Central Information Commission
Mr.Gopal Krishan Aggarwal vs Delhi Police on 16 September, 2013
Central Information Commission
Room No.305, 2nd Floor, August Kranti Bhawan,
Bhikaji Cama Place, New Delhi - 110 066
Website: www.cic.gov.in Tel No:26167931
Case No: CIC/SS/A/2012/003102
16 September, 2013
Name of the Appellant : Shri G.K Agarwal, Jail No3, Tihar
Name of Respondents : Delhi Police Crime Branch
Date of Hearing : 13.09.2013
ORDER
Shri G.K Agarwal hereinafter called the Appellant has filed the present appeal dated 10.08.2012 before the Commission against the respondent namely Delhi Police, Crime Branch. The Appellant was not present in the hearing and the RespondentAPIO Shri J.K Sharma was present in the hearing.
2. The Appellant through the RTI application dated 04.04.2012 sought information as follows: (a) whether, the IO of Crime Branch has submitted the Case Diaries of the investigation of said case to the SHO of PS Hauz Quazi for compilation of record of crime register of SHO Hauz Quazi and of V.R.K records or not? (b) If the case diaries has been already submitted by the IO of the Crime Branch to the SHO of PS Hauz Quazi, please supply the verified copy of the concerned page of crime register of SHO PS Hauz Quazi as subjected and sought above.
3. CPIO vide letter No: 2012/83940/5992/RTI Cell/Central District dated 02.05.2012 replied as follows: "The point wise reply of your application pertaining to Central district is as under:
(a) Copies of Case Diary of case of FIR No: 356/07 u/s 302/120B/34 IPC PS Kamla Market has been received in the VRK Branch of Kamla Market;
(b) The requisite information cannot be provided to you under the provision of Section 8 (1) (h) of the RTI Act, 2005 as the case FIR No. 356/07 u/s 302/120B/34 IPC Ps Kamla Market is pending trial. The providing of any information would impede the process of prosecution of offenders."
4. Aggrieved with the reply of CPIO, Appellant filed a first appeal dated 22.05.2012 before the FAA over which an order has been passed by the FAA vide order no:
9274/RTI/Appeal/Central District dated 29.06.2012 as follows: "....since the PIO/Central District, Delhi has provided factual information at Point 2 (a) of the RTI application and appropriately exempted the providing of information at Point 2 (b) of the RTI application to you, there is no ground to entertain this appeal. The appeal is accordingly disposed off."
5. Being aggrieved with the reply of the FAA, Appellant filed a second appeal before the commission wherein appellant states that the PIO has not provide the information in respect of his RTI application till the filing of second appeal before the commission.
6. During hearing before the Commission, DCPCrime Branch submits that the disclosure of case diaries are exempted from disclosure u/s 8 (1) (g) and 8 (1) (h) of the RTI Act, 2005 because it would impede the process of prosecution of offenders.
7. Before proceeding with the present facts of the case the Commission would like to quote judgment of the Hon'ble Supreme Court wherein the Hon'ble Court has made an observation regarding case diary and its use during the trial in court. In the matter of Sidharth etc. Vs. State of Bihar (Criminal Appeal Nos. 688 of 2003, decided on 30.09.2005) it was held:
"Lastly, we may point out that in the present case, we have noticed that the entire case diary maintained by the police was made available to the accused. Under Section 172 of the Criminal Procedure Code, every police officer making an investigation has to record his proceedings in a diary setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. It is specifically provided in Subclause (3) of Section 172 that neither the accused nor his agents shall be entitled to call for such diaries nor shall he or they be entitled to see them merely because they are referred to by the Court, but if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 of the Cr.P.C. or the provisions of Section 145 of the Evidence Act shall be compiled with. The Court is empowered to call for such diaries not to use it as evidence but to use it as aid to find out anything that happened during the investigation of the crime. These provisions have been incorporated in the Code of Criminal Procedure to achieve certain specific objectives. The police officer who is conducting the investigation may come across series of information which cannot be divulged to the accused. He is bound to record such facts in the case diary. But if the entire case diary is made available to the accused, it may cause serious prejudice to others and even affect the safety and security of those who may have given statements to the police. The confidentiality is always kept in the matter of criminal investigation and it is not desirable to make available the entire case diary to the accused. In the instant case, we have noticed that the entire case diary was given to the accused and the investigating officer was extensively crossexamined on many facts which were not very much relevant for the purpose of the case. The learned Sessions Judge should have been careful in seeing that the trial of the case was conducted in accordance with the provisions of the Cr. P.C."
