Central Information Commission
Kuldeepak Sharma vs Chief Commissioner Of Central Excise & ... on 9 January, 2025
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई िद ी, New Delhi - 110067
File No: CIC/CECPZ/A/2023/646268
Kuldeepak Sharma .....अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Office of the Pr. Commissioner, CGST
Pune-I Commissionerate, 41/A, GST
Bhavan, Sasoon Road, Opp: Wadia
College, Pune - 411001 .... ितवादीगण /Respondent
Date of Hearing : 09.12.2024
Date of Decision : 08.01.2025
INFORMATION COMMISSIONER : Vinod Kumar Tiwari
Relevant facts emerging from appeal:
RTI application filed on : 28.02.2023
CPIO replied on : 13.04.2023
First appeal filed on : 16.05.2023
First Appellate Authority's : 10.07.2023
order
2nd Appeal/Complaint dated : 25.09.2023
Page 1 of 11
Information sought:
The Appellant filed an (online) RTI application dated 28.02.2023 seeking the following information:
"1. All certified copies of the correspondence made between CBI and Offices of the Central GST, Pune in respect of investigation related to FIR No. RC1222022A0001 dated 19.04.2022.
2. The Certified Copy of CCTV Footage of the days 18-04-2022 and 19-04- 2022 of the main lobby of the office of the Assistant Commissioner, Division-IX (Baramati), Central GST, Pune-II Commissionerate."
The CPIO furnished a reply to the Appellant on 13.04.2023 stating as under:
"In this regard, it is to inform that the information sought by you cannot be provided as per the section 8(1)(h) of RTI Act 2005."
Being dissatisfied, the appellant filed a First Appeal dated 16.05.2023. The FAA vide its order dated 10.07.2023, held as under.
"In view of the above facts, I am satisfied that the CPIO, CGST Pune-1 Commissionerate, has taken an objective decision not to provide the information asked for in the RTI application, as the same is connected with the investigation carried by the CBI as well as departmental enquiry against the appellant. I therefore uphold the decision of the CPIO, CGST Pune | Commissionerate and do not find any merit to interfere with the order and accordingly, I, dismiss the instant appeal."
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerged during Hearing:
The following were present:-
Appellant: Present through video conference Respondent: Shri Rajesh Rammurthy, CPIO, appeared through video conference.
The appellant inter alia submitted that information sought by him was not provided by the respondent. He submitted that the respondent has denied the information arbitrarily. The appellant submitted that investigation in respect of Page 2 of 11 FIR No. RC/122/2022/A/0001 dated 19.04.2022 has already been concluded, resulted in the registration of the Case No. 1064/2022 dated 29-12-2022 in Shivaji Nagar Spl. Court ACB CBI Pune. Departmental Charge-sheet has also been served upon the appellant on 07.02.2023. The appellant pleaded that since the investigation was completed and denial of information was not sustainable in the eyes of law.
The appellant relied upon the observations made by the Hon'ble High Court of Bombay at Goa in the para no. 18 and 19 of Writ petition No. 338/2019 decided on 25-06-2019 in The State Public Information Officer, The Deputy Director of Vigilance Vs. Vinesh V. Arlekar and Ors. Court.
Para no. 18 states, "However, any such investigation would stand 'concluded', once the chargesheet is served on the delinquent employee. It is not possible to accept that investigation in such a case would continue till the conclusion of the departmental inquiry. Thus, the said contention raised on behalf of the petitioner has to be rejected. In the present case, admittedly, the two chargesheets have been served on the first respondent and thus the investigation, if any, stands concluded. Thus, it is not possible to accept that the information if furnished would impede the process of any such investigation.
Para no. 19 says "The Commission, in my considered view, is right in holding that the public authority or the PIO cannot just stay content, while refusing to supply the information, by claiming that the information if supplied would impede the process of investigation and/or for that matter the apprehension or prosecution of any offender. It is necessary for the public authority to demonstrate with some semblance as to how the furnishing of information would impede the process of investigation."
