Central Information Commission
Shri S. K. Kapoor vs Dy. Commissioner Of Police (Dcp) ... on 1 May, 2009
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/01661 & CIC/WB/A/2008/00880 dated 16.7.2007 & 20.5.2007
respectively
Right to Information Act 2005 - Section 19
Appellant - Shri S. K. Kapoor
Respondent - Dy. Commissioner of Police (DCP) Economic Offences Wing
Facts:
These are two appeals from Shri S. K. Kapoor of Paschim Vihar, New Delhi
against decisions of the Economic Offices Wing (EOW) of Delhi Police on his
applications.
FILE NO. CIC/WB/A/2007/01661
In a request of 7.5.07 Shri Kapoor had sought information on 16 points from
Addl. Commissioner of Police (Crime), Police Headquarters. To this he received
a response from PIO Shri K. K. Vyas, DCP (EOW) dated 4.6.07 refusing
information u/s 8(1)(h) to questions contained in Sr. Nos. 1, 7, 10, 11& 13 to 16
of Shri Kapoor's application, u/s 8(1)(e) to part of Q. No. 13, and outright refusal
to Q. Nos. 2, 3, 4, 5 & 6, as in the view of PIO they were 'of no concern' to the
appellant Shri Kapoor, answering only 8,9 & 12, and that in denying the
information as outside the definition of that word in Sec 2(f) of the Act. In his first
appeal of 8.6.07 before JCP (Crime), PHQ Shri Kapoor contested the answer
given to each of the questions raised by him upon which Shri Ranjit Narain, JCP
(Crime) ordered as follows:
"Point No. 1 (a): The PIO is directed to provide a certified copy of
the referred summons/ memos to the applicant within two
weeks.
Since the case diary is a privileged record and investigation is in
progress, the photocopy of it cannot be provided being exempted
under section 8 (1) (h) of the RTI Act. Action of PIO is justified.
Point No. 1(b): The copy of FIR, which is registered on the
complaint of appellant, has already been provided to him.
Certified copy of complaint and statement of accused
recorded during enquiry/ investigation cannot be provided to
the applicant being covered under the exemption of section
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8 (1) (h) of the RTI Act as the matter is under investigation.
Action of PIO is justified.
Point No. 2: The information sought is general in nature. The
appellant is advised to be specific in order to facilitate the
information sought.
Point No. 3: Since the "circular" is covered within the definition of
"information" defined under the section 2(f) of the RTI Act.
The PIO is, therefore, directed to re-examine the matter and
inform the appellant within two weeks.
Point No. 4: There is no obligation on the part of PIO to respond
since the information sought neither relates to the applicant
nor involves a public interest.
Point No. 5& 6: The information sought is general in nature. The
appellant is advised to be specific in order to facilitate the
information sought.
Point No. 7: The PIO has adequately responded. The appellant
my, however, approach to the appropriate authority for
having the allegations looked into, if desires so.
Point No. 8 & 9: The information sought does not exist. The PIO
has adequately responded. However, if the appellant
intends to seek specific information in respect of individual
case, the same can be re-considered within the provision of
the RTI Act.
Point No. 10 & 11: Denial of documents sought is justified as the
investigation is in progress and duly covered under
exemption of the section 8 (1) (h) RTI Act.
Point No. 12: the information provided by the PIO is found correct.
Point No. 13, 14, 15 & 16: The information sought vide these points
are part of investigation of the case FIR No. 1062/06 u/s
120-B/406/409/420/467/471 IPC PS Lajpat Nagar, which is
still in progress. The PIO has adequately responded in
respect of these points. The action of PIO is justified as the
information sought is debarred from disclosure under the
exemption of section 8 (1) (h) RTI Act. The PIO is, however,
directed to inform the applicant about the progress of
investigation conducted so far."
Shri Kapoor then moved a second appeal before us with the following prayer:
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"1. Appellant most respectfully prays that Delhi Police may
please be directed to give information, sought vide
appellants letter dated 7.5.2007 placed at Annexure P-1
within 48 hours.
2. Levy maximum penalty on respondent for intentional
refusing to give information. Under Section 20 (1) of the
RTI Act 2005.
3. Appellant requests for full bench hearing of case to
decide applicability of section 8 (1) (h) verses
applicability of section 8 (2)
The appeal was fixed for hearing on 17.4.2009 but on appellant's Email
request of 10.4.09 for adjournment and that the hearing be clubbed with the
hearing in File No. CIC/WB/A/2008/00880 the hearing was adjourned with the
concurrence of respondents.