The relevant section of Criminal Procedure Code is being reproduced below:
172. Diary of proceedings in investigation. (1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the Information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances [ascertained through his investigation.
(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be of the Indian Evidence Act." Shri A.N Tiwari & Shri M.M Ansari in the matter of Shri Kuldeep Kumar V Shri B.S Brar having case No. CIC/AT/A/2006/00071 (decided On: 11.05.2006) while allowing disclosure of a gist of the depositions of those examined by the police without disclosing names or details which could compromise witness/source confidentiality and safety observed that:
We are in agreement with the appellate authority's averment that disclosing the details of the case diary will have far reaching consequences in terms of the confidentiality of the information received by the police and may even endanger the physical safety of those examined by the police authorities. However, we also notice that in spite of claiming absolute exemption under Section 8(1)(g), the PIO had voluntarily given some information to the appellant about the status of his case along with the reason as to why it was treated as untraced. In our view, some more information than what has been given to the appellant can also be given to him without unduly compromising the investigation or the witnesses etc. We say this while still recognizing that in all requests for information under RTI Act, especially when they pertain to the law enforcement authorities, it becomes necessary to strike a fine balance between the imperatives of the confidentiality of the sources of information, witness protection and so on, with the right of the citizen to get information. In our view, in this particular case, that balance will not be unduly affected if the following further information is furnished by the PIO to the appellant.
We wish to add here that we accept the merit of the police authority's contention that an openended order by this Commission to make available to any information seeker, all the details of investigation into a crime, will have serious implications for law enforcement and will have potentiality for misuse by criminal elements. Each case will, therefore, have to be examined independently, on the basis of facts specific to that case. In this particular case, we don't find that the apprehensions of the police about disclosure of information are justified."
8. The Commission observes that the this Bench of the Commission has also decided the similar issue in case of Krishna Verma, Bhiwani vs. Delhi PoliceNorth West District having case no: CIC/SS/A/12/001669 in a very comprehensive manner.
9. The Commission observes that, from the preceding Judgments and orders it is well understood that case diary maintained by the police is a privileged document and all the details especially relating to the identity of the witness needs to be protected.
However, the appellant has relied upon various orders and judgments along with the Judgment of the Hon'ble Delhi High Court in the matter of Deputy Commissioner of Police Vs. D.K Sharma wherein the trial proceedings had concluded and the accused was convicted. The Commission concurs with the view taken by the Central Information Commission in the previous orders that there is a well established procedure in law to ensure natural justice and that the disclosure of the copies of the case diary at this stage may impede the process of prosecution. In view of above discussion, the Commission observes that the information was correctly denied by the CPIO and FAA on para 2(b) of the RTI application of the Appellant.
10. With these observations the appeal is disposed of on the part of the commission.
(Sushma Singh) Information Commissioner Authenticated true copy:
(D.C Singh) Deputy Secretary To:
1. Shri G.K Agarwal, S/o Late Shri Brij Kishore Agarwal, Through the Superintend, Central Jail No3, Tihar, New Delhi
2. The CPIO, The Addl. Dy. Commissioner & PIO, Delhi Police - Central District, Darya Ganj, Delhi.
3. The Addl. Commissioner and First Appellate Authority, Delhi Police - Central District, Darya Ganj, Delhi.