Certified copies of police case diary sought by a Tihar Jail inmate were denied u/s 8(1)(h) – sec 172(3) of CrPC cited - CIC: there is a well established procedure to ensure natural justice; disclosure may impede prosecution; rest documents to be provided
5 Nov, 2013A Tihar Jail inmate sought certified copies of police case diary, certified copies of DD entries (departure and arrival) of the investigating officer and raiding party, no. of persons called for investigation by the first I.O and some related information of his case - PIO denied it u/s 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; - case of DCP Vs D.K. Sharma cited, where the Delhi HC had directed for disclosure upon completion of trial proceedings - Respondent cited section 172(3) of CrPC - CIC: there is a well established procedure in law to ensure natural justice and the disclosure of the copies of the case diary may impede the process of prosecution; rest documents to be provided
ORDER
1. The appellant, Lalit Sharma, is being heard through video conference from Tihar Jail. The respondent is being represented by Satya Dev Dahiya (ACP), Dhiraj Kumar (Inspector), Chandra Shekhar, Rajender Kumar (SI), L.N Rao (PIO/DCP).
2. The appellant filed an RTI application addressed to Addl. Commissioner of Police, West District seeking certified copies of case diaries in FIR No. 411/09, certified copies of DD entries (departure and arrival) of the investigating officer and raiding party, no. of persons called for investigation by the first I.O and some related information . The appellant further submits in his application that:
“It would be prudent to bring to your kind notice that mere existence of a prosecution process is not a ground for exemption from disclosure under section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; of the RTI Act. Further it is hereby certified that the sought information has not been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute the contempt of court. In this regard a Central Information Commission order on Appeal No. CIC/SG/A/2009/002302 dated 25.9.2009 that directs PIO to provide extracts of DD entries and case Diaries is being enclosed for information and compliance.”
3. The CPIO Delhi West transferred the said RTI application to the PIO/DCP, Special Cell/PHQ. The DCP/PIO Special Cell, vide order dated 7.12.2011 denied the copies of case diary under section 172(3) of Cr.P.C. The copies of DD entries was denied under section 8 (1) (g) & 8 (1) (h) of the RTI Act, 2005. The respondent CPIO also stated that the said case is pending trial in the in the Court of Sh. P.K Jain, ASJ, Tis Hazari Courts, Delhi and as such the statements of witnesses recorded during investigation are the record of this case file which are denied under section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; of the RTI Act, 2005.
4. The appellant submits vide his first appeal that:
“the statement of PWs are never denied by the Courts and the same are even supplied to the accused when the chargesheet is produced in the court. In para 1 and 2 the PIO has denied the information giving the reference of section 172(3) of Cr.P.C. The RTI Act-2005 has come into existence when some discrepancies are noticed in the existing Code of Criminal Procedure 1973. Moreover, as per section 161 or section 145 of Indian Evidence Act, 1872 even the accused can refer to such diaries.”
The first appellate authority upheld the decision of the CPIO vide order dated 4.1.2012.
5. During the hearing the respondent has objected to providing the copies of case diary to the appellant in view of the pending trial.
6. The appellant has relied on the file no. CIC/SG/A/2009/002302/4945, DK Sharma V Anti Corruption Branch, Directorate of Vigilance. The said decision of the CIC was challenged in the Hon’ble High Court of Delhi in W.P (C) 12428/2009 in the matter of Deputy Commissioner of Police Vs. D.K. Sharma wherein the it was held as under:
“3. Mr. Pawan Sharma referred to Section 172 of the Code of Criminal Procedure, 1973 ('CrPC') and submitted that copies of the case diary can be used by a criminal court conducting the trial and could not be used as evidence in the case. He submitted that even the accused was not entitled, as a matter of right, to a case diary in terms of Section 172(2) Code of Criminal Procedure and that the provisions of the RTI Act have to be read subject to Section 172(2) Code of Criminal Procedure. Secondly, it is submitted that the trial has concluded and the Respondent has been convicted. All documents relied upon by the prosecution in the trial were provided to the Respondent under Section 208 Code of Criminal Procedure. The Respondent could have asked for the documents sought by him while the trial was in progress before the criminal court. He could not be permitted to invoke the RTI Act after the conclusion of the trial.
4. The Respondent who appears in person does not dispute the fact that the trial court has convicted him. He states that an appeal has been filed which is pending. He submits that his right to ask for documents concerning his own case in terms of the RTI Act was not subject to any of the provisions of the Code of Criminal Procedure. Finally, it is submitted that no prejudice would be caused to the Petitioner at this stage, when the trial itself has concluded if the documents pertaining to the investigation are furnished to the Respondent.
5. The above submissions have been considered.
6. This Court is inclined to concur with the view expressed by the CIC that in order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8(1) of the RTI Act. In the instant case, the Petitioner has been unable to discharge that burden. The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case. In the present case, the criminal trial has concluded. Also, the investigation being affected on account of the disclosure information sought by the Respondent pertains to his own case. No prejudice can be caused to the Petitioner if the D.D. entry concerning his arrest, the information gathered during the course of the investigation, and the copies of the case diary are furnished to the Respondent. The right of an applicant to seek such information pertaining to his own criminal case, after the conclusion of the trial, by taking recourse of the RTI Act, cannot be said to be barred by any provision of the Code of Criminal Procedure. It is required to be noticed that Section 22 The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. of the RTI Act states that the RTI Act would prevail notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 and any other law for the time being in force”.
7. The respondent has pleaded before the Commission that since the trial proceedings have not been completed providing the case diary would impede the on going trial proceedings in the Court and that section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; would apply. The respondent has also referred to the provisions of section 172(3) of Criminal Procedure Code.
8. The Commission in file no. CIC/SS/A/12/001669 in case of Krishna Verma Vs Delhi Police had considered various decisions on the issue of providing case diary to the accused during pending trial and taken the following view:
“From the preceding Judgments and orders 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 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.”
9. The Commission is of the view that in the present stage section 8(1)(h) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information which would impede the process of investigation or apprehension or prosecution of offenders; would apply in relation to the case diary. However, the respondent is directed to provide all the information sought in the RTI application in relation to his case except for the case diary within two weeks from the receipt of the order.
Sushma Singh
Information Commissioner
Citation: Lalit Sharma v. Delhi Police West in Case No. CIC/SS/A/2013/00386