CENTRAL INFORMATION COMMISSION
2nd Adjunct to Appeal No.CIC/WB/A/2007/00116 dated 5.2.2007
Right to Information Act 2005 - Section 19
Appellant - Shri Ajay Ganesh Ubale
Respondent - Central Bureau of Investigation (CBI)
. FACTS
In our Decision of 29.1.2008, we had directed as follows:
“This brings us to the question of disclosure of information sought in
the present case. Section 8(1) (h) exempts from disclosure any
information which would “impede the process of investigation or
apprehension or prosecution of offenders”. The language used in
the provision indicates that mere continuation of prosecution or
process of investigation is not enough to deny information to an
information seeker under the RTI Act, unless the disclosure of such
information would impede the process of investigation or
apprehension or prosecution of offenders. Insofar as this case is
concerned, a revision petition has been filed before the High Court
which is still pending. Mere pendency of a revision petition is not
enough to substantiate that the disclosure of information would in
any way impede the prosecution. The respondents have failed to
establish before us that the disclosure of information would in any
way do so. The Commission is, therefore, of the view that the
denial of information under Section 8(1) (h) in the present case
cannot be held to be justified. The issue is decided accordingly.
The CPIO is now, therefore, directed to provide the information to
the appellant within 3 weeks from the receipt of the decision, and
will submit a report to this Shri Pankaj Shreyaskar Jt Registrar of
this Commission certifying the manner in which the decision has
been complied with.”
Subsequently we received complaint of non compliance from the appellant
following which the compliance report from the CPIO, CBI had been sought.
CPIO, CBI has informed by a letter dated 23.5.09 that “all the available
documents in the branch were shown to Shri Ajay G. Ubale on 29.02.2008.
However, Shri Ajay G. Ubale requested some more documents as mentioned in
Annexure C of his letter. Efforts were made to find out any other documents that
remain to be shown to him available in any other branch or in the Malkhana of
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Special Crime Branch. Out of 11 mentioned in the Annexure C, only 4 were
found to be available. Shri Ajay G. Ubale was informed over telephone and also
an official of CBI was sent to his residence with a message to come to CBI, SCB
Mumbai office at Belapur and inspect the documents as requested by him.”
On the other hand, the Commission has received yet another e-mail from
the appellant in which he informed the Commission that two CBI officials were
sent to his residence without any official communication from the CBI office and
asking his wife to give in writing that he is not in town. In his view this act of the
CBI is malafide and amounts to intimidation.
The Commission has already passed an order to provide all the information
to the appellant and accordingly CBI submits that orders have been complied
with whereas the appellant insist that orders have not been complied with.”
Treating this as a complaint, this Commission appointed Shri Tarun Kumar, Jt.
Secretary and Addl. Registrar, Central Information Commission to conduct an
enquiry into the matter. Consequently Shri Tarun Kumar in his report of
12.1.2009 reported as follows:
“3. Shri Ajay Ubale had pointed out in his letter dated 29.3.2008
registered in the Commission on 25.4.2008 vide its diary no.
17199/08 accordingly on 8th October, 2008 office of CBI
conducted SP, CBI/SCB, Mumbai by the undersigned.
4. As per the notice of the inquiry the SP, CBI/ SCB vide its
letter dated 3rd October, 2008. The CPIO was directed to
produce all the records in original as per Annexure-C
including those documents which were located in Tanna
office where the inquiry against Shri Ajay Ubale the appellant
was initiated by the CBI.
5. During the inquiry on 8.10.2008, the SP, CBI (CPIO)
arranged for all the files available and Shri Ajay Ubale was
asked to peruse and examine all the documents in my
presence. After examination by Shri Ajay Ubale, Annexure
C-1 was prepared keeping in view the files which were made
available for inspection. From the perusal of this Annexure
C-1, it may be seen that only 2 files and 1 case diary listed in2
serial no. 1, 3 & 10 could not be made available for
inspection.
6. With regard of serial no. 10 case diary of N. Sarwade, SP,
CBI/ ACB, it was stated by the CPOIO that case diary is not
written at the level of SP, CBI. There is no such document
as listed on serial no. 10 i.e. this case diary of N. Sarwade,
SP, CBI, ACB. However, SP, CBI (CPIO) was conscious
enough to seek more time for making, therefore, search of
those documents which could not perused on 8.10.2008.
