{"id":154283,"date":"2009-08-25T00:00:00","date_gmt":"2009-08-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/brig-ujjal-dasgupta-vs-cabinet-secretariat-on-25-august-2009"},"modified":"2017-12-16T07:06:45","modified_gmt":"2017-12-16T01:36:45","slug":"brig-ujjal-dasgupta-vs-cabinet-secretariat-on-25-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/brig-ujjal-dasgupta-vs-cabinet-secretariat-on-25-august-2009","title":{"rendered":"Brig. Ujjal Dasgupta vs Cabinet Secretariat. on 25 August, 2009"},"content":{"rendered":"
Central Information Commission<\/div>\n
Brig. Ujjal Dasgupta vs Cabinet Secretariat. on 25 August, 2009<\/div>\n
                CENTRAL INFORMATION COMMISSION\n                 Appeal No. CIC\/WB\/A\/2009\/00182 dated 24-2-2009\n                    Right to Information Act 2005 - Section 19\n\nAppellant:           Brig. Ujjal Dasgupta\nRespondent:          Cabinet Secretariat.\n\n\nFACTS<\/pre>\n
1. By an application of 29-10-2008 Brig. Ujjal Dasgupta now lodged in Tihar
\nJail applied to the CPIO, RTI Cell, Cabinet Secretariat seeking the following
\ninformation:\n<\/p>\n
      “a.      Please provide Para\/sub Para wise replies to the
\n               following queries along with certified copies of documents
\n               sought, in regard to the replies given by you vide D2 and
\n               D4, and reproduced at Paras 7 & 8 above.<\/p>\n
      17. Q (ii) and Ans (ii)- Access to Anveshak Software.\n<\/p><\/blockquote>\n
      (a)    Uninstalled software:- Were the CDs\/ other magnetic
\n             media containing the uninstalled Anveshak Software
\n             handed over by C-DAC to Director (Computers)\/
\n             computer Cell? If yes, please provide certified copies of
\n             the following:-\n<\/p><\/blockquote>\n
      (i)      Receipt given by Computer Cell of R&AW to C-DAC for
\n               the same\/-receipted copy of the issue voucher under
\n               which the software was handed over.\n<\/p><\/blockquote>\n
      (h)      Extract of ledger entry of relevant ledger showing the
\n               Anveshak Software having been letter on change of
\n               Computer Cell of R&AW.\n<\/p><\/blockquote>\n
               If no, please specify so.\n<\/p><\/blockquote>\n
      (b)      Installed software.\n      (i)      has any computer dedicated for independent use of\n<\/pre>\n
               Director (Computers) in any of the user branches where
\n               Anveshak was installed? If yes, has an exclusive user ID
\n               and password allotted to him to enable such independent
\n               access? If no, please specify so.\n<\/p><\/blockquote>\n
      (ii)     Was Director (Computer) allowed access to any user’s
\n               computer in any branch where Anveshak was in use,
\n               independent of the actual user? If yes, was the user ID
\n               and password of such computer used for accessing the
\n               Anveshak database made available to him toper5mit<\/p>\n
                                        1<\/span>
\n       such access independent of the actual user?          If no,
\n      please specify so.\n<\/p><\/blockquote>\n
18.   Q. (iii) and Ans (iii)- Taking the Anveshak Software or its
\n      populated contents outside the office.\n<\/p>\n
a.    As clarified in your Ans (iv), Anveshak relates to a
\n      database management system used for storage and
\n      retrieval of data. The database is an intrinsic part of the
\n      software, that being so, can any of the data populating
\n      the Anveshak database he accessed accept though the
\n      Anveshak software?\n<\/p>\n
b.    Was the Anveshak software present on the office laptop
\n      as per the recovery made from me and forwarded to you
\n      vide Annexure A to D1? If yes, was the software
\n      complete and functional? If no, please supply so.
\nc.    Was the Anveshak software present on the residence
\n      computer as per the recovery made from me and
\n      forwarded to you vide Annexure A to D1? If yes, was the
\n      software complete and functional? If no, please specify
\n      so.\n<\/p>\n
d.    Were any populated contents of Anveshak database
\n      present on the office laptop as per the recovery made
\n      from me and forwarded to you vide Annexure A to D1? If
\n      yes, please list out these documents that were found, if
\n      no, please specify so.\n<\/p>\n
e.    Were any populated contents of Anveshak database
\n      present on the residence computer as per the recovery
\n      made from me and forwarded to you vide Annexure A to
\n      D1? If yes, please list out these documents that were
\n      found? If no, please specify so.\n<\/p>\n
f.    If the answer to question at sub paras (b) to (e) above are
\n      in the negative, there was the Answer (iii) given by you
\n      specific only to the Q (iii) asked by special cell and
\n      unrelated to the recoveries made from me and forwarded
\n      to you vide Annexure A to D1?\n<\/p>\n
19.   A (iv) and Ans (iv)- Connection of Anveshak to Defence
\n      Matters.\n<\/p>\n
(a)   Does the recovery made from me and forwarded to
\n      R&AW vide Annexure A to D1 substantiate that sensitive
\n      data pertaining to security or defence matters of the
\n      country was present on the office laptop? If yes, please
\n      provide a list of such document. If No, please specify so.\n<\/p>\n
(b)   Does the recovery made from me and forwarded to
\n      R&AW vide Annexure A to D1 substantiate that sensitive
\n      data pertaining to security or defence matters of the<\/p>\n
                               2<\/span>
\n       country was present on any residence computer? If yes,
\n      please provide a list of such documents. If No, please
\n      specify so.\n<\/p>\n
(c)   If the answers to the questions at sub paras (a) & (b)
\n      above one in the negative then Ans (iv) given by you
\n      specific only to the Question (iv) and unrelated to the
\n      recoveries made from me and forwarded to R&AW vide
\n      Annexure A to D1?\n<\/p>\n
20.   Q (vi) and Ans (vi)- Connecting to the Internet
\n      Connection.\n<\/p>\n
(a)   Does the recovery made from me and forwarded to
\n      R&AW vide Annexure A to D1 substantiate that the
\n      software or populated contents of Project Anveshak were
\n      sent out from the desktop PC of the undersigned over an
\n      insecure internet connection? If yes, please provide
\n      details of what was sent out and when, if no please
\n      specify so.\n<\/p>\n
(b)   Does the recovery made from me and forwarded to
\n      R&AW vide Annexure A to D1 substantiate that the
\n      software or populated contents of Project Anveshak were
\n      sent out from the office laptop of the undersigned over an
\n      insecure internet connection? If yes, please provide
\n      details of what was sent out and when. If No, please
\n      specify so.\n<\/p>\n
Point for Consideration\n<\/p>\n
21.    It will be apparent from all above that special cell has
\n       provided printouts of some recoveries made from the
\n       office Laptop, but they have asked ‘comments’ from
\n       R&AW to some general questions without any reference
\n       to these recoveries, and unrelated to the said recoveries.
