Shri Vijendra Rana vs Central Bureau Of Investigations ... on 5 February, 2010 - Free Judgements of Supreme Court & High Court

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Shri Vijendra Rana vs Central Bureau Of Investigations … on 5 February, 2010

                         CENTRAL INFORMATION COMMISSION
                          Appeal No. CICWB/A/2009/000958 dated 26.10.2009
                             Right to Information Act 2005 - Section 19


Appellant        -          Shri Vijendra Rana
Respondent           -      Central Bureau of Investigations (CBI)
                                   Decision announced : 5.2.2010


Facts

By application of 11.8.09 addressed to Shri Kamlesh Kumar, Addl. District
& Session Judge, Tees Hazari Courts, Delhi, Shri Vijendra Rana, lodged in
Central Jail No. 3, Tihar, sought the following information regarding information
provided to him on a parallel RTI request by CBI:

“With this as a background ,the appellant set forth to seek
information from CBI/ ACU-IX, vide the RTI query dated 5th Jan
2009, for the basis of its allegations especially in light of denials by
the ‘naval Authorities’.”

This is in the context of the following:

“2. Please refer to PIO, Tis Hazari Courts letter No. 72829
Admn. I/RTI/2009/1927 dated 03rd August 2009, stating that
documents sought have already been supplied to me.

3. However, the undersigned appellant has not been provided
the information/ documents as sought vide his RTI
application dated 5th Jan 2009. The details of this appeal,
against denial of information, is accordingly set forth in the
succeeding paragraphs.”

Shri K.S. Rawat, PIO of the Administration Branch, Tees Hazari Courts,
Delhi forwarded this application to Shri Sanjay Kumar Singh, SP, CBI as follows:

“The information sought under the RTI Act, 2005 is not available in
the Judicial Record pending in the court of Shri Brijesh Sethi, Ld.
Spl. Judge, CBI, Delhi. Thus the information sought by the
applicant may be provided at your end.”

Consequently, in his letter of 14.9.09, Dr. M. M. Oberoi, DIG, AC-III, CBI
has painstakingly provided a point wise reply, as below:

“This office has already examined your request in detail land
conveyed the decision. The information sought for is again
supplied as under;

A) Information about search order/ documents in support of
conduct of search of the residence of Cdr. Vijendra Rana,
7/73, Arjun Vihar, New Delhi-10 on 12.7.2005 by Naval
Authorities.

Search Order

i) It is intimated that after investigation of this case, two charge
sheets and two complaints under the Official Secrets Act,
1923 have been filed in the Court of CMM, Delhi and
presently the case is pending trail with Shri Brijesh Sethi, Ld.
ASJ, Tis Hazari, Delhi, who is hearing the arguments on
charge. He is in the process of forming a judicial opinion
whether there is sufficient prima facie evidence or not to
frame the charges against accused persons. CBI has
placed all the material before the Ld. Judge, who is hearing
the arguments.

Composition of Search Party

ii) All documents related to search, seizure conducted by CBI
has been provided to you under section 207 Cr. PC. This
case was registered by CBI on 20.3.2006. For any other
documents related to searches conducted by Navy prior to
registration of this case, the reply may be sought from CPIO,
Navy. A copy of your application has already been sent to
naval authorities.

Details of Independent witness present during the search

iii) All documents related to search seizure conducted by CBI
has been provided to you under section 207 Cr. PC. This
case was registered by CBI on 20.3.2006. For any other
documents related to searches conducted by Navy prior to
registration of this case, the reply may be sought from CPIO,
Navy. A copy of your application has already been sent to
naval authorities.

Report submitted on completion of Search

iv) All documents related to search seizure conducted by CBI
has been provided to you under section 207 Cr. PC. This
case was registered by CBI on 20.3.2006. For any other
documents related to searches conducted by Navy prior to
registration of this case, the reply may be sought from CPIO,
Navy. A copy of your application has already been sent to
naval authorities.

v) Any other document/ evidence in support of conduct of
this search.

