Madras High Court
Gulab Singh Rana vs The Central Public Information ... on 8 December, 2021
W.P.No.37231 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.12.2021
CORAM :
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.37231 of 2016
Gulab Singh Rana,
Roll No. 14083
General Manager,
Indian Overseas Bank,
Central Office,
763, Anna Salai,
Chennai – 600 002. ... Petitioner
Vs.
1.The Central Public Information Officer,
Indian Overseas Bank,
Central Office, #763, Anna Salai,
Chennai – 600 002.
2.The First Appellate Authority cum General Manager,
Law Department, (RTI Cell)
Indian Overseas Bank,
Central Office,
#763, Anna Salai,
Chennai – 600 002
3.The Central Bureau of Investigation
Rep. by the Head of the Branch,
Bank Securities & Fraud Cell,
5th Floor, CBI Head Quarters,
5-B, CGO Complex, Lodhi Road,
New Delhi – 110 003
1/108
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4.The Central Information Commission
Rep. by its Registrar,
Room No. 306, 3rd Floor,
“B” Wing, August Kranti Bhavan,
Bhikaji Cama Place,
Old JNU Campus,
New Delhi – 110 066 ... Respondents
Prayer : Writ Petition filed under Article 226 of the Constitution of India
for issuance of a Writ of Certiorarified Mandamus, calling for the records of
the 4th respondent in Second Appeal No. SA/ UG/ 15/ f9219ydtm in File
No.CIC/SH/A/2015/001081 dated, 21.7.2016 and to quash the same
consequently, direct the 1st and 3rd respondents to provide the point-wise
information sought for by the petitioner vide, RTI Application dated,
30.9.2014.
For Petitioner : Mr.S.Sathiaseelan
For R1 and R2 : Mr.R.Manimuthu
For R3 : Mr.K.Srinivasan
Special Public Prosecutor [For CBI]
For R4 : Mr.K.Venkataswamy Babu
Central Government Standing Counsel
2/108
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ORDER
The writ on hand has been instituted, questioning the legality of the
findings arrived by the 4th respondent/The Central Information Commission
in order 21.07.2016 and to direct the respondents 1 and 3 to provide point
wise information sought for by the petitioner vide Right to Information Act
(RTI Act, 2005) application dated 30.09.2014.
2. The petitioner was working as General Manager, in Marketing
Department, Indian Overseas Bank (IOB), Central Office at Chennai. The
Central Bureau of Investigation (CBI), Bank Securities and Fraud Cell at
New Delhi, has registered an F.I.R on 23.02.2012 and arrayed the petitioner
as accused No.12 for the alleged offences under Section 120B read with
420, 467, 468 and 471 of I.P.C and under Section 13 (2) read with 13 (1)
(d) of the Prevention of Corruption Act, 1988.
3. The petitioner approached the Central Public Information Officer
of the Indian Overseas Bank (IOB), Central Office at Chennai under Right
to Information Act, 2005 vide an application dated 30.09.2014, seeking the
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following informations namely:
“1. Copy of request letter received from CBI for
seeking sanction for any prosecution.
2. Copy of internal office memorandum containing
the opinion/views of my Disciplinary Authority for giving
sanction for my prosecution based upon my reply date
01.12.2012 to the first explanation letter dated 18.10.2012
issued to me.
3. Copy of first advice given by CVC, New Delhi.
4. The outcome of the reconciliatory meeting between
my Disciplinary Authority and CBI called by Central
Vigilance Commissioner at the office of CVC, New Delhi.
5. The copy of any further clarification sought by
CVC after the reconciliatory meeting and if so, copy of Bank's
reply thereto.
6. The copy of internal office memorandum
containing the opinion/views of my Disciplinary Authority of
giving sanction for my prosecution based upon my reply
dated 03.07.2014 to the second explanation letter dated
20.06.2014 issued to me.
7. The copy of latest correspondence from CVC
requesting/advising the bank again for sanction of my
prosecution.
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8. The copy of internal office memorandum
containing the opinion/views of my present Disciplinary
Authority based upon which the permission is given by the
Bank to CBI for my prosecution.
9. Copy of Draft sanction supplied by CBI.”
4. The above RTI application was rejected by the Central Public
Information Officer vide order dated 13.10.2014, on the ground that the
informations sought for by the petitioner and documents are exempted under
Section 8(1) (d), (g) (h) of the RTI Act.
5. The petitioner preferred an appeal before the Appellate Authority
under Section 19 (1) of the Act on 27.10.2014, but the first appeal was
dismissed by confirming the decision of the Public Information Officer on
16.12.2014. The petitioner preferred a second appeal under Section 19 (3)
of the RTI Act before the Central information Commission at New Delhi on
30.03.2015 and the said appeal was also rejected. Thus, the petitioner is
constrained to move the present writ petition.
