Brig. (Retd.) Ujjal Dasgupta vs Cabinet Secretariat
2010 Latest Caselaw 3052 Del

         IN THE HIGH COURT OF DELHI AT NEW DELHI

                 W.P. (C) 218 of 2010 & CM APPL 450/2010

                                               Reserved on: 21st May 2010
                                               Decision on: 02nd July 2010

         BRIG. (RETD.) UJJAL DASGUPTA                    ..... Petitioner
                         Through: Mr. Prashant Bhushan with
                         Mr. Rohit Kumar Singh and
                         Mr. Pranav Sachdeva, Advocates

                 versus

         CABINET SECRETARIAT                          ..... Respondent
                      Through: Mr. P.P. Malhotra, Additional Solicitor
                      General with Mr. Atul Nanda, Ms. Rameeza
                      Hakeem and Mr. Gaurav Gupta, Advocates


         CORAM: JUSTICE S.MURALIDHAR

         1. Whether Reporters of local papers may be
            allowed to see the judgment?                               No
         2. To be referred to the Reporter or not?                    Yes
         3. Whether the judgment should be reported in Digest?    Yes

                                    JUDGMENT

1. This petition, which challenges a decision dated 25th August 2009 of the

Central Information Commission („CIC‟), involves the interpretation of the

first proviso to Section 24 (1) of the Right to Information Act, 2005 („RTI

Act‟).

2. The Petitioner is facing trial for offences under the Official Secrets Act,

1923 („OSA‟) in FIR No. 42 of 2006 registered against him by the Special

Cell of the Delhi Police. An application made by him before the trial court

seeking supply of certain documents relied upon by the prosecution was

dismissed by the learned Additional Sessions Judge („ASJ‟) by an order

dated 19th April 2008. This was challenged by the Petitioner in this Court

by way of Criminal Miscellaneous Case No. 1255 of 2008. By an order

dated 25th April 2008 this Court disposed of the said petition with certain

directions for supply of soft and hard copies of some of the documents.

Although the said judgment was by an order dated 14th May 2008 stayed by

the Supreme Court in Special Leave Petition (Criminal) No. 3718 of 2008

by a subsequent order dated 23rd February 2010 the Supreme Court

dismissed the special leave petition.

3. The background facts are that during the relevant time when the events

leading to the filing of the criminal case transpired, the Petitioner was

posted as the Director (Computers) in the Research and Analysis Wing

(„RAW‟) under the Cabinet Secretariat, Government of India. It is alleged

that the Petitioner was in possession of classified data on his official laptop

which he brought to his residence. The allegation was that he had worked

on the data on his home PC and transferred the information on to pen

drives. The case of the prosecution as contained in paras 11 and 12 of the

complaint is as under:

"11. The recovered hard disk drives and pen drives recovered from accused Ujjal Dasgupta were analysed in Cyber Lab of Special Cell. During analysis the steganography software "Stegno_tesec version 1.0" developed by „FCE, MCTE‟, Faculty of Communication Engineering, Military College of Telecommunication Engineering, TCPDUMP version 3.9<2005.05.24>, "C Cleaner" and "Eraser" along with many other files were recovered from one pen drive make CommunicAsia 2005. About 50 presentations relating to NSCS and "Special

Action Plan and Follow ups 29 Sept 2004 (3PPs) and "Project Anveshak" related 3PPs accessed from F Drive relating to R&AW were recovered from the hard disk of his home computer. 19 PPs relating to "Project Anveshak" were also recovered from the hard disk of his official laptop computer.

12. Documents/information relating to "Project Anveshak" recovered from the house computer and laptop computer of accused Ujjal Dasgupta were sent to Cabinet Secretariat (R&AW) for opinion on classification and authorization of possession. R&AW categorically opined that Project "Anveshak" is a classified project. Ujjal Dasgupta had access to the software developed under this project. Ujjal Dasgupta was not allowed to take the software or its populated contents outside the office. He was also not allowed to connect his official laptop computer of PC computer to an internet connection. The project is related to the security/defence matters of the country. If the project or its details were passed on to an unauthorised person or foreign agent, it could be prejudicial to the safety or interest of the State."

