Central Information Commission
Mrarun Sharma vs Gnctd on 5 June, 2015
CENTRAL INFORMATION COMMISSION
(Room No.315, BWing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi 110 066)
Prof. M. Sridhar Acharyulu (Madabhushi Sridhar)
Information Commissioner
CIC/SA/A/2015/000136
Arun Sharma vs. Tis Hazari Court
Important Dates and time taken:
RTI:7714/9714(2) FA:24714/81014(76) Hearing:26.5.2015
SA: 1512015 Disposed of with directions Decision:562015
Parties Present:
The appellant is present along with Devender Bhardwaj. The Public Authority was
represented by Balbir Singh, PIO.
FACTS:
2. Appellant through his RTI application had sought copies of the entire Police File in FIR No. 194/2013 under section 323/341/34. PS Kapashera, police file that is lying with prosecution branch of New Delhi District at Patiala House Courts. Appellant himself was the author of FIR and complainant in this criminal case. The PIO replied on 09.07.2014 stating that the information sought by the appellant appears to be part and parcel of judicial file which he may obtain from the concerned court. So far as the copy of police file is concerned CIC/SA/A/2015/000136 Page 1 the same cannot be parted with being prohibited/restricted under the provisions of Cr.P.C. Being unsatisfied, appellant filed first appeal.
3. The First Appellant Authority by his order dated 01.10.2014 dismissed the appeal stating that the FIR was pending in the court of Shri Sanjay Aggarwal, CMM and the court has to decide the fate of cancellation report as well as of protest petition and further the case diary has been provided to the prosecution by the investigating agency to conduct the trial of the aforesaid case. Hence in the light of the aforesaid judgement and in view of the fact that the document i.e police file/case diary is prohibited/restricted under provisions of 172 Cr.P.C, the same cannot be parted/supplied to the petitioner. However, the investigating agency being the main custodian of the case diary and he may obtain the same from them. Being unsatisfied, appellant approached the Commission in second appeal.
DECISION:
4. Both the parties made their submissions. The appellant sought the entire record of the police file including case dairy regarding FIR No.194/2013 of the Police Station: Kapashera under sections 323, 341 and 34 IPC from the PIO, Directorate of Prosecution, Tis Hazari Court. The appellant says that they were the victims of Kapashera clash between the Police and Advocates in which two police officers and two advocates were injured. Cross cases were filed.
5. The appellant contended that the case against the policeaccused was closed by the Police Investigation agency and the cases against the advocateaccused were being pursued. The appellant is the injured person and complainant, not an accused. He claimed that he was in need of the entire record of police file for a public cause. The appellant suspected collusion/connivance between the accusedpolice officers and the Department of police, belonging to same profession, and also suspected that the police was not interested in prosecuting the policeaccused, but at the same time, with vengeance, they are perusing the case against the advocateaccused.
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6. The representative of respondent authority stated that the Hon'ble CMM Court has rejected the closure report and summoned the police accused. The appellant sought prosecution of the concerned investigating officer for framing an incorrect document with an intent to cause injury to the appellant. The appellant has already filed complaints against several police officers, but no reasons for closure of case was disclosed. Therefore, the appellant wanted to have the copy of the case diary of the police file claiming that it is necessary in the interests of justice. He wanted to unearth the suspected fake story of police Inquiry Officer regarding closure of case against the police accused/police colleagues and hence attributed malice to the PIO.
7. It is not the case of respondent authority that information sought could not be provided. The PIO Mr. Balbir Singh responded on 972014 stating that information sought by the appellant is part and parcel of judicial file and hence he can obtain the same from the concerned court. Then he comes up with plea that the disclosure of it is prohibited under section 172 CrPC, 1973 says:
s. 172. Diary of proceedings in investigation. (1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872 ), shall apply.
8. Section 172 of the CrPC deals with maintenance of diary of proceedings in investigation, such as time at which information reached him, time of beginning and closure of CIC/SA/A/2015/000136 Page 3 investigation, places visited by him, and statement of circumstances ascertained through investigation. Section 172(3) specifically says that the accused or his agents shall not be entitled to see the case diary unless the police officer uses them to refresh his memory or Court uses to contact the police officer. In this case the whole investigation is closed by the police against their own colleaguepolice personnel, but opened up by the court. There is a huge public interest in the disclosure as the investigation against lawyeraccused is continuing. Though accused is not asking for the information, there is every possibility that it could be used for the 'lawyeraccused' in this incident.
