CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2008/01257 dated 18.7.2008
Right to Information Act 2005 - Section 19
Appellant - Shri S. K. Bansal
Respondent - Central Bureau of Investigation (CBI)
Decision announced 31.12.'09
Facts
:
By an application of 9.5.08 Shri Sunil Kumar Bansal, Dy. Chief Engineer
(Works), Southern Railway, Chennai applied to the SP, CBI AC Wing, Kochi,
seeking the following information:
“I request you kindly to supply me with the following information u/s
6 of Right to Information Act, 2005:-
a) Certified copy of the final report prepared by the CBI in
connection with the above agreement.
b) Certified copy of the correspondence exchanged between
CBI and railway administration.
c) Certified copy of the official recommendation made by the
CBI to take up departmental action against the officers and
staff connected with the above agreement.
d) Certified copy of the relevant noting file.
I state that Section 8 (1) (h) of RTI Act 2005 are not applicable to
my case as has been held by the Hon’ble High Court of Delhi in
Bhagat Singh vs. Central Information Commission. The full text of
the above judgment is available in the Central Information
Commission official website. In addition, I would also request you
to kindly refer to Central Information Commission’s decision No.
1972/IC(A)/2008 dated 20.2.2008 in the case of Shri Naresh Chand
vs. Department of Telecommunications and CBI, which is also
applicable to my present request.”
To this Shri Sunil Kumar Bansal received a response dated 3.6.08 from
SP, CBI, SPE Kochi informing him as follows:
“Copy of the 3 charge sheets (final reports) alongwith copy of
documents in these cases to be provided to the accused persons
have already been furnished to the Hon’ble Court of Special Judge-
II, CBI, Ernakulam. In case, another copy of charge sheets (final
reports) filed in the above said cases is required by you, it is1
requested to make an additional payment of Rs. 132/- i.e. at the
rate of Rs. 2/- per page for 66 pages towards the charges for
furnishing the copy of final reports.
With regard to the supply of copies of documents requested by you
vide Sl. Nos. (b) (c) and (d) in all the 3 applications, it is intimated
that your request stands rejected u/s 8 (1) (h) of RTI Act.”
Aggrieved Shri Bansal moved an appeal before the DIG CBI Chennai
pleading specifically, as below:
“2.1) I state that invariably in all the cases investigated by them
the CBI officials prepare the final report after they conclude
their investigations. Based on the said final report only, CBI
files charge sheets against the accused persons. In other
words, the final report is the ‘Mother’ and the charge sheet is
its ‘off-shoot’.
2.2) What I wanted is the certified copies of the Final Reports
prepared by the CBI in connection with the aforesaid three
agreements. However, the CPIO has misunderstood the
same for the charge sheets filed against me. I do not
(repeat-do not) require additional copies of the charge
sheets. I request that the CPIO, CBI, Cochin may kindly be
directed to supply me the final reports prepared by the CBI in
connection with Agreements No. 437/CN/99 dated
17.11.1999, No. 155/CN/99 dated 15.4.1999 and no.
205/CN/199 dated 28.5.1999.
3.0) Provisions of Section 8 (1) (h) of the RTI Act, 2005 are not
applicable. Insofar as other documents are concerned, the
CPIO has refused to supply me the same taking recourse to
section 8 (1) (h) of the RTI Act, 2005. I would bring to your
kind notice that for taking recourse to section 8 (1) (h) of the
RTI Act, 2005, the CPIO has not assigned any reason,
whatsoever, which practice has been deprecated by the
Hon’ble Central Information Commission in many a case.
4.0) In fact, in my RTI applications dated 9.5.2008 itself, I had
brought to the notice of the CPIO that Section 8 (1) (h) is not
applicable to my case, as has been held by the Hon’ble High
Court of Delhi in Bhagat Singh vs. Central Information
Commission. In addition, I also brought to the notice of the
CPIO the decision rendered by the CIC in Naresh Chand vs.
Department of Telecommunications & CBI Decision No.
1972/IC(A)/2008 dated 20.2.2008. Unfortunately, the CPIO
has brushed aside the above and rejected my request taking
recourse to Section 8 (1) (h) of the RTI Act, 2005, that too
without assigning any reason.”
2
In his order of 1.7.08, however, DIG CBI ACR Chennai has, without
debating the merits of applying the ruling of the High Court of Delhi to this case,
dismissed the appeal as follows:
‘2. Regarding your request regarding certified copy of final
report prepared by the CBI in connection with the above
agreement 1 :
According to section 8 (1) (h) of the RTI Act, 2005, there
shall be no obligation to give any information which would
impede the process of investigation or apprehension or
prosecution of offenders. As the information sought by you,
if furnished, would impede the prosecution of offenders, the
same cannot be furnished.
