Malegaon Blast case - no information to be provided which impedes the ongoing investigation regardless of whether it is being held by the NIA or by the Army - the rest of the information to be disclosed
29 Jul, 2013This matter was initially heard on 19.2.2013. The proceedings of the day are extracted below:-
FACTS
Heard today dated 19.2.2013. Appellant not present but he has spoken to me on telephone from Taluja Central Jail, Navi Mumbai where he is presently lodged. He is also represented by Adv. Neela Gokhale. The Army is represented by Maj. Paul Wellukallel of the Southern Command.
2. It is noticed that vide RTI application dated 28.7.2012, the appellant had sought the following information:-
“(c) Description of Information Required.
(i) Is it true that the following letters having letters nos. as specified along with its dates as available in said File no. IOG/LU/a of 1 Team 3Det SCLU?
S. No. File no. Date Particulars
aa 106/LU/G 05 Jun 07 Illegal Tfc of Amn
ab -do- 29 May 07 MFO Activities
ac -do- 24 Jan 07 Kashmiri Settlements
ad -do- 24 Jun 07 Recovery of Explosives
ae -do- 24 Jan 07 SIMI Activities
af -do- 16 Jan 07 Likely SIMI Activities Pune
ag -do- 10 Jan 07 SIMI (Pune)
ah -do- 08 Jan 07 Anti national Activities, BD Nationals, covering spectrum of Activities
aj -do- 12 Feb Haj House
ak -do- 18 Oct 06 Changing trends in Islamic Radicals (Malegaon Blast Report 2006)
al -do- 30 Oct 06 Malegaon Blast
am -do- 03 Nov 06 ISI and SIMI Presentation
If yes, please provide photocopies of above mentioned letters (from Sr. No. (aa) to (am)
(ii) Is it true that a letter with regards activities of ‘Dawood Ibrahim’ was forwarded by IC SS 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. 4A Lt. Col. Prasad Shrikow in the capacity of 10 1 Team (then ‘A’ Team), 3 Del SCLU in the month of June or July 2005? Please provide the photocopy of the same.
(iii) Is it true that 1 Team (then ‘A’ Team_ 3 Del SCLU has maintained ‘source card Register/ Note Book’ having entries of sources / Informers, with regard their names and particular and photographs, who had been issued with source cards by the Team? Please provide photocopies of pages of the social register / No Book pertaining to period under ref.
(iv) Is it true that the following sources / Informers / indls were issued with the source specified against them?
Name S. No. Page No.
(aa) Rakesh Dattatray Dhawade 10 13
(ab) Sudhakar Onkarnath Chaturvedi 11 13
(ac) Chetan Dhakan 12
(ad) Ganesh Patil 18
(ae) Somnath Gunjal 20
(af) Varsha Rakesh Dhawade 03 13
(v) Please provide details of sources / information as mentioned in the said register in tabular form.”
3. The CPIO had responded to it vide letter dated 25.8.2012, denying the requested information u/s 8 (1) (h) of the RTI Act. The first appeal filed by the appellant was disposed of by the AA vide order dated 26.9.2012.
4. In the appeal memo filed before this Commission, the appellant has challenged the orders passed by the CPIO and AA on the ground that the information requested for by him is not classified as ‘confidential’ and, therefore, the public authority cannot take shelter of section 8 (1) (h) of the RTI Act. Adv. Gokhale submits that a charge-sheet has already been filed against the appellant and some others in a criminal case investigated by Anti Terrorist Squad, Maharashtra, and, therefore, section 8 (1) (h) is not attracted. She also submits that the information requested for by the appellant relates to the period 2005 to 2008 during which no incident had taken place and, therefore, requested information has no bearing on the investigation or the on-going trial against the appellant.
4. The real question is whether 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; 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; is attracted in the facts of the present case.
5. As noted above, a chargesheet has been filed against the accused and some others but it is not known whether any further investigation under section 178 (3) of the Cr.PC is being carried out by ATS, Maharashtra. Further, the status of the case in the trial court is also not known to the above named officers. Exemption 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; 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; can be claimed only by the investigating agency and not by the Army Authorities. Hence, notice may be issued to the Head of the Anti Terrorist Squad, 1st Floor, Old Traffic Institute Building, Opposite Hume High School, Near Byculla Station, Sir J J Road, Nagpada-Mumbai Central, Mumbai – 400008, to depute a senior officer to appear before the Commission on 20 th March, 2013 at 1140 hrs., alongwith the relevant records.”