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6. The learned counsel for the petitioner mainly contended that the
Fundamental Rights ensured and the Statutory Rights conferred under the
Right to Information Act have been unreasonably denied in the present case.
Section 8 (h) regarding exemption is not applicable in respect of the facts
and circumstances of the case of the petitioner. In this regard, the learned
counsel for the petitioner drew the attention of this Court regarding Section
24 of the Right to Information Act. Sub Section (1) to Section 24 of the
Right to Information Act states that “nothing contained in this Act shall
apply to the intelligence and security organisations specified in the Second
Schedule, being organisations established by the Central Government or any
information furnished by such organisations to that Government.” The
proviso clause contemplates:
“Provided that the information pertaining to the
allegations of corruption and human rights violation shall not
be excluded under this sub-section”
7. Relying on the said proviso clause, the learned counsel for the
petitioner reiterated that in the case of the petitioner, the investigations were
completed during the relevant point of time and even charge sheet was filed.
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In view of certain discrepancy, the petitioner submitted an application
seeking informations, which all are vital to defend this case. Thus, the denial
of right of information under the Act is unlawful and not in consonance with
the provisions of the Act.
8. The learned counsel for the petitioner is of an opinion that there
is no reason to deny point wise informations and documents sought for by
the petitioner. The information cannot be construed as confidential and more
so, investigations were completed and charge sheet laid before the
Competent Criminal Court of Law. Thus, the decisions taken by the Public
Information Officer/1st Appellate Authority and Central Information
Commission are perverse and liable to be set aside.
9. The learned counsel for the petitioner relied on various
judgments to convince that information sought for should be provided and in
the present case, the petitioner is entitled for the informations. In the case of
Bhagat Singh Vs. Chief Information Commissioner and Others reported
in 2008 (100) DRJ 63, the Delhi High Court held as follows:
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“13. Access to information, under Section 3 of the Act, is
the rule and exemptions under Section 8, the exception. Section 8
being a restriction on this fundamental right, must therefore is to
be strictly construed. It should not be interpreted in manner as to
shadow the very right itself. Under Section 8, exemption from
releasing information is granted if it would impede the process of
investigation or the prosecution of the offenders. It is apparent
that the mere existence of an investigation process cannot be a
ground for refusal of the information; the authority withholding
information must show satisfactory reasons as to why the release
of such information would hamper the investigation process. Such
reasons should be germane, and the opinion of the process being
hampered should be reasonable and based on some material.
Sans this consideration, Section 8 (1) (h) and other such
provisions would become the haven for dodging demands for
information.
14. A rights based enactment is akin to a welfare measure,
like the Act, should receive a liberal interpretation. The contextual
background and history of the Act is such that the exemptions,
outlined in Section 8, relieving the authorities from the obligation
to provide information, constitute restrictions on the exercise of
the rights provided by it. Therefore, such exemption provisions
have to be construed in their terms; there is some authority
supporting this view (See Nathi Devi v. Radha Devi Gupta, 2005
(2) SCC 201 : 2005 (80) DRJ 518[SC]; B.R. Kapoor v. State of
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Tamil Nadu, 2001 (7) SCC 231and V. Tulasamma v. Sesha Reddy,
1977 (3) SCC 99). Adopting a different approach would result in
narrowing the rights and approving a judicially mandated class of
restriction on the rights under the Act, which is unwarranted.
14. In the present case, the orders of the three
respondents do not reflect any reasons, why the investigation
process would be hampered. The direction of the CIC shows is that
the information needs to be released only after the investigation
and recovery in complete. Facially, the order supports the
petitioner's contention that the claim for exemption made by
respondent Nos. 2 and 3 are untenable. Section 8(1) (j) relates
only to investigation and prosecution and not to recovery.
Recovery in tax matters, in the usual circumstances is a time
consuming affair, and to withhold information till that eventuality,
after the entire proceedings, despite the ruling that investigations
are not hampered by information disclosure, is illogical. The
petitioner's grouse against the condition imposed by the CIC is all
the more valid since he claims it to be of immense relevance, to
defend himself in criminal proceedings. The second and third
respondents have not purported to be aggrieved by the order of
CIC as far as it directs disclosure of materials; nor have they
sought for its review on the ground that the CIC was misled and its
reasoning flawed. Therefore, it is too late for them to contend that
the impugned order contains an erroneous appreciation of facts.
The materials available with them and forming the basis of notice
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under the Income Tax act is what has to be disclosed to the
petitioner, i.e., the information seeker.”
