Central Information Commission
CIC/AD/A/2009/000946
Dated Oct 16, 2009
Name of the Applicant : Mr. Suraj Pal
Name of the Public Authority : M/o Communication & IT
Background
1. The Applicant filed an RTI application on 16.03.2009 with the CPIO, O/o DGM,
MTNL, New Delhi seeking information as to whether call detail records pertaining
to the Applicant’s own prepaid mobile telephone number viz. 98685 97921 were
handed over to any Agency, Crime Branch or any other institution between July
2006 to December 2006. The Applicant further inquired as to which agency or
Institution exactly, had been provided with the said information, if at all.
2. The CPIO in his reply dated 20.04.2009 enclosed letter/s dated 15.04.2009 from
the office of the Manager (A) WS and of the APIO/ GM (O&C) GSM. The APIO &
GM (O&C) GSM in his said letter dated 15.04.2009 denied the information sought
by the Applicant stating that disclosure of such information was exempt under
provisions of Section 8 (1) (h) of the RTI Act 2005. Being aggrieved by the order
of the CPIO, the Applicant filed a First Appeal before the Appellate Authority on
29.04.2009 reiterating the contents of the RTI request. While contending his case
that only Police/prosecution agency may be allowed to use Section 8 (1) (h) of
the RTI Act 2005, the Appellant placed reliance on the decision of Bhagat Singh
vs. CIC & Ors. in WP (No.) 3114/2007 pronounced by the Hon’ble High Court of
Delhi. While disposing off the First Appeal vide the order dated 08.06.2009, the
Appellate Authority enclosed a letter dated 02.06.2009 and its enclosures as
received from the SDE (O) WS. The letter dated 29.05.2009 from the APIO
enclosed alongwith the Appellate Authority’s order dated 08.06.2009 once again
reiterated the CPIO’s order denying information under provisions of Section 8 (1)
(h) and Section 8 (1) (g) of the RTI Act 2005.
3. Being thus constantly deprived of his right to information, the Appellant sought
recourse before the CIC by filing an Appeal dated 18.06.2009 reiterating
sequentially the facts leading to the filing of the Appeal. The Appellant in his
Appeal categorically submitted that the chargesheet in the case pending against
him, had already been submitted before the concerned Court, the Examination-in-
Chief submitted and also most of the cross examination in the case had taken
place. Hence the denial of information by the Respondent Public Authority
invoking the exemption under Section 8 (1) (h) of the RTI Act 2005 is incorrect.
Furthermore, the Appellant has placed reliance on Section 131 of the Indian
Evidence Act, 1872 contending that the Respondent had not only acted in breach
of trust qua the Appellant but also acted in contravention of the Information &
Technology Act, 2000 while providing information about the Call Detail Reports
[CDRs] of the Appellant to anyone without informing or seeking the approval in
this regard from the Appellant himself.
4. The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the
hearing on September 8, 2009.
5. Sh. Parmatma Rai, DGM [RTI & PG], Har Bhagwan, AGM (RTI – Appeal) and Ram
Hari Singh, SE [Legal & RTI] represented the Public Authority.
6. Commander Mukesh Saini (Retd.) representing the Appellant was present through
Video Conference from Tihar Jail during the hearing.
7. During the hearing on 08.09.2009, the Commission after hearing the submissions
of the respective parties, directed the Appellant to submit his written submissions
through fax so as to reach the Commission by 09.09.2009, with a copy marked to
the Respondents.
8. In the written submissions dated 09.09.2009 received by the Commission from
the Appellant from Tihar Jail, the Appellant provided a backdrop of the case
stating that he was being wrongly implicated in the infamous Timarpur encounter
case wherein two dreaded criminals had been killed while trying to crossover and
enter Delhi borders. The Appellant stated that though he was not even present at
the place of the incident, however owing to intra police onemanupship, the
Appellant had been wrongfully roped in. An FIR No. 383/2006 had been lodged,
the chargesheet submitted in the Court on 13.11.2006 and even the charges had
been framed on 29.04.2008. The Appellant clarified that while the prosecution
case was based largely on the CDRs [Call Detail Records], there existed vital
discrepancies in the said CDRs viz.:
a. No authentic proof shown in the Court as to how and when the police got
hold of CDRs;
b. No digital signature applied on the electronic version of the CDRs for
subsequent authentication;
c. CDRs were provided through email using the software ‘Excel’ which could
be easily altered/tampered;
d. The instances of tampering of CDRs had been pointed out to the Nodal
Officer of MTNL, who had conceded on oath that errors shown to him in
the print out could not be due to computer error;
e. The investigating officer stated that he had written a letter to MTNL
thereby implying that he had not written/communicated by any email to
MTNL;
f. Though the Nodal Officer, MTNL submitted before the Court that police did
not record his statement, the Court records indicate otherwise in as much
as statement allegedly made by the Nodal Officer, MTNL exists in the Court
records.