4. This Court has by its order dated 25th April 2008, which has been

affirmed by the Supreme Court, directed the prosecution to supply the

copies of the paper print outs of the pen drives recovered from the

Petitioner (Envelope „D‟), copies of the paper print outs of the details

concerning project Anveshak (Envelope „X‟) and certified copies of hard

copies of annexures A and B thereto. The disclosure of information was

directed subject to the condition that neither the Petitioner nor his counsel

will further disseminate or in any manner transmit such document or allow

it to be accessed, read, written or inspected by any person other than the

Petitioner or the counsel for the Petitioner. As far as the home PC is

concerned, if any of the documents contained in the hard disc thereof, were

to be relied upon by the prosecution then the authenticated hard copies

thereof were directed to be given to the Petitioner. It was further clarified

that if the above directions were complied with, then the cloned copies of

the pen drives and hard discs need not be provided. This was consequent

upon the submission made on behalf of the prosecution that it would have

no objection to running a software on the hard discs of the home and office

PCs which would indicate the various changes the hard disc had been

subject to and the file name, date of creation, date last accessed, file size

and path of the contents of the hard disc.

5. On 29th October 2008 the Petitioner submitted an application under the

RTI Act to the Central Public Information Officer („CPIO‟) RTI Cell,

Cabinet Secretariat referring to certain replies given by the RAW to the

Special Cell to the queries raised by the Special Cell with regard to project

Anveshak. It is the Petitioner‟s case that by way of the said replies RAW

created a false impression that the Petitioner was guilty of committing the

offences of which he was accused. He explained that the said replies given

by the RAW to the Special Cell were "directly affecting the liberty of the

applicant in the violation of his human rights." The Petitioner‟s case is that

the said replies were the direct cause of the Petitioner being denied bail by

the trial court as well as by the High Court. The Petitioner proceeded

therefore to raise the following questions:

"17. Q (ii) and Ans (ii) - Access to Anveshak Software

(a) Uninstalled Software - were the CDs/other magnetic media containing the uninstalled Anveshak Software handed over by C-DAC to Director (Computers)/ Computer Cell? If yes, please provide certified copies of the following:-

(i) Receipt given by Computer Cell of R&AW to C- DAC for the same/received copy of the issue voucher under which the software was handed over.

(ii) Extracts of ledger entry of relevant ledger showing the Anveshak software having been taken on charge by Computer Cell of R&AW - if No, please specify so.

(b) Installed Software

(i) Was any computer dedicated for independent use by Director (Computers) in any of the user branches where Anveshak was installed? If yes, was an exclusive user ID and password allotted to him to enable such independent access? If not, please specify so.

(ii) Was Director (Computers) allowed access to any user‟s computer in any branch where Anveshak was in use, independent of the actual user? If yes, was the ID and password of such computer used for accessing the Anveshak data base made available to him to permit such access independent of the actual user? If no, please specify so.

18. Q. (iii) and Ans (iii) - Taking the Anveshak software or its populated contents outside the office.

(a) As clarified in your Ans (iv), Anveshak relates to a database management system used for storage and

retrieval of data. The data base is an intrinsic part of the software, that being so, can any of the data populating the Anveshak database be accessed except through the Anveshak software?

(b) Was the Anveshak software present on the residence computer as per the recovery made from me and forwarded to you vide Annexure A to D1? If yes, was the software complete and functional? If no, please specify so.

(c) Was the Anveshak software present on the residence computer as per the recovery made from me and forwarded to you side Annexure A to D1? If yes, was the software complete and functional? If no, please specify.

(d) Were any populated contents of Anveshak database present on the office laptop as per the recovery made from me and forwarded to you vide Annexure A to D1? If yes, please list out these documents that was found. If no, please specify so.

(e) Were any populated contents of Anveshak data base present on the residence computer as per the recovery made from me and forwarded to you vide Annexure A to D1? If yes, please list out these documents that were found. If no, please specify so.