3. Regarding your request regarding (a) certified copy of
correspondence exchanged between CBI and railway
administration, (b) certified copy of the official
recommendation made by the CBI to take up departmental
action against the officers and staff connected with the
above agreement and (c) certified copy of the relevant noting
file:
In connection with the above, the officers concerned have
recorded these noting in belief and good faith for the
superior officer and with confidence and trust that these
would never be disclosed to anyone. As these are in the
form of fiduciary relationship and invoking section 8 (i) (j) of
RTI Act, the above said information cannot be furnished.”
This has brought Shri Bansal in second appeal before us with the
following prayer:
“a) Set aside the letter no. DP/CHN/2008/3683/C78-(viii)/RTI/
06/SPE/KER dated 3.6.2008 of the 1st Respondent herein;
b) Set aside the letter no. RTI Act 2005/2008 dated 1.7.2008
of the 2nd Respondent herein;
c) Direct the Respondents to supply me all the information
sought for by me in my three RTI applications dated
9.5.2008 and
d) Grant me any other relief(s) the Hon’ble Commission
may deem fit and proper in the circumstances of this
case and thus render justice.”
1
The agreement referred to is that of 17.11.’09 which was the subject of CBI’s enquiry.
3
Shri Bansal has specifically contested the non speaking order of the CPIO
in rejecting his RTI application and the applicability of exemption either u/s 8(1)
(h) or 8(1) (j) in his case. Subsequently, Shri Bansal has informed us of a change
of his address from Chennai to Kolkata.
The appeal was heard by videoconference on 31.12.2009. The following
are present:
Appellant at NIC Studio, Kolkata
Shri Sunil Kumar Bansal.
Respondents at NIC Studio Kochi / Chennai
Ms. Shiny, SP, CBI, Kochi
Shri Ashok Kumar, Jt. Director, CBI
Ms. Shiny, SP, CBI Kochi submitted that there was no separate
correspondence or report of the investigation in this case but all form part of the
same report, which also contains the CBI Counsel’s advice on the manner in
which the prosecution requires to be conducted. Disclosing this information to
the appellant will undoubtedly impede the whole process of prosecution since it
will give to the accused the entire line of reasoning intended to be taken by the
prosecuting agency before the Court. Nevertheless, the final report that has
been submitted to the Court is now part of the charge-sheet which has already
been provided to the appellant, as it is to all accused. Jt. Director Shri Ashok
Kumar further submitted that u/s 91 Cr.P.C. Shri Bansal, being an accused, has
the liberty to approach the Court to obtain any information with regard to the
prosecution, which he deems necessary to support his defence. However, there
is no difference between the final report of the CBI and the charge-sheet
because it is the final report based on the investigation which constitutes the
charge-sheet at the time of initiation of prosecution before the Trial Court. On the
other hand, the CBI does indeed have a file on the subject, which contains noting
based on information provided by different officers and sources which in a
vigilance case requires careful protection. Disclosing such information will
compromise the entire process of prosecution and open those sources to
unwarranted pressures. Hence, he has pleaded a fiduciary relationship and
4
invasion of privacy seeking exemption from disclosure under sub=sections *e)
and (j) of Sec. 8 (1).
Appellant Shri Bansal on the other hand submitted that there is a
difference between the final report and the charge sheet. He had indeed
received a copy of the charge-sheet but he wished to know the conclusions on
which the investigating agency has come, on the basis of which he is being
prosecuted, in order to defend himself. This information may now be provided.
DECISION NOTICE
In this case what Jt. Director CBI Sh. Ashok Kumar has pleaded in the
hearing is neither exemption from disclosure u/s 8(1) (h) nor 8(1) (j) but rather
exemption from disclosure u/s 8(1) (g) which reads as follows:
“information, the disclosure of which would endanger the life or
physical safety of any person or identify the source of information or
assistance given in confidence for law enforcement or security
purposes;”
It is quite possible to make disclosure within the principle of severability
under sub sec. (1) of Sec. 10 without disclosing the identity of the source of
information or assistance given in confidence through notings or even reference
in any final report. What stands acknowledged in the hearing is that there is a
report prepared by the CBI recommending prosecution, which is different to the
final report, which becomes part of the charge-sheet. It is this report which not
having been submitted to the Court cannot be deemed to be the property of the
Court, but is in fact held by and under the control of the public authority i.e. the
CBI. The question is, therefore, can this information be disclosed?
In the Delhi High Court ruling in W.P. No. 3114/2007 Bhagat Singh vs.
