{"id":167277,"date":"2009-09-10T00:00:00","date_gmt":"2009-09-09T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mr-prakash-chandra-vs-directorate-of-vigilance-govt-on-10-september-2009"},"modified":"2016-09-11T14:45:12","modified_gmt":"2016-09-11T09:15:12","slug":"mr-prakash-chandra-vs-directorate-of-vigilance-govt-on-10-september-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mr-prakash-chandra-vs-directorate-of-vigilance-govt-on-10-september-2009","title":{"rendered":"Mr. Prakash Chandra vs Directorate Of Vigilance, Govt. … on 10 September, 2009"},"content":{"rendered":"
Central Information Commission<\/div>\n
Mr. Prakash Chandra vs Directorate Of Vigilance, Govt. … on 10 September, 2009<\/div>\n
                        CENTRAL INFORMATION COMMISSION\n                                    Club Building, Near Post Office\n                                  Old JNU Campus, New Delhi 110067.\n                                      Tel: 91 11 26161796\n\n                                            Decision No. CIC \/SG\/A\/2009\/000015\/2695penalty\n                                                          Appeal No. CIC\/SG\/A\/2009\/000015\n\n                                  SHOW CAUSE HEARING:\n\nAppellant                            :     Mr. Prakash Chandra,\n                                           1646, Type IV, Delhi Admn. Flat,\n                                           Gulabi Bagh, Delhi-110007.\n\nRespondent                           :     Mr. Amitabh Joshi,\n                                           Assistant Director (Vigilance) & PIO,\n                                           Govt. of NCT of Delhi,\n                                           Directorate of Vigilance,\n                                           Level-4, C-Wing, Delhi Secretariat,\n                                           New Delhi-110002.\n\nRTI application filed on             :     12\/08\/2008\nPIO replied                          :     28\/08\/2008\nFirst appeal filed on                :     24\/09\/2008\nFirst Appellate Authority order      :     27\/10\/2008\nSecond Appeal filed on               :     31\/12\/2009\n\n       The appellant had asked in RTI application for supplying the SP report dated\n11\/11\/1999 with all its enclosures. Copy of letter No. DLI\/AC\/CR-3\/33-A97\/2511 dated\n07\/12\/2000 of Director (Vigilance) Govt. of NCT of Delhi. Copy of the note portion of the file\ndated 07\/12\/2000.\n   S.                Information Sought.                    The PIO replied.\n No.\n1.     In RC 33-A\/97 of Anti Corruption Branch of 1 & 2 as per record\n       CBI, Delhi Branch, dated 06\/05\/1997 against available with this\n       Shri K.S. Medena, DANICS and others, Shri Directorate the trial in\n       Anil Kumar, SP, CBI, Anti corruption Branch, this case is pending in\n       New Delhi sent a report dated 11\/11\/1999 to the Court of Special\n       MHA, a copy of which was also endorsed to Judge, Delhi and as\n       Director (Vigilance) Government of NCT of such           the   requisite\n       Delhi to obtain sanction to prosecute the public information          is\n       servants involved in the said RC. Kindly supply exempted           under\n       the said SP Report dated 11\/11\/1999 with all its Section 8(1) (h) RTI\n       enclosures.                                      Act, 2005 and cannot\n                                                        be provided.\n2.     Further it is understood that DIGP, Central\n       Bureau Investigation (ACB) sent a letter to Shri\n       N.J. Thomas, Under Secretary, MHA and the\n       said letter is numbered as DLI\/AC\/CR-3\/33-\n       A97\/2511 dated 07\/12\/2000 of Director\n       (Vigilance) Govt. of NCT of Delhi. the said\n       letter is in connection with RC No. 33-A\/97\n       dated 06\/05\/1997 of CBI, New Delhi and in this\n       letter the CBI recommended suspension of\n         public servants involved in the above said RC.\n3.      Please supply the copy of the said letter dated As above Para 1.\n        07\/12\/2000 and the note portion of the file\n        where the said letter was dealt with in\n        Directorate of Vigilance.\n\nThe First Appellate Authority ordered.\n         \"Both the above said letters are addressed to the Ministry of Home Affairs letter dated\n15\/11\/1999 is also addressed to the Chief Secretary, Delhi but in respect of letter dated 07\/12\/2000\nendorsement has been made to the Directorate of Vigilance.