{"id":225814,"date":"2009-10-16T00:00:00","date_gmt":"2009-10-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mr-suraj-pal-vs-mo-communication-it-on-16-october-2009"},"modified":"2017-09-11T14:31:41","modified_gmt":"2017-09-11T09:01:41","slug":"mr-suraj-pal-vs-mo-communication-it-on-16-october-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mr-suraj-pal-vs-mo-communication-it-on-16-october-2009","title":{"rendered":"Mr. Suraj Pal vs M\/O Communication & It on 16 October, 2009"},"content":{"rendered":"
Central Information Commission<\/div>\n
Mr. Suraj Pal vs M\/O Communication & It on 16 October, 2009<\/div>\n
                  Central Information Commission\n\n                                                              CIC\/AD\/A\/2009\/000946\n\n                                                                     Dated Oct 16, 2009\n\n\nName of the Applicant                   :   Mr. Suraj Pal\n\nName of the Public Authority            :   M\/o Communication & IT\n\n\nBackground<\/pre>\n
1.    The Applicant filed an RTI application on 16.03.2009 with the CPIO, O\/o DGM,
\n      MTNL, New Delhi seeking information as to whether call detail records pertaining
\n      to the Applicant’s own prepaid mobile telephone number viz. 98685 97921 were
\n      handed over to any Agency, Crime Branch or any other institution between July
\n      2006 to December 2006. The Applicant further inquired as to which agency or
\n      Institution exactly, had been provided with the said information, if at all.\n<\/p>\n
2.    The CPIO in his reply dated 20.04.2009 enclosed letter\/s dated 15.04.2009 from
\n      the office of the Manager (A) WS and of the APIO\/ GM (O&C) GSM. The APIO &
\n      GM (O&C) GSM in his said letter dated 15.04.2009 denied the information sought
\n      by the Applicant stating that disclosure of such information was exempt under
\n      provisions of Section 8 (1) (h) of the RTI Act 2005. Being aggrieved by the order
\n      of the CPIO, the Applicant filed a First Appeal before the Appellate Authority on
\n      29.04.2009 reiterating the contents of the RTI request. While contending his case
\n      that only Police\/prosecution agency may be allowed to use Section 8 (1) (h) of
\n      the RTI Act 2005, the Appellant placed reliance on the decision of Bhagat Singh
\n      vs. CIC & Ors. in WP (No.) 3114\/2007 pronounced by the Hon’ble High Court of
\n      Delhi. While disposing off the First Appeal vide the order dated 08.06.2009, the
\n      Appellate Authority enclosed a letter dated 02.06.2009 and its enclosures as
\n      received from the SDE (O) WS. The letter dated 29.05.2009 from the APIO
\n      enclosed alongwith the Appellate Authority’s order dated 08.06.2009 once again
\n      reiterated the CPIO’s order denying information under provisions of Section 8 (1)\n<\/p>\n
      (h) and Section 8 (1) (g) of the RTI Act 2005.\n<\/p>\n
3.    Being thus constantly deprived of his right to information, the Appellant sought
\n      recourse before the CIC by filing an Appeal dated 18.06.2009 reiterating
\n      sequentially the facts leading to the filing of the Appeal. The Appellant in his
\n      Appeal categorically submitted that the chargesheet in the case pending against
\n      him, had already been submitted before the concerned Court, the Examination-in-
\n      Chief submitted and also most of the cross examination in the case had taken
\n      place. Hence the denial of information by the Respondent Public Authority
\n     invoking the exemption under Section 8 (1) (h) of the RTI Act 2005 is incorrect.
