Shri M. Vasudeva vs Superintendent Of Police, Korba, … on 9 April, 2010

                     CENTRAL INFORMATION COMMISSION
                            Complaint No. CIC/Legal/2010/033
                        Right to Information Act 2005 - Section 19


Complainant -           Shri M. Vasudeva
Respondent       -      Superintendent of Police, Korba, Chattisgarh
                               Decision announced: 9.4.2010


Facts

:

Through a complaint of 30.3.10 Shri M. Vasudeva, Director General,
National Council for Cement & Building Material, Ballabhgarh (Haryana) applied
to this Commission, as follows:

“Three of our senior officials namely, Dr. M. M. Ali, Joint Director,
Shri R. K. Goswami, General Manager and Dr. U. K. Mandal,
Group Manager have been taken into custody by Korba police
(Chattisgarh) from NCB premises at Ballabgarh during working
hours on 25th March 2010, in connection with the testing work
carried out by NCCBM on the samples of concrete and other
materials handed over by the Korba Police earlier. These samples
were from the collapsed chimney at BALCO, Korba, which resulted
in several deaths in September 2009 and apparently led to public
outcry. NCCBM tested these samples and submitted and test
results to the Korba Police.

Subsequently, when a citizen sought the test results under RTI Act,
we provided the same to him as per the provisions of RTI Act. The
Korba police feels that the test results should have been kept
confidential by NCCBM and they were not happy and developed a
grudge on NCCBM for revealing the results to a citizen. They have
taken our officials into custody on two allegations that is (1) the
samples were not analysed correctly by the accused officials of
NCCBM, who have analyzed the samples with an intention of
favouring BALCO, who are the principal accused in the Chimney
collapsed case (2) the report was also made available to the
principal accused who have benefited on this account.

On 25th march 2010, the Korba police took away our three officials
without showing us any documents and after obtaining the transit
remand from the Magistrate’s Court at Faridabad, took them to
Korba. However, the order of the Faridabad, Magistrate on the
application of the Korba Police for transit remand shows that our

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three officials were taken into custody under section 304/201 of
IPC. On 27th March 2010, our officials were produced before the
Judicial Magistrate at Korba who ordered them to be lodged in
Korba jail. On 29th March 2010, we have filed a bail application in
the Sessions Court at Korba, which will be heard on 31st March
2010.

We feel that disclosing such information under RTI is very much in
order and NCCBM is at no fault in revealing this information to a
citizen, particularly when the Chhattisgarh police did not mention in
their request letter for testing the samples that the results should be
kept confidential.

The police orally told us that there is no need to mention
confidentiality because the samples were sent by the police. We
feel that the view of the police is not correct.”

Since this complaint involved various issues including jurisdiction of this
Commission to adjudicate upon an issue concerning a Department of the State
Government namely the Office of the S.S.P., Korba in Orissa, the matter was
referred to a Full Bench of the Commission and notice served on 1.4.10 on Shri
Rattan Lal Dangi, SP, Korba Distt. Chhattisgarh State seeking the following :

“It will be appreciated if the comments and comprehensive reports
can be sent to the Commission as soon as possible but not later
than afternoon of 6th April, 2010. The report may be sent either on
Fax or through E-mail given on the tope of the D. O. letter.’

Subsequently by a letter of 5.4.10 complainant Shri M. Vasudeva
submitted a copy of the order of Distt. & Sessions Judge, Korba on the bail
application of the three concerned officers of NCCBM in rejecting which the
learned M.C. Jagdalla, Distt. & Sessions Judge, has held as follows:

“Appellant was heard and circumstances were perused. In the
above case due to fall of Chimney 40 persons died. In relation to
this episode three accused were granted bail by the Hon’ble
Supreme Court of India. In connection with bail, on the basis of
investigation report, case of 201 IPC is also to be instituted
alongwith other case on the respondents. Since the episode is still
under investigation, and seeing the circumstances narrated above,
there does not seem to be any justification for grant of bail to the
accused. Therefore, application for bail No. 202/2010 dated
29.3.2010 is hereby dismissed. “

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We have also received a letter from Shri Rattan Lal Dangi, SP Korba,
Chhattisgarh of 5.4.10 attaching a copy of the report submitted to the Home
Secretary, Govt. of Chhattisgarh on 1.4.’10 reporting among other things as
follows:

“In this context, it is recorded that the action being taken against the
concerned individuals is in fact based on non testing of material on
the required standards and not based on disclosing of test
report 1 .”