\n         While, it is correct that Section 8(1) (h) refers to those circumstances where the process of\ninvestigation is going on and such information which could impede the process of investigation\nmay not be disclosed. There seems some substance in the appeal that process of investigation\nhaving been over, information sought should not have been withheld by the PIO. But at the same\ntime, it can also not be ignored that investigating agency in the matter referred to by the Appellant\nis the CBI. Since the agency has specifically conveyed that the document be treated as\nconfidential. It would be proper if the views of the agency are obtained. In fact. PIO was expected\nto consider this aspect and then take a decision whether the information sought could be supplied\nor not.\n         I, therefore, feel it appropriate to advise the PIO to obtained the views of the CBI\nimmediately and then based on the views given by the CBI, take further decision on the\nAppellant's application. I order accordingly. PIO may seek the views, preferably, with in 10 days\nfrom the issue of this order and then convey the decision within 3 days of the receipt of the reply\nform the CBI.\"\n\nRelevant Facts<\/pre>\n
 emerging during Hearing on 30 March 2009:\n<\/p>\n
The following were present
\nAppellant: Mr. Prakash Chandra
\nRespondent: Mr. D. Verma PIO
\nThe respondent claims exemptions under section 8 (1) (g) & (h). They claim it could hinder
\nprosecution. The SP report is meant for the CBI and the department..
\nAppellant states investigation is over and the trial is on, hence there can be claim of investigation
\nbeing impeded. The appellant has given written submissions and relies on many Court judgements
\nto argue that the said information must be provided. Respondent submits CIC order
\nCIC\/AT\/A\/2006\/2004, of 30\/06\/2006 in which a bench had ruled, ‘ this commission consistently
\ntakes the view that matters in the investigation or those taken up in prosecution should not be
\ndisclosed till all proceedings in such cases are over. We uphold therefore the position taken by the
\nAA and the CPIO that in the present case disclosure is barred by section 81H and section 8 when
\nshe of the RTI act.’<\/p>\n
The Order was reserved.\n<\/p>\n
The respondent is given time upto 9 April 2009 to give his written submissions.
\nMr. Sumit Sharan Supdt. Of Police has given written submissions arguing that the information
\nmust not be disclosed. The main arguments of the respondent are as follows:
\n“4. That SP’s report is a confidential document of CBI. It is prepared by taking out information
\nfrom the case diaries written by the investigating officer of the particular case. The information
\nmentioned in the case diaries are given by various persons to the investigating officer for
\nassistance in the investigation of the case. This information is given by such persons in confidence
\nfor furtherance of law enforcement. The details of the persons who have given such information is
\nmentioned in the SP’s report along with information which they have provided. The disclosure of
\nthe names and information would endanger life or physical safety of such persons. The
\ninformation was also given in confidence and if it is divulged it will cost breach of confidence
\nwhich they have reposed in the law enforcement agency. Thus, exemption for providing SP’s
\n report to see Prakash Chandra who is an accused in the said case, is sought under 8 (1) (g) of RTI
\nact 2005 is also sought.\n<\/p>\n
5. In the SP’s report all the evidence gathered during investigations are discussed in detail. The
\ndefence taken by the accused Persons is also discussed in this report. The departure of the defence
\nand line of action to be taken by prosecution is also discussed in detail in this report. If the said
\nreport is provided to the appellant who is the accused in the instant case, then it would enable him
\nto have privy to the extremely confidential information which is meant for exclusive consumption
\nof CBI and the concerned department. The appellant\/accused will use the confidential information
\ncontained in the SP’s report to delay the trial of the case which is a very crucial juncture and use
\nthe arguments discussed and report for his advantage in the trial of the case in the court. This will
\ncause grave miscarriage of justice and hinder prosecution at adversely. In view of this exemption
\nunder section 8(1)(h) of RTI act 2005 is also sought.\n<\/p>\n
          In support of the argument we would like to bring to your notice following judgement of
\nDelhi High Court and CIC:-\n<\/p>\n
    i)       That para 13 of Judgement passed by Justice Ravindra Bhat of Delhi High Court on
\n             13\/2\/2007 in WP( c) No. 3114\/2007 held that ” access to information, under section 3
\n             of the act, is the rule and exemptions under section 8, the exception. Section 8 being a
\n             restriction on this fundamental right, must therefore be strictly construed. It should not
\n             be interpreted in manner as to shadow the very right itself. Under section 8, exemption
