Delhi High Court

Amresh Sharma vs Director General, Border ... on 19 March, 2019

    * IN THE HIGH COURT OF DELHI AT NEW DELHI
    %                           Date of decision: 19th March, 2019

+    W.P.(C) 5951/2014

     AMRESH SHARMA                                      ..... Petitioner
                 Through:             Ms. Warisa Farasat and
                                      Ms. Rudrakshi Deo, Advs.

                    versus

     DIRECTOR GENERAL, BORDER SECURITY
     FORCE                                    ..... Respondent
                  Through: Mr. Akshay Makhija, CGSC with
                           Ms. Kriti Awasthi, Adv.

    CORAM:
    HON'BLE MR. JUSTICE V. KAMESWAR RAO

    V. KAMESWAR RAO, J. (ORAL)

1. The challenge in this writ petition is to an order dated

January 06, 2014 passed by the Central Information Commission

(CIC, in short) whereby the CIC has allowed the appeal filed by the

petitioner herein partially inasmuch as it has directed the CPIO of

the respondent Organization to provide the documents at point No.

(i), (ii) and (vi) to the petitioner herein and denied the documents at

point No. (iii), (iv) and (v) on the ground that the same attracts

Section 8(1)(j) of the RTI Act, 2005.

2. Suffice it to state that the information, which was sought by

the petitioner from the CPIO of the respondent Organization were

the following:-

(i)     Complaint lodged by Mrs. Amresh Sharma;

(ii)    Charge-sheet against Mr. Kailash Chand, D.I.G. (Udaipur);

(iii) Statements of all the P.W. (prosecution witnesses) examined by the G.S.F.C.;

(iv) Statements of all the D.W. (defence witnesses) examined by the G.S.F.C.

(v)     All the exhibits produced in the G.S.F.C.;

(vi)    Judgment by G.S.F.C.

3. There is no dispute that the respondent had complied with

the directions of the CIC with regard to documents at (i), (ii) and

(vi) above. The only issue which needs to be considered is, whether

the rejection of the information sought by the petitioner with regard

to documents at point (iii), (iv) and (v) above, on the ground that

the same attracts Section 8(1)(j) of the RTI Act, 2005, is justified.

4. The case of the petitioner is that she is a widowed lady

whose husband expired in a road accident, leaving behind four

young children. Taking advantage of her state, her brother-in-law,

who was already married, conducted a sham second marriage with

her. He not only left her without any maintenance and forced her to

conduct multiple abortions, but also transferred various properties

inherited by her from her late husband to his own name. Her

brother-in-law namely Kailash Chand was also a D.I.G. in the

Border Security Force and such a second marriage was a civil

offence under Section 46 of the Border Security Force Act.

5. The petitioner filed a complaint with the BSF on June 18,

2009 alleging that Kailash Chand had deceitfully induced her to

have conjugal relations with him by making her believe that they

were lawfully married and that he had improperly acquired and

disposed of immovable properties belonging to her and to others.

A trial was held by the General Security Force Court (for short

'G.S.F.C.') established under Section 64 of the Border Security

Force Act, 1968 (BSF Act). Two separate charge sheets were

framed by the G.S.F.C. The first charge sheet was issued under

Section 46 of the BSF Act, which is "sexual intercourse caused by a

man deceitfully inducing a belief of lawful marriage punishable

under Section 493 of the Indian Penal Code." The second charge

sheet was under Section 40 of the BSF Act, that is "an act

prejudicial to good order and discipline of the force". It appears

that the G.S.F.C. has acquitted Kailash Chand of the charge of

illegal acquisition of property, which according to the petitioner

ought to have been inherited by the petitioner and her children. The

petitioner being not satisfied with the decision of the G.S.F.C., had

on March 06, 2013 filed an application under RTI Act, 2005 before

the Public Information Officer demanding certified copies of the

aforesaid six documents. On March 20, 2013, the PIO has rejected

the application on the ground that the Border Security Force is a

security organization listed in the second schedule of the RTI Act in

terms of Section 24 of the RTI Act and has been given exemption

from application of the provisions of the Act.

6. On April 10, 2013 petitioner filed a first appeal under

Section 19(1) of the RTI Act pointing out that the information

sought was not excluded from Section 24 of the RTI Act as it

related to information pertaining to allegations of corruption and

human right violations. On April 29, 2013, the First Appellate

Authority of the BSF dismissed the appeal on the ground that the

case of the petitioner is not covered by the exception, holding that

the information sought is not related to human right violations or

allegations of corruption. On June 14, 2013, petitioner filed a

Second Appeal before the CIC, which resulted in the impugned

order of the CIC, a narration of which has already been given above.

7. It is the submission of the learned counsel for the petitioner

that the ground on which the CIC has rejected the three documents

at point Nos.(iii), (iv) an (v) above on the ground that the said

documents attract Section 8(1)(j) of the RTI Act, 2005 is totally

untenable. According to her, the information sought by the

petitioner was with regard to G.S.F.C. conducted by the BSF on the

compliant made by the petitioner herein and the complainant is

interested in the outcome of the G.S.F.C. and the same cannot be

said to be personal information relatable to Kailash Chand. In fact,

these are the proceedings, which have been conducted by the BSF

on the basis of the complaint of the petitioner against Kailash Chand

as such amenable to the petitioner. So, it cannot be said to be a

material concerning third party. That apart, it is her submission that

when the respondents have given to the three documents like

complaint of the petitioner; the charge sheet against Kailash Chand

and the judgment of the G.S.F.C., there is no reason to deny the

documents at point (iii), (iv) and (v), which are also related to the

proceedigns before the G.S.F.C., to the petitioner. She has relied

upon two judgments in support of her contention. The same are;

(i) CPIO, Supreme Court of India v. Subhash Chandra Agarwal and Anr. 162 (2009) DLT 135;

(ii) D.P. Maheshwari v. Central Bureau of Investigation decided on January 18, 2018.