In the letter addressed to this Commission, Shri Dangi has submitted, as
below:

“The date of hearing, recorded in the Notice, being very near, it is
not possible to appear on the said date. It is, therefore, requested
that hearing may be fixed for 12.4.2010 so that we can appear on
the said date for hearing.”

In a more detailed response to the appeal notice on the same date i.e.
5.4.10, addressed to the Additional Registrar, CIC, Shri Dangi has outright
denied that the police action has been taken to harass the complainant’s
Organization on grounds of exercising its authority under the RTI Act, as follows:

“It is totally wrong allegation because they have not been made
respondents for providing information under the Right to
Information Act but due to facts and evidences which show that
they have given such test report, for which they were fully aware
and confident that it is false report, and on the basis of which the
accused can save their skin. Based on these documents, in the first
instance, a case u/s 201 IPC can be instituted against them and
therefore, they have been arrested. In this connection, furnishing of
some information is necessary, which in short is as below:”

He has gone on to detail the grounds on which this action has been taken
which are as below:

“1. The concrete core dimensions have not been mentioned,
which is very important for Strength Reporting as per IS:
516:1959 Lodge No. 2:8 and in absence of it is not possible
for any Expert to give his remarks.

1

Emphasis ours

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2. Only one test has been conducted for coarse agreement
sample (10 mm & 20 mm) by the Organization, whereas
duplicate test is binding as per IS 383:1970. In absence of
duplicate test, it is not possible for any Expert to give his
recommendations.

3. Code IS 383:1970 has not been followed while conducted
Sieve analysis of Test for Coarse Agreement sample (20
mm), due to which recommendations by Expert are not
possible.

4. It is binding under IS Code 383:1970 to conduct duplicate
test under Test for Final Agreement Sample. But this
organization has not done so, due to which
recommendations by Expert are not possible.

5. Recommendations by Experts were refused on the basis of
reports of above Organization and it was informed that they
only provide data of investigation and for recommendations
they should contact any Expert of Institution for obtaining
recommendations. Therefore, recommendations were
sought from NIT Raipur, Chhattisgarh, which is a Higher
Technical Education Institute set up by Govt. of India, where
highly qualified Professors and latest testing machines are
available and where training is imparted for conducting such
tests/analysis, on the basis of test reports presented by
NCCBM, Ballabhgarh, Haryana, which was refused by NIT
Raipur due to non availability of test reports under above IS
Code and they informed that it is not possible to give
recommendations by the Experts due to non-availability of
such test reports. On examining the above code, as
intimated by NIT Raipur, the facts were found to be true and
it became clear that either the tests by NCCBM Ballabhgarh
Haryana were not conducted on the basis of above codes or
these duplicate investigation reports were not presented
intentionally.

6. On 18.2.10 in the Hon’ble Distt. & Session Courts, Korba the
Advocate for BALCO presented the test report of NCCBM
Ballabhgarh and comments of Associate Professor Dr. J.
Prasad of IIT Roorkee, in which Dr. J. Prasad has informed
that test reports of NCCBM Ballabhgarh are not in
consonance with IS specifications.

