Central Information Commission
Ajay Vireh vs Chief Commissioner Of Income Tax (Cca) , ... on 23 March, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के य सूचना आयोग
Central Information Commission
बाबागंगनाथमाग, मु नरका
Baba Gangnath Marg, Munirka
नई द ल , New Delhi - 110067
File No : CIC/CCABH/A/2022/132403
Ajay Vireh अपीलकता/Appellant
VERSUS
बनाम
CPIO,
OFFICE OF THE COMMISSIONER OF
INCOME TAX(TDS), RTI CELL,
AAYAKAR BHAWAN, HOSHANGABAD
ROAD,
BHOPAL-462011, MADHYA PRADESH. तवाद गण /Respondent
Date of Hearing : 21/03/2023
Date of Decision : 21/03/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 13/04/2022
CPIO replied on : 26/04/2022
First appeal filed on : 11/05/2022
First Appellate Authority order : 09/06/2022
2nd Appeal/Complaint dated : 04/07/2022
Information sought:
The Appellant filed an RTI application dated 13.04.2022 seeking the following information:1
"In connection with sanction order F.No. CIT (TDS) BPI/ Vs/ Gr. B1/2008-09/1491 dt. 28.01.09 accorded by CIT (TDS) Bhopal in the case of Ajay Vireh, ITO (TDS), Indore. It is requested to provide following information :
(1) Certified copy of letter by Investigating Officer/S.P. CBT, Bhopal addressed to competent Authority for want of issuance of sanction order.
(2) Certified copy of S.P. CBI Bhopal report, to obtain sanction order.
(3) Certified copy of list and all relevant oral and documentary evidences complaint, FIR, Verification report, pre-trap memorandum dt. 25.02.2008, post trap memorandum dt. 26.02.2008, Vic Test Report, Script of conversation, Statement of Witness recorded by the Investigating Officer U/s. 161 of Cr.P.C. sent by the CBI prior to issuance of sanction order by the Competent Authority.
(4) Certified copy of letter by CBI, Bhopal in respect of sending such evidences, with date of receipt of such evidences as received by the Sanctioning Authority.
(5) Certified copy of order sheet of file of Sanctioning Authority regarding receipt of such letter and documents from CBI, Bhopal.
(6) Certified copy of order sheet nothing in file of Sanctioning Authority for granting sanction order.
(7) Certified copy of draft sanction order received from CBI, Bhopal along with letter.
(8) Certified copy of draft charge-sheet received from CBI, Bhopal along with letter."
The CPIO furnished a reply to the appellant on 26.04.2022 stating as under:
"The information sought by the applicant under point nos. 1 to 4, 7 and 8 pertains to other Public Authority and as it attracts the provisions of Section 8(1)(e) of RTI Act, the same cannot be provided.
As regards the information sought by the applicant under point nos. 5 and 6, it is understood that the case is under trial with the CBI & departmental proceedings is also in progress against the Officer, therefore the information 2 sought by the applicant is exempt from disclosure by virtue of Section 8(1)(h) of the RTI Act."
Being dissatisfied, the appellant filed a First Appeal dated 11.05.2022. FAA's order, dated 09.06.2022, held as under:
"In view of the aforesaid reasons employed by the Information Commissioner, we are of the opinion that there was justification in refusing to supply of the aforesaid documents. However, as rightly pointed out by learned counsel for the appellant that during the course of trial, if the trial Court feels it appropriate and if a prayer is made, the documents may be called by Court in accordance with law."
Moreover, it is observed that the documents sought under point nos. 1,2,3,4,7 and 8 are documents pertaining to another public authority, i.e. the CBI. The originator of the documents is CBI and only copies of the relevant documents are available with our department. Hence, the appellant may obtain the certified copies of the documents from the CBI which is the owner/originator of the documents.
Therefore, in view of the above cited I am of the opinion that no interference to the order of the CPIO dated 26.04.2022 is called for."
