CENTRAL INFORMATION COMMISSION
Club Building, Near Post Office
Old JNU Campus, New Delhi 110067.
Tel: 91 11 26161796
Decision No. CIC /SG/A/2009/000015/2695penalty
Appeal No. CIC/SG/A/2009/000015
SHOW CAUSE HEARING:
Appellant : Mr. Prakash Chandra,
1646, Type IV, Delhi Admn. Flat,
Gulabi Bagh, Delhi-110007.
Respondent : Mr. Amitabh Joshi,
Assistant Director (Vigilance) & PIO,
Govt. of NCT of Delhi,
Directorate of Vigilance,
Level-4, C-Wing, Delhi Secretariat,
New Delhi-110002.
RTI application filed on : 12/08/2008
PIO replied : 28/08/2008
First appeal filed on : 24/09/2008
First Appellate Authority order : 27/10/2008
Second Appeal filed on : 31/12/2009
The appellant had asked in RTI application for supplying the SP report dated
11/11/1999 with all its enclosures. Copy of letter No. DLI/AC/CR-3/33-A97/2511 dated
07/12/2000 of Director (Vigilance) Govt. of NCT of Delhi. Copy of the note portion of the file
dated 07/12/2000.
S. Information Sought. The PIO replied.
No.
1. In RC 33-A/97 of Anti Corruption Branch of 1 & 2 as per record
CBI, Delhi Branch, dated 06/05/1997 against available with this
Shri K.S. Medena, DANICS and others, Shri Directorate the trial in
Anil Kumar, SP, CBI, Anti corruption Branch, this case is pending in
New Delhi sent a report dated 11/11/1999 to the Court of Special
MHA, a copy of which was also endorsed to Judge, Delhi and as
Director (Vigilance) Government of NCT of such the requisite
Delhi to obtain sanction to prosecute the public information is
servants involved in the said RC. Kindly supply exempted under
the said SP Report dated 11/11/1999 with all its Section 8(1) (h) RTI
enclosures. Act, 2005 and cannot
be provided.
2. Further it is understood that DIGP, Central
Bureau Investigation (ACB) sent a letter to Shri
N.J. Thomas, Under Secretary, MHA and the
said letter is numbered as DLI/AC/CR-3/33-
A97/2511 dated 07/12/2000 of Director
(Vigilance) Govt. of NCT of Delhi. the said
letter is in connection with RC No. 33-A/97
dated 06/05/1997 of CBI, New Delhi and in this
letter the CBI recommended suspension of
public servants involved in the above said RC.
3. Please supply the copy of the said letter dated As above Para 1.
07/12/2000 and the note portion of the file
where the said letter was dealt with in
Directorate of Vigilance.
The First Appellate Authority ordered.
"Both the above said letters are addressed to the Ministry of Home Affairs letter dated
15/11/1999 is also addressed to the Chief Secretary, Delhi but in respect of letter dated 07/12/2000
endorsement has been made to the Directorate of Vigilance.
While, it is correct that Section 8(1) (h) refers to those circumstances where the process of
investigation is going on and such information which could impede the process of investigation
may not be disclosed. There seems some substance in the appeal that process of investigation
having been over, information sought should not have been withheld by the PIO. But at the same
time, it can also not be ignored that investigating agency in the matter referred to by the Appellant
is the CBI. Since the agency has specifically conveyed that the document be treated as
confidential. It would be proper if the views of the agency are obtained. In fact. PIO was expected
to consider this aspect and then take a decision whether the information sought could be supplied
or not.
I, therefore, feel it appropriate to advise the PIO to obtained the views of the CBI
immediately and then based on the views given by the CBI, take further decision on the
Appellant's application. I order accordingly. PIO may seek the views, preferably, with in 10 days
from the issue of this order and then convey the decision within 3 days of the receipt of the reply
form the CBI."