7. Accordingly, vide letter dated 10th October 2008 issued from
Camp office in Mumbai a further time of 10 days was given
to SP, CBI to locate these documents and make them
available for inspection by Shri Ajay Ubale. However, vide
FAX dated 17.1.2009 further time was sought which was
granted for recovering/ locating the necessary files.
8. Thereafter vide letter dated 14.12.2008 the CPIO has
informed as under:-
“In this connection, it is submitted that all efforts were made by the
concerned officers/ officials of this branch to find out about
the status of the case files mentioned in your above
mentioned letter. All; concerned officers have reported that
no such files are available in their office. Hence these files
are not available.” (Flag C).
9. In view of this, it is therefore, clear that as per Annexure C
submitted by Shri Ajay Ubale with his petition for non
compliance and Annexure C-1 prepared during the course of
inquiry and verification of records, the following three files/
documents as listed in the Annexure C-1 were stated to be
not available in the office of the CPIO, CBI,SCB, Mumbai:-
(1) Files for receipt of complaint on 16.7.2001 from Navin
Dubey/ note sheet processing and action taken.
(3) Files for processing request dated 17.7.2001 to
Central Bank and Bank of Baroda.
(10) Case diary of N. Sarawade, SP, SCI, ACB.
Thus in view of the above factual position it is evident that after
several opportunities and time given the CPIO, CBI despite his best
efforts has not been able to produce the above mentioned
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documents and his last letter dated 14.12.2008 he has confirmed
that the said information is not available.”
On the basis of the above enquiry report, we decided that a final hearing
will be held on the complaint of Shri Ajay G. Ubale of Mumbai regarding non
compliance of decision of this Commission followed by adjunct of 29.1.08. A
copy of the enquiry report was sent to both the parties and a final hearing held on
3.6.2009. The following are present:
At NIC Studio, Mumbai
Appellant
Shri Ajay G. Ubale
Respondent
Shri Amitabh Thakur, SP, Special Branch, CBI
At NIC Studio, Hyderabad
Respondent
Shri Laxmi Narayan, DIG, ACB, CBI
Enquiry Officer at CIC Studio, New Delhi.
Shri Tarun Kumar, Jt. Secretary & Addl. Registrar, CIC
Shri Amitabh Thakur, SP, Special Branch, CBI Mumbai submitted that
every effort has been made to trace the records which are not in the possession
of CBI. Shri Ajay G. Ubale on the other hand submitted that because of the
action of the CBI he has sought permission for prosecution first from the
Department which was refused and at present from High Court of Mumbai before
whom the case is pending. Union of India through Ministry of Home Affairs in
that case has submitted an affidavit referring to some documents which are part
of the files in processing the request dated 17.7.2001 addressed to the Central
Bank of India and Bank of Baroda of which they are custodian and on the basis
of which they have contended operational exigencies for taking the action which
they have taken. This would imply that such documents do exist on the basis of
which they have pleaded ‘operational exigency’. In either case, there has been
an attempt to conceal the facts, either by the Ministry of Home Affairs, which has
then relied on documents that they do not possess and have, therefore, filed a
false affidavit, or the documents are indeed in their possession and they have
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falsely denied the existence of existing records to the4 applicant in violation of
the RTI Act.
DECISION NOTICE
From the above it is now clear that the only matter pending disclosure is
the question of files for processing the request dated 17.7.01 addressed to
Central Bank of India and Bank of Baroda with the issue being whether these
files are held by, in the possession of the CBI or under their control or not. It is
now open to complainant Shri Ubale to use the information provided by the SP,
CBI, ACB with regard to these documents to challenge the affidavit submitted by
the respondents in the case initiated by him before the High Court of Mumbai. If
in conclusion of these judicial proceedings the Hon’ble High Court of Mumbai
finds malafide denial of a request for information calling for further action under
u/2 20(1) of the RTI Act, this will be acted upon by this Commission. The
complaint is disposed of accordingly.
Announced in the hearing. Notice of this decision be given free of cost to
the parties.
(Wajahat Habibullah)
Chief Information Commissioner
3.6.2009
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)
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Joint Registrar
3.6.2009
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