\n       While R&AW may have given straight forward answers to
\n       each specific question, special cell has taken advantage
\n       of the fact that R&AW has not clarified whether the
\n       answers given by them are substantiate by the recoveries
\n       made from me or otherwise.\n<\/p>\n
22.   The relevant Para in the Charge sheet (at Appx ‘E’)
\n      states that the recoveries made from my residence
\n      computer and office laptop were sent to R&AW for
\n      opinion, and the reproduces the answers given by
\n      R&AW. This gives the impression that the replies given
\n      by R&AW are borne out by the recoveries made from me.
\n      High Court in its order (at Appx F) has drawn reference to<\/p>\n
                               3<\/span>
\n               the opinion given by R&AW as being the basis for
\n              deciding not to grant me bail.\n<\/p>\n
       23.    R&AW has already gone on record to the media to assent
\n              that I have done nothing wrong and that they have no
\n              evidence to present to support the government’s case.
\n              Front page article in Hindustan Times of 27th may, 2007
\n              titled ‘Man of Honour or Super Spies?” attached at Appx
\n              G refers. Your reply to this RTI application will help to
\n              cheer the factual portion and get justice in a count of law.\n<\/p>\n
       Period of which Information sought\n<\/p>\n
       24.   June 2006 to October, 2006.”\n<\/p>\n
2. In the opening of this request Brig. Ujjal Dasgupta has referred to sub-
\nSection (1) of Section 24 of the RTI Act with a view to contesting the
\napplicability of this Section of the Act in this case. He has also stated that the
\ninformation sought is not exempt from disclosure under sub-Sections (a) (b)
\nand (h) of Section 8 (1) of the RTI Act. In response to this application CPIO
\nSmt. Sumati Kumar, Director, Cabinet Secretariat has in her response of 19-
\n11-08 simply stated that sub-Section (1) of Section 24 is applicable since the
\ninformation concerns Research & Analysis Wing (R&AW) and that it is also
\nexempt under sub-Section (h) of Section 8 (1). Clearly Ms. Sumati Kumar
\nhad applied her mind not at all to the contentions made in the application of
\nappellant Brig. Ujjal Dasgupta.     Consequently, Brig. Dasgupta moved an
\nappeal on 11-12-08 before Shri Ashok Kapur, Addl. Secretary (SR) and
\nAppellate Authority, Cabinet Secretariat with the following prayer:\n<\/p>\n
       “The Cabinet Secretariat may be directed to provide the
\n       information requested. The information may be provided within
\n       48 hours since it concerns the liberty of the applicant.”\n<\/p><\/blockquote>\n
3. Brig. Ujjal Dasgupta has based this prayer on the following grounds:\n<\/p>\n
       “(a)   The Cabinet Secretariat is not in the list of organisation
\n              exempted in Section 24 of the RTI Act. In her reply, the
\n              CPIO has stated that the R&AW is exempted (NOT that
\n              Cabinet Secretariat is exempted). The reply of the CPIO
\n              is misleading and amounts to refusal of information.\n<\/p><\/blockquote>\n
       (b)    Further, as the CPIO has herself stated, the exemption
\n              does not apply in cases of corruption and human rights<\/p>\n
                                        4<\/span>
\n                     violation. It is relevant that I am incarcerated in Tihar Jail
\n                    for over two years four months 1 . The trial is yet to begin
\n                    and even the charges have not been framed as yet. This
\n                    is clear violation of human rights.\n<\/p><\/blockquote>\n
           (c)      I have been denied by the High Court based on a letter
\n                    written by R&AW (Appendix D of Annexure 1). The
\n                    refusal of the Cabinet Secretariat to provide the
\n                    information will prolong my incarceration indefinitely,
\n                    further violating any human rights.\n<\/p><\/blockquote>\n
           (d)      There is no provision in the RTI Act for denial of
\n                    information concerning matters that are sub-judice.”\n<\/p><\/blockquote>\n
4.         To this Brig. Ujjal Dasgupta received an interim response on 18-12-06
\nin which Shri Ashok Kapur stated that he is processing the appeal and has
\ncalled for further information. However, subsequently in a detailed reasoned
\norder of 14-1-2009 Shri Ashok Kapur has dismissed the appeal as below:\n<\/p>\n
           “On examination of material placed on record and the grounds
\n           raised by you in your appeal, I am of the view that your
\n           application under the RTI Act, 2005 has rightly been rejected by
\n           the CPIO. It may also be mentioned that apart from the findings
\n           recorded by the CPIO, I have independently applied my mind
\n           and have come to the conclusion that your application dated
\n           29.10.2008 cannot be allowed given the facts and
\n           circumstances of the present case. Therefore, the present
\n           appeal stands disposed off accordingly.”\n<\/p><\/blockquote>\n
5. This has brought Brig. Dasgupta to his second appeal before us with the
\nfollowing prayer:\n<\/p>\n
           “R&AW may be directed to provide the information sought
\n           by me vide my application No. UD\/RTI\/ 21 of 29 October,
\n           2008.\n<\/p><\/blockquote>\n