2. The matter was further heard on 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. .4.2013. The proceedings of the day are extracted below:-
“File No. CIC/LS/A/2013/000291
(Lt. Col. Prasad Shrikan Purohit vs. Indian Army)
This is in continuation of this Commission’s proceedings dated 19.2.2013. As scheduled, the matter is heard today dated 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. .4.2013. The appellant is represented by Adv. Neela Gokhale. Nobody has appeared for ATS Maharashtra but Shri Arvind Digvijay Negi, ASP, National Investigation Agency (NIA) is present before the Commission. He submits that the matter in hand is being investigated by the NIA and he is the Chief Investigating Officer of the case. He seeks short adjournment.
2. The matter is adjourned to 10th May, 2013 at 1230 hrs . Col. Purohit would be heard through video-conferencing, if possible.”
3. The matter was further heard on 10.5.2013. The proceedings of the day are extracted below:-
“File No.CIC/LS/A/2013/000291
(Lt. Col. Prasad Shrikant Purohit –Vs- Indian Army)
Dated : 10.05.2013
This is in continuation of this Commission’s proceedings dated 19.2.2013 and dated 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. .4.2013. As scheduled, the matter is heard today dated 10.05.2013. The appellant is represented by his wife Dr. Aparna Purohit and Adv. Neela Gokhle. NIA is represented by Shri N.N.D. Dube, Superintendent of Police (CPIO) and Shri Arvind Digvijay Negi, Addl.SP and Shri M.V. Rao, DLA.
2. At the threshold of the hearing, the NIA officers submit that only the following information is available with them viz : (al) of para (i), para (iii) and para (iv). The rest of the information is not available with NIA. As to the disclosability of this information, Shri Rao submits that NIA is an exempted Organisation vide Notification dated 9.6.2011 and the RTI Act does not apply to NIA and, therefore, the appellant is not entitled to any information.
3. On the request of Adv. Neela Gokhle, the matter is adjourned to 31.05.2013 at 1200 hrs. Shri Rao is hereby directed to provide a copy of the said Notification to Adv. Gokhle ‘dasti’.
4. Notice may also be issued to Maj. Paul Wellukallel of Southern Command through the RTI Cell of the Army for his appearance before the Commission on the aforesaid date.”
4. Further hearing in the matter was held on 31.5.2013. The proceedings thereof are extracted below :-
“File No. CIC/LS/A/2013/000291
(Lt. Col. Prasad Shrikant Purohit vs. Indian Army)
Dated 31.5.2013
This is in continuation of this Commission’s proceedings dated 19th February, 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. nd April and 10th May of 2013. As scheduled, the matter is heard today dated 31.5.2013. Appellant not present but is represented by his wife Dr. A. Purohit and Adv. Neela Gokhale. NAI is represented by Shri N.N.D. Dubey, Suptt. Of Police (CPIO) and Shri M.V. Rao, DLA.
As directed, Maj. Pal Vettukallel of Southern Command is present before the parties. The parties are briefly heard.
2. Maj. Pal Vettukallel is hereby directed to produce all the documents mentioned in para (c) (i) and (ii) of parr 02 of this Commission’s order dated 19.2.2013 on the next date of hearing i.e. 17th June, 2013 at 1200 hrs. Maj.Pal Vettukallel will be at liberty to exercise his powers u/s 5 (4) of the RTI Act to collect this information from any Office / Branch / Outfit of the Indian Army for production before the Commission.”
5. The proceedings of 17.6.2013 are extracted below :-
“File No.CIC/LS/A/2013/000291/LS
(Lt. Col. Prasad Shrikant Purohit –Vs- Indian Army)
Dated : 17.06.2013
This is in continuation of this Commission’s proceedings dated 19.2.2013, 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. .4.2013, 10.5.2013 and 31.5.2013. The appellant is represented by his wife Dr. A. Purohit and Adv. Neela Gokhale. NIA is represented by Shri M.V. Rao, DLA and Shri Jasbir Singh, Inspector. The Army is represented by Lt. Col. Leena Gurav and Maj. Paul Vettukallel.
2. As directed, the Army officers produce the relevant records which are perused. The Army officers object to the supply of copies of these documents to the appellant. The NIA also objects to disclosure of these documents. On the other hand, Adv. Gokhale submits that the ATF, Mumbai, has already filed the charge sheet against the appellant and others and, therefore, it is wrong to say that the matter is still under investigation. It is also her forceful contention that much water has flown down the Ganges since the charge sheet was filed against the appellant and other co-accused and disclosure of requested information at this stage is not going to hamper investigation in any manner whatsoever.
3. During the hearing, it also transpires that most of the original documents requested for by the appellant are in the custody of the Army.
4. The parties are directed to file their written submissions in 03 weeks time.
The matter is adjourned to 02.07.2013 at 1230 hrs. The representative of NIA will remain present on this date. The Army authorities need not appear.”
