Central Information Commission
Shri Prashant Bhushan vs Deputy Commissioner Police (Dcp), ... on 9 March, 2009
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2009/0023 dated 6-2-2009
Right to Information Act 2005 - Section 19
Appellant: Shri Prashant Bhushan
Respondent: Deputy Commissioner Police (DCP), Crime & Railways
FACTS
By an application of 9-10-08 Shri Prashant Bhushan of NOIDA, U.P. an advocate of Supreme Court of India applied to the ACP, Special Cell, Delhi Police seeking the following information in connection with bomb blasts in Delhi on 13-9-2008:
"1. Copy of the FIR registered by officers of the Special Cell with the Jamia Nagar Police Station regarding the encounter at Batla House on 19th September, 2008.
2. Copy of the post mortem report of Inspector M. C. Sharma.
3. Copy of the post mortem report of Mohammed Atif Amin.
4. Copy of the post mortem report of Sajid who was also killed in that encounter.
You can also treat this as a request under the Right to Information Act, 2005. This may be treated to be urgent under Sections 6 & 7 (1) of the Right to Information Act, since it involves the liberty of my client."
To this he received a response from Shri Alok Kumar, DCP, Special Cell on 22-10-08 forwarding this application to the DCP, Crime & Railways, who on his part, in his letter of 31-10-08 provided the following information to Shri Prashant Bhushan:
As the lawyer for Zia ur Zia ur Rehman is neither Rehman, who is held by you in complainant nor accused in custody in connection with the this case at this stage, Bomb Blasts in Delhi on 13th hence the copy of FIR could September 2008. I need not be provided. As per the copies of the following provisions of Cr.PC, copy of documents: FIR can be provided either to the complainant or i. Copy of the FIR registered by accused only.
officers of the Spl. Cell with the
Jamia Nagar Police Station
regarding the encounter at
Batla House on 19th
September, 2008.
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ii. Copy of the post mortem The case FIR no. 208/2008 report of Inspector M. C. P. S. Jamia Nagar, New Sharma. Delhi is pending investigation. The iii. Copy of the post mortem disclosure of information report of Mohammad Atif Amin. may impede the process of investigation, hence no iv. Copy of the post mortem information/ documents at report of Sajid who was also this stage can be provided killed in that encounter. as the same is exempted under section 8 (1) (h) of RTI Act, 2005.
Not satisfied with this response Shri Prashant Bhushan moved his first appeal before Addl. Commissioner of Police, Crime, Delhi Hqrs on 20-11-08, in which he submitted "that the Act 1 overrides any law for the time being in force, including the Criminal Procedure Code, 1906 insofar as such law is inconsistent with the Act. In this regard, with respect to the plea of the PIO that the applicant was not entitled to a copy of the FIR under the Cr.PC., as he was neither the complainant nor the accused in the FIR sought, it is submitted that an FIR is 'information' as defined in section 2 (f) of the Act and is, therefore, subject to disclosure to any person who applies for the same, regardless of his interest in the matter." In this context he, therefore, submitted that the non-disclosure of the information sought by the PIO "is perverse".
In his order of 20-1-09 Shri Satyendra Garg, Addl. CP initially dealt with the question of application of proviso to Section 7 (1) of life and liberty and came to the following conclusion:
"It has been found that the sought information i.e. a copy of FIR, copies of post-mortem reports in respect of Inspector M. C. Sharma, Mohammad Atif Amin & Sajid pertains to the investigation of case FIR No. 208/08 PS/ Jamia Nagar New Delhi, which is pending investigation with Crime Branch, New Delhi. There is no connection of life and liberty of Zia ur Rehman with the documents sought including copy of FIR in above case and post mortem reports of persons mentioned above. Hence, your application dated 9.10.2008, filed with Spl. Cell, Delhi seeking above mentioned documents under the provisions of section 6 & 7 of RTI Act, 2005 does not attract 1 The reference is to the RTI Act 2005 2 section 7 (1) of RTI Act, 2005. Therefore, the sought information is not required to be furnished within 48 hours.
As far as other contentions mentioned in your appeal are concerned, the same are being examined and a decision will be taken by the undersigned within the time limit as per RTI act, 2005 and a proper reply will be sent to you accordingly."