9. This section does not have any prohibition against disclosure to persons other than the accused or his agents. Even the accused has a right to such information under two circumstances explained in the said section. Police have already used the diary to frame the lawyeraccused and relieve the policeaccused, and thus 'such use' necessitates the disclosure, as per Section 172(3).
10. The object of recording 'case diaries' under this section is to enable Courts to check the method of investigation by the police. The Supreme Court in Bhagwant Singh v Commissioner of Police AIR 1983 SC 826 said: "The entries in the diary must be made promptly in sufficient details mentioning all significant facts on careful chronological order and with complete objectivity. The haphazard maintenance of a police case diary not only does no credit to those responsible for maintaining it but defeats the very purpose for which it is required to be maintained".
11. The purpose of maintenance of record in the form of case diary is to ensure objectivity and the purpose for which disclosure is sought also is to examine the objectivity of record and in this case, objectivity of closure or continuance of prosecution.
12. The purpose of maintenance of case diary is explained in two cases: In Ahmed Miya (1944) 1 Cal 133, "... but it can be used for the purpose of assisting the Court in the enquiry CIC/SA/A/2015/000136 Page 4 or trial by enabling it to discover means for further elucidation of points which need clearing up before justice can be done".
13. In Joti Jiban Ghosh, AIR 1964 Cal 59, the court said "It can be used as aid in framing a charge though not for founding the charge'. If court needs it, it can secure the case diary. The advocates, injured appellants in this case, pleaded that they need copies of case diary to examine reasonability in dropping charges against policepersonnel and maintaining them against advocates in the same incident.
14. In Sidharth v State of Bihar, Criminal Appeal number 689 of 2003 and 736 of 2003 decided by K G Balakrishnan, J decided on 30.9.2005 (before the RTI Act came into existence) (indiankanoon.org/doc/180067/)the Supreme Court held:
....we may point out that in the present case, we have noticed that the entire case diary maintained by the police was made available to the accused. Under Section 172 of the Criminal Procedure Code, every police officer making an investigation has to record his proceedings in a diary setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. It is specifically provided in Subclause (3) of Section 172 that neither the accused nor his agents shall be entitled to call for such diaries nor shall he or they be entitled to see them merely because they are referred to by the Court, but if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 of the Cr.P.C. or the provisions of section 145 of the Evidence Act shall be complied with. The Court is empowered to call for such diaries not to use it as evidence but to use it as aid to find out anything that happened during the investigation of the crime. These provisions have been incorporated in the Code of Criminal Procedure to achieve certain specific objectives. The police officer who is conducting the investigation may come across series of information which cannot be divulged to the accused. He is bound to record such facts in the case diary. But if the entire case diary is made available to the accused, it may cause serious prejudice to others and even affect the safety and security of those who may have given statements to the police. The confidentiality is always kept in the matter of criminal investigation and it is not desirable to make available the entire case diary to the accused. In the instant case, we have noticed that the entire case diary was given to the accused and the investigating officer was extensively crossexamined on many facts which were not very much relevant for the purpose of the case. The learned Sessions Judge should have been careful in seeing that the trial of the case was conducted in accordance with the provisions of the Cr. P.C. CIC/SA/A/2015/000136 Page 5
15. In the above case the Supreme Court explained how accused cannot have access to entire case diary. The application before this Commission is not by accused and the above judgment was delivered before the commencement of RTI Act, 2005.
16. In Mukund Lal v. Union of India and Anr. (AIR 1989 SC 144) the Hon'ble Supreme Court held that "accused can peruse that particular part of the case diary in the context of Sections 145 or 161 of the Evidence Act (a) if it is used by the police officer concerned to refresh his memory or (b) if the Court uses, it for contradicting the official concerned.
