Central Information Commission
Thomas Mathew vs Department Of Defence on 12 September, 2023
के ीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली,
नई द ली New Delhi - 110067
ि तीय अपील सं या / Second Appeal No. CIC/MODEF/A/2022/653213
Shri Thomas Mathew ... अपीलकता /Appellant
VERSUS/बनाम
PIO, ... ितवादीगण /Respondent
M/o Defence
Date of Hearing : 24.08.2023
Date of Decision : 12.09.2023
Chief Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal:
RTI application filed on : 25.08.2022
PIO replied on : 21.09.2022
First Appeal filed on : 24.09.2022
First Appellate Order on : 27.09.2022
2ndAppeal/complaint received on : 04.10.2022
Information soughtand background of the case:
The Appellant filed an RTI application dated 25.08.2022 seeking information on the following 02 points:-
1. Ministry of Defence (Vigilance Cell) had requested the Attorney General of India in May-July 2022 for his opinion on the Prosecution Sanction in respect of N Santosh, SA Kunte and Thomas Mathew who have been chargesheeted by the CBI in the VVIP helicopter scam. Request furnish theresponse of Attorney General on the said query by Min of Defence (Vigilance) The related News clipping is attached.
2. Request furnish the official responses of the Indian Air Force from 2020 till date to the Min Of Defence (Vigilance) query with regards to the Prosecution sanction in respect of N.Santosh, SA Kunte and Thomas Mathew who were members of the TEC in procurement of VVIP helicopters The CPIO/Under Secretary (Vigilance), M/o Defence, vide letter dated 21.09.2022 replied as under:-
Para 1 & 2: With regard to information sought in Para 1 & 2 of your RTI application, attention is invited to Section 8(h) of RTI Act, 2005 which stipulates that "there shall be no obligation to give any citizen the information which would Page 1 of 16 impede the process of investigation or apprehension or prosecution of offenders". Hence, no information is being given w.r.t. Para 1 & 2 of ibid RTI application.
Dissatisfied with the response received from the CPIO, the Appellant filed a First Appeal dated 24.09.2022. The FAA/Deputy Secretary (Vigilance), M/o Defence, vide order dated 27.09.2022 upheld the reply of the CPIO.
Aggrieved and dissatisfied, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
A written submission was received from the Appellant dated 11.08.2023 the relevant extracts of which are as under:
4. Information sought in para 2a above is NOT part of the investigation and is only an opinion of the AG and does not find mention in the chargesheet.
5. Information sought vide para 2b above are official communications between the MoD and IAF in the years 2020, 2021 and 2022 with regards to the technical correctness of the TEC and IAF opinion on granting Sanction for Prosecution. These are NOT part of the investigation and do not find mention in the chargesheet nor have they been placed in court.
6. It is humbly reiterated that the information requested in para 2 above is :-
a) Not part of the investigation and do not find mention in the chargesheet
b) Have not been placed in court
c) Are addressed to the MoD only and neither to the investigative agency nor the court.
d) Investigation is complete.
e) Chargesheet has already been filed.
f) Prosecution process has already been completed. There is no Vigilance/Departmental inquiry pending.
g) No justification has been provided to suggest that releasing of requested information will impede the process of investigation and prosecution, which is already complete.
h) Mere fact that release of some information from the records (which are not placed in court) may lead to a weakening of the prosecution case cannot be advanced as a reason to deny information, since this would imply that the truth on records is not being revealed.
7. With regards to the above, reference is made to Delhi High Court order of Amit Kumar Srivastava vs CIC case order of 05 Feb 2021 (Attached as Appendix B). Paras 18 and 19 of the said order are reproduced below:
18. As noted above, the legal position as settled by this court is that cogent reasons have to be given by the public authority as to how and why the investigation or prosecution will get impaired or hampered by giving the information in question. In the impugned order, there is no Page 2 of 16 attempt made whatsoever to show as to how giving the information sought for would hamper the investigation and the on-going disciplinary proceedings. The impugned order concludes that a charge sheet has been filed in the criminal case by the CBI but in the disciplinary proceedings the matter is still pending. Based on this fact simplicitor the impugned order accepts the plea of the respondent and holds that the Section 8 (1) (h) is attracted and the respondents are justified in not giving information to the petitioner. No reasons are spelt out as to how the investigation or prosecution will be hampered.
