CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2008/01138 dated 25.6.2008
Right to Information Act 2005 - Section 19
Appellant - Shri Anees Ali Khan
Respondent - Central Bureau of Investigation (CBI)
Date of hearing: 14.1.2010
Decision announced: 22.1.2010
Facts
:
By an application of 3.12.07 Shri Anees Ali Khan of Bengaluru
approached the SP, CBI, EOU-IV New Delhi seeking the following
information concerning case No. 545/2000 of Upparpet P.S.:
1. “Copy of Final report – I
2. Copy of Final Report – II
3. S. P. Report
4. Orders of Head Office”
To this Shri Anees Ali Khan received a response dated 18.12.07
through Shri S. K. Peshin, SP, CBI requesting him to pay the fee which
Shri Anees Ali Khan did with his letter of 23.1.08. Consequently, the
information sought by Shri Anees Ali Khan was refused by CPIO Shri S. K.
Peshin, SP, CBI, EOU-VI by letter of 1.2.08, as follows:
“It is to inform you that your application for aforesaid
documents has been rejected u/s 8(1) (h) of RTI Act, 2005”
Shri Anees Ali Khan then moved an appeal before Shri Rajiv Singh,
DIG, CBI, EO-II on 25.2.08 pleading as follows:
“It is brought to your kind knowledge that the above request
is made on behalf of Vali Basha who as Sub Inspector of
Upparpet Police Station, has assisted investigating agency
in the above case, which subsequently has been taken over
by CBI, and hence section 8(1) (h) is not applicable, and the
above mentioned copies may be supplied at the earliest as
provided under the Act, necessary charges may be
intimated.”
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Upon this Shri Rajiv Singh, DIG, CBI, EO-II New Delhi, in his order
of 4.3.08 concluded as follows:
“A) The aforesaid case is subjudice and presently
undergoing trial in the Court of Spl. Judge against a
number of accused against whom charges have been
framed earlier and so far more than 293 witnesses
have been examined in the Court and their evidences
has already come on record.
B) The FR-1 and FR-II contained the details of the
analysis of the evidence in the case based on which
CBI HO had passed final orders in the matter and
parting away of the evidence would impede and
prejudice the prosecution case by causing breach of
confidentiality of the evidence. In this case through
established procedure the details of the evidence had
been placed before the Court along with various
categories of documents cited in the charge sheet
and parting away of these documents would give an
unfair advantage to any person over the prosecution,
in case these reports are provided.
C) Opinion and views given by different persons in these
files may be selectively used by applicant at any
stage / forum which can adversely affect the outcome
of the case.
D) Parting away with the said reports, shall pre-empt the
trial and impede the process of trial.
Hon’ble Supreme Court has also held that notings made by
a Govt. officer is a privileged document in case State of
Bihar vs. Kripalu Shankar ( AIR 1987 Supreme Court 1954).
The matter is under trial and any decision to provide the
information sought for will have serious and wider
implications on thousands of cases pending in the Court and
it may mean creating parallel machinery for trial of all such
cases.”
Appellant Shri Anees Ali Khan’s prayer before us in his second
appeal is as below:
“It is learnt from reliable sources that the CBI has sent
final reports after thorough investigation in the case, the
role of the police officers of State of Karnataka is2
highlighted in page Nos. 23 and 24 of the final report -II,
hence the same is required by my client to defend
himself in the departmental proceedings of state of
Karnataka and not against the CBI.”
The appeal was heard with arrangement for videoconference on
14.1.10. The following are present:
RESPONDENTS
Shri Rajiv Singh, DIG
Shri S. K. Peshin, SPAlthough arrangements had been made for video conference with
NIC Bengaluru and NIC Office opened specifically for the purpose,
although the day was a holiday in Bengaluru, both appellant Shri Anees
Ali Khan and his principal Shri Vali Basha have opted not to appear.
Respondents Shri Rajiv Singh, DIG submitted that what appellant
has asked for is FR-I & FR-II, which are in fact the collection of case
diaries and other information compiled in order to pursue the prosecution.