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video-conference.
Respondent: T Suresh, ITO AU 1(1)(4) & CPIO present through video-conference.
The Appellant expressed his dissatisfaction with the denial of information by the CPIO under the alleged garb of Section 8(1)(h) of RTI Act by putting forth the following contentions -
".... the applicant has been convicted by the Special C.B.I., Court, Indore on 16/12/2022 during criminal proceedings and the applicant has been duly granted 3 bail and stay on sentence by the hon'ble MP High Court, Indore vide order dated 19/01/2023 till the final outcome of appeal before hon'ble MP High Court.
3. The second appellate authority & the CPIO had wrongly denied the sought information to the applicant on the grounds that investigation is pending and the information is held in fiduciary capacity. The applicant in his grounds of appeal has challenged such denial on the basis of various judgements given by hon'ble High Courts and CIC both. The fact that the criminal charge sheet was instituted in 2009. That all the witnesses during the criminal proceedings were duly examined in the special CBI court, Indore and the trial in lower court is completed also. The C.O. time and again requested for the documents related with sanction granted under section 19 of PC act however, same was denied by the competent authority.
It is important to mention that the competent authority i.e. Commissioner of Income tax (TDS), Bhopal had never provided the original documents, evidences, order sheets on which he relied upon for granting sanction u/s 19 to prosecute the delinquent officer stating that the same is confidential and cannot be given due to pending investigation.
4. It is categorically admitted fact that the criminal proceedings were Initiated after due investigation. Further most of the witnesses mentioned in Criminal charge sheet were examined in criminal proceedings. Thus, such denial has no legal & factual ground itself.
5. That the purpose of in act is based on the concepts of true and factual disclosure, however there is no provision to cover up the misdeed by the information provider government Agencies like C81, Income tax department. To deny such Information to the accused/delinquent officer, to know and reach to the minute details and facts of his own case and is required for his own defense in departmental enquiry proceedings. The RTI law does not save arbitrary authority regarding the facts of any charges imposed against the delinquent officer and the delinquent officer has the right as inferred by the constitution itself on principles of equality. Thus, the Information by which the delinquent officer was put to prosecution u/s 19 by the competent authority/ removed U/R 56(1) of CC5 conduct rules must be provided to meet the end of justice which is a matter of right provided under constitutional rights. It is noteworthy to mention that such information is not a threat to security of country and disclosure of such information will not affect the public interest.
46. The hon'ble Central Information Commission must appreciate that information sought by the applicant is not covered in any exclusion provisions of RTI Act as - (a) The information is not related to the security of this country. (b) The criminal investigation was over In 2009 Itself and CBI filed charge sheet on 20/01/2009 and all the witnesses were examined till November 2022. (c) The sanction was granted In November 2009 after due consideration of all evidences, records, reports. In fact the competent authority has no reason to deny the records with dates of receipt of such records on the basis of which the sanction was granted after due application of his own mind.
7. It appears that the competent authority, despite of repeated request denied sought information in biased / prejudice way and acted In autocratic manner so that the delinquent officer cannot challenge his order - (i) for grant of sanction u/s 19 of PC act (ii) to compulsory retire officer under rule 56(j) of CA rules. Thus the competent authority violated the right as available in the constitution to the prosecuted officer and same is done with a motive to punish any how the charge sheeted officer despite of no such evidence of so called conspiracy, demand, acceptance and recovery or illegal gratification as wrongly charged by the CEA. Shoal and agreed upon by the competent authority.
8. That in criminal court proceedings before the CBI the complainant, two independent witnesses, the I.O. (CBI) in their cross examination could not establish the charges against the delinquent officer. That the applicant had not done any conspiracy with other accuse, never demanded, never accepted any illegal gratification, nor any recovery was made against him.
