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Accident of IAF helicopter Mi-17 V5 - Disclosure of a copy of the convening order of the court of Inquiry to the applicant is pending adjudication before the Punjab & Haryana HC; Direction for any disclosure would vitiate the proceedings pending before HC

24 May, 2023

Information Sought:

The appellant has stated that he is being tried by a General Court Martial under the Air Force Act with regard to the accident of Helicopter M-17 VS ZP5220. In this regard he has sought the following information:

a. Provide a copy of the convening order of the Court of Inquiry with regard to the said matter.

b. Provide remarks given by the Chief of the Air Staff on the said Court of Inquiry.

c. Provide the findings and recommendations on the report of said Court of Inquiry.

Grounds for filing Second Appeal:

The CPIO did not provide the desired information u/s 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; 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.

Submissions made by Appellant and Respondent during Hearing:

The appellant sent an authorization letter dated 05.04.2023 which was taken on the record of the Commission. The representative of the appellant requested for adjournment of the hearing as the appellant was appearing in the court martial case. However, the same could not be accepted by the Commission at this late stage. Therefore, the representative of the appellant proceeded to submit that she was not satisfied with the contents of the convening order as provided by the respondent and the required information had not been given.

The appellant vide written submissions dated 25.03.2023 submitted that a helicopter of IAF was shot down by own missile on 27 Feb 19. A Court of lnquiry was conducted at Air Force Station Srinagar to investigate into the causes of the accident. The Court of Inquiry blamed the applicant for the accident and subsequent disciplinary proceedings were initiated against him.

Prior to the commencement of a General Court Martial, the applicant asked the IAF authorities to provide him with a copy of the convening order of the Court of lnquiry. When the same was denied, the applicant used his Right to information under the RTI Act 2005 and approached the IAF with an RTI application for the requisite information on 07 Jan 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. During the General Court Martial, the applicant raised a plea of jurisdiction in which even after asking the learned Prosecutor to have the Convening Order produced before the General Court Martial, the same was not produced.

The defence humbly prayed before the General Court Martial that in the interest of justice and fair play the General Court Martial may summon the Director General (lnspection & Safety) or his representative to come and depose before the General Court Martial about the existence or non-existence of the said convening order and in case the convening order exists, produce the same for the General Court Martial to satisfy itself that it has been signed in accordance with the statutory provisions as specifically laid out in Air Force Rule 154(2).

Most unfortunately the General Court Martial did not uphold the principles of natural justice and did not call for the convening order of the Court of lnquiry, thereby depriving the applicant’s right to information in his defence and a fair trial.

He further submitted that while on one hand, the applicant had been provided with a copy of the Court of inquiry and summary of evidence, which was marked “secret”, and the General Court Martial in this case was being held in open court and not “in camera”, on the other hand the applicant was denied a copy of the convening order of Court of Inquiry which is merely the order convening the court of inquiry and does not contain any sensitive information. The convening order in this case should have been signed by the Chief of the Air Staff. The conduct of the prosecution of the General Court Martial in not commenting upon the said convening order prima facie convinced the applicant that the said convening order does not exist or has been signed illegally.

He further stated that since the prosecution failed to present the convening order of the court of inquiry and the General Court Martial also did not peruse the same and overruled the defence plea of jurisdiction, without assigning any reasons, the applicant approached the AFT (Regional Bench), Chandimandir, in OA (Appeal) 460 of 20 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.

The AFT, after due consideration of the arguments and available evidence, including certain files shown only to the Court, vide order dated 27.04.2022 directed the IAF to supply the order convening the court of inquiry to the applicant through his counsel. During the hearing, the CPIO submitted that the said convening order was given to the appellant in compliance with the AFT‘s order.

The appellant also submitted that although the IAF thereafter tried to mislead the AFT, the AFT considering the facts of the case and the gravity of the matter, vide their order dated 25.05.2022 in the case of MA 609, 610 & 611 and OA (Appeal) 460 of 2022 stayed the General Court Martial and asked the IAF authorities to provide the applicant with a copy of the order convening the court of Inquiry.

He further submitted that the IAF approached the Hon’ble HC of Punjab and Haryana and secured a vacation on the stay of the GCM, however the AFT order dated 25.05.2022 has not yet been overruled.

Given the above facts, the applicant’s contention is that the IAF authorities have supplied false information in the garb of National Security and Supreme Court Judgment dated 11 Jul 18 in the case of Hav Shyam Dass D Vs UoI and Ors in Criminal Appeal No. 14045/2018 requested the CIC to direct the IAF to provide a copy of the convening order of the court of Inquiry to the applicant through his counsel, or else the CIC may call for the convening order of the court of Inquiry and allow the applicant and his counsel to peruse and verify the same.

The CPIO vide written submissions dated 31.03.2023 submitted that the RTI application was received on 03.02.2022, wherein the appellant had sought the information with regard to court of inquiry of flying accident on 27.02.2019. He further submitted that since the information sought was sensitive in nature, the same was denied by the CPIO u/s 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; 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. He further submitted that the FAA had also disposed of the first appeal as per the RTI Act. Furthermore, he submitted that as the documents suggests, the appellant in his second appeal has not brought out as to how the disposal of the RTI application and the first appeal is contrary to the provisions of the RTI Act. He summed up stating that information sought with regard to the court of inquiry of the flying accident of helicopter Mi-17 V5 of the Indian Air Force is sensitive in nature, public revelation of the same may lead to its subsequent availability to their adversaries and this will have a direct bearing on the security and strategic interest of the state. Hence, the information sought for was denied u/s 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; 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.

Observations:

Based on a perusal of the record, it was noted that the CPIO vide letter dated 08.03.2022 replied to the appellant and stated that the information sought for in points no. (a) to (c) is sensitive in nature. Public revelation of the same may lead to subsequent availability to their adversaries; this will have a direct bearing on the security and strategic interest of the State. Hence, the same was denied u/s 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; 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.

The FAA vide order dated 12.04.2022 disposed of the first appeal and held that based on the reply given by the CPIO and material placed before him for scrutiny, he was of the view that the sought for information pertaining to court of inquiry of flying accident of Helicopter Mi- 17 V5 (ZP 5220) on 27th Feb 19 by the appellant is confidential in nature, disclosure of such information may lead to its subsequent availability to the adversaries and will be detrimental to the security of the country and the national interest. Hence, the same was rightly denied u/s 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; 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.

The Commission observed that disclosure of a copy of the convening order of the court of Inquiry to the applicant is pending adjudication before the Punjab and Haryana HC as per the appellant’s own admission. Though the case is not under the RTI Act, however, the information sought is the same. Therefore, at this stage direction for any disclosure would vitiate the proceedings pending before the HC. As far as the CPIO and the FAA’s plea for denial of information u/s 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; 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 is concerned, the facts of the case suggests that the same is related to security and strategic information which cannot be disclosed and the apt exemption clause for denial has been invoked, therefore, the denial is accepted.

Decision:

In view of the above observations, the CPIO’s reply is accepted as just and proper. No further action lies in so far as the provisions of the RTI Act are concerned.

The appeal is disposed of accordingly.

Vanaja N. Sarna

Information Commissioner

Citation: S Roy Chowdhury v. Indian Air Force, Directorate of Personal Services, File no.: - CIC/IAIRF/A/2022/120079; 05/04/2023

Accident of IAF helicopter Mi-17 V5 - Disclosure of a copy of the convening order of the court of Inquiry to the applicant is pending adjudication before the Punjab & Haryana HC; Direction for any disclosure would vitiate the proceedings pending before HC

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