Chief Information Commissioner, Hon’ble Ravinder Bhat J. has held as
follows:
5
“11. “The Universal Declaration of Human Rights, adopted by the
United Nations in 1948, assured by Article 19, everyone the right
“to seek, receive and impart information and ideas through any
media, regardless of frontiers”. In Secretary Ministry of Information
and Broadcasting, Govt. of India and others vs. Cricket Association
of Bengal and others (1995 (2) SCC 161) the Supreme Court
remarket about this right in the following terms:
“The right to freedom of speech and expression includes the
right to receive and impart information. For ensuring the free
speech right of the citizens of this country, it is necessary
that the citizens have the benefit of plurality of views and a
range of opinions on all public issues. A successful
democracy posits an “aware” citizenry. Diversity of opinions,
views, ideas and ideologies is essential to enable the citizen
to arrive at informed judgment on all issues touching them.”
This right to information, was explicitly held to be our fundamental
right under Article 19 (1) (a) of the Constitution of India for the first
time by Justice K. K. Mathew in the State of UP vs. Raj Narain,
(1975) (4) SCC 428. This view was followed by the Supreme Court
on a number of decisions and after public demand, the Right to
Information Act, 2005 was enacted and brought into force.
12. 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 powers. 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’s 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
6
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.
This ruling has been subsequently quoted approvingly in further rulings of
the Delhi High Court notably in the comprehensive decision of Hon’ble Sanjeev
Khanna J. of 30.11.09 in WP (CIVIL) NOS.8396/2009, 16907/2006, 4788/2008,
9914/2009, 6085/2008, 7304/2007, 7930/2009 & 3607 of 2007, Ministry of
Personnel, Public Grievances & Pensions & Ors vs. Central Information
Commission, PD Khandelwal & Ors., in which the learned judge has further
developed this ruling as follows with a bearing on the issue here.
“85. Mere pendency of investigation, or apprehension or
prosecution of offenders is not a good ground to deny information.
Information, however, can be denied when furnishing of the same
would impede process of investigation, apprehension or
prosecution of offenders. The word ‘impede’ indicates that
furnishing of information can be denied when disclosure would
jeopardize or would hamper investigation, apprehension or
prosecution of offenders. In Law Lexicon, Ramanatha Aiyar 2nd
Edition 1997 it is observed that the word ‘impede’ is not
synonymous with ‘obstruct’. An obstacle which renders access to
an inclosure inconvenient, impedes the entrance thereto, but does
not obstruct it, if sufficient room be left to pass in and out. ‘Obstruct’
means to prevent, to close up.
86. The word ‘impede’ therefore does not mean total obstruction
and compared to the word ‘obstruction’ or ‘prevention’, the word
‘impede’ requires hindrance of a lesser degree. It is less injurious
than prevention or an absolute obstacle. Contextually in Section
8(1)(h) it will mean anything which would hamper and interfere with
procedure followed in the investigation and have the effect to hold
back the progress of investigation, apprehension of offenders or
prosecution of offenders. However, the impediment, if alleged, must
be actual and not make belief and a camouflage to deny
information. To claim exemption under the said Sub-section it
has to be ascertained in each case whether the claim by the
public authority has any reasonable basis. 2 Onus under Section
19(5) of the RTI Act is on the public authority. The Section does not
2
Emphasis ours7
provide for a blanket exemption covering all information relating to
investigation process and even partial information wherever
justified can be granted. Exemption under Section 8(1)(h)
necessarily is for a limited period and has an end point i.e. when
process of investigation is complete or offender has been
apprehended and prosecution ends. Protection from disclosure will
also come to an end when disclosure of information no longer
causes impediment to prosecution of offenders, apprehension of
offenders or further investigation.”
The learned justice has then gone on to rule, in the context of disclosure
of postmortem reports while investigation and prosecution are still under process,
that exemption may however be granted when disclosure “would jeopardize and
create hurdles in apprehension and prosecution of offenders who may once
information is made available take steps which may make it difficult and prevent
the State from effective and proper investigation and prosecution.” 3
No doubt respondents have come up with detailed arguments as to how
they feel the disclosure of the information sought will impede the process of
prosecution including equating the final report with the case diaries which are not
disclosable under the law as contended by Ms. Shiny, SP, CBI, Kochi. These
should have been the reasons given by both CPIO and Appellate Authority to
appellant Shri Bansal at the time of responding to his initial application,
particularly since he had cited the above decision of the Delhi High Court in his
favour. Nevertheless, we have ruled on this matter in a series of decisions of this
Commission. In our Decision Notice of 8.9.’09 in Appeal No.