9. The competent authority has no occasion to deny the information related with grant of sanction against the charge sheeted officer in view of completion of the criminal proceedings. The competent authority cannot deny the information mere on arbitrary assumption itself and they cannot deny all the documents evidences statements, order sheets, correspondence letters with dates on which they were received and after due consideration sanction was granted by the department under section 19 of PC act and Cr.PC..."
In support of his contentions, the Appellant placed reliance on various case laws more particularly by giving reference to order pronounced by the Hon'ble High Court of M.P. in W.P. no. 1575 of 2021 in case titled Kamta Prasad and also referred to case titled Girish Deshpande, Ashok Kumar, UOI v. R.S. Khan, etc. 5 Per contra, the CPIO invited attention of the bench towards his written submission dated 16.03.2023 wherein, including inter alia he stated as under -
IV The information sought by the applicant under point nos. 1 to 4, 7 and 8 pertained to other Public Authority viz. CBI Bhopal. Further, the documents contained information that is confidential or proprietary to the CBI as it was based on the investigation conducted at their end and was provided to the Competent Authority for obtaining prosecution sanction against the applicant. Thus, the information under the said points was held by the department in fiduciary relationship and it was not an instance where public interest in disclosure outweighs the harm to the protected interest. As such, the said information was denied by the CPIO as per the provisions of Section 8(1)(e) of the RTI Act.
V. As regards the information sought by the applicant under point nos. 5 and 6, it was understood that the case was under trial with CBI and departmental proceedings were also in progress against the officer, As such, disclosing the information, the creator of which is originally CBI, i.e. another public authority, would have the effect of impeding the process of the investigation/enquiry or prosecution of the applicant being held at their end. As such, access to information sought under point no. 5 and 6 were denied by the CPIO as per the provisions of Section 8(1)(h) of the RTI Act., which provides an exemption for information that would impede the process of investigation or prosecution of an offender. Denial of the information was communicated to the applicant vide order dated 26.04.2022.
Xxx ... while disposing off the appeal, the FAA explained that as a case has been registered by CBI against the Appellant under Section 120 B of IPC r/w Section 7 of PC Act, 1988, the application is rejected in terms of Section 8(1)(h) of RTI Act, 2005. As the case is still sub-judice, the investigation may not be considered as completed. In this regard, the FAA has placed reliance on the order of the CIC dated 11.08.2017 in Mr. Prabhu Dayal Beniwal vs. The Commissioner, Central Excise , as also various other orders wherein it has been very well clarified as to interpretation of the term ' investigation'. The FAA concurred with the decisions of the CPIO in not disclosing the information sought under Sr. Nos. 1,2,3,4,7 & 8.
VIII.As regards the information sought under point nos. 5 and 6, the FAA has, inter alia, placed reliance on the order dt. 12.02.2019 of Hon'ble Supreme Court in Civil Appeal NO.1632/2019, wherein information also included copy of the note sheet for processing the decision to refer the said case to Anti Corruption Branch of CBI 6 for investigation. In the said case, while denying the said information the Mon'ble Supreme Court has held as under :
"The dispute remains about document Nos. 1, 3 and 4 as they were not supplied considering the provisions of Section 8(1)(h) of the RH Act which prohibits disclosure of information connected with ongoing investigations and prosecutions and it was opined that it was source information that has triggered the anti- corruption proceedings and nothing should be done which affects the proceedings or which compromises the position of the sources of information."
VIII. The FAA while disposing off the appeal further informed the appellant that the documents sought under point nos. 1,2,3,4,7 and 8 are documents pertaining to other public authority, i.e. the CBI. The originator of the documents is CBI and only copies of relevant documents are available with the department. Hence, the appellant may obtain the certified copies of the documents from the CBI, which is the owner/originator of the documents.
xxx X. As regards the contention of the appellant regarding violation of constitutional right, it is humbly submitted that the investigating authorities act within the scope and as per provisions of relevant law made by the legislature to protect the constitutional rights of the appellant, therefore contention of the appellant in this regard has no substance.