           R&AW may be asked to explain the reasons for delaying
\n           action on my application to the CPIO and also on my appeal
\n           to the First Appellate Authority.”\n<\/p><\/blockquote>\n
6. In response to our appeal notice CPIO Ms. Sumati Kumar, Director,
\nCabinet Secretariat in her letter of 4-5-09 has submitted as follows:\n<\/p>\n
           “It is submitted that the appellant, is in judicial custody in
\n           pursuance to the registration of a criminal case against him. His
\n           bail application was rejected by the Trial Court and as well as
\n1<\/span>
\n    Underlined by us as pivotal to the argument<\/p>\n
                                                  5<\/span>
\n       the Hon’ble High Court of Delhi. The averments made in this
\n      paragraph are beyond the scope of provisions of RTI and
\n      therefore no comments are being offered regarding his trial
\n      which is pending in the Court of Law.”<\/p><\/blockquote>\n
      She has specifically contested the plea of Human Rights. Since it is
\nher contention that the custody of the appellant is in accordance with the law,
\nthe Brigadier cannot claim violation of human rights on account of his
\ndetention in Tihar Jail. On this ground she has submitted as follows:\n<\/p>\n
      “2.    That the perusal of the grounds of appeal before this
\n             Hon’ble Commission, go to show that the main grievance
\n             of the appellant is his continued detention in the jail. In
\n             this regard it is submitted that the documents and the
\n             material, which were seized by the investigating agency,
\n             during the investigation of the crime, is part of the judicial
\n             record in the criminal trial. The documents, which have
\n             been relied upon by the investigating agency have
\n             already been supplied to the appellant\/ accused in terms
\n             of Section 207 of the Cr. P. C. In any event, if the
\n             appellant is aggrieved by non-supply of any material\/
\n             document that the prosecution wishes to rely upon during
\n             the trial of the case, the appellant\/ accused, is at liberty to
\n             make an appropriate application before the trial court for
\n             getting such material\/ document in accordance with law.\n<\/p><\/blockquote>\n
      3.     That Section 8 (h) of the RTI Act, 2005 also exempts from
\n             disclosure of such information that would impede the
\n             process of investigation or apprehension or prosecution
\n             of offenders. As already submitted above that the entire
\n             case is being prosecuted by the Special cell of Delhi
\n             Police and the charge sheet in terms of Section 173 Cr.
\n             P.C has already been filed in the competent court of law,
\n             the scope of the present appeal will have to be examined
\n             in the light of this background.\n<\/p><\/blockquote>\n
      4.     That it is the admitted case of the appellant that the
\n             information which has been sought by him or the charge
\n             against him is based on violation of the provisions of The
\n             Official Secrets Act, 1923 read with other provisions of
\n             Indian Penal Code, and the trial court is seized of the
\n             matter. Apart from this, the functioning of “Database
\n             Management System” of R&AW is connected with the
\n             security and defence matters of the country and therefore
\n             the provisions of the RTI Act, 2005 are not made<\/p>\n
                                        6<\/span>
\n               applicable to certain organizations, in terms of Section 24
\n              of the Act, read with second Schedule.”\n<\/p><\/blockquote>\n
7. A copy of this response was delivered personally to the appellant on 4-5-\n<\/p>\n
09. We have received a representation dated 29-4-09 from CPIO Ms. Sumati
\nKumar, Director, Cabinet Secretariat requesting adjournment and from
\nappellant Brig. Ujjal Dasgupta on 1-5-09 for personal appearance rather than
\nvideoconference as originally planned. The appeal was then heard in Tihar
\nJail on 6-5-09 with the following present:\n<\/p>\n
       Appellant
\n       Brig (Retd) Ujjal Dasgupta.\n<\/p><\/blockquote>\n
       Shri Venkatesh Nayak, assisting appellant.\n<\/p><\/blockquote>\n
       Ms. Namrata Yadav.           \"\n       Ms. Bharati Dasgupta.        \"\n       Respondents\n<\/pre>\n
       Ms. Sumati Kumar, Director & CPIO, Cabinet Secretariat.
\n       Shri Sudhir Walia, Advocate.\n<\/p><\/blockquote>\n
       Shri V. K. Singh, Director.\n<\/p><\/blockquote>\n
8. Appellant Brig. Ujjal Dasgupta submitted that this was a “cooked up” case
\nin support of which he submitted a copy of a news report published in the
\nHindustan Times on 27-5-2007, a copy of which he has submitted to us with
\nhis appeal, which has never been rebutted. According to this report headlined
\n“Men of honour or super spies?” HT has spoken separately to NSCS and
\nR&AW officials, as well as a highly placed American official, and all concur
\nthat the three are not guilty of espionage.\n<\/p>\n
8. Brig. Ujjal Dasgupta specifically invited our attention to Para 16 of his
\nappeal to us, which reads as follows:\n<\/p>\n
       “It is also relevant that my application to the CPIO at Annexure 1
\n       was responded by an interim reply from the CPIO vide letter No.