(f) If the answers to question at sub-paras (b) to (e) above are in the negative, then was the Answer (iii) given by you specific only to the Q (iii) asked by Special Cell and unrelated to the recoveries made from me and forwarded to you vide Annexure A to D1?

19. Q (iv) and Ans (iv) - Connection of Anveshak to Defence Matters

(a) Does the recovery made from me and forwarded to R&AW vide Annexure A to D1 substantiate that sensitive data pertaining to security or defence matters of the country was present on the office laptop? If yes, please provide a list of such documents. If no, please specify so.

(b) Does the recovery made from me and forwarded to R&AW vide Annexure A to D1 substantiate that sensitive data pertaining to security or defence matters of the country was present on my residence computer? If yes, please provide a list of such documents. If no, please specify so.

(c) If the answers to the questions at sub-paras (a) & (b) above are in the negative, then was Answer (iv) given by you specific only to the Question (ix) and unrelated to the recoveries made from me and forwarded to R&AW vide Annexure A to D1?

20. Q (vi) and Ans. (vi) - Connecting to the Internet Connection

(a) Does the recovery made from me and forwarded to R&AW vide Annexure A to D1 substantiate that the software or populated contents of Project Anveshak were sent out from the Desktop PC of the undersigned over an insecure internet connection? If yes, please provide details of what was sent out and when. In no, please specify so.

(b) Does the recovery made from me and forwarded to

R&AW vide Annexure A to D1 substantiate that the software or populated contents of Project Anveshak were sent out from the office laptop of the undersigned over an insecure internet connection? If yes, please provide details of what was sent out and when. If no, please specify so."

6. By its letter dated 19th November 2008 the CPIO (RTI) & Director

informed the Petitioner that RAW "being an intelligence wing of the

Government is exempted from the provisions contained in the RTI Act."

Further it was stated that since the case was sub judice in the trial court, the

Cabinet Secretariat was "not under any obligation to provide the

information sought for under the RTI Act 2005."

7. The Petitioner‟s appeal was dismissed by the Appellate Authority (RTI)

on 14th January 2009 holding that the CPIO had rightly rejected the

application. Thereafter, the Petitioner appealed to the CIC.

8. Rejecting the appeal, the CIC held that detention under the orders of the

Court and the trial in a competent court of law in which the accused gets a

reasonable opportunity to defend himself cannot per se be termed as a

violation of human rights. The CIC agreed with the Respondent that in

terms of Sections 8 (1)(a) and 8 (1)(h) of the RTI Act disclosure of the

information sought for "may prejudicially affect national security".

9. The submissions of Mr. Prashant Bhushan, learned counsel appearing for

the Petitioner and Mr. P.P. Malhotra, learned Additional Solicitor General

appearing for the Respondent have been heard.

10. Mr. Bhushan, learned counsel for the Petitioner submits that the proviso

to Section 24 of the RTI Act clarifies that "information pertaining to

allegations of corruption and human rights violations shall not be

excluded." According to him, since the replies given by the RAW were

vague and misleading, they were the direct cause of the Petitioner being

denied bail and that by itself was a violation of his personal liberty and thus

his human rights. According to him, as long as the Petitioner makes

"allegations" of human rights violations by RAW, exemption under Section

24 of the RTI Act from disclosure of information held by the RAW would

not be available to it. He further submits that the exemption under Section

24 should be narrowly construed and an interpretation adopted which would

advance the purpose and object of the RTI Act. He further points out that

the information sought is innocuous and does not concern the contents of

the so called secret documents.

11. On the other hand Mr. P.P. Malhotra, learned Additional Solicitor

General appearing for the RAW submits that as long as the Petitioner is in

custody pursuant to the Court‟s orders, it cannot be said that there is a

violation of his human rights.

12. Pursuant to the submissions made by learned counsel for both the

parties and in view of the subsequent developments in the form of the

dismissal of the SLP by the Supreme Court against the order dated 25 th

April 2008 by this Court in Criminal Miscellaneous Case No. 1255 of 2008,

Mr. Bhushan submitted that the Petitioner‟s queries were narrowed as

follows:

" (A) Were the CDs/other magnetic media containing the uninstalled Anveshak Software handed over by C- DAC to Director (Computers)/Computer Cell? If yes, please provide certified copies of the following:-

(i) Receipt given by Computer Cell of R&AW to C-DAC for the same/receipted copy of the issue voucher under which the software was handed over.

