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Certified copies of documents with enclosures relating to sanction of prosecution of the appellant under prevention of Corruption Act along with the file notes were denied u/s 8 (1) (h) - CIC upheld the denial; Forward a copy of the written submission

26 Jun, 2020

O R D E R

FACTS:

The Appellant vide his RTI application sought information on 02 points regarding the certified copies of records/ documents/ correspondence with enclosures relating to sanction for his prosecution under prevention of Corruption Act along with the certified copies of file notes.

The CPIO, vide its letter dated 18.06.2018 denied disclosure of information u/s 8 (1) (h) of the RTI Act, 2005. Dissatisfied by the response of the CPIO, the Appellant approached the FAA.

The FAA, vide its order dated 14.09.2018 while relying upon the decision of the Commission in Appeal No. CIC/LS/A.2011/002875 in the matter of Shri S. Kasimayan, upheld the CPIO’s response.

HEARING:

Facts emerging during the hearing:

The following were present:

Appellant: Mr. Bimal Kumar Pathak through TC;

Respondent: Mr. Lingaraj Naik S, Deputy Accountant General (Admn) and CPIO through TC;

The Appellant reiterated the contents of the RTI application and stated that the information sought had been wrongly denied by the CPIO/FAA under Section 8(1) (h) of the RTI Act, 2005, without giving any justification for denial of information. He further submitted that the investigation under the related criminal case had already been completed and a charge sheet was submitted by the Investigating Officer on 24.04.2018 in the Court of Law and therefore, no question of impeding the process of investigation arises in the instant matter. In support of his contention the Appellant relied on several decisions of the Hon’ble Courts and CIC which are as under:-

1. The Hon’ble Delhi High Court in the case no. WP(C) 6226/2007 (S M Lamba Vs S C Gupta & Anr on 04.05.2010) wherein in Para 8 it was held as under:-

“A perusal of Section 8 (1) (h) of the RTI Act shows that information can be withheld which would impede the process of investigation or apprehension or prosecution of offenders. In the present case the charge sheet having been filed upon completion of investigation, there can be no apprehension that the disclosure would impede the progress of the investigation. It would also not impede the trial which is already in progress.”

2. The Hon’ble Delhi High Court in Adesh Kumar v. UOI and Ors. in the case no W.P. (C) 3543/ 2014 dated 16.12.2014 had held as under:-

“10. A bare perusal of the order passed by the FAA also indicates that the aspect as to how the disclosure of information would impede prosecution has not been considered. Merely, citing that the information is exempted 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 Act would not absolve the public authority from discharging its onus as required to claim such exemption. Thus, neither the FAA nor the CIC has questioned the Public Authority as to how the disclosure of information would impede the prosecution.”

3. The Hon’ble High Court of Delhi in B.S. Mathur v. PIO in W.P. (C) 295 of 2011 dated 03.06.2011 wherein it was held as under:-

“19. The scheme of the RTI Act, its objects and reasons indicate that disclosure of information is the rule and non-disclosure the exception. A public authority which seeks to withhold information available with it has to show that the information sought is of the nature specified in Section 8 RTI Act. As regards 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; RTI Act, which is the only provision invoked by the Respondent to deny the Petitioner the information sought by him, it will have to be shown by the public authority that the information sought "would impede the process of investigation." The mere reproducing of the wording of the statute would not be sufficient when recourse is had to 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; RTI Act. The burden is on the public authority to show in what manner the disclosure of such information would 'impede' the investigation...............

4. The Hon’ble High Court of Delhi in Sudhiranjan Senapati vs. Union of India in W.P. (C) 7048/2011 dated 05.03.2013;

5. Decision of the Commission in CIC/CCITD/A/2018/123624-BJ (Mr. Sanjiv Ghei vs CPIO & DDIT) dated 16.10.2019;

6. File No. CIC/POSTS/A/2017/131334 on 30.06.2017;

7. File No. CIC/BS/A/2014/000211+000213+000228/6805 dated 20.01.2015;

8. File No. CIC/KY/A/2015/001238 dated 29.02.2016

9. File No. CIC/VS/A/2014/003729/SB dated 14.01.2016;

The Commission was in receipt of a written submission from the Appellant dated 03.06.2020 wherein while contesting the reply/order of the CPIO/FAA, he submitted that the investigation under the related criminal case had already been over and a charge sheet was submitted by the Investigating Officer on 24.04.2018 in the Court of Law. Therefore, no investigation stood pending and supply of required information was, in no way, would impede the investigation. In support of his contention, the Appellant relied on the decisions of the Hon’ble Delhi High Court in S M Lamba vs. S C Gupta & Anr dated 04.05.2010; in Adesh Kumar vs. UOI and others; in B S Mathur vs. PIO dated 03.06.2011; in Sudhirranjan Senapati vs. UOI dated 05.03.2013 as also several decision of the Commission. Hence, it was prayed to the Commission to direct the Respondent to provide the desired information based on the aforementioned decisions of the Hon’ble Courts.

