Information regarding CBI investigation & issuance of a sanction for prosecution against the appellant was denied u/s 8(1)(d) & (h) - CIC: determinations about disclosure of any information relating to an ongoing prosecution should be through Trial Court

Facts

This matter pertains to RTI application dated 20.4.2013 filed by the Appellant, seeking information on four points regarding CBI investigation and issuance of a sanction for prosecution against him. The CPIO responded on 3.5.2013. He confirmed that the CBI had sought sanction from the bank to prosecute the Appellant and that the bank had communicated sanction for prosecution. However, he denied the information concerning the correspondence exchanged between the Bank and the CBI/ CVC on the subject under Section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; and (h) of the RTI Act on the ground that disclosure of this information would hamper the progress of the steps being initiated by the CBI. Not satisfied with the reply of the CPIO, the Appellant filed an appeal to the First Appellate Authority on 7.5.2013. In his order dated 4.6.2013, the FAA upheld the CPIO’s reply and stated that the information was being 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; of the RTI Act. The Appellant filed second appeal dated 17.6.2013 to the CIC, which was received by the Commission on 27.6.2013.

2. We heard the submissions of the Appellant and the Respondents. The Appellant submitted that the Respondents denied sanction of prosecution to the CBI three times, but granted it the fourth time. In support of his request for information concerning the correspondence exchanged between the bank and the CBI, leading to grant of sanction for prosecution, the Appellant referred to the judgment dated 12.3.2012 of the Madras High Court in M. S. Vijayakumar vs. The Chairman & Managing Director, Indian Overseas Bank.

3. The Respondents submitted that they had denied the above information 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; as it could hamper the steps being initiated by the CBI. They further submitted that the matter is now before a CBI Trial Court. In support of denial of the information concerning exchange of correspondence, the Respondents also made a reference to the Commission’s order No. CIC/AT/A/2008/01238 dated 7.6.2010.

4. We have considered the records and the submissions made by both the parties before us. As far as the judgment dated 12.3.2012 of the Madras High Court, referred to in paragraph 2 above is concerned, we note that in that case, the main issue for consideration before the Court was the power of review of the sanctioning authority, especially when the same sanctioning authority on earlier two occasions, on the basis of the same material, came to a conclusion that there was no ground for granting sanction and in the order sanctioning prosecution, nothing new was stated in respect of the materials, which were relied upon. In the above context, we note that while in the instant case also, the Appellant has stated that the sanction for prosecution was rejected three times, but was granted the fourth time, the issue of legality of the sanction issued by the Respondents is not before the Commission. In any case, the Commission is not competent to go into this issue. In view of the foregoing, the judgment of the Madras High Court, relied upon by the Appellant, is not germane to the matter before us.

5. We also note that the disclosure of exchange of correspondence between a public authority and the CBI for issuance of sanction for prosecution, was considered in another case by a three member Bench of the Commission in 2010 on File No. CIC/AT/A/2008/01238. In its decision dated 7.6.2010, arrived at with majority of two to one, the Commission had denied disclosure of information in that case. The factors taken into account by the Commission in arriving at its above decision are germane to the case before us.

The Commission had noted: “ In our view, an information which is evidence or is related to evidence in an ongoing prosecution comes under the control of the Trial Court within the meaning of Section 2 (j) of the RTI Act, which states as follows:“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 the right to.....” “The word “under the control of” implies that the information, regardless of which public authority holds it, is under the control of a specific public authority on whose orders alone it can be produced in a given proceeding. In the present case, the material sought by the appellant is undoubtedly related to an ongoing court proceeding and hence it can be rightly said to be under the control of the Trial Court, who alone can decide how the information is to be dispensed. Any action under the RTI Act or any other Act for disclosure of that information to the very party who is arraigned before the Trial Court or to anyone representing that party, would have the effect of interfering with the discretion of the Court, thereby impeding an extant prosecution proceeding.”

6. In the above context, the Commission had also noted the following observations of the Delhi High Court in S. M. Lamba vs. S. C. Gupta and Anr.:“ This court would like to observe that under the code of Criminal Procedure, 1973 once the stage of an order framing charges have been crossed, it would be open to the accused to make an appropriate application before the learned trial court to summon the above documents in accordance with the law.”

7. Taking into account the above, the Commission had stated, “It is, therefore, important that all determinations about disclosure of any information relating to an ongoing prosecution should be through the agency of the Trial Court and not otherwise.”

8. Having considered the records and the submissions made before us and having taken into account the above observations of the Commission, we see no ground to interfere with the decision of the Respondents in this case.

9. With the above observations, the appeal is disposed of.

10. Copies of this order be given free of cost to the parties.

(Sharat Sabharwal)

Information Commissioner

Citation: Shri D S Pendse v. Syndicate Bank in File No. CIC/VS/A/2013/001714/SH