19. Accordingly, in my opinion, the order has taken a stand which is contrary to the settled legal position by this court as noted above. I, accordingly, quash the impugned order of CIC and remand the matter back to CIC for consideration afresh in terms of the above noted legal position.
8. Reference is also made to Delhi high Court order in the B S Mathur vs Public Information Officer of Delhi High Court on 3 June, 2011 (attached as Appendix C). The scheme of the RTI Act, its objects and reasons indicate that disclosure of information is the rule and non-disclosure the exception. Kind attention is drawn towards para 19 and 22 of this order, the excerpts of which are copied below:
"The mere reproducing of the wording of the statute would not be sufficient when recourse is had to Section 8 (1) (h) RTI Act. The burden is on the public authority to show in what manner the disclosure of such information would impede the investigation."
"The mere pendency of an investigation or inquiry is by itself not a sufficient justification for withholding information. It must be shown that the disclosure of the information sought would "impede" or even on a lesser threshold "hamper" or "interfere with" the investigation."
9. Provision of the requested information will have no adverse effects on the investigation and would also be incorrect to state that the matter with regards to this sought information is sub-judice, since they are not part of the investigation. Additionally, it would go a long way in aiding bonafide decision making by the Armed forces personnel, future defence procurement and most importantly the morale of the armed forces personnel.
10. It is humbly submitted that denial or withholding of information under the technicalities of Section 8(1)(h) of RTI Act 2005 should not be held valid in this case and the question of impeding the process of investigation or apprehension or prosecution of the offenders is unsubstantiated. The applicability of the term INVESTIGATION should not be interpreted so broadly and liberally that it leads to selective interpretation by the CPIO and thereby denying rightful information to the applicants. Such fears expounded by the MoD are completely baseless and against the principles of natural justice.
Page 3 of 1611. Furnishing of requested information is in the larger public good which will enable prompt and effective decision making by armed forces personnel without fear of victimisation. Denial of requested information is detrimental in promoting transparency and adversely affecting the morale of the armed forces."
A written submission was also received from the US Vigilance, D/o Defence vide letter dated 16.08.2023 the relevant extracts of which are as under:
2. In this regard, Shri Shashi Kant Sharma, one of the co-accused in the VVIP helicopter matter had filed an RTI application in the same matter seeking copy of related files including but not limited to Department of Personnel and Training Office of the Chief Vigilance Commissioner, and any others as applicable. The information was denied by the CPIO as well as first appellate authority on the similar ground as in the instant case. Shri Shashi Kant Sharma filed an appeal in CIC.
3. In this matter, comments of CBI was sought as while forwarding its Report. CBI had mentioned that it may be treated as a "Confidential"
document and no reference to it may be made, while pursuing the matter further or any other action initiated upon it. In case, any applicant seeks copy of the CBI Report or part thereof under RTI Act, views of CBI should be ascertained as per Section 11 of RTI Act, 2005 before deciding the matter. In view of this, CBI was requested to urgently convey CBI's objections/ no objections to the information being sought.
4. CBI vide letter dated 21.03.2023 informed that further investigation with regard to money trail and other aspects is still continuing U/s 173(8) of CrPC and efforts are being made to expedite the trial proceedings. Therefore. they have strong objection is sharing copy of CBI Report with accused Shri S.K. Sharma as the same may adversely affect the progress of ongoing further investigation & trial proceedings.
5. The argument behind filing of the RITI application as mentioned by the applicant was to obtain rightful information and not to impede the process of investigation or any apprehension of prosecution is not tenable ipso facto as the CBI has informed that further investigation with regard to money trail and other aspects is still continuing U/s 173(8) of CrPC and efforts are being made to expedite the trial proceedings. Hence, the subject matter is yet to attain finality.
6. Hon'ble Central Information Commission in case numbers CIC/AT/A/2007/00007, CIC/AT/A/2007/00010 & CIC/AT/A/2007/00011 dated 10.07.2007 has, inter alia, held that "the term investigation used in Section 8(1)(h) in the context of this Act should be interpreted broadly and liberally. We cannot import into the RT1 Act the technical definition of investigation one finds in criminal law. Here investigation would mean all actions of law enforcement, disciplinary proceedings, enquiries, adjudications and so on. Logically, no investigation could be said to be complete unless it has reached a point where the final Page 4 of 16 decision on the basis of the investigation is taken. In that sense, an investigation can be an extended investigation".