The respondent while defending their case inter alia submitted that they had filed detailed written submissions dated nil stating complete facts of the case Page 3 of 11 and requested the Commission to place it on record. The relevant paras of the written submission are reproduced as under:
"In this connection the Para wise submission by the CPIO, CGST, Pune-I Commissionerate, to the 2nd Appeal filed by Shri Kuldeepak Sharma is as under:-
Para 1:
The pieces of information sought by point No.1 and 2 of the RTI application CECPZ/R/E23/00019 dated 28.02.2023 are not third-party information but directly related to me and the same are not only 'information' in view of Section 2(f) of the RTI Act, 2005, but the documentary evidence as per the Section 3 of the Indian Evidence Act, 1872. Denial for production of vital documentary evidence is ultra virus to the principles of natural justice and bad in the eyes of Law.
Comments:
The information sought relates to the confidential correspondence between the disciplinary authority and CBI. The correspondences carry different views and opinions of the Disciplinary Authority and the CBI which may vary from time to time based on the information and based on the collection of facts and evidence. If certified copies of all correspondences are supplied, it will create unnecessary hindrance for the investigation, interrogation and to proceed with the departmental disciplinary proceedings as well as the criminal proceedings. Furnishing of correspondences at various stages will hamper the continuation of the disciplinary proceedings and further, disrupt the investigation to be conducted by the investigating agency.
Furthermore, it is seen that Shri Kuldeepak Sharma had during the personal hearing held before the Inquiry Officer sought inspection of the original documents and Micro HD- card (Audit Clip) submitted by CBI in the court along with original/certified copies. This office had written to the Superintendent of Police, CBI, Pune to provide us the above documents. In this regard the DIG & Head of Branch, CBI, ACB, Pune had vide letter dated 03.10.2023 informed this office that the copies of original documents and statements of witnesses including case exhibits were supplied to Shri Kuldeepak Sharma. With regard to the inspection of the original documents, it was informed that Shri Kuldeepak Sharma may be advised to approach the Hon'ble Court by filing an application. Copies of conversation, recorded Page 4 of 11 during the course of verification and trap proceedings can be supplied for which he may be advised to approach the IO of the case of their branch.
In view of the above, the certified copy of CCTV footage can be provided by the CBI office. It is seen that in terms of Section 24(1) of the RTI Act, CBI is covered in the Second Schedule and thus exemption is granted to CBI from applicability of the RTI Act. The information which the applicant cannot get from the CBI inexplicably linked to the information and materials provided by CBI, the same cannot be provided by this office.
Para 2:-
It is appealed on the ground that investigation in respect of FIR No. RC/122/2022/A/001 dated 19.04.2022 has already been concluded, resulted into the registration of the Case No. 1064/2022 dated 29.12.2022 in the Shivaji Nagar Spl. Court, ACB, CBI. Pune. Departmental charge sheet has also been served to me on 07.02.2023. Therefore, it is explicitly clear that no investigation is pending now.
Comments:-.
The chargesheet has been filed by CBI before the Hon'ble Special Judge, Pune vide Spl. Case No. 1064/2022 on 29.12.2022 and it is under trial. Furthermore, departmental proceedings are also in process. The Memorandum of Charge dated 02.02.2023 under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 has been issued by the Principal Commissioner, CGST, Pune-I Commissionerate. Vide Order dated 23.02.2023, Inquiry Officer and Presenting Officer in the case has been appointed to inquire into the charges framed against Shri Kuldeepak Sharma and the proceedings are in process. Thus, the investigation initiated by the Department in terms of CCS (Conduct) Rules, 1964 cannot be said to have been concluded.
In this context reference is drawn to the Madras High Court Order in the case of Gulab Singh Rana vs The Central Public Information Officer dated 8 December, 2021 wherein it has been held that:
Para 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 information or documents, the rights of other parties and the criminal laws system of prosecution by the Page 5 of 11 State is not affected or destroyed on account of providing such confidential information to the information seekers.
Para 53. In view of the principles considered by this Court in the aforementioned paragraphs, this Court is able to form a concrete opinion that the information and documents sought for by the petitioner are rightly rejected by the Public Information Officer, Indian Overseas Bank, First Appellate Authority and finally by the Central Information Commission/Second Appellate Authority.