F. No. CIC/WB/A/2008/00880
In this case by an application of 3.3.08 appellant Shri Kapoor sought a
response to 21 questions with several sub-questions. To this also he received a
response on 28.4.08 again refusing information sought against Sr. No. 13, 15, 17
& 19, seeking exemption citing exemption of sub sec. 1(h) of sec. 8, and
questions 17(B)(I), 18(ii), 20 & 21 under sub sec. 1(e) of sec. 8. In this case
appellant Shri Kapoor moved his first appeal on 11.4.08 contesting the grounds
for refusal upon which, by his order of 14.5.08 Shri S. B. K. Singh, Addl.
Commissioner of Police, EOW dismissed the appeal as follows:
"Para 1 to 12
I agree with the reply given to you by the PIO with regard to Para 1
to 9 and 11-12 as the same is exempted under clause 8 (1) (h) of
RTI Act. With regard to P-10, I am of the view that the information
sought is a third party information and the relevant case is pending
trial, hence the information sought can not be provided under
section 8 (1) (h) and Section 11 of RTI Act.
Para -13
In this regard it is informed that the matter has already been
decided vide order dated 28.4.2008 in your earlier RTI Application
and accordingly a notice has been issued to you.
Para -14
I agree with the reply of the PIO reason being that this is a query
and not information as defined in RTI Act.
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Para -15
In this regard, specific complaint may be made regarding giving of
specific documents which may be enquired into separately. As far
as misrepresentation by Mr. Manocha is concerned, the fact is
under investigation in the instant case and the same is exempted
under section 8 (1) (h) of RTI Act.
Para-16
I agree with the reply of PIO and the action of EOW was in
accordance with the law.
Para -17
I agree with the reply of PIO. Further the similar points were raised
in your earlier RTI application in which the CIC vide order dated
28.4.2008 has directed to provide part information, which has
already been provided to you. As regard seeking legal opinion
mentioned in para-17(b), it is informed that it is discretion of the
investigating agency to take legal opinion.
Para-19
I agree with the reply given to you by the PIO with regard to Para
19 as the same is exempted under clause 8 (1) (h) of RTI Act.
Para 18, 20 to 22
The issue on the matter has already been decided by CIC vide
para-9 of the order dated 28.4.2008 in appeal to your earlier RTI
application and the same will be taken up accordingly.'
Appellant's prayer before us in his second appeal is as below:
"1. Appellant most respectfully prays that Delhi Police may
please be directed to give information, sought vide
appellants letter dated 3.3.08, placed at Annexure P-1.
2. Levy maximum penalty on respondent for intentional
refusing to give information, GIVING IRRELEVANT
INFORAMTION, Under Section 20 (1) of the RTI Act,
2005.
3. Full Bench hearing to decide applicability of section 8
(2) vs. 8 (1) (h).'
Both appeals were heard on 1.5.09. The following are present:
Appellant
Shri S. K. Kapoor
Respondents
Shri K. K. Vyas, DCP, EOW.
Shri Pankaj Arora, Inspector.
Shri M. K. Mishra, SI.
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We find that appellant Shri Kapoor has, in his appeal of 11.4.08,
specifically cited the decision of the Delhi High Court in W.P. No. 3114/2007
decided on 3.12.2007. Yet Shri S. B. K. Singh, in his order of 14.5.08 has not
taken account of that definitive decision on the application of exemption u/s 8(1)
(h) in disposing of the appeal of appellant Shri Kapoor. We also examined with
the parties in the hearing the basis of refusal of information on each of the points
other than that sought to be exempted u/s 8(1) (h) as below:
File No. CIC/WB/A/2007/01661
Question 13 in the application of 7.5.07 reads as follows:
"13. Please give me copy of letter sent to SEBI and NSE as
indicated in status report given to Delhi High Court, with
copy of reply received from NSE and SEBI."
The response of PIO is as below:
"13. The information/ documents sought are part of pre and post
registration investigation conducted on case FIR No.
