8(1) (a) of the RTI Act 2005. However since the said response of the MEA was stated to have been received by the Applicant only on 01.06.2009, therefore the Applicant filed a First Appeal on 22.05.2009 on the ground that he had not received any information whatsoever from the CPIO, MEA. Subsequently, the Applicant filed a Revised Complaint cum First Appeal dated 06.06.2009 which was rejected by the First Appellate Authority vide communication dated 02.07.2009 on the ground that the information sought was barred from disclosure under provisions of Section 8 (1) (a) of the RTI Act 2005. The Appellant filed another Revised First Appeal on 16th July 2009 which was also rejected vide communication dated 07.08.2009 stating that the RTI application was forwarded to the Joint Secretary (Europe West) on April 16, 2009, who, by their note dated April 20, 2009 advised the Applicant to approach the Central Passport and Visa (CPV) Division of the MEA. The CPV Division denied the information by the note dated May 04, 2009 which was forwarded by the RTI Division to the Applicant by letter dated 20.05.2009. Thus the Respondent Appellate Authority has sought to explain that the delay caused in responding to the RTI application was unintentional and beyond the control of the CPIO.
3. Being aggrieved by such response, the Applicant filed a Second Appeal on 16.01.2010 before the CIC reiterating the entire sequence of events leading to the Second Appeal. Apart from citing that the Respondent had erred in responding belatedly on his application, the Appellant herein placed reliance on another case being CIC/AD/A/2008/000243 dated 24.08.2009 drawing similarity with the instant case. The Applicant further alleged and submitted media reports indicating that the Respondent (MEA) is protecting the absconding accused i.e. Lt. Cdr. R. Shankaran (Retd.) and that the public interest in the disclosure of the information outweighed the harm to the protected interest, as enunciated in the Section 8(2) of the RTI Act 2005. The Applicant further pleaded that he be provided with the information in public interest in order that such accused may not escape the rigours and punishment as prescribed under law. According to the Applicant, the CBI had charged Lt. Cdr. Shankaran, one of the key accused in the Naval War Room Leak case, with serious offences under Section 3 and 5 of the Official Secrets Act 1923 and Section 120B of the Indian Penal Code; whereas the Interpol red Corner Notice had only stated that he is wanted for Fraud, which is factually incorrect.
4. The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the hearing on April 20, 2010 through video conferencing.
5. Sh. Debraj Pradhan, JS (RTI); Sh. P M Meena, JS (Cons) and Sh. D K Ghosh, US represented the Public Authority.
6. None was present on behalf of the Appellant during the hearing. Decision
7. The Respondent addressed their arguments during the hearing stating that the accused in this case, information about whom has been sought, is absconding and is perhaps in Europe somewhere. He has been charged of the offences as rightly pointed out by the Appellant.
8. While dealing with the case at hand, it is important to know the scope and definition of the specific Sections of the Official Secrets' Act, 1923 and the Indian Penal Code, under which the accused has been charged vis a vis with the offences alleged to have been committed. The Sections under which the accused has been charged are as follows:
OFFICIAL SECRETS' ACT Section 3. Penalties for spying.--
(1) If any person for any purpose prejudicial to the safety or interests of the State
--
................................
(c) obtains, collects, records or publishes or communicates to any other person any secret official code or pass word, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States, he shall be punishable with imprisonment for a term which may extend, where the offence is committed in relation to any work of defense, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government or in relation to any secret official code, to fourteen years and in other cases to three years.
(2) On a prosecution for an offence punishable under this Section it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State, and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interests of the State; and if any sketch, plan, model, article, note, document or information relating to or used in any prohibited place, or relating to anything in such a place, or any secret official code or pass word is made, obtained, collected, recorded, published or communicated by any person other than a person acting under lawful authority, and from the circumstances of the case or his conduct or his known character as proved it appears that his purpose was a purpose prejudicial to the safety or interests of the State, such sketch, plan, model, article, note, document, information, code or pass word shall be presumed to have been made, obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State.