7. Therefore, the information sought by the applicant stands exempted from disclosure at this juncture under Section 8(1)(h) of the RTI Act, 2005. There is no inconsistency or mala fide intent on the part of the CPIO.
8. Further. it may be worthwhile to recall that in the case of Mardia Chemicals Ltd. vs Union of India. the Hon'ble Supreme Court had observed that "66. Therefore. whenever public interest to such a large extent is involved and it may become necessary to achieve an object which serves the public purpose individual rights may have to give away. Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be effected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country...
9. It is further submitted that requisite documents are not restricted to the applicant i.e. Shri Thomas Mathew only. It also contains references/examination of the role of other persons involved in the matter. The roles of the respective officers cannot be read in isolation with that of the other accused officers in the matter. The accusations stem from a common offence committed by each of the officers in their own official capacity. In light of this, the possibility of these officers entering into any sort of pact with each other and raking up the matter at other fora with a view to opening new fronts against the Government of India and adding unwarranted dimensions to the ongoing investigation by the investigative agency cannot be ruled out.
The Appellant represented by Shri S A Kunte participated in the hearing through video conference. Shri Kunte reiterated Appellant's written submission and stated that the Attorney General's (AGs) opinion as sought in point 1 was not a part of the charge sheet filed before the Court. On point 2 regarding the official communications between two public authorities i.e., MoD and IAF in the years 2020, 2021 and 2022 with regards to the technical correctness of the TEC and IAF opinion on granting Sanction for Prosecution he stated that the documentsare not part of the investigation and do not find mention in the chargesheet nor have they been placed in court. He also argued that unlike in the case of the other accused, the charge sheet filed before the Court in reference to the Appellant does not make any reference to investigating the money trail but revolves around issues of procedural lapses. Shri Kunte added that the information should be disclosed in the larger public interest as it will go a long way in aiding bonafide decision making by the Armed forces personnel, future defence procurementand most importantly the morale of the armed forces personnel.
The Respondent represented by Shri Bhupesh Pillai, US participated in the hearing through video conference. He referred to his written submissions and stated that a similar RTI was filed by Shri Shashi Kant Sharma, one of the co- accused in the VVIP helicopter matter seeking copies of files of Department of Page 5 of 16 Personnel and Training Office of the Chief Vigilance Commissioner which was denied on similar grounds. In the matter of Shri Sharma consent of CBI was also sought being the investigating agency which was denied by the CBI vide letter dated 21.03.2023 on the ground that further investigation with regard to money trail and other aspects is still continuing U/s 173(8) of CrPC and efforts are being made to expedite the trial proceedings. Therefore. they have strong objection in sharing a copy of CBI report with the accused Shri S.K. Sharma as the same may adversely affect the progress of ongoing further investigation & trial proceedings. Shri Pillai added that information sought was not restricted to the applicant i.e. Shri Thomas Mathew. It also contains references/examination of the role of other persons involved in the matter. The roles of the respective officers cannot be read in isolation with that of the other accused officers in the matter. The accusations stem from a common offence committed by each of the officers in their own official capacity. In light of this, the possibility of these officers entering into any sort of pact with each other and raking up the matter at other fora with a view to opening new fronts against the Government of India and adding unwarranted dimensions to the ongoing investigation by the investigative agency cannot be ruled out. On being queried by the Commission as to how the CBI report prepared against a co- accused is relevant in the present instance, the Respondent stated that there was correspondence with the IAF on the basis of the CBI report which broadly pertains to the same investigation.