This information is not even submitted to the Court, because it provides
the substance of the CBI’s case for prosecution. For this reason the
disclosure of this information to the accused would compromise the entire
prosecution and could be misused. Shri Rajiv Singh submitted that in this
case there were 67 accused and 123 witnesses. However, Shri Vali
Basha, the principal of appellant Shri Anees Ali Khan is not listed as an
accused although departmental proceedings are indeed being pursued
against him. He is, however, an accused in another CBI case also
associated with the same crime.
DECISION NOTICE
On the issue of case diaries, this Commission has in a number of
cases notably Appeal No.CIC/WB/A/2007/00408; Ranjit Singh vs.
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Central Bureau of Investigation, announced on 17.7.08, come to the
following conclusion:
“Sec. 172 Cr.P.C. laid down, as follows:
(1) Every police officer making an investigation under this
Chapter shall day by day enter his proceeding in the
investigation in a diary, setting forth the time at which
the information reached him, the time at which he
began and closed his investigation, the place or
places visited by him, and a statement of the
circumstances ascertained through his investigation.
(2) Any Criminal Court may send for the police diaries of
a case under inquiry or trial in such court, and may
use such diaries, not as evidence in the case, but to
aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to
call for such diaries, nor shall he or they be entitled to
see them merely because they are referred to by the
court; but, if they, are used by the police officer who
made them to refresh his memory, or if the court uses
them for the purpose of contradicting such police
officer, the provisions of section 161 or section 145,
as the case may be, of the Indian Evidence Act, 1872
(1 of 1872), shall apply.”
On that basis this Commission had pronounced the following
decision:
“Having heard the arguments and examined the documents,
we find that the question of disclosure hinges on the issue of
law i.e. the application of Sec. 172 Cr.P.C. to this case. As
is clear from the quote from Cr.P.C. above, the information
sought by appellant, if given in the form that is requested,
would amount to violation of sec. 172 Cr.P.C. under which
this document is privileged even with regard to the accused.
On the other hand we have before us the decision of
disclosure u/s 8(1) (h) of Hon’ble Ravinder Bhat J. in W.P.
No. 3114/2007 – Shri Bhagat Singh vs. C.I.C. & Ors. of High
Court of Delhi, in this case Hon’ble Ravinder Bhat J. has
held as follows with specific regard to Sec. 8(1)(h):….”
Thereafter the ruling of the Delhi High Court in the above has been
quoted in detail. Although the response of CPIO Shri S. K. Peshin, SP,
CBI of 1.2.’08 is indeed flawed in light of the decision in W.P. No.
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3114/2007, from the arguments placed before us and specifically the order
of 4.3.08 of Shri Rajiv Singh, DIG CBI EO-II, respondents have in fact
closely argued the manner in which the disclosure of the information
sought by appellant in the present case would indeed impede the process
of prosecution, concluding with the remark that “parting away with the said
reports, shall pre-empt the trial and impede the process of trial”.
However, we find that in his order on appeal of 4.3.08, DIG Shri
Rajiv Singh has relied on decision of Supreme Court in State of Bihar vs.
Kripalu Shankar AIR 1987 SC 1954. Such a ruling cannot now hold in
light of the promulgation of the RTI Act, 2005, section 22 of which lays
down as follows:
“Sec. 22
The provisions of this Act shall have effect notwithstanding
anything inconsistent therewith contained in the Official
Secrets Act, 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.”
On the other hand, file noting like any other information is included
in exemption from disclosure u/s 8(1) (h). The question in this case,
therefore, is whether disclosure of the information sought by appellant Shri
Anees Ali Khan in the present case qualifies for exemption from disclosure
being information, the disclosure of which would impede the process of
prosecution.
Although afforded an opportunity to counter the arguments of
respondents, with a copy of the order of 4.3.08 already being in his hand,
appellant Shri Anees Ali Khan has opted not to appear before us nor has
he sought to counter these arguments in his appeal of 20.6.08 before us.
For these reasons, we find no merit in this appeal, which is hereby
dismissed.
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Reserved in the hearing, this decision is announced in open
chambers on this 22nd day of January, 2010. Notice of this decision be
given free of cost to the parties.
(Wajahat Habibullah)
Chief Information Commissioner
22.1.2010
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 Shreyaskar)
Joint Registrar
22.1.2010
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