Subsequently, in a more detailed response of 16-12-08 Shri Satyendra Garg, Addl. CP passed the following order:
"On further examining, it is observed that Zia ur Rehman is neither the complainant nor accused in the above said case at this stage and hence, the PIO/ Crime, Delhi has correctly declined to provide a copy of the FIR in question to the appellant. As far as providing of other sought information i.e. copies of post mortem reports in respect of Inspector M. C. Sharma, Mohammed. Atif Amin & Sajid is concerned, it pertains to the investigation of case FIR No. 208/08 PS/ Jamia Nagar, New Delhi, which is pending investigation with Crime Branch, Delhi and providing of its copies of the appellant at this stage may impede the process of investigation. Hence, the PIO/ Crime has also correctly declined to provide the same to the appellant, as it falls under the restrictive clause (h) of Section 8 (1) RTI Act, 2005. Moreover, there is no connection of life and liberty of Zia ur Rehman with the documents sought including copy of FIR in above case and post mortem reports of persons mentioned above. Hence, application dated 9.10.2008 filed by the appellant seeking above mentioned documents under the provisions of section 6 and 7 of RTI Act, 2005 does not attract section 7 (1) of RTI Act, 2005. Therefore, the decision of PIO/ Crime is upheld.
The appeal is disposed off accordingly."
In the meantime on the basis of the response of 21.11.'08 Shri Prashant Bhushan had moved his second appeal before us with the following prayer:
"In light of the submissions made hereinabove, the appellant implores the Hon'ble Central Information Commission to be pleased to pass the following orders; A. That the PIO, Dy. Commissioner of Police, Crime and Railways' department disclose the information sought.
B. That an explanation be sought from the PIO regarding the incomplete and unsatisfactory reasons provided by him for denying the information sought. C. Pass any other order or further orders regarding costs or fine against the Respondents that this 3 Hon'ble Commission may deem fit in the interest of justice and equity and good conscience."
In response to appellant's request for an out of turn hearing given the sensitivity of the subject, the appeal was heard on 24.2.2009. The following are present:
APPELLANT Sh. Prashant Bhushan, Advocate Sh. Mayank Misra, Advocate RESPONDENTS Sh. Rajender Bakshi, ACP Sh. Satish Sharma, Insp.
Sh. Satyendra Garg, Addl. CP Sh. Neeraj Thakur, DCP (Central) Sh. Alok Kumar, DCP (Special Cell) Sh. Surender Kumar Kapoor, ACP HQ Crime Sh. Omvir Singh, Addl. DCP Crime.
Appellant Shri Prashant Bhushan submitted for the information of the Commission and Respondents that Information Commissioner Shri Shailesh Gandhi, Member of the Division Bench hearing the case, has earlier been associated with the NCPRI, an NGO assisting group of activists for promoting RTI and in that capacity has worked with appellant Shri Prashant Bhushan. On this basis respondents were asked if they had any objection to the constitution of the Division Bench. Shri Satyendra Garg, Addl. CP submitted that they had none.
Addl. CP Shri Satyendra Garg submitted that there are two decisions in the first appeal. The first of 21.11.08 was made in consideration of the plea for speedy disposal under proviso of Life & Liberty to sec. 7 sub sec. (1) and the second of 16.12.08 a copy of which has been submitted together with the response to the appeal notice, received from Addl. CP through his letter of 4.2.09. He further submitted that Shri Zia Ur Rehman, of whom appellant Shri Prashant Bhushan is lawyer, is not complainant or accused in the FIR regarding encounter at Batla House of 19.9.2008 but is an accused in the case of bomb blast in Delhi on 13.9.08. The FIR and the encounter of Batla House of 19.9.08, therefore, cannot be provided since the Cr.P.C. mandates the provision of providing a copy of the FIR only to the complainant or the accused. However, on being questioned whether the law debarred providing 4 a copy of the FIR to a person other than the complainant or the accused, respondent Shri Garg referring to Sec 154 (2) conceded that there was no such bar.