Decision Keeping in view the facts of the case and the submissions made by both the parties the Commission pronounces its decision as under:
Point 1 In point 1 the Appellant is seeking opinions of the Attorney General of India (AGI) on the Prosecution Sanction in respect of N Santosh, SA Kunte and Thomas Mathew which cannot be provided as per Section 8 (1) (e) as there exists a fiduciary relationship between the AGI and the Central Government. The legal position on this issue has been settled by the Hon'ble High Court of Delhi in Union of India vs Subhash Chandra Aggarwal, LPA 168/2015 and Union of India vs R K Jain LPA 199/ 2015 decided on 03.02.2017, the relevant extracts of which are as under:
"21. However, it cannot be ignored that the predominant function of the AGI is to give advice upon legal matters, to appear in court as stated, i.e. perform the duties akin to an Advocate/Senior Advocate. The acts which have been noted by the learned Single Judge as not forming part of the duties as an Advocate, namely, that the Supreme court may take action for criminal contempt on a motion made by the AGI or that the AGI is an ex officio member of the Bar Council of India represent a small proportion of the duties of an AGI. Essentially, the function being that akin to an Advocate of the Government of India, he is in a fiduciary relationship with the Government of India and cannot put in the public domain his opinions or the materials forwarded to him by the Government of India.Page 6 of 16
22. Reference in this context may be had to Section 126 of the Evidence Act which reads as follows:- ―
126. Professional communications.--No barrister, attorney, pleader or vakil shall at any time be permitted, unless with his client's express consent, to disclose any communication made to him in the course and for the purpose of his employment as such barrister, pleader, attorney or vakil, by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment: Provided that nothing in this section shall protect from disclosure-- (1) Any such communication made in furtherance of any 1[illegal] purpose; 2[illegal] purpose;" (2) Any fact observed by any barrister, pleader, attorney or vakil, in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment. It is immaterial whether the attention of such barrister, 2[pleader], attorney or vakil was or was not directed to such fact by or on behalf of his client. Explanation.--The obligation stated in this section continues after the employment has ceased.‖
23. In a catena of judgments, the Supreme Court has reiterated that a lawyer acts in a fiduciary capacity with his client. Reference may be to the judgment of the Supreme Court in the case of Central Board of Secondary Education & Anr. vs. Aditya Bandopadhyay &Ors., (2011) 8 SCC 497. That was a case where the petitioner in the writ petition had made an application for inspection and re- evaluation of the answer book. While dealing with the contention of the CBSE that the examining body holds the evaluated answer books in a fiduciary relationship, the Supreme Court held as follows:-
41. In a philosophical and very wide sense, examining bodies can be said to act in a fiduciary capacity, with reference to students who participate in an examination, as a government does while governing its citizens or as the present generation does with reference to the future generation while preserving the environment. But the words 'information available to a person in his fiduciary relationship' are used in Section 8(1)(e) of RTI Act in its normal and well recognized sense, that is to refer to persons who act in a fiduciary capacity, with reference to a specific beneficiary or beneficiaries who are to be expected to be protected or benefited by the actions of the fiduciary - a trustee with reference to the beneficiary of the trust, a guardian with reference to a minor/physically/infirm/mentally challenged, a parent with reference to a child, a lawyer or a chartered accountant with reference to a client, a doctor or nurse with reference to a patient, an agent with reference to a principal, a partner with reference to another partner, a director of a company with reference to a share-holder, an executor with reference to a legatee, a receiver with reference to the parties to a lis, an employer with reference to the confidential information relating to the employee, and an employee with reference to business dealings/transaction of the employer. We do not find that kind of fiduciary Page 7 of 16 relationship between the examining body and the examinee, with reference to the evaluated answer-books, that come into the custody of the examining body.
24. Similarly in the case of Kokkanda B. Poondacha & Ors. vs. K.D.Ganapathi & Anr., (2011) 12 SCC 600 the Supreme Court held as follows:-
12. At this stage, we may also advert to the nature of relationship between a lawyer and his client, which is solely founded on trust and confidence. A lawyer cannot pass on the confidential information to anyone else. This is so because he is a fiduciary of his client, who reposes trust and confidence in the lawyer. Therefore, he has a duty to fulfil all his obligations towards his client with care and act in good faith. Since the client entrusts the whole obligation of handling legal proceedings to an advocate, he has to act according to the principles of uberrima fides, i.e., the utmost good faith, integrity, fairness and loyalty.
25. Reference may also be had to the judgment of the Supreme Court in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Satyen Bhowmick & Ors., AIR 1981 SCC 917. That was a case in which the accused was charged under the Official Secrets Act. The Magistrate directed the lawyer to produce his notebook. The Magistrate permitted the defence lawyer to take copies of the statement of the witness in order to be in a position to cross-examine the witness. Subsequently, the Magistrate directed the lawyer to produce his notebook to examine that only a summary of the evidence has been taken by the lawyer not in extenso in violation of Section 14. The lawyer claimed privilege under Section 126 of the Act. The Supreme Court held as follows:-
26. xxx xxx
4. That there was absolutely no impropriety on the part of the Magistrate in not taking action against the defence lawyer for his refusal to' show his register because the lawyer had rightly claimed privilege under Section 126 of the Evidence Act as the register contained instructions given by the client which being privileged could not be disclosed to the Court. On a parity of reasoning we find no impropriety on the conduct of the lawyer in refusing to show the statement of witnesses recorded by the Court in extenso in order to prepare himself for an effective cross-examination of the witnesses. Hence the strictures passed by the High Court on the Magistrate as also on the lawyer of the defence were, in our opinion, totally unwarranted. xxx
26. Similarly, in a recent judgment in the case of Reserve Bank of India & Ors. vs. Jayantilal N. Mistry & Ors., (2016) 3 SCC 525 the Supreme Court while dealing with the defence of RBI that it was in the fiduciary relationship with the Bank noted as follows:-
55. The Advanced Law Lexicon, 3rd Edition, 2005, defines fiduciary relationship as "a relationship in which one person is under a duty to act for the benefit of the other on the matters within the scope of the fiduciary relationship. Fiduciary relationship usually arise in one of the four Page 8 of 16 situations (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act or give advice to another on matters falling within the scope of the relationship, or (4) when there is specific relationship that has traditionally be recognized as involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer.
