Central Information Commission
Mrsudershan Kumar Abrol vs Department Of Financial Services on 22 September, 2014
Central Information Commission
Room No.307, II Floor, B Wing, August Kranti Bhawan, Bhikaji Cama Place, New
Delhi110066
websitecic.gov.in
Appeal: No. CIC/DS/A/2013/001619/MP
Appellant : Shri Sudershan Kumar
Abrol, Bangalore
Public Authority : Department of Financial
Services, New Delhi
Date of Hearing : 11 July 2014
Date of Decision : 22 September 2014.
Present:
Appellant : Shri Sudershan Kumar Abrol
- In person
Respondent : Shri
Mritunjay Singh, Under Secretary
(Vig.)/ CPIO In person.
ORDER
1. The appellant, Shri Sudershan Kumar Abrol, submitted RTI application dated 10 June 2013 before the Central Public Information Officer (CPIO), Department of Financial Services, New Delhi; seeking information regarding reference/ letter sent by Syndicate Bank, Corporate Bank, Bangalore to the respondent's vigilance section with regard to refusal/declining by the Bank's disciplinary authority to grant sanction for prosecution in case of the appellant and four other officials etc., through a total of 2 points.
2. Vide reply dated 27 June 2013, CPIO denied the information u/s 8(1) (h) of the RTI Act, 2005. Not satisfied with the CPIO's reply, the appellant preferred an appeal dated 2 July 2013 to the first appellate authority (FAA) alleging that he had been wrongly denied the information by the CPIO concerned. Vide Order dated 7 August 2013, FAA upheld the CPIO's decision and also clarified the same.
3. Not satisfied with the order of FAA, the appellant preferred second appeal before the Commission.
4. The matter was heard by the Commission. Both the parties were directed to file their respective written submissions before the Commission.
5. The appellant vide his written submission submitted that he had sought "certified copies of the reference letters along with enclosures sent by the Syndicate Bank, Corporate Office, CIC/DS/A/2013/001619/MP Bangalore to the Department of Financial Services, Banking Division, Vigilance Section, New Delhi in May 2012, declining to grant sanction for prosecution in the case of the appellant (along with four other officials of Syndicate Bank) pertaining to certain credit facilities granted to M/s. Satav Infrastructure Private Limited at the Pune Branch of Syndicate Bank during the period 200506." It was then submitted that the sanction for his prosecution was sought for while he was still in service and the sanction for prosecution was declined on three occasions. The appellant insisted that he has been an honest employee of the Syndicate Bank for over 37 years and after his retirement has been allegedly forced into this enquiry. Hence, the disclosure of information would help him in defending his case before the appropriate forum.
6. The appellant further submitted that the Honorable Delhi High Court in the case Sudhir Ranjan Senapati, Addl. Commissioner of Income Tax vs. Union of India and Ors. (WP no. 7048/2011 dated 5/3/2013) has observed that:
" 11.1 As rightly contended by the learned counsel for the petitioner, a learned Single Judge of this court in Bhagat Singh's case has construed the said provision of the Act to mean that in order to claim exemption under the said provision, the authority withholding the information must disclose satisfactory reasons as to why the release of information would hamper investigation. The reasons disclosed should be germane to the formation of opinion that the process of investigation would be hampered. The said opinion should be reasonable and based on material facts. The learned Single Judge, I may note goes on to observe that sans this consideration, Section 8(1)(h) and other such provisions of the RTI Act would become a haven for dogging demands for information"..
7. The respondent in his written submission stated that since the process had been initiated for prosecution the information sought for by the appellant was denied under Section 8 (1) (h) of the RTI Act, 2005 as the disclosure of information may hamper the prosecution of the appellant. The respondent further added that the conduct of the appellant during his tenure of service is irrelevant for the present second appeal. The CBI, Mumbai had filed chargesheet No 67/2013 in the Hon'ble Court of Special Judge for CBI cases and hence, criminal prosecution of the appellant is pending before the said court. It has been consistently held by the CIC that during the pendency of ongoing criminal prosecution, disclosure of information would impede the prosecution of offenders. The CIC in the recent case, involving appellant, CIC/DS/A/2013/001619/MP CIC/VS/A/2013/000538 dated 30/4/2014 (S. K. Abrol vs. CPIO, Syndicate Bank and ors.) has observed "..4. In the above context, the Commission had also noted the following observations of the Delhi High Court in S. M. Lamba vs. S. C. Gupta and Anr. W.P.(C) 6226/2007 order dated 4.5.2010 " 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."
5. Taking into account the above, the Commission had stated that "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."
6. Having carefully considered the submissions made before us and taking into account the above observations of the Commission, we would not interfere with the decision of the respondent to deny information in response to the queries concerning the correspondence involving the CBI."
8. The respondent also submitted CIC's order in the case Smt. Durgesh Kumari Vs. Income Tax Department dated 26/8/2011 (CIC/LS/A/2010/000685) that "..it is common place that the word 'prosecution', as occurring in section 8 (1) (h), means and implies initiation and continuation of criminal proceedings in the competent court. Termination of proceedings in the trial court can not mean conclusion of proceedings when this very issue has been agitated before a higher judicial forum (High Court in the present case) either by the State or by the accused. In the premises, we hold that the case is still under 'prosecution' in terms of section 8 (1) (h) of the Act..."