Relevant Facts
emerging during Hearing on 30 March 2009:
The following were present
Appellant: Mr. Prakash Chandra
Respondent: Mr. D. Verma PIO
The respondent claims exemptions under section 8 (1) (g) & (h). They claim it could hinder
prosecution. The SP report is meant for the CBI and the department..
Appellant states investigation is over and the trial is on, hence there can be claim of investigation
being impeded. The appellant has given written submissions and relies on many Court judgements
to argue that the said information must be provided. Respondent submits CIC order
CIC/AT/A/2006/2004, of 30/06/2006 in which a bench had ruled, ‘ this commission consistently
takes the view that matters in the investigation or those taken up in prosecution should not be
disclosed till all proceedings in such cases are over. We uphold therefore the position taken by the
AA and the CPIO that in the present case disclosure is barred by section 81H and section 8 when
she of the RTI act.’
The Order was reserved.
The respondent is given time upto 9 April 2009 to give his written submissions.
Mr. Sumit Sharan Supdt. Of Police has given written submissions arguing that the information
must not be disclosed. The main arguments of the respondent are as follows:
“4. That SP’s report is a confidential document of CBI. It is prepared by taking out information
from the case diaries written by the investigating officer of the particular case. The information
mentioned in the case diaries are given by various persons to the investigating officer for
assistance in the investigation of the case. This information is given by such persons in confidence
for furtherance of law enforcement. The details of the persons who have given such information is
mentioned in the SP’s report along with information which they have provided. The disclosure of
the names and information would endanger life or physical safety of such persons. The
information was also given in confidence and if it is divulged it will cost breach of confidence
which they have reposed in the law enforcement agency. Thus, exemption for providing SP’s
report to see Prakash Chandra who is an accused in the said case, is sought under 8 (1) (g) of RTI
act 2005 is also sought.
5. In the SP’s report all the evidence gathered during investigations are discussed in detail. The
defence taken by the accused Persons is also discussed in this report. The departure of the defence
and line of action to be taken by prosecution is also discussed in detail in this report. If the said
report is provided to the appellant who is the accused in the instant case, then it would enable him
to have privy to the extremely confidential information which is meant for exclusive consumption
of CBI and the concerned department. The appellant/accused will use the confidential information
contained in the SP’s report to delay the trial of the case which is a very crucial juncture and use
the arguments discussed and report for his advantage in the trial of the case in the court. This will
cause grave miscarriage of justice and hinder prosecution at adversely. In view of this exemption
under section 8(1)(h) of RTI act 2005 is also sought.
In support of the argument we would like to bring to your notice following judgement of
Delhi High Court and CIC:-
i) That para 13 of Judgement passed by Justice Ravindra Bhat of Delhi High Court on
13/2/2007 in WP( c) No. 3114/2007 held that ” access to information, under section 3
of the act, is the rule and exemptions under section 8, the exception. Section 8 being a
restriction on this fundamental right, must therefore be strictly construed. It should not
be interpreted in manner as to shadow the very right itself. Under section 8, exemption
from releasing the information is granted if it would impede the process of
investigation or the prosecution of offenders.”
ii) That CIC in appeal no. 38/IC(A)/06 (file no. CIC/OK/A/2006/00037 dtd. 12/12/2006
held that ” the appellant is an accused in the criminal prosecution launched by the
customs and CBI to stop the information sought by the appellant is required to prove
his innocence, which will be provided to him under the law by the prosecuting
agencies and the court of law to ensure justice to him. At this juncture when the
prosecution proceedings have been initiated and is at the advanced stage, exemption
from disclosure of information under section 8(1)(h) has been correctly applied by the
CPIO. The decision of the appellate authority is therefore upheld.”
iii) That CIC in appeal number 39/IC(A)/06 (file number CIC/MA/A/2006/00083 dtd.
15/05/2006 held that ” the matter pertains to corruption involving several officers and
staff, including the appellant. This is indeed an issue of vital public interest. In view of
the pending prosecution in the court of law, which follows a well-established
procedure under the law to ensure natural justice, the disclosure of information as
would, at this stage, impede the process of prosecution of offenders. In all such
matters, disclosure of information under section 8(1) (h) is barred. The decision of the
appellate authority is therefore upheld.”