xxx
57. The term fiduciary relationship has been well discussed by this Court in the case of Central Board of Secondary Education and Anr. v. Aditya Bandopadhyay and Ors. (supra). In the said decision, their Lordships referred various authorities to ascertain the meaning of the term fiduciary relationship and observed thus:
20.1) Black's Law Dictionary (7th Edition, Page 640) defines 'fiduciary relationship' thus: A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships-such as trustee- beneficiary, guardian-ward, agent-principal, and attorney- client-require the highest duty of care. Fiduciary relationships usually arise in one of four situations: (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer.‖
27. In this scenario, can the AGI be termed to be ―Public authority‖ as defined in the RTI Act is the question that needs to be answered by us.
28. In Som Prakash Rekhi vs. Union of India & Anr., (1981) 1 SCC 449 the Supreme Court in the context of determining as to whether the respondent therein was a State as stated in Article 12 of the Constitution held as follows:-
27. Control by Government of the corporation is writ large in the Act and in the factum of being a government company. Moreover, here, Section 7 gives to the government company mentioned in it a statutory recognition, a legislative section and a status above a mere government company. If the entity is no more than a company under the Company Law or society under the law relating to registered societies or co-operative societies you cannot call it an authority. A ration shop run by a cooperative store financed by Government is not an authority, being a mere merchant, not a sharer of State power. 'Authority' in law belongs to the province of power:
―Authority (in Administrative Law) is a body having jurisdiction in certain matters of a public nature. The Law Lexicon of British India, P. Ramanatha Page 9 of 16 Aiyar, 1940 (P. 101). Therefore, the "ability conferred upon a person by the law to alter, by his own will directed to that end, the rights, duties, liabilities or other legal relations, either of himself or of other persons" Salmond, Jurisprudence, 10th Edn. p. 243 must be present ab extra to make a person an 'authority', when the person is an 'agent or instrument of the functions of the State' the power is public. So the search here must be to see whether the Act vests authority, as agent or instrument of the State, to affect the legal relations of oneself or others.
29. The essential services provided by the AGI are to advice the Government upon legal matters and perform other duties such of a legal character as may be assigned. AGI is not a functionary reposed with any administrative or other authority which effect the rights or liabilities of persons. The objects of the RTI Act have been noted by the Supreme Court in the case of Instituted of Chartered Accountants of India vs. Shaunak H.Satya & Ors., (2011) 8 SCC 781 as under:-
23. The information to which RTI Act applies falls into two categories, namely, (i) information which promotes transparency and accountability in the working of every public authority, disclosure of which helps in containing or discouraging corruption, enumerated in Clauses (b) and
(c) of Section 4(1) of RTI Act; and (ii) other information held by public authorities not falling under Section 4(1)(b) and (c) of RTI Act. In regard to information falling under the first category, the public authorities owe a duty to disseminate the information widely suo moto to the public so as to make it easily accessible to the public. In regard to information enumerated or required to be enumerated under Section 4(1)(b) and (c) of RTI Act, necessarily and naturally, the competent authorities under the RTI Act, will have to act in a pro-active manner so as to ensure accountability and ensure that the fight against corruption goes on relentlessly. But in regard to other information which do not fall under Section 4(1)(b) and (c) of the Act, there is a need to proceed with circumspection as it is necessary to find out whether they are exempted from disclosure.
24. One of the objects of democracy is to bring about transparency of information to contain corruption and bring about accountability. But achieving this object does not mean that other equally important public interests including efficient functioning of the governments and public authorities, optimum use of limited fiscal resources, preservation of confidentiality of sensitive information, etc. are to be ignored or sacrificed.