9. Apart from the above mentioned submissions, the respondent also submitted on the point of disclosure of file notings in vigilance files that the Commission in its previous order no. CIC/AT/A/2010/000757 dated 12.11.2010 in the matter of D. P. Bhatia vs. Customs & Customs & Central Excise, New CIC/DS/A/2013/001619/MP Delhi held that file notings in vigilance files cannot be authorized to be disclosed as these amounted to information confidentially held by the public authority and thereby came within the scope of section 11(1) read with section 2(n) of the RTI Act, 2005.
10. In the present case, the question before the Commission is whether disclosure of information sought would impede the process of investigation or apprehension or prosecution of offenders. It would be expedient to extract clause (h) of section 8 (1) which reads as follows::
"8. Exemption from disclosure of information (1) notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, ...
(h) Information which would impede the process of investigation or apprehension or prosecution of offenders;
... "
11. From a plain reading of the above provision, it follows that Section 8(1) (h) of the RTI Act exempts disclosure of information which would impede the process of investigation or apprehension or prosecution of offenders. Merely because the process of investigation or apprehension or prosecution of offenders is continuing, the bar stipulated under Section 8(1) (h) of the RTI Act is not attracted; it must be clearly established by the CPIO that disclosure of the information would impede the process of investigation or apprehension or prosecution of offenders. In this regard, it would be relevant to note that Ravindra Bhat, J. of the High Court of Delhi in Bhagat Singh v. Chief Information Commissioner and Ors. [WP(C) No. 3114/2007] stated that:
"13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding CIC/DS/A/2013/001619/MP information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)
(h) and other such provisions would become the haven for dodging demands for information."
The division bench of Delhi High court presided by Hon'ble the Chief Justice of Delhi High Court in case of Director of Income Tax (Investigation) and Ors. Vs. Bhagat Singh and Anr [LPA 1377/2007] also observed that: "8.... Under Section 8(1) (h) information can be withheld if it would impede investigation, apprehension or prosecution of offenders. It is for the appellant to show how and why investigation will be impeded by disclosing information to the appellant. General statements are not enough. Apprehension should be based on some ground or reason...."
In Sudhiranjan Senapati Vs. Union of India and Ors. [WP (C) 7048/2011], Justice Rajiv Shakdher of Delhi High Court had observed that: "13. Therefore in my view, in such like cases when, the State takes a stand the information can not be disclosed; while dilating on its stand in that behalf, the State would necessarily have to, deal with the aspect as to how the information sought, is of such a nature, that it could impede prosecution. Much would thus depend, on the nature of information sought, in respect of which, a clear stand needs to be taken by the State, while declining the information..."
12. It is clear from the decisions of the Hon'ble Delhi High Court as stated above, the CPIO, who is denying information under Section 8(1) (h) of the RTI Act, must show satisfactory reasons as to why disclosure of such information would impede the process of investigation or apprehension or prosecution of offenders. These reasons must be relevant and the opinion of the CPIO that by disclosing the information, prosecution of offenders shall be impeded should be reasonable. The opinion of the CPIO must be based on some material and cannot be a mere apprehension not supported by any evidence. General statements are not enough. Apprehension should be based on some ground or reason.
CIC/DS/A/2013/001619/MP
13. Moreover, a careful reading of the said section reveals that the word used in section 8(1)(h) is "would" which implies that there should be definite material information in the hands of the CPIO to delineate that disclosure of the information will impede the process of investigation. Mere apprehension is not enough. If the intent of the Legislature was to deny information on the basis of apprehension it would have used the word "could". In the present case since the express intention of the Legislature is clear from the very preamble of the Act, it is not permissible to speculate whether the word "would" includes "could". Moreover, while it is the duty of the Commission to harmonise the various provisions of the Act as enacted by the Legislature but it certainly is not the duty of the Commission to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of the Act.
14. The stand taken by CPIO for declining the information in present case is that the process for prosecution had been initiated, therefore the information sought for by the appellant did not qualify for disclosure in terms of Section 8(1)(h) of the RTI Act, 2005. Upon careful perusal of the facts of the case, it is learnt that the appellant sought information which pertained to the pre retirement period and also before the prosecution began the disclosure of which is very crucial to the appellant. The stand of the CPIO as stated above is neither in consonance with the rulings of the High Court nor in agreement with the provision of section 8 (1) (h) of the Act.
15. In view of above, the Commission does not accept the grounds taken by the respondent for denial of information under Section 8(1) (h) of the RTI Act. The Commission directs the respondent to provide the information to the appellant, within a period of one week of receipt of this order, after redacting names of officers who wrote the notes or made entries in the concerned files or against whom action was recommended, under intimation to the Commission. The appeal is disposed of.
(Manjula Prasher) Information Commissioner Authenticated true copy:
(T.K.Mohapatra) Deputy Secretary & Dy. Registrar CIC/DS/A/2013/001619/MP Tele. No. 01126105027.
Copy to:
Central Public Information Officer Department of Financial Services, Vigilance Section, Jeevan Deep Bldg, Sansad Marg, New Delhi 110001 .
First Appellate Authority Department of Financial Services, Vigilance Section, Jeevan Deep Bldg, Sansad Marg, New Delhi 110001 .
Shri Sudershan Kumar Abrol D305, 3rd Floor, Silver County Apartments Off Sarjapur Hobli, Kudlu, Bangalore 560068.
CIC/DS/A/2013/001619/MP