Central Information Commission
Shri Shyam Vir Singh vs Central Bureau Of Investigation (Cbi) on 27 February, 2009
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2007/01121 dated 18-11-2007
Right to Information Act 2005 - Section 19
Appellant: Shri Shyam Vir Singh
Respondent: Central Bureau of Investigation (CBI)
FACTS
By an application of 30-6-200 Shri Shyam Vir Singh of Saket, New Delhi applied to the SP, ACU-III, CBI seeking the following information:
"1. It is a fact that CBI had seized all the records from Horticulture Dep't of the MCD pertaining to purchase of about 50,000 (fifty Thousand only) red sandstone Benches between 27-12-2000 to March 2004.
2. It is also a fact that in the charge sheet filed before the special CBI Magistrate in RC No. AC-3/2004, it has been stated that 8965 red sandstone Benches were purchased from the firms of accused Ashutosh Gangwar and Pritam Singh Rana during the period 2000 to 2004, causing a loss of Rs. 1,82,68,750/- to the MCD?
3. It is fat that the loss of Rs. 1,82,68,750/- has been calculated on the purchased of 8965 red sandstone Benches while the total number of Benches purchased by the MCD Horticulture Dep't during the relevant period was about 50,000?
4. Since no mention has been made about the loss incurred on purchase of the remaining 40,000 benches nor any contractor and official has been charged for the offence, it means no loss was incurred on purchase of these benches, although they were supplied at the same price as charged by Shri Ashutosh Gangwar and Shri Pritam Singh Rana for the supply of 8965 Benches.
5. It is a fact that the supply of red sandstone benches started from the work order dated 27.12.2000 and Shri Pritam Singh Rana got his first work order on 29.7.2003 i.e. after two and half years of the first work order, whether the reasons for delay in getting his first work order after two and half years by Shri P. S. Rana were investigated since he has been charged with the conspiracy to get the inflated rates approved for supply of red sandstone Benches from Director Horticulture (Shri D. P. Singh) due to his proximity to him.1
6. Whether the rates paid to the firms of Shri Ashutosh Gangwar and Pritam Singh Rana for purchase of 8965 red sand stone benches were higher than the rates paid to other contractors for supply of the remaining 40000 red sand stone benches to the MCD? The details of payments made to all the contractors for supply of about 50000 red sand stone benches may be made available in the comparative chart.
7. Did CBI found any evidence against Shri D. P. Singh that he revived any pecuniary benefits from Shri Ashutosh Gangwar and Shri Pritam Singh Rana for showing them favour in awarding them contracts for supply of red sandstone benches at inflated rates? The details of the favours received may be provided.
8. Whether S/ Shri Ashutosh Gangwar and Pritam Singh Rana were the only two contractors who had known Shri D. P. Singh former Director (Hort.) MCD or other contractors who also supplied red sandstone benches to the MCD on the same rates to the MCD were also know to Shri D. P. Singh?
9. It is against the conduct rules for a Govt. officer to know a contractor who is having dealing with his Deptt. unless he shows them favours due to their acquaintance?
10. Since all the contractors who supplied red sandstone Benches to the MCD were paid at the same rate and the work orders were given to the lowest bidders why only two contractors have been identified for causing loss of Rs. 1,82,68,750/- to the MCD while the actual loss on purchase of about 50,000 benches should work out to about ten crores. The information may be provided in question and answer form."
To this he received a response from CPIO Shri P. K. Jacob, SP, ACU- III, CBI refusing the information sought with the following argument:
2. "In this connection, this is to inform that I have carefully gone through the contents of your above mentioned application and also perused the relevant records of the case RC Ac3 2004 A0004 to which it relates. On completion of investigation, a charge sheet was filed on 28.12.2006 against the accused persons and the said case is under trial in the court of Ms. Indermeet K. Kocchar, Special Judge, Patiala House Courts, New Delhi vide CC No. 09/2007.2
3. I am of the view that since the case is pending under trial in a court of law, the disclosure of information/ documents as sought for by you is likely to endanger the life or physical safety of the concerned persons(s). Also providing of the requested for information/ documents would tantamount to disclosure of identity of the source of information/ assistance given by the concerned persons(s) in confidence, for law enforcement. Further, I am of the view that the disclosure of the requisitioned information/ documents would impede the process of prosecution of offenders, which is in progress in a court of Law. Finally, I am also of the view that the information sought for and the disclosure of the same has no relationship to any public activity or interest.
4. For the reasons stated in para-3 above, it is hereby ordered that the information/ documents as called for by you vide your above mentioned application dated 30.6.2007, cannot be disclosed/ provided to you, in view of the exemption provided u/s 8 (1) (g), (h) & (j) of RTI Act, 2005."