5. Wrongful communication, etc., of information.--
(1) If any person having in his possession or control any secret official code or pass word or any sketch, plan, model, article, note, document or information which relates to or is used in a prohibited place or relates to anything in such a place, or which is likely to assist, directly or indirectly, an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States or which has been made or obtained in contravention of this Act, or which has been entrusted in confidence to him by any person holding office under Government, or which he has obtained or to which he has had access owing to his position as a person who holds or has held office under Government, ..................... employed under a person who holds or has held such an office or contract--
(a) wilfully communicates the code or pass word, sketch, plan, model, article, note, document or information to any person other than a person to whom he is authorised to communicate it, or a court of Justice or a person to whom it is, in the interest of the State, his duty to communicate it; or
(b) uses the information in his possession for the benefit of any foreign power or in any other manner prejudicial to the safety of the State; or
(c) ................................................
(d) fails to take reasonable care of, or so conducts himself as to endanger the safety of the sketch, plan, model, article, note, document, secret official code or pass word or information, he shall be guilty of an offence under this section.
(2) If any person voluntarily receives any secret official code or pass word or any sketch, plan, model, article, note, document or information knowing or having reasonable ground to believe, at the time when he receives it, that the code, pass word, sketch, plan, model, article, note, document or information is communicated in contravention of this Act, he shall be guilty of an offence under this section.
(3) ......................................
And the offence under Section 120A of the IPC and punishment thereof under Section 120 B of the IPC are as hereunder:
INDIAN PENAL CODE 120A. Definition of criminal conspiracy. When two or more person agree to do, or cause to be done, (1) An illegal act, or (2) An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation: It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.] Section 120B. Punishment of criminal conspiracy (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards shall, where no express provision is made in this Code fro the punishment of such a conspiracy, be punished in the same abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]
9. The nature of offences as discussed hereinabove indicates that the particular provisions of law deal with offences of very serious nature directed against the State. In view of the fact that the charges framed against the accused deal with these very provisions which demonstrate acts/omissions clearly detrimental to the interest of the State, the information sought in this case also assumes great importance. The Commission noted that the decision referred to and relied upon by the Appellant in the Second Appeal being CIC/AD/A/2008/000243 is distinguishable from the instant case at hand, in as much as the offence dealt with in this case as discussed above, deals with offences committed against the Union of India and are of very grave nature where confidential information related to defense of the country have been wrongfully leaked, as opposed to the case relied upon, which dealt with Economic offences. Therefore the reliance placed is not applicable in this case being based on completely distinguishable premises.
10. In view of the submissions made by the Respondent explaining that despite the Red Corner notice issued by Interpol, Non bailable warrant issued by District Judge in the UK and Chargesheet filed by the CBI, the accused Lt. Cdr. Shankaran has been absconding, the Commission is of the opinion that the disclosure of the information at this stage will hinder the progress in investigation and prosecution in the case. As is evident from the facts of the case, based on the documents submitted on record, while the accused is absconding, disclosure of any information in this regard at this stage will only make him more precautious and aid him in devising more ways of evading arrest. The furnishing of information will hence act as an impediment in the prosecution, arrest and investigation in this case thereby violating the provisions of Sections 8 (1) (h) of the RTI Act 2005. Therefore, in the interest of justice and in order that the prosecution and investigation in this case may continue uninterrupted, it is the considered opinion of the Commission that the information may not be disclosed.
11. The appeal is hence dismissed.
(Annapurna Dixit) Information Commissioner Authenticated true copy:
(G.Subramanian) Deputy. Registrar Cc:
1. Sh. Jitender Garg Advocate 137, Lawyers Chambers Patiala House Courts New Delhi - 110 001
2. PIO Ministry of External Affairs Joint Secretary (RTI) Akbar Bhawan, Chanakyapuri New Delhi.
3. Appellate Authority Ministry of External Affairs O/o the Secretary Room No. 183 A, South Block New Delhi.
4. Officer incharge, NIC
5. Press E Group, CIC