\n       18 (29)\/2008-EA-II-RTI-314 dated 03rd November, 2008 (copy at
\n       Annexure 2), telling me that the request information had been
\n       called from the concerned office and advising me to await a
\n       further communication in this regard. Sixteen days later she
\n       sent the rejection letter at Annexure 3 dated 19th November,
\n       2008. In a report of the same procedure, my appeal to the First
\n       Appellate Authority (Annexure 4) dated and speed posted on<\/p>\n
                                        7<\/span>
\n       11th December 2008 was responded by an identically worded
\n      interim reply vide his letter No. 18 (34)\/2008-RA-II-RTI-368
\n      dated 18th December, 2008 (copy at Annexure 5) advising me to
\n      wait since the information had been called from the concerned
\n      office, followed 27 days later by the rejection letter at Annexure
\n      14 January, 2009. In both cases, the response has not been
\n      given written the specified time as give at Sec 7 (1) of the RTI
\n      Act. Such interim replies can to circumvent the stipulation of 48
\n      hrs for providing information where the queries concern the
\n      liberty of the applicant.”\n<\/p><\/blockquote>\n
9. In this context he also invited our attention to a letter of 14-9-06 from the
\nAssistant Commissioner of Police, Special Cell to the Secretary (R) Cabinet
\nSecretariat in which ACP, Special Cell has submitted as follows regarding
\nquestions pertaining to Anveshak:\n<\/p>\n
      “3.    Examination of Dasgupta’s office Laptop found presence
\n             of a keyword Anveshak in unused cluster area and slack
\n             area of the hard disk with some information (print outs
\n             enclosed as Annexure ‘D’). As per the portion recovered
\n             from the hard disk Anveshak system appears to be a
\n             sensitive project, which has been developed by CDAC,
\n             Pune for exclusive use of Cabinet Secretariat.\n<\/p><\/blockquote>\n
      4.     When a similar exercise was carried out on the hard disk
\n             of residence computer of Brig (Retd) Ujjal Dasgupta,
\n             keyword Anveshak was found occurring at many places
\n             in unused cluster area of the hard disk including file
\n             names such as ‘Anveshak detail exe’, Project Anveshak
\n             Revised ppt’, Project Anveshak Revised Link. A file
\n             ‘Project Anveshak.ppt’, was also found on the residential
\n             PC but had been overwritten with a song. In both these
\n             cases, technical exami9ntion suggests that these
\n             ‘Anveshak’ related files might have been accessed from a
\n             removable media. In this regard, comments on the
\n             following points may please be provided.\n<\/p><\/blockquote>\n
             (i)    Whether ‘Anveshak’ is\/ was in use in Cabinet
\n                    Secretariat? If so, whether it is a classified
\n                    project? It becomes all the more relevant in view
\n                    of the fact that similar name files were found
\n                    accessed and deleted both at residential PC as
\n                    well as office. Laptop and Ujjal Dasgupta during
\n                    his interrogation has categorically denied being
\n                    privy to any classified software.\n<\/p><\/blockquote>\n
                                       8<\/span><\/p>\n
                   (ii)    If ‘Anveshak’ is a classified project then whether
\n                          Ujjal Dasgupta was having authorization to access
\n                          software developed under Project Anveshak or
\n                          Anveshak?\n<\/p><\/blockquote>\n
                  (iii)   Whether Ujjal Dasgupta was at any point of time
\n                          allowed to take the Software or its populated
\n                          contents outside office?\n<\/p><\/blockquote>\n
                  (iv)    Whether disclosure of the Project or Project details
\n                          directly or indirectly connected with the security or
\n                          defence matters of the country?\n<\/p><\/blockquote>\n
                  (v)     Whether the information\/ contents of this Project, if
\n                          passed on to an unauthorised person or any
\n                          foreign agents, can be used for a purpose
\n                          prejudicial to safety or interests of the State or is
\n                          likely to affect sovereignty and integrity of India,
\n                          the security of the State or friendly relations with
\n                          foreign states?\n<\/p><\/blockquote>\n
                  (vi)    Whether Ujjal Dasgupta was authorized to connect
\n                          his office desktop PC or laptop to an insecure
\n                          Internet connection?”\n<\/p><\/blockquote>\n
10. He also referred to a memorandum of 25-9-06 of R&AW from Shri R.K.
\nChaudhry, Sr. Field Officer to Shri Sajjan Singh, Investigation Officer, Delhi
\nPolice in which Shri R.K. Chaudhry has affirmed as follows:\n<\/p>\n
         “(iii)   Yes, Shri Dasgupta had the authorization to access
\n                  software developed under Anveshak.”\n<\/p>\n
11. Besides the above, he has referred also to a memorandum of 16-10-06
\nfrom the same Shri R.K. Chaudhry to Shri Sajjan Singh, IO in which it is
\nclearly stated as below:\n<\/p>\n
         “The Anveshak project or its project details are not directly
\n         connected with the security or defence matters of the country.