Not satisfied Shri Shyam Vir Singh moved his first appeal on 10-8-2007 before DIG, CBI, AC-I in which he has pleaded as follows:-
"The CPIO has not specified which information is exempt from disclosure and which can be provided to the appellant. The CBI is not a security or intelligence agency dealing with the security of the country. The CBI is an investigating agency to investigate crimes or economic offences. If it is found during investigation that the levelled allegations are false, it is duty bound to get justice to the accused persons and not to frame them on false charges to satisfy the ego of the concerned officers. The Central Information Commission has ruled that even the accused in a case has the right to information under the right to information Act. The accused persons are also to be treated as innocent unless found guilty by a competent court of jurisdiction. Is it possible that an economic offence is committed without any motive? If CBI could not find a motive against accused Shri D. P. Singh yet his acts were in variance with the rules, he could at best be changed for dereliction of duty but not under Anti Corruption Act."
He has also submitted that the refusal u/s 8 (1) (g) was unwarranted for the following reasons:-
"None of the questions posed ask for the identity of the source or the witnesses. In fact the CBI have already provided copies of the statements of various persons recorded during 3 investigation to the accused persons along with the charge sheet. Does CBI has some other recorded statements which have not been provided to the accused and wants to use them at a later date or those statements are in variance with the line of investigation of the CBI?"
Upon this Shri D. C. Jain, DIG, CBI, AC-I in his order of 21-8-2007 has held as follows:-
"It is an admitted fact that charge sheet has already been filed in the said case against Shri D. P. Singh, the then Director (Horticulture), MCD, Delhi and others in a court of law and the same is pending under trial. Appellant has claimed that Shri D. P. Singh has been falsely implicated by CBI and the information sought is required to expose the CBI for falsely implicating Shri D. P. Singh. There is no doubt that the matter is sub-judice in a Court of Law and the trial is going on. All the accused persons charge sheeted, have been provided with copies of all the relevant documents as per law and procedure. During trial, the accused persons will have sufficient opportunities to defend themselves. There is, therefore, no doubt that the appropriate forum to agitate in the matter is the Court where the trial is going on.
In view of above, it is obvious that the information sought by the appellant is exempted u/s 8 (1) (h) of the RTI Act, 2005. This Section exempts providing of information which would impede the process of prosecution of offenders. CPIO, has, therefore, rightly claimed exemption u/s 8 (1) (h) of the RTI Act, 2005."
In other words First Appellate Authority has not upheld the order of CPIO with regard to application of section 8 (1) (g) and (j) to this request, but has upheld the application of 8 (1) (h). Appellant Shri Shyam Vir Singh's prayer before us in his second appeal is as below:-
"Information requested in application dated 30-6-2007 may be provided. Action for obstructing flow of information to the appellant may be taken."
The appeal was heard on 27-2-2009. The following are present.
Appellant Shri Shyam Vir Singh.
Respondent Shri Ganesh Verma, SP, CBI.
Shri Ganesh Verma, SP, CBI submitted a statement of defence of the position taken with regard to application of Shri Shyam Vir Singh. After 4 tracing the course of processing of Shri Shyam Vir Singh's RTI application Shri Ganesh Verma has submitted in this statement as follows:-
"6. that, it is submitted that CBI had registered a case No. RC AC 3 2004 A0004 on 29.7.2007 against S/ Shri D. P. Singh, Director (Horticulture), MCD, New Delhi, Pyare Lal, the then JE (Civil), MCD, Ashutosh, Contractor, P. S. Rana, Contractor, Raj Wadhera & others on the basis of source information and took up the investigation.
7. That, CBI confined the investigation to the allegations of the FIR of the case and after investigation filed a charge sheet before the Hon'ble Spl. Judge, Delhi against S/ Shri D. P. Singh, Director (Horticulture), MCD, New Delhi, A. K. Chauhan, Pyare Lal, the then JE (Civil), MCD, Ashutosh Gangwar, Contractor and P. S. Rana, Contractor.
8. That Hon'ble Spl. Judge, Delhi took cognizance of the case and after hearing on charge on 4.10.2008, ordered for framing of the charges against the accused persons. Hon'ble Spl. Judge also ordered for further investigation on certain points based on the statement of the witnesses.
9. That, further investigation is being conducted as per order of the Hon'ble Spl. Judge.
10. That, the case is presently under trial in respect of the charge sheet filed, on the basis of FIR and also under further investigation under provisions of the Section 173 (8) Cr. PC.
11. That, the disclosure of the information required by the applicant would impede the process of the prosecution of the offenders and also the process of the ongoing investigation.