9. The Appellant in his written submission further contended that DGM, RTI, MTNL
while refusing to provide information to the Appellant had stated that he had been
advised to do so by the DCP, Special Cell, Sh. Alok Kumar. The locus standi and
role of the Delhi Police has been challenged by the Appellant in the instant case,
since the Delhi Police is a Third party in this case and unless the provisions of the
Section 11 RTI Act 2005 are invoked, Third Party cannot have any role to play in
any given case. It has furthermore been pointed out that the case relates to the
incident at Timarpur and accordingly the Timarpur Police Station will have
jurisdiction to investigate/inquire into the matter and not the Crime Branch nor
the Special Cell.
10. The Appellant furthermore averred that the Respondent Public Authority viz. MTNL
despite being a Service Provider of mobile connection (SIM Card) has acted in
breach of trust and compromised the privacy of the Appellant without any legal
authority, thereby violating the provisions of the Section 131 of the Indian
Evidence Act, 1872. The Appellant reiterated his contention that the police
authorities could have laid access to the CDRs as stored / transmitted using
computer based networks/computers only by invoking provisions of the Section
69 of the IT Act and Only with the specific approval of the competent authority
viz. the Controller Certifying Authority as envisaged in the Section 69 of the IT
Act. In the light of the foregoing facts of the case, the Appellant strongly opposed
the act of MTNL of having shared information about his Call Detail Records without
seeking his consent/approval or any legal sanction from any competent authority
as per the law. The Appellant alleged that the Respondent on the one hand has
thus committed breach of trust by infringing upon the privacy of the Appellant
without any valid and/or legal consent and has also put up a façade of Section 8
(1) (g) and Section 8 (1) (h) of the RTI Act 2005 in order to protect the illegalities
committed by the MTNL as well as the Delhi Police officials. While making further
submissions stating that giving information is normal and withholding of the same
is exception, the Appellant has placed reliance on the judgment passed by the
Hon’ble High Court of Delhi in the case of Bhagat Singh versus CIC, substantiating
his contentions. In the light of the foregoing discussion, the Appellant concluded
his arguments stating once again that MTNL had no germane reason in denying
the information to the Appellant while the same information had been furnished to
the Police authorities without any prior legal or valid approval.
11. The Appellant, while giving the chronology of the criminal case filed against him,
has also stated that the prosecution has already rested its entire case on the
details furnished in the form of CDRs of the Appellant as mentioned hereinabove
and hence it is imperative for the Appellant to seek information about the same to
defend himself.
12. Pursuant to the Appellant’s submissions dated 09.09.2009 being filed before the
Commission, the Respondent Public Authority communicated to the Commission
telephonically on 14.09.2009 that they had not received any written submission
from the Appellant and were accordingly unable to rebut the contentions of the
Appellant. Hence the Commission, on its own sent another faxed copy of the
Appellant’s submissions to the Respondents on the same date, upon which the
Respondent submitted their rejoinder dated 19.09.2009 before the CIC on
22.09.09.
13. The Respondent Public Authority viz. MTNL in its brief rebuttal dated 19.09.2009
stated that while it has no knowledge about the criminal case/background in this
case, however the matter being sub judice, comments cannot be made till final
disposal of the Court case. The GM (O&C) WS while refusing to share information
with respect to assistance given in confidence to Law Enforcement Agency has
sought the benefit of exemption under Section 8 (1) (g) and also sought
exemption under Section 8 (1) (h) of the RTI Act 2005 while denying the
information on the ground that sharing of such information may impede the
process of investigation or apprehend the prosecution of offenders.