1062/2006 u/s 120B/406/409/420/467/468/471 IPC PS
Lajpat Nagar. As the case is under investigation, the sought
information/ documents fall under the exemption clause 8 (1)
(h) of RTI Act, 2005 as it may impede the process of
investigation of the case. Moreover, all correspondence
made with National Stock Exchange during the pre and post
registration investigation is fiduciary in nature and is also
exempted u/s 8 (1) (e) of RTI Act 2005 as the sought
information/ documents relate to correspondence between
the investigating agency and the National Stock Exchange
for ascertaining facts for the purpose of investigation being
confidential in nature."
DCP Shri K. K. Vyas agreed that subject to the decision in review with
regard to disclosure of the documents sought to be exempted u/s 8(1)(h), the
correspondence with the National Stock Exchange will be provided to appellant
Shri Kapoor without recourse to exemption u/s 8(1)(e).
Appellant Shri Kapoor agreed that the answers to be provided as per
direction of JCP (Crime) Shri Ranjit Narain have indeed been provided i.e.
answers to question Nos. 1 & 3. Questions 4, 5 & 6 read as follows:
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4. "When complaint against Mr. Manchanda Inspector who
committed suicide and blamed commissioner of Police for
harassment, received by Commissioner of Police for
allegations of his registering FIR in a property dispute, date
on which this complaint was transferred to Vigilance, date on
which Mr. Manchanda was suspended.
5. Please provide me list of cases since September 2005, in
which opinion from Prosecution branch was sought before
taking decision regarding registering FIR or filling complaint.
6. Please confirm that case was registered by EOW against
vendor or an exporter, on complaint that exporter suffered
losses, as vendor intentionally delayed consignment, so that
LC of exporter expires (As per report appeared in the
Hindustan Times in 2004)."
On question No. 4, the DCP (EOW) submitted that his Department did not
hold the information sought. The reference in this question in the initial
application is indeed to an application made to Commissioner of Police.
Appellant Shri Kapoor is free to move an application to that office to seek the
information that he has sought. On question No. 5, DCP Shri Vyas submitted that
his office holds no data. Question No. 6 has already been agitated before this
Commission, which in a decision of this Commission of 28.4.08 has already been
refused as follows in SK Kapoor vs. Addl. CP (Crime) File No.
CIC/AT/A/2007/00100:
The appellant has produced a newspaper clipping to support
his claim that there was a possibility of corruption in this
matter that would bring it within Section 8(2) of the RTI Act.
Decision:
The appellant's contentions are specious. Newspaper reports alone
cannot become a basis for invoking the public-interest-override
provision under Section to disclose the information which relates to
an ongoing investigation. It is, therefore, held that there shall be no
disclosure obligation as regards this item. .
File No. CIC/WB/A/2008/00880
In this case the information sought to be withheld is with regard to
Questions 17, 18, 21 & 22. These questions, together with their answers, read
as follows:
S. No. Question Answer
17 B (I) Please give me name & This is internal official
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designation of officers, who matter/ notings and
against the judgment of SC information sought cannot
took decision to seek opinion be divulged, as it forms part
from prosecution branch. of fiduciary relationship and
exempted u/s 8 (1) (e) of
RTI Act. Since the
disclosure of the name of
the officer would endanger
the life or physical safety or
identify the source of
information or assistance
given in confidence for law
enforcement or security
purposes, it is also
exempted u/s 8 (1) (e) of
RTI Act.
18 (ii) Please provide me copy of Since the disclosure of the
investigation report of officers name of the officer would
who investigated my this endanger the life or physical
allegation. safety or identify the source
of information or assistance
given in confidence for law
enforcement or security
purposes, it is also
exempted u/s 8 (1) (e) of
RTI Act.
20 I had sent complaint to Matter was enquired into
Commissioner of Police by e- and no lapse was found.
mails which were Since the disclosure of the
acknowledged by Delhi Police name of the officer would
vide ref. no. is 913/E mail endanger the life or physical
dated 24.7.07 & 595/E dated safety or identify the source
4.5.07. of information or assistance
Please give me copy of given in confidence for law
findings / file notings of enforcement or security
Commissioner of Delhi Police, purposes, it is also
Jt. Commissioner, Delhi Police exempted u/s 8 (1) (e) of
and other officers, who dealt RTI Act.
with my complaint and inform
me date and time on which I
can aspect file pertaining to
my these e-mails.