\n         However, since it relates to a database management system
\n         used for storage and retrieval of sensitive data collected by the
\n         R&AW on such issues, it may be construed as being indirectly
\n         connected with the security or defence matters of the country.”\n<\/p><\/blockquote>\n
12. With this letter is attached an Annexure i.e. charge sheet which states as
\nbelow:\n<\/p>\n
         “Documents\/ information relating to “Project Anveshak”
\n         recovered from the house Computer and Laptop computer of
\n         accused Ujjal Dasgupta were sent to Cabinet Secretariat<\/p>\n
                                            9<\/span>
\n       (R&AW) for opinion on classification and authorization of
\n      possession.        R&AW categorically opined that Project
\n      “Anveshak” is a classified project, Ujjal Dasgupta had access to
\n      the software developed under this project. Ujjal Dasgupta was
\n      not allowed to take the software or its populated contents
\n      outside the office. He was also not allowed to connect his
\n      official Laptop computer of PC Computer to an Internet
\n      connection. The Project is related to the security or defence
\n      matters of the country and if the project or its details were
\n      passed on to an unauthorized person or foreign agent, it could
\n      be prejudicial to the safety or interest of the State.”\n<\/p><\/blockquote>\n
13. Shri Sudhir Walia, learned Counsel for respondent submitted that this is a
\ncase concerning R&AW and therefore, clearly falls outside the jurisdiction of
\nRTI Act as, contrary to the claim of appellant Brig. Dasgupta, this cannot
\nconstitute an allegation of human rights violation since it relates to an arrest
\nmade under the law. In this context he cited a decision of the High Court of
\nDelhi in “Crl: M. C. 1255\/2008 and Crl. M. A. 4760\/2008, Decided on :
\n25.4.2008– Appellant: Ujjal Dasgupta Vs. Respondent: State”. This case is
\nstill pending before Shri S. Murali Dhar J. and bail has been refused. The
\nmatter being before the trial court, the RTI Act cannot be used to circumvent
\nthe processes of law already in operation.\n<\/p>\n
14. Since it is apparent that this matter has also been investigated by the
\npress, we enquired from Shri Manoj Joshi Editor, Mail Today regarding his
\nfindings. He has in an e-mail of 20.5.’09 submitted as follows:\n<\/p>\n
      “Most of what I have is from the charge sheet and talking to
\n      NSCS people on background. But the following is also in my
\n      notes though I do not have a copy of the letter itself:\n<\/p><\/blockquote>\n
      R.K. Chaudhury, Senior Field Officer wrote to the Investigating
\n      Officer ( I think Sajjan Singh of the Special Cell) on October 16,
\n      2006 from 7, Bikaner House office, that “The Anveshak project
\n      or its project details are not directly connected with the security
\n      of the country or defence matters of the country.”\n<\/p><\/blockquote>\n
      He said that it related to a database management system used
\n      for storage and went on to add that “it may be construed as
\n      being indirectly connected [to the country’s security.]”\n<\/p><\/blockquote>\n
                                      10<\/span><\/p>\n
 15. Although earlier appellant’s contention was that Cabinet Secretariat which
\nin itself is not listed in the Second Schedule held the information, it is now
\nadmitted that the information sought is held by R&AW, which is admittedly a
\nwing of the Cabinet Secretariat, but is listed at No. 2 `of the Second Schedule.
\nThe key issue before us is whether the continued detention of Brig. Dasgupta
\namounts to an allegation of human rights violation on the ground that there is
\nno case against him. This Commission has had occasion in another case
\nconcerning appellant Brig. Ujjal Dasgupta and Centre for Development of
\nAdvanced Computing, in which the Commission in its order of 4-5-09 to rule in
\nfavour of appellant Brig. Ujjal Dasgupta. That case also concerned
\n“information with respect to the ANVESHAK software developed for R&AW by
\nCDAC, Pune” In that case, however, the public authority from whom the
\ninformation was sought was well within the pale of RTI Act 2005.\n<\/p>\n
16. In this case, therefore, we must satisfy ourselves that this case indeed
\namounts or does not amount to an allegation of human rights violation
\nmeriting disclosure as per proviso to sub sec. (1) of Sec. 24 of the R.T.I. Act.
\nThe issues are two :\n<\/p>\n
1. The applicability of the above proviso to this case.\n<\/p>\n
2. If applicable, what is the procedure to be followed in such cases by this
\nCommission?\n<\/p>\n
17. For a decision on this the matter was referred to a full Bench consisting of
\nthe following:\n<\/p>\n
       1.        Chief Information Commissioner Shri Wajahat Habibullah\n<\/p><\/blockquote>\n
       2.        Information Commission Shri M. L. Sharma\n<\/p><\/blockquote>\n
       3.        Information Commissioner Ms. Annapurna Dixit\n<\/p><\/blockquote>\n
       4.        Information Commissioner Shri Satyender Mishra\n<\/p><\/blockquote>\n
       5.        Information Commissioner Shri M. M. Ansari<\/p>\n
                                        11<\/span>\n<\/p><\/blockquote>\n
 18. The case was accordingly heard through videoconference on 16,6.009.
\nThe following are present:\n<\/p>\n
                        On behalf of the Appellants
\n                        (at CIC Studio)
\n                        Shri Shekhar Singh
\n                        Ms. Bandana Malhotra
\n                        (at Tihar)
\n                        Brig. (Retd.) Ujjal Dasgupta<\/p>\n
                        On behalf of the Respondents (at CIC Studio):
\n                        Shri Ravi Mathur, Joint Secretary
\n                        Shri Sudhir Walia, Advocate
\n                        Shri Rajnish Kumar, Director.\n<\/p><\/blockquote>\n
19.    On the request of Shri Shekhar Singh who was assisting the appellant
\nShri Sudhir Walia learned Counsel for respondent reiterated his argument in
\nwhich he emphasised the fact that under Section 207 Cr. P.C. all documents
\nissued against the accused have to be provided to him. Appellant Brig. Ujjal
\nDasgupta on the other hand submitted that he had not sought any document
\nbut only the information whether answers related to his case were related to
\nrecovery or simply general answers. Shri Shekhar Singh submitted written
\narguments in which he submitted that it was not required that a violation of
\nhuman rights be established to invoke proviso to sub section 1 of Section 24
\nof the RTI Act 2005 but that only allegations of such violation be made, and
\nfor this purpose the information sought required to have a relationship to such
\nan alleged violation.\n<\/p>\n
20. In this context he specially emphasised the following:\n<\/p>\n
              “The point that the CPIO is making is that in her opinion his
\n              continued incarceration is legitimate and therefore it is not a
\n              violation of his human rights. But in saying this, she has herself
\n              admitted that if it was illegitimate then it would have been a
\n              violation of his human rights”.\n<\/p><\/blockquote>\n
21. In the context of the above it was decided that respondents would submit
\na chart of questions asked and answers sought together with the clarification
\nof how the answer sought is not related to human rights violation and how<\/p>\n