\n             from releasing the information is granted if it would impede the process of
\n             investigation or the prosecution of offenders.”\n<\/p><\/blockquote>\n
    ii)      That CIC in appeal no. 38\/IC(A)\/06 (file no. CIC\/OK\/A\/2006\/00037 dtd. 12\/12\/2006
\n             held that ” the appellant is an accused in the criminal prosecution launched by the
\n             customs and CBI to stop the information sought by the appellant is required to prove
\n             his innocence, which will be provided to him under the law by the prosecuting
\n             agencies and the court of law to ensure justice to him. At this juncture when the
\n             prosecution proceedings have been initiated and is at the advanced stage, exemption
\n             from disclosure of information under section 8(1)(h) has been correctly applied by the
\n             CPIO. The decision of the appellate authority is therefore upheld.”\n<\/p><\/blockquote>\n
    iii)     That CIC in appeal number 39\/IC(A)\/06 (file number CIC\/MA\/A\/2006\/00083 dtd.\n<\/p><\/blockquote>\n
             15\/05\/2006 held that ” the matter pertains to corruption involving several officers and
\n             staff, including the appellant. This is indeed an issue of vital public interest. In view of
\n             the pending prosecution in the court of law, which follows a well-established
\n             procedure under the law to ensure natural justice, the disclosure of information as
\n             would, at this stage, impede the process of prosecution of offenders. In all such
\n             matters, disclosure of information under section 8(1) (h) is barred. The decision of the
\n             appellate authority is therefore upheld.”\n<\/p><\/blockquote>\n
Decision announced on 13 April, 2009:\n<\/p>\n
The Delhi High Court judgement quoted by the respondent was passed after the orders of the
\nCommission quoted by respondent. Justice Ravindra Bhat’s order in WP( c) No. 3114\/2007 has
\nclearly stated,
\n“13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8,
\nthe exception. Section 8 being a restriction on this fundamental right, must therefore is to be
\nstrictly construed. It should not be interpreted in manner as to shadow the very right itself. Under
\nSection 8, exemption from releasing information is granted if it would impede the process of
\ninvestigation or the prosecution of the offenders. It is apparent that the mere existence of an
\ninvestigation process cannot be a ground for refusal of the information; the authority withholding
\ninformation must show satisfactory reasons as to why the release of such information would
\nhamper the investigation process. Such reasons should be germane, and the opinion of the process
\nbeing hampered should be reasonable and based on some material. Sans this consideration,
\nSection 8(1)(h) and other such provisions would become the haven for dodging demands for
\ninformation.\n<\/p>\n
 14. A rights based enactment is akin to a welfare measure, like the Act, should receive a liberal
\ninterpretation. The contextual background and history of the Act is such that the exemptions,
\noutlined in Section 8, relieving the authorities from the obligation to provide information,
\nconstitute restrictions on the exercise of the rights provided by it. Therefore, such exemption
\nprovisions have to be construed in their terms; there is some authority supporting this view ( See
\nNathi Devi v. Radha Devi Gupta<\/a> 2005 (2) SCC 201; B. R. Kapoor v. State of Tamil Nadu<\/a> 2001
\n(7) SCC 231 and V. Tulasamma v. Sesha Reddy<\/a> 1977 (3) SCC 99). Adopting a different approach
\nwould result in narrowing the rights and approving a judicially mandated class of restriction on the
\nrights under the Act, which is unwarranted.”\n<\/p>\n
This judgement has effectively overruled the earlier orders of the CIC on this matter. In the instant
\ncase the investigations are clearly over and therefore we would only have to see whether releasing
\nthe information would impede the process of prosecution of offenders. If the basis of prosecuting
\nthe accused is the truth as it exists on the records, it is not possible to understand how it could
\nimpede the process of prosecution of the offender. If there are any details in the SP’s report which
\nwould create any doubts in the mind of the judge who is conducting the trial, this must certainly
\nbe disclosed in the interests of justice. The Commission does not agree with the grounds given by
\nthe respondent to refuse giving the information, and cannot see how the truth could impede the
\nprosecution. If anything Justice demands that the truth must be placed before the Court. Therefore
\nthe Commission does not find merit in the denial of the information under Section 8 (1) (h).
