Shri Vinod Kumar vs Central Bureau Of Investigation … on 29 December, 2008

                         CENTRAL INFORMATION COMMISSION
                           Appeal No.CIC/WB/A/2007/01087 dated 16.11.2007
                              Right to Information Act 2005 - Section 19


Appellant        -          Shri Vinod Kumar
Respondent           -      Central Bureau of Investigation (CBI)


Facts

:

By an application of 23.4.2007 Shri Vinod Kumar of Preet Vihar, Delhi
applied to the SP-1, ACB, CBI seeking the following information:

“It is, therefore, requested that above said FR-I and FR-II may be
issued to the applicant under the provisions of Right to Information
Act, 2005.”

To this he received a response dated 10.5.’07 that the case was at the
stage of trial and the request was denied as per Sec. 8(1)(h) of RTI Act. The
appellant then appealed to the First Appellate Authority on 7.6.07 whereupon
Appellate Authority held that as the accused is facing trial as stated above, the
information sought would impede the process of prosecution. The Appellate
Authority also supported the order of PIO and upheld applicability of sec. 8(1)(h)
in the present case as below.

“I have carefully examined the plea of the appellant. He is
admittedly an accused and facing trial in the above stated criminal
case and as such, the information sought would impede the
process of his prosecution. The SP / CPIO, CBI, ACB, Delhi has,
therefore, correctly invoked the exemption u/s 8(1)(h) of the RTI
Act, 2005. Accordingly, I find no grounds to interfere with the order
of CPIO / SP, CBI, ACD, Delhi passed in the instant matter.”

Being dissatisfied by the order passed by PIO and Appellate Authority, the
appellant has moved his second appeal before us and also referred to the
judgment of Hon’ble High Court of Madras in AIR 1952 Mad. 276 wherein an
order where a section is repeated as an order shall be justified giving valid
reason. Moreover, he has also referred to appeal No. CIC/OK/A/2006/00045
decided on 8.9.06 in which CIC has held that it was not enough to indicate the

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clause, but sufficient reasons for refusing the information under these sections
should also be indicated. Appellant has therefore requested us to

(a) allow this appeal,

(b) set aside the impugned order/letter bearing No. 8497/RTI-41/2007-

DLI dated 9.6.2007 where the Appellate Authority has upheld what
he believes is the otherwise illegal order bearing No.
RTI/CPIO/41/2007-DLI-6357 dated 10.5.07 of the CPIO

(c) consequently direct the respondent / CPIO to provide the copies
FR-1 & FR-II in R.C. No. 42(A)/98 to appellant.”

The appeal was heard on 29.12.2008. The following are present:
Appellant
Sh. Vinod Kumar
Sh. Bhavook Chauhan, Representative for Appellant.
Respondent
Sh. Vineet Agarwal, SP, CBI

DECISION NOTICE

In this case the judgment of the Delhi High Court in W.P.(C)
No.3114/2007 – Shri Bhagat Singh Vs. Chief Information Commissioner &
Ors is of direct relevance, since it deals with the application of sec. 8(1)(h):

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
remarked 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.”

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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 U.P. 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 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 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.

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 vs.
Radha Devi Gupta 2005(2) SCC201; B. R. Kapoor vs. State of Tamil
Nadu 2001 (7) SCC 231 and V. Tulasamma vs. Sesha Reddy 1977(3)

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SCC 99). Adopting a different approach would result in narrowing the
rights and approving a judicially mandated class of restrictions on the
rights under the Act, which is unwarranted.”

In this case the Court took serious notice of the two-year delay in
releasing of information and the lack of adequate reasoning of the orders of PIO
and appellate authority. S Ravinder Bhat J specifically notes, “As held in the
preceding part of the judgment, without a disclosure as to how the investigation
process would be hampered by sharing the materials collected till the notices
were issued to the assessee, the respondents could not have rejected the
request for granting information. The CIC, even after overruling the objection,
should not have imposed the condition that information could be disclosed only
after recovery was made 1 ”

In light of the above decision, which has a direct bearing on the present
case dealing as it does with application of Sec 18 (1) sub-section (h), the
decision of First Appellate Authority Shri R. S. Bhatti, DIG, ACB, CBI is set aside.
The case is remanded to CPIO Shri Vineet Agarwal, SP, CBI who will re-
examine it in light of the above decision of the Delhi High Court and give a
ruling in the matter within ten working days of the date of issue of this
Decision Notice. . If not satisfied with the information so provided, appellant Shri
nd
Vinod Kumar will be free to move a fresh 2 appeal before us as per Sec 19 (3)

Announced in the hearing. Notice of this decision be given free of cost to
the parties.

(Wajahat Habibullah)
Chief Information Commissioner
29.12.2008

1
Para 15 of the judgment.

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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
29.12.2008

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