21. Please inform me time and A reply under RTI Act has
date when I can inspect the already been provided to
pertaining to rewarding Mr. M. you in response to your
K. Sharma, ACP/EOW with earlier applications under
extension of 6 months, in spite RTI Act. The rest part is
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of serious lapses in exempted u/s 8 (1) (e) of
investigations of my complaint, RTI Act.
pointed out by me from time to
time and file pertaining to my
complaint against police
persons.
PIO Shri Vyas submitted that the question is so put at S. No 17(B) (I) has
so been put that by providing an answer would amount to contempt of court,
whereas the EOW wing has no such intention in making any references as
asked. The plea taken for refusal of information u/s 8(1)(e) in reply to the
questions sought at Sr. No. 18(ii) in fact quotes Sec 8(1) (g) and not Sec 8(1)(e),
which has been cited. At any rate PIO Shri Vyas expressed his readiness to
disclose any such enquiry report together with statements after excluding names
under the severability clause of sec. 10 sub sec. (1). On Question 21, however,
Shri Vyas pleaded that the information sought refers to disciplinary action and is
not held by the EOW but either by the PHQ or MHA.
DECISION NOTICE
On questions where exemption has been claimed under sub sec. (1)(h) of
Sec. 8 of the RTI Act, we find that this has been done without reference to the
definitive ruling of the High Court of Delhi on the application of exemption under
that clause. In the High Court of Delhi ruling in W.P. (C) No 3114/2007 - Shri
Bhagat Singh Vs. Chief Information Commissioner & Ors., Hon'ble
Ravinder Bhat, J. has clearly laid down that while disclosure of information
becomes the rule with the adoption of the RTI Act, 2005, exemption from
disclosure is only the exception and will have to be fully justified to an applicant.
In light of this we see no reason for a Full Bench of the Commission to convene
on the issue determined with such lucidity as to leave no room for doubt or
uncertainty. In these two cases however no such justification as demanded by
this ruling has been spelt out in the refusal in both the orders impugned before
us. Hence the decision of PIO Shri K. K. Vyas in refusing information to
questions 1, 7, 10, 11 & 13 to 16 in F. No. CIC/WB/A/2007/01661 and 14, 15, 17
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& 19 in File No. CIC/WB/A/2008/00880 are set aside. Similarly the response to
question 13 in File No. CIC/WB/A/2007/01661 is also set aside in terms of the
refusal of information under sub sec. 1(e) of sec. 8. Both appeals are remanded
in this regard to the appellate authority Additional Commissioner, Delhi
Police, EOW, who will dispose of both after reexamining the question of
how disclosure can impede either investigation, prosecution or
apprehension of offenders in light of the High Court of Delhi's orders cited
above and dispose of these appeals within fifteen working days of the receipt of
this Decision Notice.
On the information sought by appellant Shri Kapoor at Sr. No. 4 of his
application under file No. CIC/WB/A/2007/01661 regarding Shri Manchanda,
Inspector, this information not being held by the DCP EOW and the question
pertaining specifically to a complaint received by Commissioner of Police,
appellant Shri S. K. Kapoor will now make an application to the PIO Office of
Commissioner of Police to seek the information sought by him under sub sec. (1)
of sec. 6 of the RTI Act, 2005. On question No. 5, since there is no information
held by the DCP (EOW) on the matter, appellant should have been informed at
the very outset instead of putting all parties to considerable inconvenience.
However, the information sought at Sr. No. 6 having already been refused in an
appeal before this Commission, we have no authority to review that decision.
On question No. 17(B) (I) in File No. CIC/WB/A/2008/00880, it has been
conceded by appellant Shri Kapoor in the hearing that he deletes the following
words from the request "who against the judgment SC". With this exclusion, PIO
Shri Vyas is agreeable to provide the information sought, which he may now do
within 15 working days of the date of receipt of this Decision Notice.
Similarly the information sought in question No. 18(ii) will also be provided
after deleting names of such persons who have provided information in
confidence for law enforcement within 15 working days of the date of receipt of
this Decision Notice.
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Information soughtat Q. No. 20 will also be provided within the same time span, but since information sought in question No. 21 is not available with the DCP, the DCP will transfer this question to Police Headquarters u/s 6(3)(i).
Both appeals are thus allowed in part. There will be no costs. If appellant is not satisfied with the information now received in response to that part of the appeal which is remanded to Addl. CP (EOW) he will be free to move a second appeal before u/s 19 (3) Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 1.5.2009 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 1.5.2009 10