                                        12<\/span>
\n disclosure would violate exemption under Section 8 (1). Similarly, Shri
\nShekhar Singh on behalf of the appellant will submit his written arguments as
\nto how if the information is disclosed it will in no way require invocation of
\nexemption u\/s 8 (1).\n<\/p>\n
22.   The Full Bench of the Commission heard the case on 29th July, 2009.
\nThe following were present:\n<\/p>\n
              ON BEHALF OF THE APPELLANT:\n<\/p><\/blockquote>\n
              1.   Brig (Retd) Ujjal Dasgupta\n<\/p><\/blockquote>\n
              2.   Shri Shekhar Singh\n<\/p><\/blockquote>\n
              3.   Smt. Bandana Malhotra
\n              ON BEHALF OF THE RESPONDENT:\n<\/p><\/blockquote>\n
              1.   Ms Sumati Kumar, Director & CPIO, Cabinet Secretariat\n<\/p><\/blockquote>\n
              2.   Shri Rajnish Kumar, Director, Cabinet Secretariat\n<\/p><\/blockquote>\n
              3.   Shri D. Bhargava, Dy. Secretary, Cabinet Secretariat\n<\/p><\/blockquote>\n
              4.   Shri Sudhir Walia, Advocate<\/p>\n<\/blockquote>\n
23. At the time of hearing, written submissions were filed by the appellant as
\nwell as by the respondent Public Authority. The appellant confined his written
\nsubmission to the question of applicability of exemption under Section 8(1) of
\nthe RTI Act and submitted as under:\n<\/p>\n
      (i)     that the respondent Public Authority has not sought any
\n              specific exemption other than mentioning that the
\n              information, which the appellant has sought, is fully
\n              protected and that any disclosure of the same would be
\n              prejudicial to the security of the State.\n<\/p><\/blockquote>\n
      (ii)    that the provisions of Section 19(5) of the Act squarely
\n              puts the onus of proof on the CPIO and as such the mere
\n              statement that such and such exemption would apply is
\n              not enough;\n<\/p><\/blockquote>\n
      (iii)   that queries listed in a tabular statement were not of such
\n              a kind as reply thereto could compromise the security of
\n              the country.\n<\/p><\/blockquote>\n
      (iv)    that of the 26 questions asked therein, 18 were asked for
\n              a `yes’ or `no’ answer, which cannot attract any of the
\n              exemptions under Section 8(1)(a);\n<\/p><\/blockquote>\n
      (v)     that the other questions asked related to copy of receipt,
\n              copy of relevant extract of a ledger, list of documents
\n              recovered, if any, details and date of what was allegedly
\n              sent out on an insecure internet connection. The same<\/p>\n
                                      13<\/span>
\n                cannot in any way attract any of the exemptions listed
\n               under Section 8(1)(a).\n<\/p><\/blockquote>\n
      (vi)     that even though what were allegedly sent out on an
\n               insecure internet connection concerned the names of files
\n               or documents, that also cannot qualify for exemption
\n               under Section 8(1)(a).\n<\/p><\/blockquote>\n
      (vii)    that since the information is alleged to have been sent out
\n               over an insecure Internet connection, it would have
\n               immediately lost any confidentiality value and would get
\n               totally declassified. R&AW can have no objection to
\n               providing the information that has already been sent out
\n               over the Internet.\n<\/p><\/blockquote>\n
      (viii)   that there is an allegation that these matters have been
\n               revealed by the appellant to unauthorized persons. It is
\n               only reasonable to expect that the R&AW must have
\n               done all that is necessary, in the last three years, to
\n               ensure that the content of these documents are no longer
\n               sensitive and that their revelation can no longer harm any
\n               interests of the country.\n<\/p><\/blockquote>\n
24.   In their written submissions, the respondent Cabinet Secretariat
\nsubmitted as under:\n<\/p>\n
      (i)      that the information sought by the appellant cannot be
\n               disclosed in view of the provisions of Section 24(1) read
\n               with Second Schedule of the Right to Information Act,
\n               2005;\n<\/p><\/blockquote>\n
      (ii)     that the information sought would also be covered by the
\n               exemption provided under Section 8(1) of the RTI Act.\n<\/p><\/blockquote>\n
      (iii)    that at the relevant point in time, Brig. (Retd.) Ujjal
\n               Dasgupta was the sole nodal officer from Cabinet
\n               Secretariat, who was           in-charge of the Project
\n               “Anveshak”. He directly received the uninstalled
\n               Anveshak Software from C-DAC being the Director
\n               Computer Cell.\n<\/p><\/blockquote>\n
      (iv)     that in view of the provisions under section 24(i) of the
\n               RTI Act, 2005 read with the Second Schedule of the Act
\n               the documents sought in the paras under reply cannot be
\n               provided as they are classified and providing of such
\n               documents would reveal the internal functioning of the
\n               Cabinet Secretariat and could be used by the state’s
\n               adversaries thereby compromising the security of the
\n               state.\n<\/p><\/blockquote>\n
      (v)      that a dedicated computer for independent use by
\n               Director (Computer) was provided where “Anveshak” was
\n               installed. Insofar as allotment of an ID and password to<\/p>\n
                                       14<\/span>
\n          the Director (Computer) are concerned, he himself was
\n         the System Administrator enabling him independent
\n         access.\n<\/p><\/blockquote>\n
(vi)     that the applicant has sought similar information in the
\n         matter, which is pending, before the Hon’ble High Court
\n         of Delhi at Para 10(1) point (vi). The applicant has only
\n         changed the language of the information, which he is
\n         seeking before the Hon’ble Commission and before the
\n         matter pending with the Hon’ble High Court of Delhi. In
\n         any event it is submitted that, any disclosure of the mode
\n         of operation like independent use, ID, password, etc.