XI. The contention of the appellant that the FAA invoked section 8(1)(h) without conveying any tenable reason for denying the information is not tenable, as the FM denied the information by giving adequate reasoning and categorically discussing on each & every piece of information/documents sought for by the appellant in light of various decisions of CIC and Supreme Court. The FAA had passed the order with utmost alertness and proper application of mind. (Reference is invited from para 5.1 to 7 of the FAA's order dated 09.06.2022) XII. The CPIO, while passing the order u/s 7(1) of RTI, Act. 2005 dated 26.04.2022 citing the provisions of Section 8(1)(e) and Section 8(1)(h) of RTI Act, 2005, had given proper and sufficient grounds for denying the information.
XIII. It is humbly submitted that the Special Judge, CBI Cases, Indore (Madhya Pradesh) vide order dated 16.12.2022 convicted the appellant with other co- accused and sentenced them to undergo three years Rigorous Imprisonment with total fine of Rs. 80,000/-. The information sought by the appellant at this stage 7 becomes infructuous as the criminal proceedings in his case has already been decided.
XIV It is further pertinent to mention that alongwith the appellant, there had been other co- accused in the said case against whom disciplinary proceedings are underway with other Disciplinary Authorities. The information sought by the appellant consists of information as regards the co-accused also and furnishing the same to the appellant may compromise the Position of the departmental proceedings under process against the other accused...."
In rebuttal to Appellant's contention, the CPIO submitted that the case laws, reference of which has been given by the Appellant are distinguishable from the facts of the instant case. Further, the CPIO again emphasized on the fact that since a composite departmental proceedings against the Appellant along with 3 more co-accused is yet to attain finality; therefore, at this premature stage information sought cannot be divulged to the Appellant in view of Section 8(1)(h) of RTI Act. The CPIO substantiated his denial of information by giving reference to case titles C.M. Nagaraj and others.
Decision:
The Commission upon a perusal of records and after submissions of both the parties notes that the core contention of the Appellant revolves around the issue of denial of information by the CPIO under Section 8(1)(h) of RTI Act. In response to which the CPIO clarified the factual position by explaining that issue/matter pertaining to information sought was still under way with the disciplinary authority under composite proceedings with 3 co-accused and disclosure of which would impede the process of investigation; thus, the information cannot be shared with the Appellant.
Here, it is pertinent to note that the Appellant has not denied the fact that - 'the applicant is facing a departmental enquiry on the perceived charges, evidence of which is gathered by the CBI', in other words, the factum of a pending prosecution has not been denied by the Appellant and considering the nature of documents sought for by the Appellant, it is not out of place for the CPIO to invoke Section 8(1)(h) of the RTI Act for the denial of the information as these are predominantly substantial records of the alleged composite departmental investigation conducted against the Appellant along with three other co-accused. Moreover, it is not the case that the exemption of Section 8(1)(h) of the RTI Act only provides for exemption when an inquiry/investigation is pending, for the sake of clarity, Section 8(1)(h) of the RTI Act is reproduced hereunder:8
"(h) information which would impede the process of investigation or apprehension or prosecution of offenders;"
Section 8(1)(h) of the RTI Act thus provides for more than one aspect of an inquiry/investigation and since in the instant case, investigation in the disciplinary proceedings is underway, the impediment to the process thereof by the disclosure of "all" annexures & documents enclosed with the letter of grant of sanction; CBI report etc., cannot be ruled out in its entirety. Having observed as above, the Commission upholds the denial of the information under Section 8(1)(h) of the RTI Act by the CPIO and finds no scope of relief to be ordered in the matter.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहा न)
Information Commissioner (सूचना आयु त)
Authenticated true copy
(अ#भ मा%णत स&या'पत त)
(C.A. Joseph)
Dy. Registrar
011-26179548/ [email protected]
सी. ए. जोसेफ, उप-पंजीयक
दनांक /
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