\n     Furthermore, the Appellant has placed reliance on Section 131 of the Indian
\n     Evidence Act, 1872 contending that the Respondent had not only acted in breach
\n     of trust qua the Appellant but also acted in contravention of the Information &
\n     Technology Act, 2000 while providing information about the Call Detail Reports
\n     [CDRs] of the Appellant to anyone without informing or seeking the approval in
\n     this regard from the Appellant himself.\n<\/p>\n
4.   The Bench of Mrs. Annapurna Dixit, Information Commissioner, scheduled the
\n     hearing on September 8, 2009.\n<\/p>\n
5.   Sh. Parmatma Rai, DGM [RTI & PG], Har Bhagwan, AGM (RTI – Appeal) and Ram
\n     Hari Singh, SE [Legal & RTI] represented the Public Authority.\n<\/p>\n
6.   Commander Mukesh Saini (Retd.) representing the Appellant was present through
\n     Video Conference from Tihar Jail during the hearing.\n<\/p>\n
7.   During the hearing on 08.09.2009, the Commission after hearing the submissions
\n     of the respective parties, directed the Appellant to submit his written submissions
\n     through fax so as to reach the Commission by 09.09.2009, with a copy marked to
\n     the Respondents.\n<\/p>\n
8.   In the written submissions dated 09.09.2009 received by the Commission from
\n     the Appellant from Tihar Jail, the Appellant    provided a backdrop of the case
\n     stating that he was being wrongly implicated in the infamous Timarpur encounter
\n     case wherein two dreaded criminals had been killed while trying to crossover and
\n     enter Delhi borders. The Appellant stated that though he was not even present at
\n     the place of the incident, however owing to intra police onemanupship, the
\n     Appellant had been wrongfully roped in. An FIR No. 383\/2006 had been lodged,
\n     the chargesheet submitted in the Court on 13.11.2006 and even the charges had
\n     been framed on 29.04.2008.      The Appellant clarified that while the prosecution
\n     case was based largely on the CDRs [Call Detail Records], there existed vital
\n     discrepancies in the said CDRs viz.:\n<\/p>\n
     a.     No authentic proof shown in the Court as to how and when the police got
\n            hold of CDRs;\n<\/p>\n
     b.     No digital signature applied on the electronic version of the CDRs for
\n            subsequent authentication;\n<\/p>\n
     c.     CDRs were provided through email using the software ‘Excel’ which could
\n            be easily altered\/tampered;\n<\/p>\n
       d.     The instances of tampering of CDRs had been pointed out to the Nodal
\n              Officer of MTNL, who had conceded on oath that errors shown to him in
\n              the print out could not be due to computer error;\n<\/p>\n
      e.     The investigating officer stated that he had written a letter to MTNL
\n             thereby implying that he had not written\/communicated by any email to
\n             MTNL;\n<\/p>\n
      f.     Though the Nodal Officer, MTNL submitted before the Court that police did
\n             not record his statement, the Court records indicate otherwise in as much
\n             as statement allegedly made by the Nodal Officer, MTNL exists in the Court
\n             records.\n<\/p>\n
9.    The Appellant in his written submission further contended that DGM, RTI, MTNL
\n      while refusing to provide information to the Appellant had stated that he had been
\n      advised to do so by the DCP, Special Cell, Sh. Alok Kumar. The locus standi and
\n      role of the Delhi Police has been challenged by the Appellant in the instant case,
\n      since the Delhi Police is a Third party in this case and unless the provisions of the
\n      Section 11 RTI Act 2005 are invoked, Third Party cannot have any role to play in
\n      any given case. It has furthermore been pointed out that the case relates to the
\n      incident at Timarpur and accordingly the Timarpur Police Station will have
\n      jurisdiction to investigate\/inquire into the matter and not the Crime Branch nor
\n      the Special Cell.\n<\/p>\n
10.   The Appellant furthermore averred that the Respondent Public Authority viz. MTNL
\n      despite being a Service Provider of mobile connection (SIM Card) has acted in
\n      breach of trust and compromised the privacy of the Appellant without any legal
\n      authority, thereby violating the provisions of the Section 131 of the Indian
\n      Evidence Act, 1872.     The Appellant reiterated his contention that the police
\n      authorities could have laid access to the CDRs as stored \/ transmitted using
\n      computer based networks\/computers only by invoking provisions of the Section
\n      69 of the IT Act and Only with the specific approval of the competent authority
\n      viz. the Controller Certifying Authority as envisaged in the Section 69 of the IT
\n      Act. In the light of the foregoing facts of the case, the Appellant strongly opposed
\n      the act of MTNL of having shared information about his Call Detail Records without
\n      seeking his consent\/approval or any legal sanction from any competent authority
\n      as per the law. The Appellant alleged that the Respondent on the one hand has
\n      thus committed breach of trust by infringing upon the privacy of the Appellant