B) Documents in support of seizure of articles/ items
(including a computer) during the search of the residence
of Cdr. Vijendra Rana, 7/73, Arjun Vihar, New Delhi-10 on
12.7.2005 by Naval Authorities.

i) Seizure memo/panchnama
It is intimated that after investigation of this case, two charge sheets
and two complaints under the Official Secrets Act, 1923 have been
filed in the Court of CMM, Delhi and presently the case is pending
trial with Shri Brijesh Sethi, Ld. ASJ, Tis Hazari, Delhi who is
hearing the arguments on charge. He is in the process of forming a
judicial opinion whether there is sufficient prima facie evidence or
not to frame the charges against accused persons. CBI has placed
all the material before the Ld. Judge, who is hearing the arguments.
This case was registered by CBI on 20.3.2006. For any other
documents related to searches conducted by Navy prior to
registration of this case, the reply may be sought from CPIO, Navy.
A copy of your application has already been sent to naval
authorities.

ii) Details of articles/ items seized.

It is intimated that after investigation of this case, two charge sheets
and two complaints under the Official Secrets Act, 1923 have been
filed in the Court of CMM, Delhi and presently the case is pending
trial with Shri Brijesh Sethi, Ld. ASJ, Tis Hazari, Delhi who is
hearing the arguments on charge. He is in the process of forming a
judicial opinion whether there is sufficient prima facie evidence or
not to frame the charges against accused persons. CBI has placed
all the material before the Ld. Judge, who is hearing the arguments.
This case was registered by CBI on 20.3.2006. For any other
documents related to searches conducted by Navy prior to
registration of this case, the reply may be sought from CPIO, Navy.
A copy of your application has already been sent to naval
authorities.

iii) Details of seizing officer and personnel present during
the seizure.

iv) Details of independent witnesses present during this
seizure.

v) Details of persons from whom these items were seized
including his signature on seizure memo on handing
over the items.

A copy of your application has already been sent to naval
authorities.

vi) Details of physical sealing of these items including
description of seals used.

vii) Details of Electronic forensic experts present during
seizure of electronic items viz mobile phones,
computers, pen drives etc.
It is intimated that after investigation of this case, two charge sheets
and two complaints under the Official Secrets Act, 1923 have been
filed in the Court of CMM, Delhi and presently the case is pending
trial with Shri Brijesh Sethi, Ld. ASJ, Tis Hazari, Delhi who is
hearing the arguments on charge. He is in the process of forming a
judicial opinion whether there is sufficient prima facie evidence or
not to frame the charges against accused persons. CBI has placed
all the material before the Ld. Judge, who is hearing the arguments.
This case was registered by CBI on 20.3.2006. For any other
documents related to searches conducted by Navy prior to
registration of this case, the reply may be sought from CPIO, Navy.
A copy of your application has already been sent to naval
authorities.

viii) Details of file structure of hard disk of computer seized
(so as to rule out fabrication and tempering).
It is intimated that after investigation of this case, two charge sheets
and two complaints under the Official Secrets Act, 1923 have been
filed in the Court of CMM, Delhi and presently the case is pending
trial with Shri Brijesh Sethi, Ld. ASJ, Tis Hazari, Delhi who is
hearing the arguments on charge. He is in the process of forming a
judicial opinion whether there is sufficient prima facie evidence or
not to frame the charges against accused persons. CBI has placed
all the material before the Ld. Judge, who is hearing the arguments.
This case was registered by CBI on 20.3.2006. For any other

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documents related to searches conducted by Navy prior to
registration of this case, the reply may be sought from CPIO, Navy.
A copy of your application has already been sent to naval
authorities.

ix) Details of digital signatures and hash function value of
electronic items seized.

x) Any other documents/ evidence in support of seizure
made.

Nevertheless, on 17.9.09, Shri Rana has moved an appeal before Shri
Kamlesh Kumar, Addl. District & Session Judge complaining that “In this case no
reply has been received even after 35 days.”

In response, PIO Shri K. S. Rawat, in his letter of 24.9.09 has informed
appellant Shri Rana that the original application of 11.8.09 was treated as an

6
application and not an appeal and was forwarded to the SP, CBI under intimation
to appellant. PIO Shri K. S. Rawat has then provided the following details:

“Vide your letter dated 11.8.2009, you have clearly revealed that all
documents of the Judicial file have been received by you and no
information is pending in the court, so the undersigned vide letter
dated 13.8.2009 transferred the application to the PIO/
Superintendent of Police, CGO Complex, Lodhi Road, New Delhi
for remaining information and you have been requested to contact
the above said PIO for further correspondence. As no appeal is
pending before the Ld. First Appellate Authority and so to dispose
of the same within stipulated period does not arise.”