6. In the aforesaid order, the parties were directed to file their written representations within three weeks. As directed, the parties have filed the written representations which are taken on record. Let me now take up these representations one by one.
7. In the representation dated 2.7.2013, the NIA has submitted as under :-
“(a)The information sought for by the applicant i.e. Lt. Col. Purohit Prasad Srikant comprises of two types and they are (i) one set of documents/information which is with NIA received from the army and (ii) the another set of document/informations which is with the army.
(b) Both the informations are not to be disclosed to the applicant in view of the fact that there is a clear bar of disclosure of information relating to NIA vide Central Government Notification No. S.O. 442(E) of 2011 as per Section 24 of RTI Act. Section 24 qualifies that any information contained in the act shall apply to the intelligence and security organisation specified in the Second Schedule being organisation established by the Central Government or any information furnished by such organizations to that Government. Several of the informations in this case were furnished by the investigating agency to the Central Government that the availability of information which is now being sought for disclosure by the accused from the army which is a security wing of the Government of India.
(c) Lt. Col. Purohit Prasad Srikant is an accused in the case registered by the NIA in RC No. 5/2011 on 13.04.2011 under the orders of the MHA, New Delhi. He is arrayed as accused no.9 in the case initially registered and charge sheeted by the ATS, Mumbai, under the provisions of UA(P) Act, 1967 and other sections of the IPC. The case registered against him by the ATS, Mumbai vide case no. A.T.S., P.S.C.R. No. 18/2008 (Malegaon Bomb Blast Case – 2008). Since he is a charge sheeted accused in the case he cannot be furnished any information in the case since it amounts to contempt of court on the principle of matter being subjudice. Moreover, it attracts section 8 subsection (b) of the RTI Act.
(d) The case in which Lt. Col. Purohit Prasad Srikant is an accused affects the sovereignty and security of the nation and internal security and integrity of India and may lead to incitement of offence by certain group of people and as such it is exempted under section 8(1)(a) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; of the RTI Act.
(e) The NIA intends to object to part with the information even though it is in the domain of Army in view of the fact that the disclosure of the information would impede the process of investigation and prosecution of the case against Lt. Col. Purohit Prasad Srikant and is exempted under 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; 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.
(f) In Cr. WP No. 205/2011 filed by one of the accused Ramesh Upadhyay who is co-conspirator, the Division Bench of the Hon’ble Bombay High Court confirmed the order passed by the State Information Commissioner, Konkan Region dismissing the appeal filed by the petitioner of that case holding that the terrorism related cases are exempted within the ambit of RTI Act, 2005. The same ratio will apply to the present case also.
(g) On 4.11.2011, the trial court at Mumbai has sent all the proceedings and original paper book of the case consisting charge sheet to the Hon’ble Supreme Court at New Delhi in the matters filed by the appellant in criminal appeal No. 1969-70/2010 i.e. challenging MCOCA Act applicability to the case and as such the matter has gone up to Supreme Court of India.
(h) While considering the granting or not granting the information sought for by the applicant the Hon’ble commission may have to see whether the information would affect the security of the State and also the strategic interest of the State and also to consider what is the ulterior intention of the applicant in seeking for the information.”
8. The CPIO of the Army in his representation dated 26.6.2013 has submitted as under :-
“(a) Lt. Col. Purohit Prasad Shrikant is facing investigation by National Investigation Agency(NIA) and presently lodged in Central Prison, Taloja, in Mumbai. The information sought by the officer is relates to the charges/investigation against him.
(b) The information sought by Lt. Col. Purohit Prasad Shrikant was 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; 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 RTI Act, 2005 as it would impede the process of investigation or prosecution.
(c) The Appellant then filed his appeal to the First Appellate Authority on 05 Sep 2012. The First Appellate Authority also upheld the decision of the CPIO in the decision dated 26 Sep 2012.
(d) The Appellant then filed his appeal with Hon’ble CIC, New Delhi, and hearing on the subject was held on 19 Feb 2013 and NIA was incorporated in the subsequent hearings held on 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. Apr 2013, 10 May 2013, 31 May 2013 and 17 Jun 2013 being the investigating Agency in the hearing of 17 Jun 2013 after perusal of documents sought by the Appellant and a long deliberation involving all the parties, the Hon’ble CIC directed the Army to make a written submission as to why the information should be denied to the applicant.
(e) Besides the exemption sought 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; 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 RTI Act, the exemption is hereby also sought under section 8(1)(a) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; of the RTI Act 2005 as it is felt that the disclosure of the information sought by the Appellant under Para 3(c) (i) will prejudicially effect the informal Security and Integrity of India and may lead to incitement of offence by certain group of people.
(f) The information sought by the Appellant under Para 3(c)(ii) is not held by the authorities as also brought out before the Hon’ble CIC during the hearings.