3. Present status of the departmental enquiry: -
The Departmental Inquiry proceeding is in process. It was informed by the Inquiry Officer that the inquiry proceedings are getting delayed as the Inspectors of Police (IO in the CBI case) who are witnesses in the case are not appearing for the hearing before the Inquiry Officer. Accordingly, this office wrote to the DIG of Police, CBI, requesting him to direct the concerned Officer(s) to attend the hearing as and when fixed. However, DIG of Police, CBI, Pune has vide letter 22.10.2024 has informed that their office has filed Chargesheet in the said case before the Hon'ble Spl. Judge, Pune vide Spl Case No. 1064/2022 on 29.12.2022 and it is under trial. The statements recorded during the departmental enquiry can be used by the accused for their benefit during trial. Hence at this stage they cannot depute their Officer i.e. 10 in the CBI case, for their evidence. Instructions have been sought by this office from DGoV in this regard."
The respondent further submitted that the appellant was charge-sheeted and all the relevant documents along with relied upon documents were provided to him. They stated that the documents sought by the appellant if provided, it would create unnecessary hindrance for the investigation, interrogation and to proceed with the departmental disciplinary proceedings as well as the criminal proceedings.
Decision:
The Commission after adverting to the facts and circumstances of the case, hearing both the parties and perusal of the records, noted that information sought was denied by the respondent under section 8 (1) (h) of the RTI Act. Both Page 6 of 11 the parties have exchanged their emails during the hearing wherein they shared their written submissions with each other which were filed before the Commission. The written submission filed by the parties were taken on record.
The respondent submitted that information sought pertains to the confidential correspondence between the disciplinary authority and CBI. The correspondences carry different views and opinions of the Disciplinary Authority and the CBI which may vary from time to time based on the information and based on the collection of facts and evidence. As per the respondent furnishing of correspondences at various stages will hamper the continuation of the disciplinary proceedings and further, disrupt the investigation to be conducted by the investigating agency.
The respondent also submitted that they had made correspondences with CBI for inspection of records of the documents in which the DIG & Head of Branch, CBI, ACB, Pune, vide letter dated 03.10.2023 informed that his office had already supplied copies of original documents and statements of witnesses including case exhibits to the appellant.
As regards the CCTV footage, the respondent submitted that CCTV footage was supplied only to the investigating agencies/police due to security reasons. In this case, the respondent submitted that a copy of CCTV footage can be provided by the CBI office. It is seen that in terms of Section 24(1) of the RTI Act, CBI is covered in the Second Schedule and thus, exemption is granted to CBI from applicability of the RTI Act. The information which the applicant cannot get from the CBI and is linked intrinsically to the information and materials provided by CBI, the same cannot be provided by the respondent.
It is noted that the case referred to by the appellant in his submissions is not applicable in this case as the issues raised in the said case are different from the present one. As per the records available with the Commission, the charge-sheet has been filed by CBI before the Hon'ble Special Judge, Pune vide Spl. Case No. 1064/2022 on 29.12.2022 and it is under trial. Furthermore, departmental proceedings are also under process.
The Commission would like to refer the observations made by the Hon'ble High Court of Delhi in Union of India vs. Shiv Narain, WP(C) 7204/2016 dated 27.03.2019 as under:Page 7 of 11
"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(1)(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 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."Page 8 of 11
The Hon'ble High Court of Madras in a recent judgement in Gulab Singh Rana vs. 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:
42. Perusal of other documents and information 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 information 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 information, 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 information, which all are connected with the investigation or prosecution of offenders and providing of such information, 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 information or documents shall be denied.
Page 9 of 1145. The purpose and object of the exemption clause is to ensure that the administrative confidentiality is 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.
.
.
.
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 be 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, honouring the corresponding rights of the other citizen. It is exactly the constitutional perspective and the philosophy. Take a case, where information 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 information and documents including certain internal correspondences and views or opinions recorded by the competent authorities then and there and time to time.
Therefore, 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 information 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 construed as final opinion/views or the final decision."
In view of the above facts and circumstances of the case, the Commission finds that replies given and submissions made by the respondents are in consonance Page 10 of 11 with the provisions of the RTI Act and thus interference of the Commission is not required in the matter.
The appeal is disposed of accordingly.
Vinod Kumar Tiwari (िवनोद कुमार ितवारी) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स!ािपत ित) (S. Anantharaman) Dy. Registrar 011- 26181927 Date Copy To:
The FAA, Office of the Pr. Commissioner, CGST Pune-I, E- Wing, 2nd Floor, GST Bhavan, Sasoon Road, Opposite Wadia College, Pune - 411001 Page 11 of 11 Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
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