\nHowever we do see merit in the respondent’s grounds of Section 8 (1) (g). If some people have
\ngiven information based on which the prosecution has been launched, revealing their identity
\ncould result in some harm to them, and revealing their identities would also reveal the source of
\ninformation. The Commission directs that the PIO apply the severability clause of Section 10 and
\nblank out the names of those who have provided the information in confidence.\n<\/p>\n
The Appeal was allowed. The PIO was directed to give the SP’s report and copy of the said letter
\ndated 07\/12\/2000 and the note portion of the file where the said letter was dealt with in Directorate
\nof Vigilance to the appellant before 5 May 2009.\n<\/p>\n
Relevant facts arising during the show cause hearing on 10\/09\/2009:
\nThe following persons were present:\n<\/p>\n
Appellant: Mr. Prakash Chandra
\nRespondent: Mr. Amitabh Joshi, PIO
\nThe PIO Mr. Amitabh Joshi says he has not provided the information though the Commission had
\nissued an order on 13\/04\/2009 directing him to give the information to the Appellant before
\n05\/05\/2009. The order was delivered to Mr. D Verma, PIO, Vigilance on 13\/04\/2009. He has
\nbrought written submissions which he has given to the Commission. The PIO Vigilance Mr.
\nAmitabh Joshi states that he wrote to the SP of CBI on 22\/04\/2009 the following:\n<\/p>\n
        “We would like to bring to your notice that CIC vide its order dated 13.042009 (copy
\nenclose) has directed PIO, DOV to give the SP’s report (in RC 33-A\/97 of Anti Corruption Branch
\nof CBI, Delhi Branch), copy of said letter dated 07.12.2000 and the note portion of the file where
\nthe said letter was dealt with Directorate of Vigilance to the appellant before 05\/05.2009.\n<\/p>\n
        In this regard, I am to inform you that this Directorate shall be complying with the
\naforementioned direction of CIC. If CBI requires any clarifications it may approach CIC directly,
\nbefore 05.05.2009 under intimation to the Directorate, before the said date.”
\nOn 28\/04\/2009 the SP of CBI sent him a letter stating that the matter was considered by CBI. On
\n04\/05\/2009 CBI wrote to him not to supply the copy of the SP’s report since they were planning to
\nfile an appeal in Delhi High Court. On 15\/05\/2009 CBI has sent a letter to him stating that an
\nAppeal has been filed on 12\/05\/2009 in the High Court against the order of the Information
\nCommission and that he should not supply copy of the SP report to the Appellant till the disposal
\nof the Appeal. The PIO admits that to the best of his knowledge no writ has not been filed so far
\nand no stay has been obtained.\n<\/p>\n
 The Appellant states that he has not received any notice of any writ nor has the Commission.