17. Thus, even the accused is not totally prohibited from using the case diary.
18. Shri A.N Tiwari , & Shri M.M Ansari F. No. CIC/AT/A/2006/00071 (decided On:
11.05.2006) in the matter of Shri Kuldeep Kumar V Shri B.S Brar while allowing disclosure of a gist of the depositions of those examined by the police without disclosing names or details which could compromise witness/source confidentiality and safety observed that:
"We are in agreement with the appellate authority's averment that disclosing the details of the case diary will have far reaching consequences in terms of the confidentiality of the information received by the police and may even endanger the physical safety of those examined by the police authorities. However, we also notice that in spite of claiming absolute exemption under Section 8(1)(g), the PIO had voluntarily given some information to the appellant about the status of his case along with the reason as to why it was treated as untraced. In our view, some more information than what has been given to the appellant can also be given to him without unduly compromising the investigation or the witnesses etc. We say this while still recognizing that in all requests for information under RTI Act, especially when they pertain to the law enforcement authorities, it becomes necessary to strike a fine balance between the imperatives of the confidentiality of the sources of information, witness protection and so on, with the right of the citizen to get information. In our view, in this particular case, that balance will not be unduly affected if the following further information is furnished by the PIO to the appellant. We wish to add here that we accept the merit of the police authority's contention that an openended order by this Commission to make available to any information seeker, all the details of investigation into a crime, will have serious implications for law enforcement and will have potentiality for misuse by criminal elements. Each case will, therefore, have to be examined independently, on the basis of facts specific to that case. In this particular case, we don't find that the apprehensions of the police about disclosure of information are justified."
19. From the above order it is clear that each request for information has to be examined separately and disclosure has to be justified.
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20. In the matter of Shri H K Bansal Kanta Vs. CPIO, Central Bureau of Investigation, Anti Corruption Branch, and CPIO, Department of Post, Rohtak Division (CIC/SM/A/2011/000416, 23.03.2012 ) the Ld. Chief Information Commissioner has taken the following view: "During the hearing, the Respondents reported that the trial of this case was still going on and, therefore, the desired document from which certain conclusions had been quoted by the Appellant could not be disclosed without affecting adversely the prosecution of the offender. In several similar cases in the past, we had also held that documents such as the report of the investigating officer which might contain copies of the case diary and other such records should not normally be disclosed as it might impede the investigation/prosecution. Therefore, we tend to agree with the decision of the CPIO/Appellate Authority".
21. In the matter of Krishna Verma vs. Delhi Police North West District, (CIC/SS/A/12/001669 decided on 6.5.2013), quoting above cited decisions, the CIC held: "..... it is well understood that case diary maintained by the police is a privileged document and all the details especially relating to the identity of the witness needs to be protected. However, the appellant has relied upon the Judgment of the Hon'ble Delhi High Court in the matter of Deputy Commissioner of Police Vs. D.K Sharma wherein the trial proceedings had concluded and the accused was convicted. The Commission concurs with the view taken by the Central Information Commission in the previous orders that there is a well established procedure in law to ensure natural justice and that the disclosure of the copies of the case diary at this stage may impede the process of prosecution.
22. In the above case the disclosure was denied as there were apprehension of impeding the process of prosecution. In this case, the PIO of Directorate of Prosecution did not advance the plea of disclosure impeding the process of prosecution.
23. As per section 172 the police has to maintain the case diary, which established the fact that public authority was holding that information. It is meant to be used by court for CIC/SA/A/2015/000136 Page 7 ascertaining the reasons for framing charges or dropping them. There is no specific prohibition against its disclosure to persons other than accused.
24. Another significant question is whether entire case diary has to be given under RTI to any citizen? As per the RTI Act, 2005 RTI is subject to exceptions mentioned under Section
8. Thus subject to Section 8, the case diaries can be disclosed under proviso to exemptions. Hence section 172 does not have any conflict with RTI Act. Even if there is a conflict, the RTI Act will prevail as per section 22 of RTI Act. .
25. The PIO has also quoted Section 126 of the Indian Evidence Act, which says:
S. 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 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. Illustrations
(a) A, a client, says to B, an attorney--"I have committed forgery, and I wish you to defend me". As the defence of a man known to be guilty is not a criminal purpose, this communication is protected from disclosure.
(b) A, a client, says to B, an attorney--"I wish to obtain possession of property by the use of a forged deed on which I request you to sue". This communication, being made in furtherance of a criminal purpose, is not protected from disclosure.
(c) A, being charged with embezzlement, retains B, an attorney, to defend him. In the course of the proceedings, B observes that an entry has been made in A's account book, charging A with the sum said to have been embezzled, which entry was not in the book at the commencement of his employment. This being a fact observed by B in the course of his employment, showing that a fraud has been committed since the commencement of the proceedings, it is not protected from disclosure.