\n      without any valid and\/or legal consent and has also put up a fa\u00e7ade of Section 8
\n      (1) (g) and Section 8 (1) (h) of the RTI Act 2005 in order to protect the illegalities
\n      committed by the MTNL as well as the Delhi Police officials. While making further
\n      submissions stating that giving information is normal and withholding of the same
\n      is exception, the Appellant has placed reliance on the judgment passed by the
\n       Hon’ble High Court of Delhi in the case of Bhagat Singh versus CIC, substantiating
\n      his contentions. In the light of the foregoing discussion, the Appellant concluded
\n      his arguments stating once again that MTNL had no germane reason in denying
\n      the information to the Appellant while the same information had been furnished to
\n      the Police authorities without any prior legal or valid approval.\n<\/p>\n
11.   The Appellant, while giving the chronology of the criminal case filed against him,
\n      has also stated that the prosecution has already rested its entire case on the
\n      details furnished in the form of CDRs of the Appellant as mentioned hereinabove
\n      and hence it is imperative for the Appellant to seek information about the same to
\n      defend himself.\n<\/p>\n
12.   Pursuant to the Appellant’s submissions dated 09.09.2009 being filed before the
\n      Commission, the Respondent Public Authority communicated to the Commission
\n      telephonically on 14.09.2009 that they had not received any written submission
\n      from the Appellant and were accordingly unable to rebut the contentions of the
\n      Appellant. Hence the Commission, on its own sent another faxed copy of the
\n      Appellant’s submissions to the Respondents on the same date, upon which the
\n      Respondent submitted their rejoinder dated 19.09.2009 before the CIC on
\n      22.09.09.\n<\/p>\n
13.   The Respondent Public Authority viz. MTNL in its brief rebuttal dated 19.09.2009
\n      stated that while it has no knowledge about the criminal case\/background in this
\n      case, however the matter being sub judice, comments cannot be made till final
\n      disposal of the Court case. The GM (O&C) WS while refusing to share information
\n      with respect to assistance given in confidence to Law Enforcement Agency has
\n      sought the benefit of exemption under Section 8 (1) (g) and also sought
\n      exemption under Section 8 (1) (h) of the RTI Act 2005 while denying the
\n      information on the ground that sharing of such information may impede the
\n      process of investigation or apprehend the prosecution of offenders.\n<\/p>\n
Decision<\/p>\n
14.   After perusal of all the materials\/documents available on record, and also after
\n      taking into consideration the arguments of both the parties, it is evident that the
\n      sharing of Appellant’s call details by the MTNL with the Law Enforcement Agency
\n      without seeking consent\/approval of either the Competent Authority or even the
\n      Appellant was clearly unlawful as discussed hereinabove being violation of Section
\n      131 of the Indian Evidence Act, 1872 and the Section 69 of the IT Act as alleged.
\n      In fact the MTNL completely missed sight of the fact that the Respondent Public
\n      Authority held the information pertaining to the Appellant’s Call Detail Records in
\n      a fiduciary capacity. It is evident that the said fiduciary relationship with the
\n       Appellant has already been breached by the Respondent Public Authority as
\n      already discussed. The CIC in its decisions viz. CIC\/MA\/A\/2008\/00001\/AD dated
\n      05.11.2008      named    Mr.   Anil     Kumar     Chakravarthy     versus   BSNL      and
\n      CIC\/AD\/A\/2009\/001073 dated 11.09.09 named Mr. Mahesh Chand Jangid versus
\n      BSNL and many other decisions, has clearly held time and again that information
\n      about personal call details is held by any Telecommunication company about its
\n      subscribers in a fiduciary capacity and accordingly, such information is exempt
\n      from disclosure to any Third Party without seeking approval\/consent of the
\n      Subscriber\/s. In this case, evidently, the Respondent has disclosed personal Call
\n      Details for a specific period, pertaining to the Appellant, to the Delhi Police\/ Law
\n      Enforcement Agency without considering the fiduciary capacity in which they held
\n      the information for the Appellant. No other argument about “fiduciary relation”
\n      can     hold   precedence   than      the   relation   of   the   Respondent   with    its
\n      subscriber\/s\/customers. The relation between the MTNL and the concerned Law
\n      Enforcement Agency can by no means be qualified as “fiduciary relation” and the
\n      same is held as non maintainable.\n<\/p>\n
15.   Moreover, in view of the fact, that the Court case is also at an advanced stage of
\n      the trial, no investigation\/inquiry is pending therein nor can at it be at this stage
\n      affected\/impeded\/vitiated by furnishing of the information to the Appellant. In any
\n      case it is a matter of right of the Appellant to know as to who had been given the
\n      information against him as much as it is a matter of his right to life and liberty.