\nGiven the circumstances if neither the Appellant nor the Commission has received any notice of a
\nwrit, it seems unlikely that any writ has been filed. The Respondent PIO had a statutory order
\nissued by the Information Commission and he did not bother to inform the Commission that he
\nplanned not to comply with its order. It is apparent that the PIO has chosen to defy the orders of a
\nstatutory authority willingly.\n<\/p>\n
The Supreme Court in Ghaziabad Development Authority v. Balbir Singh AIR<\/a> 2004 SC 2141
\nhas held that “unless there is a stay obtained from a higher forum, the mere fact of filing an
\nappeal\/revision will not entitle the authority to not comply with the order of the Forum. Even
\nthough the authority may have filed an appeal\/revision, if no stay is obtained or if stay is
\nrefused, the order must be complied with. In such cases the higher forum should, before
\nentertaining the appeal\/revision, ensure that the order is first complied with”.\n<\/p>\n
The PIO admits that no stay has been obtained and he is aware of this fact. Inspite of this he has
\nchosen not to comply with the directions of the Commission from 05\/05\/2009 onwards. The PIO
\nhas given no reasonable cause for refusing to comply with the orders of the Information
\nCommissioner. A PIO cannot take refuge in the excise that he asks any public authority and if the
\npublic authority tells him not to release the information, he is justified in following the orders of
\nsuch a public authority. The PIO chose to defy the Commission’s order for a period of over 4
\nmonths. The PIO had no evidence of any legally valid stay having been obtained against the
\nCommission’s order. Since the delay is already over 100 days the Commission sees this as a fit
\ncase for the levy of maximum penalty of Rs. 25,000\/- as per Section 20(1) of the RTI Act. The
\nCommission once again directs the PIO to provide the information to the Appellant before
\n19\/09\/2009 failing which it will recommend disciplinary action to be taken against him under the
\nprovision of Section 20(2) of the RTI Act.\n<\/p>\n
Decision:\n<\/p>\n
       As per the provisions of Section 20 (1), the Commission finds this a fit case for levying
\npenalty on Mr. Amitabh Joshi, Assistant Director Vigilance & PIO. Since the delay in providing
\nthe information has been over 100 days, the Commission is passing an order penalizing Mr.
\nAmitabh Joshi Rs. 25000\/ which is the maximum penalty under the Act.\n<\/p>\n
        The Chief Secretray of GNCT of Delhi is directed to recover the amount of Rs.25000\/-
\nfrom the salary of Mr. Amitabh Joshi, and remit the same by a demand draft or a Banker’s Cheque
\nin the name of the Pay & Accounts Officer, CAT, payable at New Delhi and send the same to Shri
\nPankaj K.P. Shreyaskar, Joint Registrar and Deputy Secretary of the Central Information
\nCommission, 2nd Floor, August Kranti Bhawan, New Delhi – 110066. The amount may be
\ndeducted at the rate of Rs.5000\/ per month every month from the salary of Mr. Amitabh Joshi and
\nremitted by the 10th of every month starting from October 2009. The total amount of Rs.25000 \/-
\nwill be remitted by 10th February 2010.<\/p>\n
\n\n                                                                                 Shailesh Gandhi\n                                                                       Information Commissioner\n                                                                              10 September 2009\n1-     The Chief Secretary\n       GNCT of Delhi\n       Delhi Sachivalaya, IP Estate\n       New Delhi 110002\n\n2-     Shri Pankaj K.P. Shreyaskar,\n       Joint Registrar and Deputy Secretary\n       Central Information Commission,\n       2nd Floor, August Kranti Bhawan,\n       New Delhi - 110066\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Central Information Commission Mr. Prakash Chandra vs Directorate Of Vigilance, Govt. … on 10 September, 2009 CENTRAL INFORMATION COMMISSION Club Building, Near Post Office Old JNU Campus, New Delhi 110067. Tel: 91 11 26161796 Decision No. CIC \/SG\/A\/2009\/000015\/2695penalty Appeal No. CIC\/SG\/A\/2009\/000015 SHOW CAUSE HEARING: Appellant : Mr. Prakash Chandra, 1646, Type IV, Delhi Admn. Flat, […]<\/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-167277","post","type-post","status-publish","format-standard","hentry","category-central-information-commission","category-judgements"],"yoast_head":"\nMr. Prakash Chandra vs Directorate Of Vigilance, Govt. ... on 10 September, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mr-prakash-chandra-vs-directorate-of-vigilance-govt-on-10-september-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mr. Prakash Chandra vs Directorate Of Vigilance, Govt. ... on 10 September, 2009 - 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