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26. The PIO contended that the police diary furnished by police to the prosecution is a privileged communication under section 126 of the Evidence Act. This section says that unless the client expresses his consent for disclosure of communication made to him for the purpose of employing advocate, he shall not disclose. The professional communication also include the advice given by the advocate to his client in the course and for the purpose of such employment of advocate. However, there is a significant proviso which says the 'communication' for illegal purpose or showing any crime or fraud, shall not be protected.
This means for public purpose, in the interest of justice, the protection to this communication could be withdrawn.
27. The appellant is alleging that nondisclosure of copy of police file will favour the police accused and will put the appellant advocate who is injured in the clash to disadvantage. The very fact that the police department used the discretionary power in its command and closed the case against the policeaccused, while continuing it against advocateaccused gave rise to suspicion of departmental bias in favour of Police. Another relevant factor is that the court of law has already rejected the closure of the case against the police accused and summoned them, which confirms the suspicion. There is a public interest in revealing the case diary regarding the incidents which formed basis for booking a criminal case and later dropping it against the policeaccused. The matter is already in the public domain and before the Court under examination.
28. Section 126 of the Evidence Act applies to a transaction between an individual and the advocate in an individual case. Here the communication is between the State which is the representative of people functioning with an obligation to investigate and the Directorate of Prosecution, which also is a public agency working with an objective to prosecute the accused persons in public interest, relating to a public wrong. Crime is considered a serious wrong against public, where society is also a victim apart from individual victim.
29. Section 126 of the Evidence Act protects the 'communication' from being adduced as evidence in the court of law, but does not prohibit disclosure for purposes other than CIC/SA/A/2015/000136 Page 9 evidence. The RTI Act deals with information and not evidence. Whether information given under RTI Act could be used as evidence or not depends upon the application of the provisions of Indian Evidence Act. As far as the information is concerned the RTI Act will prevail based on the definition of 'Information' under Section 2(f) and Section 8 of RTI Act.
30. According to section 2(f) of RTI Act, opinions and advices form part of 'information'. Only legislative or parliamentary privilege is protected under Section 8 (c) and no other communication is protected under RTI Act under the category of privilege. Hence Section 126 of Evidence Act cannot come in the way of disclosure, which cannot be made for the purpose of evidence in court of law and thus it will not apply to disclosure as 'information'.
31. Though not claimed by the respondent authority, assuming that section 8(1)(e) can be argued as a restriction against disclosure on the ground of information available with a person in his fiduciary capacity, the larger public interest favours disclosure of the same. Assuming that somewhere some protection could be accorded to case diary under Section 8(1), the Commission invokes section 8(2) which says information could be given if disclosure outweighs harm to the protected interest.
32. Disclosure of case diary does not in any way harm the department of police, so called client in this case. Instead, the disclosure would serve the public purpose of examining whether the decision to close the case against the policeaccused was motivated by bias or not, as contended by the appellants. It is not the case of the director of Prosecution that disclosure would harm interests of respondent public authority or the police. The Directorate of Prosecution neither claimed nor adduced any evidence to show that such disclosure would harm. Thus Commission holds that the public interest in disclosure is higher than the harm to protected interest and thus there is no harm in disclosing case diary in this case, instead, it would serve larger public interest as established by the appellants in this case.
33. If the police really requires protection to a particular information for national security or public interest, that is facilitated under the RTI Act. But here it is the case of nondisclosure CIC/SA/A/2015/000136 Page 10 of information claiming protection for the purpose of hiding bias, partiality or differential treatment, with reference to the two police accused. The police cannot discriminate between the policeaccused and pursue against the advocateaccused with vengeance. The people along with the appellant have right to know the details of the police file pertaining to closure of the cases against the policeaccused. In the absence of any prohibition against disclosure in any law, when PIO could not establish public interest in nondisclosure and where the appellant established public interest in disclosure, the reading of section 8(1) and 8(2) will lead to mandatory disclosure of the entire police file.