CIC/WB/A/2008/00622; Ms Suman Tyagi vs. CBI we have held as follows:
“On point No.3 there is an issue of case diaries. It is correct that
case diaries are part of internal investigation and not necessarily
disclosable. However, under the RTI Act 2005 all information that is
held by a public authority is disclosable unless it is exempt from
disclosure. In this case the exemption sought is under Section 8 (1)
(h), which as can be seen from the quotation cited above cannot be
held to exempt the information sought in the present case from
disclosure. However, it is quite possible that in the reports names of
individuals who have assisted the investigation and sources of3
Para 90, in portion dealing with WP( C) no. 7930/2009 Addl Commissioner (Crime) vs. CIC & Anr.
8
information are mentioned that are indeed exempt from disclosure
u/s 8 (1) (g). However, under the severability clause contained in
sub Section (1) of Section 10 it will be possible to disclose the
information sought after deleting the exempted information. “
This followed from upon the following discussion in our analysis of the
record in out decision of this case:
“On point No. 3 Shri Gaur submitted that this information has been
culled from the case diaries which are not disclosable under the
RTI Act and are confidential. However, these reports are also not
part of the documents submitted to the court in connection with this
case. Besides, he submitted that this report is a confidential report
for in-house use of the Department and goes into the internal
discussion of the matter, which could have the effect of
compromising the prosecution.
Shri S. K. Tyagi assisting appellant submitted that these documents
cannot be kept confidential as they concerned the appellant herself,
particularly the information sought at point No. 1, which is a copy of
the statement made by her and can, therefore, in no way be cited
as an impediment to the prosecution.”
In a decision in Appeal No. CIC/SG/A/2009/000015; Prakash Chandra
vs. Directorate of Vigilance, GNCT Delhi announced on 13.4.’09, followed by
levy of penalty for non-compliance on 10.9.’09, we have held as follows:
This judgment 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 result9
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.
This Appeal was allowed. These decisions of this Commission, however,
predate the decision of the Delhi High Court quoted above in WP(C) no.
7930/2009 Addl. Commissioner (Crime) vs. CIC & Anr. The issue now therefore
is whether this Decision will now override the Decisions of this Commission. As
highlighted by us in quoting from this Decision however, is that in deciding upon
accepting this exemption under the said Sub-section we must ascertain, in this
case, whether the claim by the public authority has any reasonable basis. In the
present case, the request for disclosure has two parts:
(i) Request regarding certified copy of final report prepared by the
CBI in connection with the agreement under question.
(ii) Request regarding (a) certified copy of correspondence
exchanged between CBI and railway administration, (b) certified
copy of the official recommendation made by the CBI to take up
departmental action against the officers and staff connected
with the agreement and (c) certified copy of the relevant noting
file.
On these two issues, respondents have successfully established that all
the documents connected with the prosecution of appellant have been submitted
to the Court, and copies provided to appellant. If there any specific documents
that he seeks that are vital to his defence he may seek these by applying under
the law to the trial court. Once the prosecution has been launched, moreover, the
Court becomes the holder of the information and in legal control of all such and is
thus the public authority that alone may grant access in accordance with the
definition of the “right to information” u/s 2(j), notwithstanding even if physical
possession may still be with the prosecuting agency. The recourse under the RTI
Act for appellant Shri Bansal will therefore be as prescribed in sub-section (1) (a)
10
of Sec. 6 of the Act. The decision of CPIO as elucidated by appellate authority
with regard to issue at (i) above is therefore upheld.
On the issue at (ii) above however, this clearly includes information
outside the pale of the trial court. Of this, only providing ‘certified copy of the
relevant noting’ could conceivably have the effect of impeding the prosecution.
The following information will therefore be provided to appellant Shri Bansal
within fifteen working days of the date of receipt of this Decision Notice:
(a) Certified copy of the correspondence exchanged between CBI
and railway administration.
(b) Certified copy of the official recommendation made by the CBI to take
up departmental action against the officers and staff connected with
the above agreement.
On the request for “certified copy of the relevant noting file”, CPIO Ms
Shiny will reexamine the noting in light of the two rulings of the High Court of
Delhi quoted by us in discussing the present case and, and provide all such
information which would not directly impede the process of prosecution applying
the principle of severability as defined in Section 10 (1) of the RTI Act. This issue
may be disposed of within 15 working days of the date of receipt of this decision
notice. The appeal is thus allowed in part. There will be no cost. However,
because the information now directed to be provided was not provided within the
time frame mandated u/s 7 (1) it will, u/s 7(6) of the RTI Act, 2005, be provided
free of charge.
Reserved in the hearing, this decision is announced on this thirty-first day
of December 2009. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah)
Chief Information Commissioner
31.12.’09
11
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
31.12.’09
12