12. That, the allegations made in Para (e) of the grounds of appeal that there was conspiracy on part of some CBI officers in collusion with MCD officials against Shri D. P. Singh is incorrect and denied. Ld. Trial Court has already framed charge against Shri D. P. Singh & other accused persons."
He further submitted that the matter is now under fresh investigation by order of the court to which appellant Shri Shyam Vir Singh added that investigation is being conducted not only against the accused but also against the investigating officer.
5The issue here lies clearly in whether the information sought falls within the exemption from disclosure u/s 8 (1) (h). In this case the judgment of the Delhi High Court in W.P.(C) No.3114/2007 - Shri Bhagat Singh Vs. Chief Information Commissioner & Ors is of relevance, since it deals with the application of sec. 8(1)(h):
11. "The Universal Declaration of Human Rights, adopted by the United Nations in 1948, assured by Article 19, everyone the right "to seek, receive and impart information and ideas through any media, regardless of frontiers". In Secretary Ministry of Information and Broadcasting, Govt. of India and others vs. Cricket Association of Bengal and others (1995 (2) SCC 161) the Supreme Court remarked about this right in the following terms:
"The right to freedom of speech and expression includes the right to receive and impart information. For ensuring the free speech right of the citizens of this country, it is necessary that the citizens have the benefit of plurality of views and a range of opinions on all public issues. A successful democracy posits an "aware" citizenry. Diversity of opinions, views, ideas and ideologies is essential to enable the citizen to arrive at informed judgment on all issues touching them."
This right to information, was explicitly held to be our fundamental right under Article 19(1)(a) of the Constitution of India for the first time by Justice K.K. Mathew in the State of U.P. vs. Raj Narain, (1975) (4) SCC 428. This view was followed by the Supreme Court on a number of decisions and after public demand, the Right to Information Act, 2005 was enacted and brought into force.
12. The Act is an effectuation of the right to freedom of speech and expression. In an increasingly knowledge based society, information and access to information holds the key to resources, benefits, and distribution of power. Information, more than any other element, is of critical importance participatory democracy. By one fell stroke, under the Act, the make of procedures and official barriers that had previously impeded information, has been swept aside. The citizen and information seekers have, subject to a few exceptions, an overriding right to be given information on matters in the possession of the state and public agencies that are covered by the Act. As is reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the government and its 6 instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.
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 self. Under Section 8,exemption from releasing information is granted if it would impede the process of investigation process cannot be a ground for refusal of the information, the authority withholding 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.
14. A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal interpretation. The contextual background and history of the Act is such that the exemptions, outlined in Section 8, relieving the authorities from the obligation to provide information, constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption provisions have to be construed in their terms, there is some authority supporting this view (See Nathi Devi vs. Radha Devi Gupta 2005(2) SCC201; B. R. Kapoor vs. State of Tamil Nadu 2001 (7) SCC 231 and V. Tulasamma vs. Sesha Reddy 1977(3) SCC 99). Adopting a different approach would result in narrowing the rights and approving a judicially mandated class of restrictions on the rights under the Act, which is unwarranted."
In this case the Court took serious notice of the two-year delay in releasing of information and the lack of adequate reasoning of the orders of PIO and appellate authority. S Ravinder Bhat J specifically notes, "As held in the preceding part of the judgment, without a disclosure as to how the investigation process would be hampered by sharing the materials collected till the notices were issued to the assessee, the respondents could not have rejected the request for granting information. The CIC, even after overruling the objection, should not have imposed the condition that information could be disclosed only after recovery was made 1 "
1Para 15 of the judgment.7
DECISION NOTICE In light of the above we examined Shri Ganesh Verma, SP, CBI on each of the questions raised in the application of Shri Shyam Vir Singh, to determine from him in what way an answer to each question would in fact impede the process of investigation/ prosecution. He was unable to provide justification except to say that in one or two cases investigation may establish the facts different to what is assumed at the start of investigation. How this will impede the process of investigation, however, he was unable to say.
For the above reasons and because the matter is of some degree of sensitivity being a case of suspected corruption, while setting aside the orders of Shri D. C. Jain, DIG, CBI dated 21.8.2007 the case is remanded to him for re-examination in light of the very clear decision of justice Ravinder Bhat J. in Bhagat Singh Vs. Chief Information Commissioner & Ors quoted in detail by us above. He will accordingly announce his decision within 10 working days of the date of receipt of this decision notice. With this the Appeal now stands disposed of.
Announced in the hearing. Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 27-2-2009 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 K.P. Shreyaskar) Joint Registrar 27-2-2009 8 9