34. In the case of the Superintendent, Office of the Public Prosecutor v. The Registrar, Tamil Nadu Information Commission. W.P.NO.20574 of 2009 and M.P.NO.1 OF 2009, decided on 5th January, 2010, by Madras High Court (http://indiankanoon.org/doc/1288119/), it was held:
Though the office of the Public Prosecutor is a Public Authority and comes under the purview of the Right to Information Act, the Public Prosecutor is also an Advocate and he could not furnish the information sought for to the others, without the consent of his client. The Court has categorically held that in view of Section 126 of the Indian Evidence Act r/w Rules framed under Section 49(1)(c) of the Advocates Act, there is a prohibition for the advocates from committing breach of obligation imposed by Section 126 of the Indian Evidence Act.
35. It is further held:
The second respondent not only wanted the opinion tendered by the Public Prosecutor to the State but also all their letters and correspondence with reference to the FIR and the judgment in the criminal appeal. Such information is completely privileged and disclosure of the same is barred by Section 126 of the Indian Evidence Act. Therefore, the contention by the learned Senior counsel appearing for the first respondent Commission that in terms of Section 8(1)(e) of the RTI Act, the Public Prosecutor will have to move the Information Commission for satisfying the non disclosure of such information. That question is unnecessary when there is a statutory bar imposed by an another statute. (Para.14) Section 22 of the RTI Act cannot undoubtedly override Section 126 of the Indian Evidence Act. The rules framed under Section 49(1)(c) of the Advocates Act, 1961, clearly prohibit a counsel directly or indirectly from committing breach of the obligation imposed by Section 126 of the Indian Evidence Act. A careful reading of Section 126 of the Indian Evidence Act as well as the standards of professional conduct framed under Section 49(1)(c) of the Advocates Act, 1961 will clearly show that it is not as if this information cannot be asked from the CIC/SA/A/2015/000136 Page 11 Government directly rather than asking a counsel to divulge the nature of the advice tendered by him. Though the office of the Public Prosecutor is a public authority, the Act only enjoins upon him to furnish such information, which are available with him to be furnished subject to Section 8(1)(e) of the Act. But if the communication is privilege and with the express permission of the client, it can be furnished, it is not expected of the Public Prosecutor to furnish the information after getting permission of his client, i.e. the State of Tamil Nadu. Such a contingency is not contemplated provided under the Act. (Para. 18 & 19)
36. The Madras High Court opined that the police would be appropriate public authority to provide the information sought as it would be inappropriate for the prosecution wing to disclose information which it held without consent of the client, i.e., the police.
37. In this case, the Commission finds that the Directorate of Prosecution should have ascertained the views of the police before its decision in this RTI request. The PIO stated that the information sought was already before the concerned court of law, which means the police consented to disclose the case diary. The the protection under Section 126 of Evidence Act was waived and access was provided. Because of this consent, the directorate of Prosecution should have no reason to deny the certified copies of information sought.
38. However, the PIO can neither deny or allow the entire information available under case diary or police diary sought by the appellant, not only because of the provisions of Criminal Procedure Code and the Evidence Act, but also under the provisions of Right to Information Act, 2005. As the information such as police file is held by the police, directorate of prosecution and the court of law, its disclosure request has to be examined as per Section 8 of RTI Act. Thus, any disclosure of information which results in security threat to any person/witness etc, or which is given in fiduciary capacity, or which causes unwarranted invasion of privacy etc need not be given. Only to the information to the extent of serving public interest as claimed by the appellant alone should be given.
39. Hence the Commission directs the PIO of Directorate of Prosecution and PIO of the concerned Police department, to apply doctrine of severability as provided under Section 10 of RTI act, and furnish the certified copies of such information from police file which is not hit CIC/SA/A/2015/000136 Page 12 by the exemptions under Section 8(1), and also needed to serve the public interest explained by the appellant above, within 15 days from the date of receipt of this order. The appeal is disposed of accordingly.
(M Sridhar Acharyulu) Information Commissioner Authenticated true copy (Babu Lal) Deputy Registrar Address of parties
1. The CPIO under the RTI Act, Govt. of Delhi Directorate of Prosecution Tis Hazari Court Complex, Delhi110054
2. Shri Arun Sharma H.No.326, Village & PO: Samalka, New Delhi
3. The PIO under the RTI Act, Govt. of Delhi S.H.O., Police Station Kapashera, DELHI
4. The First Appellant Authority under the RTI Act, Govt. of Delhi Direcotrate of Prosecution, Room No.223, Tis Hazari Court Complex Delhi54 CIC/SA/A/2015/000136 Page 13