Central Information Commission
Mr.Suhaschakma vs Ministry Of External Affairs on 24 June, 2010
Central Information Commission
CIC/AD/A/2009/000778
Dated June 15, 2010
Name of the Applicant : Shri Suhas Chakma
Name of the Public Authority : Ministry of External Affairs
ADJUNCT TO ORDER DATED 1.12.2009
1. While deciding the captioned appeal based on the factual matrix of the case, the Commission vide its order
dated 01.12.2009, the Commission passed the following order:
1 ".........12. Considering that the Indian Government is itself trying to propagate a transparent
disclosure of information and also in view of the fact that the issue at hand is not merely the
concern of an individual but one which involves national interest there can be no doubt that
public interest is paramount in this case. More so in the facts and circumstances of the case
there can be no doubt that the Swiss Courts are seeking cooperation from their Indian
counterparts in nailing the wrongdoers. The Commission, therefore, is unable to accept or
agree with the contention of the Public Authority that disclosure of the information can in any
way adversely affect the national sovereignty, security or integrity because national interest
demands that all available information in this regard be disclosed and the perpetrators of such
offences be traced and appropriate action be taken against them. No harm can befall in
sharing information of this nature which involves the interest of the public at large, more so
when the Appellant herein is already a party (witness) in the criminal investigation pending at
the Swiss Courts. In fact non disclosure and/or inaction on the part of the authorities
concerned will be seen in a poor light not only at the national but also at the international level
in as much as it will be almost be assumed to be an attempt to shield the guilty. Hence, it is
the considered opinion of the Commission that complete information as sought by the
Appellant being of paramount public interest must be shared and disclosed forthwith. The
Commission accordingly directs the CPIO to provide the information as sought by the
th
Appellant by 25 December 2009. The Appeal is disposed off on the above terms. ......"
2. Pursuant to this, the Commission received a communication dated 21.12.2009 from the CPIO disposing of the
RTI application dated 06.02.2009 by sharing the available information, with the Appellant. A copy of the Note
Verbale received by the MEA, vide Note dated 12.02.2008 from the Embassy of Switzerland for investigation
into the case of Mr. Nair was furnished to the Appellant. It was further informed to the Appellant that the original
Note Verbale and the original Letter of Request were in the custody of MHA, the Ministry of Home Affairs being
the nodal Ministry and administrative authority in this regard. Therefore the said documents could be procured
from the said Ministry viz. MHA and the MHA was requested to supply the copy of the rogatoire to the Appellant.
3. This was followed by the receipt of another communication dated 25.01.2010 from the Ministry of Home
Affairs[MHA] raising objections to the direction of the CIC and the MEA's letter dated 21.12.2009, as discussed
in the preceding paragraph, without ever granting the opportunity of being heard to the MHA. Furthermore, while
giving some insight into the particulars of the pending investigation against Mr. Ravi Nair and quoting the role of
MHA as per Section 166B of the Criminal Procedure Code, the Ministry of Home Affairs sought to make
submissions before the CIC. The MHA sent yet another communication dated 09.04.2010 stating therein that the
under provisions of the Section 166 B of the Cr.PC and the Allocation of Business Rules, 1961, ISII Division in
the MHA is assigned the functions and handles the issues related to Letter of Request received from a foreign
country for execution. The fact that neither the Appellant nor the MEA ever intimated nor sought permission of
CIC for transfer of the case to MHA has also been categorically reiterated in the said letter dated 09.04.2010
received from MHA. While elaborating that Letter of Requests are regulated by Bilateral Treaty on Mutual Legal
Assistance or on the basis of reciprocity, the MHA stated that in case of Switzerland, India does not have a full
fledged treaty but a limited agreement on mutual cooperation by way of exchange of letters. And in the context
of the instant case at hand, the Government of India is only custodian of the information till the same is executed
or returned, but the information is not under the control of the MHA. The MHA in its submissions also sought
exemption from disclosure of the information under Section 8 (1)(f) of the RTI Act 2005 on the ground that as per
the treaties and diplomatic convention all matters relating to mutual legal assistance in criminal matters are
treated as confidential. As per the contention of the MHA, the provisions of Section 8 (1) (a), (g) and (h) of the
RTI Act 2005 are also attracted in the instant case for seeking exemption from disclosure of the information.
4. In view of the developments and considering that the MHA being the custodian of the information, as pointed out
by the Ministry of External Affairs only by their communication dated 21.12.2009, ought to be heard before
deciding the case, the Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the hearing on
April 01, 2010 and notice dated 05.03.2010 in this regard was sent to the MEA, MHA and the Appellant.
5. Pursuant to the receipt of the notice of hearing, the Appellant by his letter dated 23.03.2010 sought a copy of the
letter dated 25.01.2010 as submitted by the Ministry of Home Affairs.
6. However the hearing was adjourned to be heard on 05.05.2010 and the parties were accordingly intimated. By
the subsequent notice dated 26.04.2010, the parties were intimated of the postponement of the hearing to
21.05.2010.