Decision announced on 13 April, 2009:
The Delhi High Court judgement quoted by the respondent was passed after the orders of the
Commission quoted by respondent. Justice Ravindra Bhat’s order in WP( c) No. 3114/2007 has
clearly stated,
“13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8,
the exception. Section 8 being a restriction on this fundamental right, must therefore is to be
strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under
Section 8, exemption from releasing information is granted if it would impede the process of
investigation or the prosecution of the offenders. It is apparent that the mere existence of an
investigation process cannot be a ground for refusal of the information; the authority withholding
information must show satisfactory reasons as to why the release of such information would
hamper the investigation process. Such reasons should be germane, and the opinion of the process
being hampered should be reasonable and based on some material. Sans this consideration,
Section 8(1)(h) and other such provisions would become the haven for dodging demands for
information.
14. A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal
interpretation. The contextual background and history of the Act is such that the exemptions,
outlined in Section 8, relieving the authorities from the obligation to provide information,
constitute restrictions on the exercise of the rights provided by it. Therefore, such exemption
provisions have to be construed in their terms; there is some authority supporting this view ( See
Nathi Devi v. Radha Devi Gupta 2005 (2) SCC 201; B. R. Kapoor v. State of Tamil Nadu 2001
(7) SCC 231 and V. Tulasamma v. Sesha Reddy 1977 (3) SCC 99). Adopting a different approach
would result in narrowing the rights and approving a judicially mandated class of restriction on the
rights under the Act, which is unwarranted.”
This judgement has effectively overruled the earlier orders of the CIC on this matter. In the instant
case the investigations are clearly over and therefore we would only have to see whether releasing
the information would impede the process of prosecution of offenders. If the basis of prosecuting
the accused is the truth as it exists on the records, it is not possible to understand how it could
impede the process of prosecution of the offender. If there are any details in the SP’s report which
would create any doubts in the mind of the judge who is conducting the trial, this must certainly
be disclosed in the interests of justice. The Commission does not agree with the grounds given by
the respondent to refuse giving the information, and cannot see how the truth could impede the
prosecution. If anything Justice demands that the truth must be placed before the Court. Therefore
the Commission does not find merit in the denial of the information under Section 8 (1) (h).
However we do see merit in the respondent’s grounds of Section 8 (1) (g). If some people have
given information based on which the prosecution has been launched, revealing their identity
could result in some harm to them, and revealing their identities would also reveal the source of
information. The Commission directs that the PIO apply the severability clause of Section 10 and
blank out the names of those who have provided the information in confidence.
The Appeal was allowed. The PIO was directed to give the SP’s report and copy of the said letter
dated 07/12/2000 and the note portion of the file where the said letter was dealt with in Directorate
of Vigilance to the appellant before 5 May 2009.
Relevant facts arising during the show cause hearing on 10/09/2009:
The following persons were present:
Appellant: Mr. Prakash Chandra
Respondent: Mr. Amitabh Joshi, PIO
The PIO Mr. Amitabh Joshi says he has not provided the information though the Commission had
issued an order on 13/04/2009 directing him to give the information to the Appellant before
05/05/2009. The order was delivered to Mr. D Verma, PIO, Vigilance on 13/04/2009. He has
brought written submissions which he has given to the Commission. The PIO Vigilance Mr.
Amitabh Joshi states that he wrote to the SP of CBI on 22/04/2009 the following:
“We would like to bring to your notice that CIC vide its order dated 13.042009 (copy
enclose) has directed PIO, DOV to give the SP’s report (in RC 33-A/97 of Anti Corruption Branch
of CBI, Delhi Branch), copy of said letter dated 07.12.2000 and the note portion of the file where
the said letter was dealt with Directorate of Vigilance to the appellant before 05/05.2009.