8. On the other hand, learned counsel for the respondent would

rely on Section 129 of the BSF Act to contend that a person tried by

the Security Force Court is entitled to the copies of the proceedings

only on demand and not as a matter of right. That apart, it is her

submission that it is the case of the petitioner that the petitioner has

demanded the information to seek appropriate remedy against the

conclusion of the G.S.F.C acquitting Kailash Chand of one charge.

If that be so, it is her submission that the Civil Court is within its

right to summon any record and such rights are unfettered and

petitioner by resorting to the RTI Act, is pursuing a wrong remedy.

She also justifies the invocation of provision of Section 8(1)(j) of

the RTI Act as the information sought pertains to Kailash Chand.

She would rely upon the judgment in the case of Union of India

and Ors. v. Adarsh Sharma W.P.(C) 7453/2011 decided on

October 09, 2013.

9. Having heard the learned counsel for the parties as noted

above, the only issue is whether the CIC is right in rejecting the

request of the petitioner with regard to documents at point (iii), (iv)

and (v) on the ground that it attracts Section 8(1)(j) of the RTI Act.

The answer in this regard has to be in negative. This I say so for the

reason that there is no dispute that the G.S.F.C. proceedings have

been initiated against Kailash Chand on the complaint made by the

petitioner. In fact, during the proceedings I have been informed that

the petitioner was also called as a witness. There is also no denial

to the fact that those proceedings have been initiated by the BSF

under the Act and rules made thereunder. So, the information

sought is related to a public activity, as it concerns the conduct of

Kailash Chand as an employee of BSF and the same cannot be said

to be personal information of Kailash Chand to be called as an

unwarranted intrusion of privacy of Kailash Chand. In other words,

Kailash Chand being an employee of the BSF, is governed by the

Disciplinary Rules of the BSF and the action has been taken by the

BSF against Kailash Chand being its employee. In fact, the

nomenclature of the information sought would reveal that the intent

behind seeking that information was to ascertain the evidence,

which has been adduced by the prosecution witnesses and defence

witnesses and also the documents, which have been produced in the

G.S.F.C. That apart, the very fact that the judgment of the G.S.F.C.

has been given to the petitioner, which surely would have made a

reference to all the documents including those sought by the

petitioner, cannot be termed to be a third party information, which

shall prejudice the privacy of Kailash Chand. I am of the view that

the denial of the information in the facts of this case, is totally

unwarranted. Also, the respondent having given information with

regard to three documents at (i), (ii) and (vi) cannot now take the

plea based on Section 24 of the RTI Act, 2005.

10. The learned counsel for the petitioner is justified in relying

upon paras 60 and 63 of the judgment in the case of CPIO,

Supreme Court of India (supra), wherein the learned Single Judge

has concluded as under:-

60. The petitioners argue that the information sought for is exempt from disclosure by reason of Section 8 (1) (j) of the Act. The argument here is that such class of information - about personal asset declarations has nothing to do with the individual's duties required to be discharged, as a judge, an obvious reference to the first part of Section 8 (1)

(j); it is also emphasized that access to such information would result in unwarranted intrusion of privacy. The applicant counters the submission and says that details of whether declarations have

been made, to the CJI can hardly be said to be called "private" and that declarations are made by individual judges to the CJI in their capacity as judges. It is submitted that the present proceeding is not concerned with the content of asset declarations.

XXXXX XXXXX XXXXX

63. There can be no doubt that the Act is premised on disclosure being the norm, and refusal, the exception. As noticed, besides the exemptions, non-disclosure is also mandated in respect of information relating to second schedule institutions. Though by Section 22, the Act overrides other laws, the opening non-obstante clause in Section 8 ("notwithstanding anything contained in this Act") confers primacy to the exemptions, enacted under Section 8. Clause (j) of Sub-section (1) embodies the exception of information in the possession of the public authority which relates to a third party. Simply put, this exception is that if the information concerns a third party (i.e. a party other than the information seeker and the information provider), unless a public interest in disclosure is shown, information would not be given; information may also be refused on the ground that disclosure may result in unwarranted intrusion of privacy of the individual. Significantly, the enactment makes no distinction between a private individual third party and a public servant or public official third party.

11. Insofar as the judgment of UOI v. Adarsh Sharma (supra)

relied upon by the learned counsel for the respondent is concerned,

the same is not applicable to the facts herein; as a Coordinate Bench

of this Court had, while dealing with an issue wherein information

was sought from the Intelligence Bureau, has held that the

information of the nature sought cannot be sought as a matter of

right. Suffice it to state, the said judgment was peculiar to the facts

of that case and as such, is of no help to the learned counsel for the

respondent.

12. In view of the discussion above, this Court is of the view

that the respondent should be directed to provide the information

with regard to the documents at Sl. No.(iii), (iv) and (v) within a