7. Not only copies of sample collection memo, tailbone, FIR
were sent to NCCBM Ballabhgarh, Haryana but it was also
intimated to them on telephone that a case has been
registered in PS BALCO Nagar vide Sr. No. 377/09 u/s 304,
34 IPC. U/s 173 IPC when Police file a final report, all the
documents/enquiry reports are presented before the Court
and a copy of the same is provided by the Court to the

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respondents free of cost. Besides, any other person can also
collect these documents from the court but before filing of
final report, during investigation all the documents /
evidences are treated as part of case diary u/s 172 IPC and
no one is allowed to inspect the same except the Court and
the concerned police officer. It is as per relevant rules.
NCCBM Balabhgarh Haryana was aware of this fact.
Besides Korba Police had sent fee alongwith samples for
testing as a client to this Organization. It is therefore, clear
that NCCBM was in touch with Korba Police and was aware
that the matter is under investigation. Therefore, it was moral
responsibility of this Organization that it should inform the
person seeking information under Right to Information Act
that he may collect the information from District Police
Supdt. Korba / Inspector PS BALCO Nagar. But not doing
so also brings this Organization under doubt 2 . Even then it is
made clear that all the three officers of this Organization
have been arrested u/s 201 IPC on the basis of sufficient
documents / evidences against them. After detailed
discussions and hearing the learned counsels for the
accused and Dy. Director (Prosecution) and after inspecting
case diary and other documents and examining the facts,
Hon’ble Addl. Distt. Judge Korba found that a case u/s 201
IPC exists against respondents and their bail applications
were dismissed.

8. The respondents have not been arrested under any grudge
but their arrest and prosecution has been made under the
relevant rules. This will prevent habit of defying rules and
giving reports as per their wills, and giving recommendations
of their choice and not based on test reports and creating
hindrance in impartial justice, which is in the interest of law
and the nation.

9. Action against accused have been taken as per evidences /
documents and under the law. Their claim for undue
harassment is completely false and baseless.

10. It is clear from the facts that NCCBM is trying to save its skin
from criminal involvements and punishment by giving
misleading statement to Central Information Commission.

11. Commission is investigating the matter and based on
evidences against accused, Hon’ble Distt. Courts have found
them guilty under sec. 201 IPC. Therefore, it will be
appropriate for the Court only to take any decision in the
matter.

2

Underlined by us for further reference below

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It is, therefore, prayed that the complaint made under the cover of
Right to Information Act 2005 is baseless and false and, therefore,
may be dismissed.”

The appeal was heard on 6.4.2010. The following are present:
Appellants
Shri M. Vasudeva, DG (Actg)
Shri S. N. Mehrotra, Jt. Dir. / CPIO (HRS & FAS)
Dr. S. C. Sharma, Jt. Dir. / APIO (Industrial Information.
Dr. S. Harsh, General Manager

Complainant Shri Vasudeva submitted a copy of the request of one Shri
Anshuman Gargesh of Alaknanda, New Delhi received in the NCCBM on
24.12.08 in which the request for information of Shri Gargesh is as follows:

‘1. Whether the Government of Chattisgarh, Chattisgarh Police
or any of their departments) are seeking or have sought the
report of National Council of Cement and Building materials,
Ballabgarh on the material used in the Chimney under
construction at the 1200MW power plant project of BALCO
in Chattisgarh?

2. A copy of the letter by which the report in Sl. No. 1 above
was sought.

3. What kind of material was sent for testing to National Council
of Cement and Building Materials?

4. Whether representative of National Council of Cement and
Building Materials was present at the site when the material
for testing was collected? If so the name and designation of
the officer(S) who was/ were present.

5. copy of the letter by which the material was sent for testing
to National Council of Cement and Building Materials.

6. National Council of Cement and Building Materials of
correspondence exchanged between NCCBM and
Government of Chattisgarh / Chattisgarh Police or any of
their departments.

7. When was the report of NCCBM on testing of the material
sent to the Government of Chattisgarh/ Chattisgarh Police or
their department, which sought the report.