The object of RTI Act is to harmonize the conflicting public interests, that is, ensuring transparency to bring in accountability and containing corruption on the one hand, and at the same time ensure that the revelation of information, in actual practice, does not harm or adversely affect other public interests which include efficient functioning of the governments, optimum use of limited fiscal resources and preservation of confidentiality of sensitive information, on the other hand. While Sections 3 and 4 seek to achieve the first objective, Sections 8, 9, 10 and 11 seek to achieve the second objective.
Page 10 of 1630. Looking at the object of the Act, it appears to us that it would not have envisaged encompassing an office like that of an AGI to be covered under Section 2(h) of the RTI Act.
31. For the aforesaid reasons, we are unable to agree with the conclusion of the learned Single Judge that the office of AGI falls within the description of ―public authority."
Point 2 In point 2 the Appellant is seeking the official responses of the Indian Air Force from 2020 till date to the Ministry of Defence (Vigilance) with regards to the prosecution sanction of the Appellant and other accused. Therefore, it is clear that the documents sought by the Appellant pertain to his prosecution sanction.A plethora of judgements of higher courts deal with the question of disclosure of documents related to prosecution sanction. However, before deciding on the issue of disclosure of information, the complexities involved in such corruption trials and how disclosure of information may dilute the proceedings has to be understood. The Hon'ble High Court of Madras in a recent judgement in Gulab Singh Ranavs CPIO, Indian Overseas Bank, WP No 37231/ 2016 decided on 08.12.2021 has elaborately dealt with the issue. The following observations are particularly relevant to the instant matter:
"38. The petitioner requested for a copy of request letter received from CBI for seeking sanction, copy of internal office memorandum containing the opinion/views of Disciplinary Authority for giving sanction for prosecution, copy of first advice given by CVC, New Delhi, the outcome of the reconciliatory meeting between Disciplinary Authority and CBI office of the New Delhi, the copy of any further clarification sought for by the CVC, the copy of internal office memorandum containing the opinion/views of Disciplinary Authority for giving sanction for prosecution, the copy of latest correspondence from CVC requesting/advising the Bank, the copy of internal office memorandum containing the opinion/views of the present Disciplinary Authority and finally copy of draft sanction supplied by CBI.
39. Considering the nature of questions sought for, interestingly, the first information is the request letter received from the CBI for seeking sanctioning. The said letter may have certain informations pertaining to the investigation/interrogation. The second document is copy of internal office memorandum containing the opinion/views of the Disciplinary Authority.
40 .This Court is of the considered opinion that note file, opinions, views of the Disciplinary Authority may vary from time to time based on the informations and based on the collection of facts and evidences. Even at later point of time, initial opinion may not be final opinion in many cases. Subsequent facts may provide a different views and opinion and therefore, if the copy of the opinion and views are supplied, it will create unnecessary hindrance for the peaceful investigation, interrogation and to proceed with the departmental disciplinary proceedings as well as the criminal proceedings. For example, on receipt of the preliminary report, the Disciplinary Authority would have formed certain opinions or expressed some Page 11 of 16 views. However, those opinions and views cannot be construed as final, as far as the decisions to be taken. During subsequent period, if further documents are made available or certain other facts are placed, then the Disciplinary Authority may change his opinion or views. This is exactly the reason why, in disciplinary case, the rule contemplates opportunities to the delinquent officials. Therefore, the internal office memorandum containing opinion/views if supplied, undoubtedly, would create unnecessary issues as the petitioner will certainly rely on the document for the purpose of destroying the case. However, any accused/delinquent officials is entitled to defend his case in the manner known to law.
41. Thus, furnishing of such opinions and views of the Disciplinary Authority at various stages, if provided under the RTI Act, then it will hamper the continuation of the disciplinary proceedings and further, disrupt the investigation to be conducted by the investigating agency.
42. Perusal of other documents and informations sought for by the petitioner are all relatable to the reconciliatory meeting between the officials. Clarifications sought for by the CVC, latest correspondence etc., of such informations and documents sought for reveals that it is between the authorities and more so, relating to views/opinions, internal correspondences etc.,
43. No doubt, all such correspondences are protected under Section 8 of the RTI Act. However, it is the "subjective satisfaction" of the authorities. The "subjective satisfaction" must be considered by the Public Information Officer, while complying with the request of the information seekers. This exactly is the purpose and object of 8(h) of the Act.