7. Sh. S K Malhotra, Dy. Secretary and Mr. Raj Kumar, Section Officer represented the Public Authority.
8. The Applicant, Mr. Suhas Chakma was present during the hearing alongwith Mr. Prantap Kalra, Advocate.
Hearing
1
9. During the hearing, on 21.05.2010, the Appellant placed his written submission in rebuttal of the MHA's
submissions, as noted above. While quoting the provisions of Section 19(7) of the RTI Act 2005 holding the
finality of a decision of the CIC, the Appellant contended firstly that there was no provision of Review of a
decision of the CIC. Secondly, the Appellant contended that the fact that MHA was in custody of the information
had never been pointed out so far by the MEA and the said fact only emerged in the letter dated 21.12.2009 of
the MEA. The Appellant specifically pointed out the fact that the MHA in its letter dated 04.01.2010, issued to the
Appellant had stated that as per information available with their [MHA]'s Legal cell, the CBI had already
forwarded the report to MEA on 12.05.2009, thereby clarifying that MEA was already holding the required
information during the hearing on 01.12.2009. While placing reliance on another decision of CIC in case no.
CIC/AD/A/2008/000243 titled Ashwini Kumar Srivastava versus MEA, the Appellant further contended that it was
an "unholy attempt on the part of MEA and MHA to deprive the applicant of his statutory right and bypass the
CIC order.." Thus the Appellant alleged that the non compliance of the CIC order by the MEA should be dealt
with by initiating contempt of Court proceedings. After hearing the detailed submissions of the parties, the
Commission was of the view that the sensitivity of the document/s in question, as claimed by the Respondents,
cannot be determined unless the same is produced before the Commission for examination. Accordingly, the Commission by its notice dated 24.05.2010, directed both the Ministry of External Affairs and the Ministry of Home Affairs that the Commission Rogatoire alongwith all related documents including the CBI report sent on 12.05.2009, to be produced before the CIC on 03.06.2010 for perusal by the Commission.
10. Sh. S K Malhotra, Dy. Secretary, MHA and Mr. D K Chona representative of MEA were present on 03.06.2010 alongwith the relevant file/s.
DECISION
11. During the hearing, the Respondent stated that the Letter of Request was in their custody only in the capacity of a Post office. Perusal of the file indicated that the concerned file was not marked as Confidential or Secret. The Respondent furthermore pointed out various aspects of the ongoing Court proceedings and stated that the MHA had sent the Rogatoire to the CBI sometime around August 2008 and that the same was put to execution in June 2009. Precisely it is the contention of the Respondents that the Swiss Court seeks to participate in the investigation as going on in the Indian Court against the said Mr. Ravi Nair. However, since the Mutual Legal Assistance Treaties between the Indian and Swiss Governments contain the confidentiality clause as also the "Assurance of Reciprocity" from the Swiss Government ensures confidentiality clause, therefore the Respondent sought exemption from disclosure of information.
12. It has been observed from the records of the case that while information against the point no. 1 has already been provided by the letter dated 21.12.2009 furnished by the Respondents. The letter dated 04.01.2010 from the MHA, Legal Cell indicates that the CBI had already forwarded their report, prepared through Anti Corruption Branch, to the MEA on 12.05.2009 for onward transmission to the requesting country. It has also been observed that Copy of the letter Rogatory in original was forwarded to the Interpol wing of CBI without retaining copy thereof by the CBI. The same fact was reiterated in the letter dated 22.03.2010 issued by the MEA to the Appellant. Thus the action taken on the Commission Rogatoire has also been answered by the Respondents. It is the considered opinion of the Commission that the only remaining information as sought in point 2, being the copy of the Commission Rogatoire being exempt from disclosure because of the nature of the content of the documents. Perusal of the file indicates that the documents in the file are clearly sensitive in nature, disclosure whereof may indeed hamper the progress of the case filed by the CBI against Mr. Ravi Nair. In view of the fact that the investigation at the CBI Court is pending and is yet to attain finality, therefore, disclosure of such sensitive information relating to the charges, grounds for framing of charges etc. against the accused, at this stage runs the risk of the progress of the case being hindered as the accused could influence and/or manipulate the outcome of the investigation by destroying and/or distorting evidences against him or even by avoiding arrest. Hence the information against point 2 i.e. the Copy of the Rogatoire need not be furnished in the interest of justice and under provisions of Section 8 (1) (h) of the RTI Act 2005. The instant case is thus disposed of on the above terms.
The judgment in this case was reserved and pronounced on June 24, 2010.
(Annapurna Dixit) Information Commissioner Authenticated true copy:
(G.Subramanian) Deputy Registrar Cc:
1. Shri Suhas Chakma C3/441C Janakpuri New Delhi110058
2. The Public Information Officer Ministry of External Affairs CPV Division Patiala House Annexe Tilak Marg New Delhi
3. The Appellate Authority Ministry of External Affairs CPV Division Patiala House Annexe Tilak Marg New Delhi
4. Officer incharge, NIC
5. Press E Group, CIC