(ii) Extract of ledger entry of relevant ledger showing the Anveshak Software having been taken on charge of Computer Cell of R&AW.

(B) Was the Anveshak software present on the office laptop as per the recovery made from me and forwarded to you vide Annexure A to D1? If yes, was the software complete and functional? If no, please specify so.

(C) Was the Anveshak software present on the residence computer as per the recovery made from me and forwarded to you vide Annexure A to D1? If yes, was the software complete and functional? If no, please specify so.

(D) Were any populated contents of Anveshak database present on the office laptop as per the recovery made from me and forwarded to you vide Annexure A to D1? If yes, please list out these documents that were found. If no, please specify so.

(E) Were any populated contents of Anveshak database present on the residence computer as per the recovery made from me and forwarded to you vide Annexure A to D1? If yes, please list out these documents that were

found. If no, please specify so."

13. In response to the above questions, the learned Additional Solicitor

General on instructions stated that the above information could well be

sought by the Petitioner in the course of the criminal trial in accordance

with law and under the directions of the trial court. Since the Petitioner had

already availed of that remedy during the course of the criminal trial, the

indirect method of getting the information from the RAW under the RTI

Act was both impermissible in law and uncalled for.

14. This Court has considered the above submissions.

15. The first question that requires to be considered is whether the case

involves providing information pertaining to "allegations" of "human rights

violations" by the organization holding the information i.e. RAW. It

appears to this Court that the Petitioner has attempted to somehow bring his

case within the scope of the proviso to Section 24 of the RTI Act, and has

for that purpose alleged that his human rights were violated by RAW.

However, a careful perusal of the documents placed on record shows that

the Petitioner‟s main grievance is not about human rights violations by

RAW. He has been arrayed as an accused following due process of law. At

the present stage of the criminal trial a charge sheet has not been filed and

charges are yet to be framed. As explained by the Supreme Court in State of

Orissa v. Debendra Nath Padhi 2005 AIR 359, the stage at which the

accused can seek to produce documents by way of defence would be a stage

of framing of charges and not earlier. Therefore, even at the criminal trial,

the stage for the Petitioner to produce documents in his defence has not

been reached. In other words, he will not be able to rely upon

documents/information in possession of the prosecution agency which are

not already on record of the trial court and which are not relied upon by the

prosecution.

16. It was urged by Mr. Bhushan that irrespective of whether the Petitioner

is or is not able to access or produce information in his defence in the trial,

as long as he has made allegations of human rights violations against the

RAW, the information sought by him under the RTI Act cannot be denied.

This Court is unable to accept the above submission. Whether in fact the

replies given by the RAW were the only reason for the denial of the bail to

the Petitioner by the Court or whether they amounted to human rights

violations cannot be determined at the present stage. The prima facie

tenability of the case of the prosecution is yet to be determined by the

criminal court. The criminal court is obliged to do so at the stage of framing

of charges. This Court cannot, therefore, preempt the answer to such a

question in the present proceedings. In the considered view of this Court in

a situation where the criminal trial against the Petitioner is pending at the

stage of framing of charges, it would not be open for this Court to arrive at

any conclusion, one way or the other, about the tenability of the

"allegations" made by the Petitioner about "human rights violations" by the

RAW.

17. This Court, accordingly, holds that at the present stage the proviso to

Section 24 (1) under the RTI Act does not stand attracted and the exemption

from disclosure of the information held by the RAW under the RTI Act

does not get lifted. It is however clarified that the present order will not

preclude the Petitioner from being provided with the information held by

the prosecution and intended to be used by it against him in the criminal

trial.

18. For the aforementioned reasons, the petition is dismissed but in the

circumstances with no order as to costs. The pending application also stands

dismissed.

S. MURALIDHAR, J.

JULY 02, 2010 rk