"Section 8(h) contemplates of information which would impede the process of investigation or apprehension or prosecution of offenders."
44. Where the circumstances narrated under Section 8(h) on that informations, which would impede the process of investigation or apprehension or prosecution of offenders. Thus, if the information provided, would cause any hindrance to the investigation or apprehension or prosecution of offenders. The language employed is "Apprehension". Thus, "Apprehension" of the competent authority is also considered in the legislation. The word "Apprehension", no doubt, can be interpreted widely and further, it provides discretion to the authorities for forming an opinion, whether there is an "Apprehension" or not. In this regard, the subjective satisfaction of the competent authority is of paramount importance. The Public Information Officer is expected to consider in the event of furnishing such informations, which all are connected with the investigation or prosecution of offenders and providing of such informations, would impede the process, then, he is empowered to exercise power of discretion and reject the application of the information seeker. Thus, the scope of section 8(h) is to be understood, with reference to the context and to the subjective satisfaction of the authorities competent. If the competent authority satisfied that there is a likelihood of impede the process of investigation or prosecution of offenders, then such informations or documents shall be denied.
Page 12 of 1645. The purpose and object of the exemption clause is to ensure that the administrative confidentiality are protected and because of providing of information, the further continuation of investigation or prosecution cannot be impeded. This being the scope of exemption under Section 8(h), the questions sought for by the petitioner in the present case with reference to 8(h) is to be considered.
46. As discussed in the aforementioned paragraphs, the questions and documents sought for by the petitioner in the present case is relatable to internal office memorandum containing opinions/views of reconciliatory meeting between the Disciplinary Authority and CBI clarification sought for by CVC internal office memorandum containing opinions/views latest correspondences from CVC etc.,
47. This Court is of the considered opinion that such informations, if provided, it will create unnecessary hampering of the Disciplinary Proceedings or the prosecution. Even an apprehension in this regard is sufficient is to deny information to the applicants. The word "Apprehension" is employed in the Act, so as to protect the prosecution and process of investigation, which should not be paralyzed at any circumstances in the public interest. When the investigation is undertaken, then the authorities must be provided with an amount of discretion for the purpose of culling out the truth in respect of the allegations. Thus, any hindrance in between, would undoubtedly paralyze the investigation process, which would dilute the prosecution and would extend unlawful benefit to the accused persons.
48. The opinions and views formed by the competent authorities on every stage may vary or change depending on the progress made in the investigation and based on the further facts culled out from and out of the evidences. During the course of such investigation or prosecution, if informations are provided regarding the opinions already formed, then undoubtedly the same will hamper further investigation and disrupt the prosecution to be conducted by the agency. If such nature of informations or documents are provided, then it may not be possible to proceed with the prosecution for the purpose of establishing the offence.
49. In this context, the rights of both the parties should be considered by the Courts. It is not only the right of the information seekers, but the right of the information provider must also considered by this Court. Whenever a statutory right is conferred to the citizen, equally such right is conferred to the other citizen, whose interest is also to be protected before allowing a person to exercise such a statutory right. To elaborate, right and duties are corresponding terms, so also, rights can be exercised by any citizen, honoring the corresponding rights of the other citizen. It is exactly the constitutional perspective and the philosophy. Take a case, where informations or documents are mechanically provided to the information seekers in all circumstances, then the right and duties of the investigating agency and the prosecutors are denied, establishing their cases before the competent Court of law or before the Disciplinary Authority. Thus, a balancing approach is required, while implementing the provisions of the RTI Act. It is not as if, an information seeker is entitled to get all informations and documents including certain internal correspondences and views or opinions recorded by the competent authorities then and there and time to time. Therefore, Page 13 of 16 practical and pragmatic approach coupled with rules of constructive interpretation is of paramount importance to take a decision in such circumstances. In the event of committing any lapses, the same would provide unlawful gain to the accused/delinquent persons, which would result in destruction of the prosecution or the case of the Disciplinary Authority and larger the public interest involved in the matter of criminal prosecution is also to be considered by the Court. State being the prosecutors, right of investigation, collected evidence, record the opinions and views in those files must be protected in all circumstances and by obtaining all such informations and documents from the competent authorities, the accused may not be allowed to destroy the basis of prosecution as such views/opinions or internal correspondence can never be construedas final opinion/views or the final decision.