8. A copy of the report on the material testing as sent to the
Government of Chattisgarh Police or their department.

9. What is the name of the test and method of testing applied?

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They also submitted a copy of the order of 25.3.10 of Judicial Magistrate
First Class Faridabad Shri Sunil Kumar in which the learned Magistrate has
allowed transit remand from 25.3.10 till 28.3.10 since the case against the
accused was registered in Korba, Chhattisgarh. Together with this report, they
have attached a copy of the transit remand form in which the Korba Police have
among other things, pleaded the case that “enquiry report has also been given to
the persons arrested and under prosecution”

During the hearing, it was made clear to complainants that because of
short notice it had not been possible for respondents to be present personally.
Copies of the response received from Respondents was also handed over to
Complainants. In this context, it was explained that the respondents have
claimed that the action that they are taking stems from Sec. 201 IPC, not from
the RTI Act. In response to a question from the Commission, complainant Shri
Vasudeva agreed that the CPIO is not among the accused in the FIR No. 377/09
at PS BLACO, Distt. Korba. Sec. 201 IPC reads as follows:

“201. Causing disappearance of evidence of offence, or giving
false information to screen offender.–Whoever, knowing or
having reason to believe that an offence has been committed,
causes any evidence of the commission of that offence to
disappear, with the intention of screening the offender from legal
punishment, or with that intention gives any information respecting
the offence which he knows or believes to be false,
if a capital offence.– if the offence, which he knows or believes to
have been committed, is punishable with death, be punished with
imprisonment of either description for a term, which may extend to
seven years, and shall also be liable to fine;

if punishable with imprisonment for life.–and if the offence is
punishable with imprisonment for life or with imprisonment, which
may extend to ten years, shall be punished with imprisonment of
either description for a term, which may extend to three years, and
shall also be liable to fine;

if punishable with less than ten years’ imprisonment.– and if
the offence is punishable with imprisonment for any term not
extending to ten years, shall be punished with imprisonment of the
description provided for the offence, for a term which may extend to
one-fourth part of the longest term of the imprisonment provided for
the offence, or with fine, or with both.”

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DECISION NOTICE

In light of the above, the Commission decided that should complainants
wish to pursue their complaint of harassment against the office of SP, BALCO,
Distt. Korba, a further hearing could be held on 12.4.2010 at 4.30 p.m. by
videoconference to enable respondents to appear. On the other hand, the
Commission is also clear that we have no authority to adjudicate upon whether
the case registered u/s 304/201 IPC read with Sec. 34 IPC is in keeping with the
law since the law in that case is the Indian Penal Code and not the Right to
Information Act. The only action that the Commission would be in a position to
take would be if it established that action has been taken by the SP, Korba in
violation of sec. 21 of RTI Act, which reads as follows:

Sec. 21
No suit, prosecution or other legal proceeding shall lie against any
person for anything which is in good faith done or intended to be
done under this Act or any rule made thereunder.

It is in this context that the plea taken by respondents at Para 7 quoted
above, with the pertinent sentence underlined by us, could be examined..

However, the Commission has subsequently received a letter from APIO
NCCBM Dr. S. C. Sharma dated 7.4.10 in which he has submitted, as follows:

“As per the hearing, it appears that there is no Right to Information
(RTI) angle in this case and therefore we would like to matter to be
treated as closed without any further hearing.”

In light of this, the complaint is hereby dismissed with a word of caution to
respondents in the Office of SP, Korba that they will exercise discretion to ensure
that no harassment arises to the officers of the NCCBM on account of their
having exercised their authority under the RTI Act, lest this be construed as an
attempt to obstruct furnishing of information and thus inviting penalty u/s 20 (1).
For this purpose, a copy of this Decision Notice will also be endorsed to Chief
Secretary, Chattisgarh Shri P Joy Oommen for his information.

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Adjourned in the hearing, this Decision is announced on this ninth day of
April, 2010. Notice of this decision be given free of cost to the parties.

      Sushma Singh                                             ML Sharma
Information Commissioner                                 Information Commissioner



                               (Wajahat Habibullah)
                          Chief Information Commissioner
                                      9.4.2010

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.

(Pankaj K.P. Shreyaskar)
Joint Registrar
9.4.2010

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