\n      The Hon’ble Delhi High Court in the case of Bhagat Singh versus CIC & Ors. has
\n      already clearly held as follows:\n<\/p>\n
            “……The Act is an effectuation of the right to freedom of speech and
\n            expression. In an increasingly knowledge based society, information
\n            and access to information holds the key to resources, benefits, and
\n            distribution of power. Information, more than any other element, is of
\n            critical importance participatory democracy. By one fell stroke, under
\n            the Act, the make of procedures and official barriers that had
\n            previously impeded information, has been swept aside. The citizen and
\n            information seekers have, subject to a few exceptions, an overriding
\n            right to be given information on matters in the possession of the state
\n            and public agencies that are covered by the Act. As is reflected in its
\n            preambular paragraphs, the enactment seeks to promote transparency,
\n            arrest corruption and to hold the government and its instrumentalities
\n            accountable to the governed. This spirit of the Act must be borne in
\n            mind while construing the provisions contained therein.\n<\/p><\/blockquote>\n
      13. Access to information under Section 3 of the Act, is the rule and
\n          exemptions under Section 8, the exception.        Section 8 being a
\n          restriction on this fundamental right, must therefore is to be strictly
\n          construed. It should not be interpreted in manner as to shadow the
\n          very right self. Under Section 8, exemption from releasing information
\n          is granted if it would impede the process of investigation process
\n          cannot be a ground for refusal of the information, the authority
\n          withholding information must show satisfactory reasons as to why the
\n          release of such information would hamper the investigation process.
\n          Such reasons should be germane, and the opinion of the process being
\n            hampered should be reasonable and based on some material, sans this
\n           consideration, Section 8(1)(h) and other such provisions would become
\n           the haven for dodging demands for information.\n<\/p>\n
16.    Thus as is demonstrated from the aforestated arguments, both the grounds of
\n       exemption as sought by the Respondent Public Authority are untenable in law.
\n       The Right to information is explicitly held to form part of our fundamental rights
\n       enhrined under Article 19(1) (a) of the Constitution of India. The Commission
\n       finds absolutely no merit in the arguments of the Respondent Public Authority in
\n       denying the right to information thereby depriving the Appellant of his right to life
\n       and liberty, in the instant case, where he has been languishing in jail and the
\n       information sought by the Appellant seen in that light is a part of natural justice
\n       which he is rightfully entitled to. The Commission accordingly directs the
\n       Respondent Public Authority to furnish the information within a period of 15 days
\n       of receipt of this order.\n<\/p>\n
The appeal is accordingly disposed of as allowed.\n<\/p>\n
The decision in this case was reserved and pronounced in the open court on the
\n16th October 2009.\n<\/p>\n
                                                                        (Annapurna Dixit)
\n                                                                Information Commissioner<\/p>\n
Authenticated true copy:\n<\/p>\n
(G.Subramanian)
\nAssistant Registrar
\n Cc:\n<\/p>\n
1.    Mr. Suraj Pal
\n      Ward No. 1(E-9),
\n      Jail No. 1<\/span>
\n      Tihar,
\n      New Delhi<\/p>\n
2.    The CPIO
\n      O\/o General Manager
\n      K L Bhawan
\n      Janpath, New Delhi<\/p>\n
3.    The Appellate Authority
\n      O\/o PMG, MTNL
\n      II Floor, K L Bhawan
\n      Janpath, New Delhi.\n<\/p>\n
4.    Officer in charge, NIC<\/p>\n
5.    Press E Group, CIC\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Central Information Commission Mr. Suraj Pal vs M\/O Communication & It on 16 October, 2009 Central Information Commission CIC\/AD\/A\/2009\/000946 Dated Oct 16, 2009 Name of the Applicant : Mr. Suraj Pal Name of the Public Authority : M\/o Communication & IT Background 1. The Applicant filed an RTI application on 16.03.2009 with the CPIO, O\/o […]<\/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-225814","post","type-post","status-publish","format-standard","hentry","category-central-information-commission","category-judgements"],"yoast_head":"\nMr. Suraj Pal vs M\/O Communication & It on 16 October, 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-suraj-pal-vs-mo-communication-it-on-16-october-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mr. Suraj Pal vs M\/O Communication & It on 16 October, 2009 - 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