\n         would reveal the configuration and functioning of the
\n         software. Such declassification would amount to
\n         compromising the national interest and would be
\n         prejudicial to the security of state. In this regard, it has
\n         already been submitted herein above, that at the relevant
\n         point of time, the applicant was Director (Computer), and
\n         System Administrator thereby enabling him independent
\n         and complete access to the Project “Anveshak”.\n<\/p>\n
(vii)    that as per the charge sheets filed by the investigating
\n         agency, before the competent court of law, the recoveries
\n         were affected from the laptop of the applicant\/accused
\n         from his office as well as the hard disc drive of the
\n         computer installed at his residence. As already submitted
\n         above, the recoveries affected from the accused are part
\n         of ongoing investigations, which are being carried out by
\n         the Special Cell, Delhi Police. As per the information
\n         received, the investigating agency has submitted two
\n         reports regarding the investigations, before the Additional
\n         Sessions Judge, Delhi, who is seized of the matter. It is
\n         submitted that under section 207 Cr. PC, the accused is
\n         entitled to the copy of the Police Report and other
\n         documents which the prosecution wishes to rely upon
\n         against the accused. The applicant\/accused has already
\n         exercised his right, by making a formal application for
\n         seeking the documents, which the prosecution has relied
\n         upon in its reports under section 173 Cr. PC. Thus, the
\n         information sought in sub Para (b) to (e) of the Para
\n         under reply, it would be appropriate, that the applicant
\n         should approach the competent court of jurisdiction
\n         where the criminal case is pending.\n<\/p>\n
(viii)   that since the questions relate to the investigation of the
\n         case, the applicant ought to have taken appropriate steps
\n         before the trial court, where the case is pending
\n         adjudication.\n<\/p>\n
                                  15<\/span><\/p>\n
           (ix)   that the applicant has invoked the provisions of RTI Act,
\n                 2005, for seeking an opinion of the organisation, with
\n                 regard to the recoveries affected from him during the
\n                 investigation of the case. It is respectfully submitted that
\n                 the questions raised herein, do not fall within the ambit
\n                 and scope of the Act. In view of this factual position it is
\n                 not necessary to express any opinion on these queries,
\n                 especially in view of the fact that the trial of the case is
\n                 pending and the matter sub-judice.\n<\/p>\n
25.       ISSUES FOR DETERMINATION:\n<\/p>\n
I.        Whether the proviso to Section 24(1) of the RTI Act is applicable in this
\n          case and, if so, what is the procedure to be followed in such cases by
\n          the Commission?\n<\/p>\n
II.       Whether the information asked for by the appellant is covered by any of
\n          the clauses of Section 8(1) of the RTI Act?\n<\/p>\n
DECISIONS & REASONS:\n<\/p>\n
26.       Under the Protection of Human Rights Act, 1993, `human rights’ have
\nbeen defined to mean and include the rights relating to life, liberty, equality
\nand dignity of the individual guaranteed by the Constitution or embodied in the
\nInternational Covenant enforceable by courts in India.          The appellant has
\nstated that the information that he is seeking relates to his liberty and
\ncontinued detention in jail.      Prima facie, the information relates to human
\nrights. But the proviso to Section 24 of the RTI Act applies only when there
\nare allegations of human rights violations. It would be worthwhile to quote
\nSection 24(1) of the RTI Act, which reads as under:\n<\/p>\n
           “Sec.24:\n<\/p><\/blockquote>\n
      (1) Nothing contained in this Act shall apply to the intelligence and
\n           security organisations specified in the Second Schedule, being
\n           organisations established by the Central Government or any
\n           information furnished by such organisations to that Government:\n<\/p><\/blockquote>\n
                                          16<\/span><\/p>\n
       Provided that the information pertaining to the allegations of
\n      corruption and human rights violations shall not be excluded
\n      under this sub-section:\n<\/p><\/blockquote>\n
      Provided further that in the case of information sought for is in
\n       respect of allegations of violation of human rights, the
\n       information shall only be provided after the approval of the
\n       Central Information Commission, and notwithstanding anything
\n       contained in section 7, such information shall be provided within
\n       forty-five days from the date of the receipt of request.”\n<\/p><\/blockquote>\n
27.    Presumption of innocence has been recognized to be a human right
\nand an accused, as has been observed by the Apex Court in Noor Aga Vs.
\nState of Punjab & ors [2008 (56) BLJR 2254]               “it is a trite law that
\npresumption of innocence being a human right cannot be thrown aside.”