Shri Rana has then moved a second appeal before us in which both CBI
and Tees Hazari Courts are impleaded as respondents, in which he has prayed
as follows:

“(a) Kindly direct CPIO-CBI; ACU-IX to provide information
sought at para 9 (a) to (g) of the RTI application dated 5th
Jan 2009.

(b) In exercise of powers vested upon the Commission under
section 18 (3) clause (a) of the RTI Act, kindly direct
Superintendent, Central jail No. 3/ DG (Prisons), Tihar to
ensure personal appearance of the undersigned at the
Commission during the hearing of this appeal. It is most
humbly submitted that the hearing may not be conducted
through videoconferencing view complexities of the issue,
no. Of documents to be referred and discussions held on
18th June 2009 during the earlier hearing at Tihar.
(c ) Kindly adjudicate the instant appeal expeditiously as the
same concerns LIFE AND LIBERTY matters and also this
being the second appeal to CIC concerning the same cause/
matter.”

Subsequently, in a letter of 19.10.09 Shri Rana has made the following
request:

“(a) Kindly hear and adjudicate my appeals against CBI dated 5th
October, 2009 and 7th September, 2009 at the earliest.

(b) Kindly accord me an opportunity to be personally present for
the hearing (and not through Video Conference) for a
meaningful adjudication of the appeals as also in the interest
of justice.”

This request was acceded and a hearing scheduled. In the meantime, on
20.1.’10 we received a response to the hearing notice from Dr. M. M. Oberoi,
DIG, CBI, New Delhi in which he has submitted as follows:

“a) It is submitted that CBI has already given a detailed reply to
the Appeal No. CIC/WB/A/2009/000609. The same may be
read as part of this reply also

b) With regard to the averments made in Ground B, it is
submitted that the direction given by Hon’ble High Court is to
be complied with by Ld. Trial Court at the appropriate stage
of trial. Ld. Trial Court is already seized of the matter. CBI
is to give clarifications in the court as and when the matter is
taken up for this cause.

c) The averments made in Ground C are denied. CBI has filed
two charge sheets and two complaints in this matter and
also filed lists of documents and witnesses. Allegations as
mentioned in the charge sheet will be proved in the Court of
law, as per procedure, through the witnesses / documents
cited.

d) The averments made in Ground D are denied. The fact of
the matter is CBI has filed two complaints and two charge
sheets in this case and the case is pending further
investigation. In support of the charge sheets filed, CBI has
cited list of witnesses and relied upon documents. Copies of
statements of these witnesses and relied upon documents,
except some classified documents, have been provided to all
accused persons including the present appellant. The
matter regarding supply of copies of these classified
documents is pending before Hon’ble Supreme Court. It is a
matter of accepted criminal procedure that the prosecution
proves the allegations of charge sheet with the help of relied
upon documents / statements of witnesses. The appellant is
asking documents to support particular paragraphs of charge
sheet. The information in the form of paragraph wise /
supporting document / statements of witnesses is not
prepared by the prosecution but it is done for the charge
sheet as a whole. As such, the information being sought by
appellant does not come under the definition of information
under RTI Act 2005. However, despite this, detailed
information / replies to applications filed by the appellant
from time to time have been provided.”

The hearing scheduled for 21.1.10 was then adjourned on appellant’s
request to 5.2.2010, when it was heard. The following are present:

Appellant
Shri Vijendra Rana
Shri Trideep Pais, Advocate assisting appellant
Respondents
Shri K. S. Rawat, PIO, Tees Hazari Courts
Shri Saryu Kumar, LDC Tees Hazari Courts
Shri Ashok Sharma, APIO, Tees Hazari Courts
Shri S. K. Singh, SP, CBI
Shri D. S. Chauhan, Inspector, CBI

Shri K. S. Rana, PIL, Tees Hazari Courts submitted that all documents
connected with charge-sheet that are held by the Court of Addl. District &
Session Judge have been supplied to appellant Shri Rana who has also
inspected the same.

Appellant Shri Rana, however, submitted that in Paras 27, 28 & 30 of the
charge-sheet, there is specific reference to inspection conducted by Naval
Authorities. However, the documents supplied to him do not give any support to
this contention and the Naval Authorities when approached have informed him
that there was no such action taken by the Naval Authorities. Shri S. K. Singh,
SP, CBI on his part submitted that this matter already stands resolved in our
decision announced on 24.6.09 in File No. CIC/WB/A/2009/000609, and there
are no further records held by the CBI, which can be provided in this case.