(g) Further exemption is also sought under section 8(1)(a) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; as revealing the information sought by the Appellant under Para 3(c)(iii), (iv) and (v) would not only affect the security of the State but also affect the Strategic interests of the State”
9. On the other hand, in the representation dated 2.7.2013 filed on behalf of the appellant. Adv. Ghokhale and Dr. Purohit have convassed the following points :-
(i) NIA may be an exempted organisation under section 24 of the RTI Act but Ministry of Defence/ Army cannot take advantage of this legal position;
(ii) NIA and not the Army is the investigating agency and the latter cannot invoke 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; 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; in denying information to the appellant;
(iii) A charge sheet has already been filed against the appellant and others on the basis of investigation conducted by ATS, Mumbai, way back in 2009 and, therefore, the question of causing any impediment to the process of investigation does not arise;
(iv) Documents sought by the appellant have no bearing on the investigation of the Malegaon Blast incident in which the accused is facing criminal trial and, therefore, invocation of 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; 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; is nothing but misuse of process of law. The information sought by the appellant is nothing but copies of the intelligence reports generated by the appellant himself. The appellant was allowed to peruse these reports while facing Court of Inquiry initiated by the Army. It would be odd to deny copies of reports generated by the appellant himself in his capacity as a senior Intelligence Officer of the Army, particularly when these intelligence reports demonstrate the appellant’s pure professionalism.
10. I have carefully perused the material on record and the representations filed by the NIA, the Army and those filed on behalf of the appellant. I have also heard Adv. Neela Gokhale, Counsel for the appellant at length. As noted above, NIA is an exempted organisation and, therefore, does not fall in the RTI regime. It is not bound to disclose any information. The NIA officers have submitted that they are holding certified copies of the following information as extracted in para 2 of the proceedings of 19.2.2013 :-
“(c)(i) (al) 30 Oct 06 – Malegaon Blast
(iv)Is it true that the following sources / Informers / indls were issued with the source specified against them?
Name S. No. Page No.
(aa) Rakesh Dattatray Dhawade 10 13
(ab) Sudhakar Onkarnath Chaturvedi 11 13
(ac) Chetan Dhakan 12
(ad) Ganesh Patil 18
(ae) Somnath Gunjal 20
(af) Varsha Rakesh Dhawade 03 13”
11. Needless to say, the above extracted information cannot be disclosed to the appellant for the reasons mentioned.
12. The rest of the information extracted in para 02 of the proceedings of 19.2.2013 is reported to be available with the Army. I have now to decide whether this information is disclosable to the appellant. As noted above, the Army authorities had produced the information being held by them on the last date of hearing i.e. 17.6.2013 before me. I had the occasion to peruse this information. This information is in the form of intelligence reports generated by the appellant himself in his capacity as an Intelligence Officer. Most of this information does not concern the Malegaon Blast. Even though the appellant is the generator of this information, yet the Commission has to keep in mind the fact that no information should be provided to him which impedes the ongoing investigation by NIA, regardless of whether this information is being held by the NIA or by the Army. Further, no information should be disclosed to the appellant which may impede the process of ongoing trial. Considering these factors in mind, I am of the opinion that information on the following paras, as extracted in para 02 of the proceedings of 19.2.2013, is not disclosable to the appellant :-
ad 24 Jun 07 Recovery of explosives
ah 8 Jan 07 Anti National activities
aj 12 Feb 07 Haj House
ak 18 Oct 06 Changing trends in Islamic Radicals (Malegaon Blast Report 2006)
am 03 Nov 06 ISI and SIMI Presentation
(ii) Is it true that a letter with regards activities of ‘Dawood Ibrahim’ was forwarded by IC SS 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. 4A Lt. Col. Prasad Shrikant in the capacity of 10 1 Team (then ‘A’ Team), 3 Del SCLU in the month of June or July 2005?
Please provide the photocopy of the same.
(iii) Is it true that 1 Team (then ‘A’ Team_ 3 Del SCLU has maintained ‘source card Register/ Note Book’ having entries of sources / Informers, with regard their names and particular and photographs, who had been issued with source cards by the Team? Please provide photocopies of pages of the social register / No Book pertaining to period under ref.
(v) Please provide details of sources/information as mentioned in the said register in tabular form.
13. In my opinion, the rest of the information is disclosable to the appellant as it is not likely to impede ongoing investigation/trial of the Malegaon Blast case. I, therefore, direct Maj. Paul Vettukallel to disclose information as mentioned herein above to the appellant in 04 weeks time, free of cost.
Sd/-
(M.L. Sharma)
Information Commissioner
Citation - Lt. Col. Prasad Shrikant Purohit v. Indian Army in File No.CIC/LS/A/2013/000291