Decision
14. After perusal of all the materials/documents available on record, and also after
taking into consideration the arguments of both the parties, it is evident that the
sharing of Appellant’s call details by the MTNL with the Law Enforcement Agency
without seeking consent/approval of either the Competent Authority or even the
Appellant was clearly unlawful as discussed hereinabove being violation of Section
131 of the Indian Evidence Act, 1872 and the Section 69 of the IT Act as alleged.
In fact the MTNL completely missed sight of the fact that the Respondent Public
Authority held the information pertaining to the Appellant’s Call Detail Records in
a fiduciary capacity. It is evident that the said fiduciary relationship with the
Appellant has already been breached by the Respondent Public Authority as
already discussed. The CIC in its decisions viz. CIC/MA/A/2008/00001/AD dated
05.11.2008 named Mr. Anil Kumar Chakravarthy versus BSNL and
CIC/AD/A/2009/001073 dated 11.09.09 named Mr. Mahesh Chand Jangid versus
BSNL and many other decisions, has clearly held time and again that information
about personal call details is held by any Telecommunication company about its
subscribers in a fiduciary capacity and accordingly, such information is exempt
from disclosure to any Third Party without seeking approval/consent of the
Subscriber/s. In this case, evidently, the Respondent has disclosed personal Call
Details for a specific period, pertaining to the Appellant, to the Delhi Police/ Law
Enforcement Agency without considering the fiduciary capacity in which they held
the information for the Appellant. No other argument about “fiduciary relation”
can hold precedence than the relation of the Respondent with its
subscriber/s/customers. The relation between the MTNL and the concerned Law
Enforcement Agency can by no means be qualified as “fiduciary relation” and the
same is held as non maintainable.
15. Moreover, in view of the fact, that the Court case is also at an advanced stage of
the trial, no investigation/inquiry is pending therein nor can at it be at this stage
affected/impeded/vitiated by furnishing of the information to the Appellant. In any
case it is a matter of right of the Appellant to know as to who had been given the
information against him as much as it is a matter of his right to life and liberty.
The Hon’ble Delhi High Court in the case of Bhagat Singh versus CIC & Ors. has
already clearly held as follows:
“……The Act is an effectuation of the right to freedom of speech and
expression. In an increasingly knowledge based society, information
and access to information holds the key to resources, benefits, and
distribution of power. Information, more than any other element, is of
critical importance participatory democracy. By one fell stroke, under
the Act, the make of procedures and official barriers that had
previously impeded information, has been swept aside. The citizen and
information seekers have, subject to a few exceptions, an overriding
right to be given information on matters in the possession of the state
and public agencies that are covered by the Act. As is reflected in its
preambular paragraphs, the enactment seeks to promote transparency,
arrest corruption and to hold the government and its instrumentalities
accountable to the governed. This spirit of the Act must be borne in
mind while construing the provisions contained therein.
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 self. Under Section 8, exemption from releasing information
is granted if it would impede the process of 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.
16. Thus as is demonstrated from the aforestated arguments, both the grounds of
exemption as sought by the Respondent Public Authority are untenable in law.
The Right to information is explicitly held to form part of our fundamental rights
enhrined under Article 19(1) (a) of the Constitution of India. The Commission
finds absolutely no merit in the arguments of the Respondent Public Authority in
denying the right to information thereby depriving the Appellant of his right to life
and liberty, in the instant case, where he has been languishing in jail and the
information sought by the Appellant seen in that light is a part of natural justice
which he is rightfully entitled to. The Commission accordingly directs the
Respondent Public Authority to furnish the information within a period of 15 days
of receipt of this order.
The appeal is accordingly disposed of as allowed.
The decision in this case was reserved and pronounced in the open court on the
16th October 2009.
(Annapurna Dixit)
Information Commissioner
Authenticated true copy:
(G.Subramanian)
Assistant Registrar
Cc:
1. Mr. Suraj Pal
Ward No. 1(E-9),
Jail No. 1
Tihar,
New Delhi
2. The CPIO
O/o General Manager
K L Bhawan
Janpath, New Delhi
3. The Appellate Authority
O/o PMG, MTNL
II Floor, K L Bhawan
Janpath, New Delhi.
4. Officer in charge, NIC
5. Press E Group, CIC