We have therefore revisited our decision in Appeal Nos.
CIC/WB/A/2009/000417 & CIC/WB/A/2009/000609. In these two cases clubbed
together, we have taken the following decision in the latter appeal:

“In the File No. CIC/WB/A/2009/00609 again Appellate Authority
Dr. Oberoi has submitted that all such information which could be
provided has indeed been provided through issue of the charge
sheet. In this case, however, he has admitted that some information
being of sensitive nature is being protected by the OSA and has,
therefore, not been disclosed but is in the possession of the trial
Court.

On details of searches however Dr Oberoi has informed appellant
Shri Rana, “For searches conducted by Navy prior to registration of

9
this case, the reply may be sought from CPIO, Navy.” This is a
clear statement that CBI holds no information on the subject other
than that provided by the Navy. Shri Rana has applied to and
obtained a response from the Navy clearly stating, “no search was
conducted at the residence of Commander Vijendra Rana” as
quoted, which information he is assuredly free to use in his defence

From the above it is quite clear that the case now being under
prosecution, all the information sought by appellant Shri Rana in
both cases is either in the custody of the Court or if it is not so held,
will be assumed to not exist. The Public Prosecutors advice to
appellant Dr. Rana during the hearing that he may obtain
information from the CBI is misplaced because that agency is no
longer in control of information that has been submitted to the Court
to support the prosecution even though it may retain physical
possession. Access to such information has, therefore, to be
through the authority by which it is held or in the control of, which in
this case is the trial Court. This, therefore, is a fit case for transfer
to the trial court under sub sec. (3) (ii) of Sec. 6 of the RTI Act of
those questions that concern information no longer under the
control of CBI and the CPIO of the Trial Court will be required to
provide a response to appellant Shri Rana within the time
mandated under the RTI Act 2005. However, in doing so, it is
expected that the Court will adhere to the requirements of the RTI
Act 2006, notwithstanding anything inconsistent therewith
contained in the Official Secrets Act 1923, as clearly mandated by
Sec 22 of the RTI Act. This is specifically clarified because the
cases for which the information has been sought are being pursued
under the OSA 1923

CPIO Shri Sanjay Kumar Singh, SP, CBI, ACU-IX will, therefore,
now make this transfer within ten working days of the date of
receipt of this Decision Notice with regard to any questions that
have remained unanswered in this light, of the two applications of
appellant Shri Rana”.

DECISION NOTICE

From the hearing in the present case, it is quite clear that in fact the orders
of this Commission have been fully complied with, which would lead to the
conclusion that there is no record in support of Paras 27, 28 & 30 of the charge-
sheet. Appellant Shri Vijendra Rana invited our attention to his plea before
CPIO, CBI that “in case there is no document/evidence in support of conduct of

10
this search, kindly specify so”. His single plea before us in the present appeal is
that this has not been so specified.

In this context, PIO Shri Rawat of Tees Hazari Courts clarified that if there
are no records in support of any item of the charge-sheet, that item cannot be
taken as proved. Similarly, SP, CBI Shri S. K. Singh has intimated that whatever
information is held regarding the subject under discussion has been provided,
which is implying that there is no other information held by the CBI on the
subject. In our decision in appellant Shri Vijendra Rana’s Appeal No.
CIC/WB/A/2009/000609, this Commission has also held that the response of
CPIO CBI “is a clear statement that CBI holds no information on the subject other
than that provided by the Navy”. With the response received from the Naval
Authorities, which appellant Shri Vijendra Rana claims to have, it is not
understood what further clarification of the fact that there are no documents in
support of the conduct of the search is required by him, since the fullest
information from all three major stakeholders among respondents stands
provided. The appeal is, therefore, unsustainable and is hereby dismissed.

Announced in the hearing. Notice of this decision be given free of cost to
the parties.

(Wajahat Habibullah)
Chief Information Commissioner
5.2.2010

Authenticated true copy. Additional copies of orders shall be supplied against
application and payment of the charges, prescribed under the Act, to the CPIO
of this Commission.

(DC Singh)
Asst. Registrar
5.2.2010

Shri Vijendra Rana vs Central Bureau Of Investigations … on 5 February, 2010

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Shri Vijendra Rana vs Central Bureau Of Investigations … on 5 February, 2010

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