In its reply, the Respondent while explaining the background of the case, stated that the Appellant was arrested by the Anti Corruption Branch (ACB) PS, WB for allegedly demanding and accepting illegal gratification. A case was registered by the ACB under Section 7 and 13(2) of the Prevention of Corruption Act, 1988. Considering the gravity of the case, the RTI application was rejected in terms of Section 8(1) (h) of the RTI Act, 2005 which stipulates that there shall be no obligation to furnish information which would impede the process of investigation or prosecution of offenders. As the case is still sub-judice, the investigation may not be considered as completed. In this regard, the Respondent referred to the decision of the Commission in the case of Mr. Prabhu Dayal Beniwal vs. CPIO, O/o. the Commissioner of Central Excise, Customs & Service Tax, Jaipur, Rajasthan in Appeal No.:- CIC/CBECE/A/2017/182212-BJ dated 11.08.2017 wherein it has been cleared that

(a) ‘investigation’ used in 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 Act should be interpreted broadly and liberally and that no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that decision is taken;

(b) investigation” will also include an enquiry conducted during disciplinary proceedings. Furthermore, it was submitted that the reference cases cited by the Appellant were not establishing the fact that the cases were identical with the case of Appellant i.e. whether the Appellant was caught red handed or not.

Moreover, the decision of any Court or decision making authority may vary with the context of the each and every individual case. Further, the case against the Appellant is sub-judice and the Court may order for any further investigation u/s 173(8) of CrPC. Hence, considering the gravity of the case, it was requested to reject the Appeal of the Appellant. The Respondent further relied on its written submissions.

The Commission was also in receipt of a written submission from the Respondent dated 04.06.2020 wherein while reiterating the chronological facts in respect of the RTI application in question, it was submitted that the reference cases cited by the Appellant were not establishing the fact that the cases were identical with the case of Shri Pathak, i.e. whether the Appellant was caught red handed or not. Details of charges were also not clear from the documents. The decision of any Court or decision making authority may vary with the context of the each and every individual case. For example, as per CIC decision in File No. CIC/LS/A/2011/002875 dated 30.05.2012 the documents related to note sheet relating to sanction of prosecution may not be disclosed 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; of the RTI Act, 2005 with reference to Hon’ble Delhi High Court order dated 11.11.2006 in WP (C) No. 16712/2006. In the case of Shri Pathak, investigation process is already over as the charge had already been filed by the ACB. The case is sub-judice and the Court may further order for any further investigation u/s 173(8) of CrPC. Hence considering the gravity of the case, the Appeal of the Appellant be rejected. A copy of the written submission was not forwarded to the Appellant. The Respondent however agreed to send a copy of its written submission to the Appellant on his given email address i.e. pathakbimalmki@gmail.com.

The Commission referred to the definition of information u/s 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the RTI Act, 2005 which is reproduced below:

“information” means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force.”

Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:

“(j) right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........”

In this context a reference was made to the Hon’ble Supreme Court decision in 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:

35..... “It is also not required to provide ‘advice’ or ‘opinion’ to an applicant, nor required to obtain and furnish any ‘opinion’ or ‘advice’ to an applicant. The reference to ‘opinion’ or ‘advice’ in the definition of ‘information’ in section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act.”

Furthermore, the Hon’ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:

6. “....Under the RTI Act “information” is defined under Section 2(f) “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; “information” means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force; which provides:

This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed.”

7. “....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the “public authority” under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him.”

Furthermore, the Commission referred to the decision of the Hon’ble High Court of Delhi in the matter of Union of India vs. Shiv Narain, WP(C) 7204/2016 dated 27.03.2019 wherein it was held as under:

“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(i)(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.”

DECISION:

Keeping in view the facts of the case and the submissions made by both the parties and in the light of the decision of the Hon’ble High Court of Delhi in the matter of Union of India vs. Shiv Narain, WP(C) 7204/2016 dated 27.03.2019 as also the justification offered by the Respondent no further intervention of the Commission is required in the matter. The Respondent is however instructed to forward a copy of the written submission sent to the Commission to the Appellant within a period of 30 days from the date of receipt of this order depending upon the condition for containment of the Corona Virus Pandemic in the Country or through email (Email: pathakbimalmki@gmail.com), as agreed.

The Appeal stands disposed accordingly.

(The Order will be posted on the website of the Commission).

(Bimal Julka)

(Chief Information Commissioner)

Citation: Mr Bimal Kumar Pathak v. Office of the Principal Accountant General in Second Appeal No.:- CIC/CAGIN/A/2018/632963-BJ, Date of Decision: 12.06.2020

Certified copies of documents with enclosures relating to sanction of prosecution of the appellant under prevention of Corruption Act along with the file notes were denied u/s 8 (1) (h) - CIC upheld the denial; Forward a copy of the written submission

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