Delhi High Court

Union Of India & Anr vs Suhas Chakma & Anr on 1 April, 2016

Author: Rajiv Sahai Endlaw

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                              Date of decision: 1st April, 2016.

+               W.P.(C) No.2822/2014 & CM No.5849/2014 (for stay)

       UNION OF INDIA & ANR.                    ..... Petitioner
                    Through: Mr. Anil Soni with Mr. Naginder
                             Benipal, Advs.

                                      Versus

    SUHAS CHAKMA & ANR.                      ..... Respondents

Through: Mr. Nitesh Kumar Singh, Adv.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This petition under Article 226 of the Constitution of India impugns

the order dated 1st December, 2009 of the Central Information Commission

(CIC) constituted under the Right to Information Act, 2005 (RTI Act)

directing the Ministry of External Affairs (MEA), Union of India to disclose

to the respondent No.1 information seeker information which according to

the petitioners is exempted from disclosure under Section 8(1)(f) of the Act.

2. It is the case of the petitioners:

(i) that the respondent No.1 information seeker vide application

dated 6th February, 2009 sought information from the Central Public

Information Officer (CPIO) of MEA, (1) whether a Commission

Rogatoire had been received from Mr. Marc Tappolet, Judge

d‟instruction, Geneva Canton, Switzerland; (2) copy of the

Commission Rogatoire; and, (3) action taken on the Commission

Rogatoire;

(ii) that the information was denied seeking exemption under

Section 8(1)(a) & (f) of the RTI Act;

(iii) that being dissatisfied, the respondent No.1 information seeker

filed an appeal on 17th March, 2009 with the Appellate Authority;

(iv) that the First Appellate Authority vide order dated 28th April,

2009 upheld the decision of the CPIO and dismissed the appeal

reasoning that the information is also exempted from disclosure under

Section 8(1)(j) of the RTI Act;

(v) that the respondent No.1 information seeker by way of second

appeal approached the CIC which, vide the impugned order dated 1st

December, 2009 allowed the appeal and directed the petitioner to

supply the information;

(vi) that the petitioners vide their letter dated 21 st December, 2009

informed the respondent No.1 information seeker that MEA had

received a Note Verbale from the Embassy of Switzerland in New

Delhi for investigation into the case of "Mr. Nair and forwarding a

copy of the Note Verbale available with the Ministry and informing

that the other information was available with the Ministry of Home

Affairs";

(vii) that the Ministry of Home Affairs (MHA) vide its letter dated

4th January, 2010 to the respondent No.1 information seeker further

informed that after consideration of the Letter Rogatoire / Note

Verbale, the Interpol Wing of Central Bureau of Investigation (CBI)

had been directed to get the same executed through Anti-Corruption

Branch of CBI, Delhi and as per the information available with Legal

Cell, CBI had already forwarded the report to MEA for onward

transmission to the requesting country;

(viii) that the respondent No.1 information seeker applied to the CIC

under Section 19 of the Act averring non-compliance of the order

dated 1st December, 2009;

(ix) that the CIC vide its order dated 24th June, 2010 observed that

though information against queries No.1 & 3 had been supplied but

information against query No.2 being sensitive, need not be given to

the respondent No.1 information seeker;

(x) that the respondent No.1 information seeker aggrieved

therefrom filed W.P.(C) No.5086/2010 which was allowed merely on

the ground that the CIC had no power to review its decision dated 1st

December, 2009 and the order dated 24th June, 2010 of CIC quashed.

Hence, the need to challenge the order dated 1st December,

2009.

3. The petition came up before this Court first on 5 th May, 2014 when

while issuing notice thereof, considering the fact that the CIC itself had in

the order dated 24th June, 2010 agreed that the information earlier directed to

be disclosed was sensitive and would give an opportunity to the accused to

influence and manipulate the outcome of the investigation by destroying and

distorting evidence and was required to be protected by the Mutual Legal

Assistance Treaty (MLAT) executed between India and Switzerland, the

disclosure of further information in pursuance to the order dated 1 st

December, 2009 was stayed. The counsel for the respondent no.1 appeared

and though sought time to file counter affidavit but no counter affidavit has

been filed. The counsels were heard and order reserved on 9 th October,

2015.

4. The counsel for the petitioner, during the hearing reiterated the case as

set out in the petition and drew attention to the MLAT between India and

Switzerland, Annexure-P8 to the petition. No substantial argument was

urged by the counsel for the respondent no.1. The respondent no.2 Ms.

Nitaly Dewan is the wife of the respondent no.2 but the reason for her

impleadment as respondent nowhere disclosed.

5. CIC in its order dated 24th June, 2010 on the application of the

respondent no.1 under Section 19 of the RTI Act reviewed / modified its

earlier order dated 1st December, 2009 reasoning:

(i) that at the time of passing of the order dated 1 st December, 2009

only the Ministry of External Affairs (MEA) was heard and not

the Ministry of Home Affairs (MHA);

(ii) that the MHA had given some insight into the particulars of the

pending investigation against Mr. Ravi Nair and also explained

its role under Section 166B of the Code of Criminal Procedure,

1973 (Cr.P.C.);

(iii) that under Section 166B Cr.P.C. and the Allocation of Business

Rules, 1961, IS-II Division in the MHA is assigned the function

and handles the issues related to Letter of Request received

from a foreign country for execution;

(iv) that MHA, on earlier occasion, had not been informed of the

information sought by the respondent no.1 from the MEA and

the orders thereon;

(v) that MHA had explained that India does not have a full fledged

treaty but a limited agreement on mutual cooperation by way of

exchange of letters with Switzerland;

(vi) that the Government of India is only custodian of the

information till the same is executed or returned but the

information is not under the control of the MHA;

(vii) that as per treaties and diplomatic conventions all matters

relating to mutual legal assistance in criminal matters are treated

as confidential;

(ix) that by the Letter Rogatoire, the Swiss Court was seeking to

participate in investigation as going on in the Indian Court

against Mr. Ravi Nair;

(x) that the MLAT between Indian and Swiss Governments

contains the confidential clause as also the "Assurance of

Reciprocity";

(xi) that the only remaining information being the copy of the

Commission Rogatoire is exempt from disclosure because of the

nature of its contents;

(xii) that the original file had been produced before the CIC and

perusal of its contents showed the documents to be sensitive in

nature, disclosure whereof may indeed hamper the progress of

the case filed by the CBI against Mr. Ravi Nair;

(xiii) that the investigation at the CBI Court was pending and yet to

attain finality;

(xiv) that disclosure of sensitive information relating to charges,

grounds for framing charges etc. against the accused pose a risk

of hampering the progress of the case and may enable the

accused to influence and / or manipulate the outcome of the

investigation by destroying and / or distorting evidence against

him; and,