\nHowever, the Hon’ble Apex court has recognized that this right has to be
\napplied subject to exceptions.\n<\/p>\n
28.    It is an admitted fact that Research and Analysis Wing (RAW) is an
\nintelligence wing of the Government and has been listed at S. No. 2 in Second
\nSchedule of the RTI Act, 2005. The provisions of the RTI Act do not apply in
\ncases of exempted organizations unless the information sought pertains to the
\nallegations of corruption or human rights violation.        The Commission is,
\ntherefore, required to determine as to whether the information asked for by
\nthe appellant in this case pertains to allegation of human right’s violation.\n<\/p>\n
29.    The appellant submitted and it was also argued during the course of
\nhearing that if the information asked for concerns violation of human rights of
\na citizen, the proviso to Section 24 of the RTI Act would apply and the
\nCommission will have the jurisdiction to direct the concerned public authority
\nto disclose the information.     It has also been submitted on behalf of the
\nappellant that it is not necessary to prove violation of human rights and that an
\naverment which merely alleges violation of human rights would be good
\nenough for bringing the matter within the ambit of proviso to Section 24 of the
\nRTI Act, provided that the allegation is substantiated to concern human rights.\n<\/p>\n
                                        17<\/span><\/p>\n
 30.    The appellant has further stated that the information asked by him is
\ndirectly affecting his liberty and that the reply to the question asked by him is
\ndirectly causative of the bail being denied to him both in the trial court and the
\nHigh Court. Apparently, his detention is under the court orders. Admittedly,
\nthe bail petitions have been rejected by the trial court and also by the High
\nCourt. The question, therefore, arises as to whether questioning detention in
\nconnection with a case and under the orders of a court can be termed as an
\nallegation of violation of human rights.\n<\/p>\n
31.    A trial in a competent court of law does not take away human rights of
\na citizen. In a country like ours, where supremacy of Rule of Law is deeply
\nembedded in the legal system, fairness in trial is a matter of presumption and
\nan accused gets a fair opportunity to defend himself. Detention, therefore,
\nunder the orders of a court cannot be treated as violative of human rights.
\nFrom the above submissions of the parties, it appears that the appellant has
\nalready moved the trial court for providing of copies of documents under
\nSection 207 of Cr.P.C. and it is for the concerned court to take a view in that
\nmatter.   A decision from this Commission in this matter is, therefore, not
\nwarranted.\n<\/p>\n
32     The next issue that needs be determined is as to whether the
\ninformation can be held to be exempted under any of the clauses of Section
\n8(1) of the RTI Act. In the initial response, CPIO has denied the information on
\nthe ground that the matter is sub-judice and still under trial in the Special
\nSessions court, Patiala House, New Delhi on the charge brought by the Delhi
\nPolice and that the charge sheet has already been submitted.            Even the
\nAppellate Authority in his order has stated that the information sought is
\ndirectly part of investigation and the investigating agency has already
\nsubmitted the charge sheet against the appellant in the competent court of
\nlaw and, therefore, the disclosure of information would impede the process of
\ninvestigation in terms of Section 8(1)(h) of the RTI Act. It has further been
\nstated by the Appellate Authority that the appellant has already invoked the<\/p>\n
                                       18<\/span>
\n provisions of Section 207 of the Cr.P.C. and has claimed certain documents
\nproceedings of which are pending in the court.\n<\/p>\n
33.      In their written submission, the respondent Public Authority has also
\nemphasized this issue and averred that the information relates to prosecution
\nand that any disclosure at this stage would adversely affect the prosecution of
\nthe appellant.\n<\/p>\n
34.      The respondent Public Authority has also claimed that the disclosure of
\ninformation will prejudicially affect the national interest and security of the
\nState.     The grounds taken by the respondent Public Authority claiming
\nexemption is covered by Section 8(1)(a) which reads as under:\n<\/p>\n
         “Sec.8
\n         (1) Notwithstanding anything contained in this Act, there shall
\n         be no obligation to give any citizen, —\n<\/p><\/blockquote>\n
                (a)    information, disclosure of which would prejudicially
\n                       affect the sovereignty and integrity of India, the
\n                       security, strategic, scientific or economic interests
\n                       of the State, relation with foreign State or lead to
\n                       incitement of an offence;”\n<\/p><\/blockquote>\n<\/blockquote>\n
35.      The appellant on the other hand has disputed the grounds taken by the
\nrespondent Public Authority.       It is not for the Commission, however, to
\ndetermine as to whether the disclosure of information will adversely affect the
\nsecurity of the State. It is definitely for the concerned authority charged with
\nthis responsibility to so determine. The Commission is only expected to see
\nas to whether the claim of exemption is prima facie justified or not.          The
\nnature of information asked for by the appellant and the organization to which
\nit relates gives credence to the claim of the Public Authority that its disclosure
\nmay affect security of the State and the pendency of a criminal trial in a
\ncompetent court leaves no doubt that the disclosure of information in a matter
\nlike this may prejudicially affect national security.        In view of this, the
\nCommission is of the view that claim of exemption under both Section 8(1)(a)
\nand 8(1)(h) is justified. In view of the above observations, the appeal petition
\ncannot succeed and is hereby dismissed<\/p>\n
                                         19<\/span>
\n        Announced on this the twenty-fifth day of August 2009. Notice of this
\ndecision be given free of cost to the parties.<\/p><\/blockquote>\n
     (M.L. Sharma)         (Ms. Annapurna Dixit)      (Satyananda Mishra)
\nInformation Commissioner Information Commissioner Information Commissioner<\/p>\n
                              (M.M. Ansari)    (Wajahat Habibullah)
\n                 Information Commissioner Chief Information Commissioner<\/p>\n
Authenticated true copy. Additional copies of orders shall be supplied against
\napplication and payment of the charges, prescribed under the Act, to the
\nCPIO of this Commission.\n<\/p>\n
(L.C. Singhi)
\n Registrar<\/p>\n
                                        20<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Central Information Commission Brig. Ujjal Dasgupta vs Cabinet Secretariat. on 25 August, 2009 CENTRAL INFORMATION COMMISSION Appeal No. CIC\/WB\/A\/2009\/00182 dated 24-2-2009 Right to Information Act 2005 – Section 19 Appellant: Brig. Ujjal Dasgupta Respondent: Cabinet Secretariat. FACTS 1. By an application of 29-10-2008 Brig. Ujjal Dasgupta now lodged in Tihar Jail applied to the CPIO, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[39,1],"tags":[],"class_list":["post-154283","post","type-post","status-publish","format-standard","hentry","category-central-information-commission","category-judgements"],"yoast_head":"\nBrig. 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