Shri Garg also submitted that since Shri Zia Ur Rehman is not an accused in the Batla House encounter case and is, therefore, not in custody in relation to that case, the question of life & liberty does not apply. Shri Satyendra Garg ably supported by his CPIO Shri Neeraj Thakur , DCP (Central) was at pains to explain the manner in which he felt disclosure of FIR and the post mortem reports would impede the process of investigation in the present case. CPIO Shri Neeraj Thakur also cited examples of cases where disclosure of FIRs could have a detrimental effect on investigation. Insp. Satish Sharma, Investigating Officer, submitted that post mortem reports were part of the investigation process and were followed by reports from Forensic Laboratory etc. Disclosure of any part prematurely could impede the investigation.
Appellant Shri Prashant Bhushan submitted that it is not correct that his client Zia Ur Rehman is not in detention for a matter connected in any way to the encounter in Batla House. He would not, however, press for the 48 hours disposal under proviso to sec. 7(1) but submitted that the FIR in this particular case had already been exposed to much publicity and the post mortem reports are now irrevocable. Their disclosure in no way could impede the process of investigation or prosecution. He, however, conceded that if the Commission wished to satisfy itself whether any part of the document sought could so impede the process, he would be satisfied.
In light of the above, representative of the DCP (Special Cell) was asked to present the documents, copies of which have been sought by appellant Shri Prashant Bhushan before this Commission on 5th March, 2009. for inspection by the Bench after which we would give our decision in the matter of disclosure. Accordingly, the following appeared before us on 5-3-09:
Respondents Sh. Omvir Singh, Addl. DCP Crime.
Sh. Rajender Bakshi, ACP 5 Sh. Satish Sharma, Insp.
Sh. Satyendra Garg, Addl. CP Sh. Sanjay Dutt, Insp/ Spl. Cell Copies of the following documents were presented:
i) Copy of the FIR
ii) Copy of post mortem report of:
a) Inspector Mohan Chand Sharma;
b) Mohammed Atif Ameen
c) Sajid.
The last two being then residents of Batla House, Jamia Nagar, Delhi, site of the alleged encounter. These documents were examined in detail by both members of the Division Bench. On being questioned as to the grounds on which respondents felt that disclosure of these documents would impede the process of investigation, Shri Satyendra Garg, Addl. CP, Crime submitted that this matter is one that has a bearing upon terrorist crime perpetrated across the country including Jaipur, Ahmedabad, and Mumbai. Extra caution is, therefore, advised in dealing with matters concerning this case. On the specific matters included in the documents presented to us he submitted that these carry names of the officers involved in the investigating team, witnesses, as well as of Doctors who conducted the post-mortem. Disclosure at this stage could compromise the security and impede their readiness to support the investigation.
Shri Garg also submitted that in the FIR the materials found on spot have been mentioned which would disclose the evidence recovered on record and hence impede the process of investigation. However, this was not supported with any reasoned arguments.
DECISION NOTICE Having heard the parties and examined the records this Commission has arrived at the following conclusion:
1. In the case of the FIR we find that the names of the investigating team led by SI Mohan Chand Sharma (now deceased), a victim of the encounter, have been described together with the team that visited Batla House at 11.00 a.m. on the day of encounter. The name of the person lodging the FIR has also 6 been mentioned. Similarly, the post mortem reports detail the names of the Doctors of the AIIMS who conducted the post mortem. We readily agree that disclosure of this information could expose all these persons to uncalled for pressure, which could act as a major impediment in the process of investigation. Besides such information would also merit exemption u/s 8 (1) sub-section (g).Under the circumstances these names must be withheld together with their description including designation.
2. However, we could find no other material in any of the documents that respondents could reasonably identify as being items, disclosure of which would in any way impede the process of investigation. At any rate Section 10 (1) of the RTI Act, which is the severability, clause clearly lays down as under :
10 (1) Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information.
Under the circumstances, although we have indeed found that part of the information held in the mentioned documents merits exemption u/s 8 (1) (h) and (g), the remaining information falls outside exemption granted u/s 8. In light of the above, we hereby direct that the PIO, Delhi Police, Crime will provide copies of the documents sought by appellant Shri Prashant Bhushan after applying the severability clause described above to that portion held as exempt, within 10 working days of the date of receipt of this decision notice.
Reserved in the hearing, this decision is announced in the open chamber on the ninth day of March 2009. Notice of this decision be given free of cost to the parties.
(Shailesh Gandhi) (Wajahat Habibullah)
Information Commissioner Chief Information Commissioner
9-3-2009 9-3-2009
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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.
(LC Singhi) Registrar 9-3-2009 8