50 .Considering the fact that the Central Information Commission elaborately considered the grounds raised by the petitioner in the order passed in the Second Appeal, arrived a conclusion that the exemption granted to CBI from applicability of the RTI Act, in terms of Section 24(1) would became meaningless. If RTI applicants would get information from another Public Authority, the very information that they cannot get from the CBI or information, inexplicably linked to the information and materials provided by the CBI to the Public Authority.
51. The above findings of the Central Information Commission explicitly clarifies that what an information seeker could not able to get from the CBI, cannot attempt to get from his employer or from other agencies. Such calculated applications filed under the RTI Act, at no circumstances, are entertainable. In the present case, the informations and documents sought for are no doubt relating to the files being maintained by the CBI and about the investigation of the Criminal case, so also pertaining to the sanction, which all are relatable to investigation/interrogation or prosecution. Thus, the first proviso to Section 24(1) cannot be extended merely under the ground that the word 'Corruption' is employed in the Statute.
52. Distinctions are to be drawn in this regard and Section 24(1) proviso must be read and understood along with the spirit of Section 8(h) of the Right to Information Act. Rule of constructive interpretation in such circumstances are imminent to ensure that the purpose and object of the RTI Act is not defeated. So also at the time of providing informations or documents, the rights of other parties and the criminal laws system of prosecution by the State is not affected or destroyed on account of providing such confidential informations to the information seekers.
53. In view of the principles considered by this Court in the aforementionedparagraphs, this Court is able to form a concrete opinion that the informations anddocuments sought for by the petitioner are rightly rejected by the Public InformationOfficer, Indian Overseas Bank, First Appellate Authority and finally by the Central Information Commission/Second Appellate Authority."
Furthermore, the Hon'ble High Court of Delhi in Union of India vs. Shiv Narain, WP(C) 7204/2016 dated 27.03.2019 which pertains to similar facts and circumstances advised the information seeker to obtain the information Page 14 of 16 from the concerned trial court where the matter was pending. The relevant observations are hereunder:
"2. The respondent herein sought information from the petitioner on the following two issues:- "1. Whether the report vide letter no. RSVY/CE/CE & PM/55(1) 892 dated 12.02.2013 addressed to Inspector of police, CBI, ACB, Patna by Shri D.S. Kapur CE cum PM RSVY project Zone, CPWD, Patna in connection with the subject referred above was submitted by the CBI before the sanctioning Authority before grant of prosecution sanction. 2. The certified copy of the note sheet of the above mentioned case from the beginning to the issue of prosecution sanction may also be given for which I am ready to pay the requisite fee."
4. Learned counsel for the respondent has fairly drawn my attention to an order dated February 12, 2019 passed by the Supreme Court in Civil Appeal No. 1632/2019, which is an appeal arising from the orders passed by the Coordinate Bench of this Court in W.P.(C) 2272/2013 dated September 16, 2014 and the Division Bench in LPA 471/2015 dated August 17, 2015, wherein information also includes copy of the note sheet for processing the decision to refer the said case to Anti Corruption Branch of CBI for investigation. In the said case, the said information was denied to the petitioner Ashok Kumar Sharma.
5. The Supreme Court in its order dated February 12, 2019 has held as under:-
4. The dispute remains about document Nos.1, 3 and 4 as they were not supplied considering the provisions of Section 8(i)(h) of the Right to Information 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. 5. In view of the aforesaid reasons employed by the Information Commissioner, we are of the opinion that there was justification in refusing to supply 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.
6. The learned counsel for the respondent submits that the respondent herein shall have the liberty to seek the document, which he has sought under the RTI Act from the learned Trial Court, in terms of the order of the Page 15 of 16 Supreme Court. Suffice it would be to state that it is for the respondent herein to seek appropriate orders from the learned Trial Court.
In view of the order of the Supreme Court, the order of the CIC dated February 29, 2016 is set aside, the writ petition is allowed."
In the light of the above observations, the Commission finds no reason to further intervene in the matter and advises the Appellant to approach an appropriate forum for redressal of his grievance.
The instant Second Appeal stands disposed off accordingly.
वाई. के . िस हा)
Y. K. Sinha (वाई. िस हा
Chief Information Commissioner (मु य सूचना आयु!)
Authenticated true copy
(अिभ मािणत स यािपत ित)
S. K. Chitkara (एस. के . िचटकारा)
Dy. Registrar (उप-पंजीयक)
011-26186535
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