In this regard, I am to inform you that this Directorate shall be complying with the
aforementioned direction of CIC. If CBI requires any clarifications it may approach CIC directly,
before 05.05.2009 under intimation to the Directorate, before the said date.”
On 28/04/2009 the SP of CBI sent him a letter stating that the matter was considered by CBI. On
04/05/2009 CBI wrote to him not to supply the copy of the SP’s report since they were planning to
file an appeal in Delhi High Court. On 15/05/2009 CBI has sent a letter to him stating that an
Appeal has been filed on 12/05/2009 in the High Court against the order of the Information
Commission and that he should not supply copy of the SP report to the Appellant till the disposal
of the Appeal. The PIO admits that to the best of his knowledge no writ has not been filed so far
and no stay has been obtained.
The Appellant states that he has not received any notice of any writ nor has the Commission.
Given the circumstances if neither the Appellant nor the Commission has received any notice of a
writ, it seems unlikely that any writ has been filed. The Respondent PIO had a statutory order
issued by the Information Commission and he did not bother to inform the Commission that he
planned not to comply with its order. It is apparent that the PIO has chosen to defy the orders of a
statutory authority willingly.
The Supreme Court in Ghaziabad Development Authority v. Balbir Singh AIR 2004 SC 2141
has held that “unless there is a stay obtained from a higher forum, the mere fact of filing an
appeal/revision will not entitle the authority to not comply with the order of the Forum. Even
though the authority may have filed an appeal/revision, if no stay is obtained or if stay is
refused, the order must be complied with. In such cases the higher forum should, before
entertaining the appeal/revision, ensure that the order is first complied with”.
The PIO admits that no stay has been obtained and he is aware of this fact. Inspite of this he has
chosen not to comply with the directions of the Commission from 05/05/2009 onwards. The PIO
has given no reasonable cause for refusing to comply with the orders of the Information
Commissioner. A PIO cannot take refuge in the excise that he asks any public authority and if the
public authority tells him not to release the information, he is justified in following the orders of
such a public authority. The PIO chose to defy the Commission’s order for a period of over 4
months. The PIO had no evidence of any legally valid stay having been obtained against the
Commission’s order. Since the delay is already over 100 days the Commission sees this as a fit
case for the levy of maximum penalty of Rs. 25,000/- as per Section 20(1) of the RTI Act. The
Commission once again directs the PIO to provide the information to the Appellant before
19/09/2009 failing which it will recommend disciplinary action to be taken against him under the
provision of Section 20(2) of the RTI Act.
Decision:
As per the provisions of Section 20 (1), the Commission finds this a fit case for levying
penalty on Mr. Amitabh Joshi, Assistant Director Vigilance & PIO. Since the delay in providing
the information has been over 100 days, the Commission is passing an order penalizing Mr.
Amitabh Joshi Rs. 25000/ which is the maximum penalty under the Act.
The Chief Secretray of GNCT of Delhi is directed to recover the amount of Rs.25000/-
from the salary of Mr. Amitabh Joshi, and remit the same by a demand draft or a Banker’s Cheque
in the name of the Pay & Accounts Officer, CAT, payable at New Delhi and send the same to Shri
Pankaj K.P. Shreyaskar, Joint Registrar and Deputy Secretary of the Central Information
Commission, 2nd Floor, August Kranti Bhawan, New Delhi – 110066. The amount may be
deducted at the rate of Rs.5000/ per month every month from the salary of Mr. Amitabh Joshi and
remitted by the 10th of every month starting from October 2009. The total amount of Rs.25000 /-
will be remitted by 10th February 2010.
Shailesh Gandhi
Information Commissioner
10 September 2009
1- The Chief Secretary
GNCT of Delhi
Delhi Sachivalaya, IP Estate
New Delhi 110002
2- Shri Pankaj K.P. Shreyaskar,
Joint Registrar and Deputy Secretary
Central Information Commission,
2nd Floor, August Kranti Bhawan,
New Delhi - 110066