10. In the case of The Director of Income Tax (Investigation) and
Another Vs. Bhagat Singh and ANR, the High Court of Delhi delivered a
judgment in LPA.No.1377 of 2007 on 17.12.2007, reads as follows:
“8. Information sought for by the respondent No. 1
relates to fate of his complaint made in September, 2003, action
taken thereon after recording of statement of Ms.Saroj Nirmal and
whether Ms.Saroj Nirmal has any other source of income, other
than teaching in a private school. This information can be
supplied as necessary investigation on these aspects has been
undertaken during last four years by the Director of Income Tax
(Investigation). In fact proceedings before the said Director have
drawn to a close and the matter is now with the ITO i.e. the
Assessing Officer. Under Section 8(1)(h) information can be
withheld if it would impede investigation, apprehension or
prosecution of offenders. It is for the appellant to show how and
why investigation will be impeded by disclosing information to the
appellant. General statements are not enough. Apprehension
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should be based on some ground or reason. Information has been
sought for by the complainant and not the assessee. Nature of
information is not such which interferes with the investigation or
helps the assessee. Information may help the respondent No. 1
from absolving himself in the criminal trial. It appears that the
appellant has held back information and delaying the proceedings
for which the respondent No. 1 felt aggrieved and filed the
aforesaid writ petition in this Court. We also find no reason as to
why the aforesaid information should not be supplied to the
respondent No. 1. In the grounds of appeal, it is stated that the
appellant is ready and willing to disclose all the records once the
same is summoned by the criminal court where proceedings
under Section 498A of the Indian Penal Code are pending. If that
is the stand of the appellant, we find no reason as to why the
aforesaid information cannot be furnished at this stage as the
investigation process is not going to be hampered in any manner
and particularly in view of the fact that such information is being
furnished only after the investigation process is complete as far as
Director of Income Tax (Investigation) is concerned. It has not
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been explained in what manner and how information asked for
and directed will hamper the assessment proceedings.”
11. In the case of Secretary to Government and others Vs.
S.Suresh Babu and others, reported in 2010 (3) CTC 742, the Hon'ble High
Court of Madras held as follows:
“2.By the impugned order, the Commission held that the
Home Department of the State Government cannot deny
information sought for by respondents 1 to 3 and that protections
claimed by virtue of exemption under Section 8(h) of the Right to
Information Act (for short RTI Act) will not apply to the petitioner
department. The Writ Petition was admitted on 20.4.2007 and an
interim order was granted. Subsequently when the matter came up
on 23.12.2009, at the instance of the learned Government Pleader,
the Writ Petition was permitted to be withdrawn. Accordingly it
was dismissed as withdrawn. Thereafter, the State Government
filed a Review Application in Review Application No. 37 of 2010.
After due notice to the parties, the Review Application was allowed
by an order, dated 17.3.2010 and the Writ Petition was restored.
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8. Throughout the case, the petitioner only relied upon the
exemption granted under Section 8(h) of the Act, which reads as
follows:
“8(h) information which would impede the process of investigation
or apprehension or prosecution of offenders;”
During the course of argument, learned Advocate General also
placed reliance upon Section 8(e) which reads as follows:
“8(e) information available to a person in his fiduciary
relationship, unless the competent authority is satisfied that the
larger public interest warrants the disclosure of such
information;”
14. It is not as if the official correspondence between the
Police Department and the Government took place on the basis of
fiduciary relationship. But they are the official correspondence
between two departments. In so far as Section 8(h) is concerned,
exemption is available only when it is considered to be impediment
in the process of investigation or apprehension or prosecution of
offenders. In the present case, the information is about derailment
of the prosecution by the police. Therefore pressing into service
Section 8(h) will not arise.
15. Even Section 24 of the RTI Act provides immunity to
certain organisations set up by the State Government. Section
24(4) reads as follows:
“24(4) Nothing contained in this Act shall apply to such
intelligence and security organisation being organisations
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established by the State Government, as that Government may,
from time to time, by notification in the Official Gazette, specify:
Provided that the information pertaining to the allegations of
corruption and human rights violations shall not be excluded
under this sub-section:
Provided further that in the case of information sought for is in
respect of allegations of violation of human rights, the information
shall only be provided after the approval of the State Information
Commission and, notwithstanding anything contained in Section
7, such information shall be provided within forty-five days from
the date of the receipt of request.”
16. By virtue of power vested under Section 24, the State
Government has issued G.O.Ms. No. 158, P & AR Department,
dated 26.8.2008 exempting only the Tamil Nadu State Vigilance
Commission and Directorate of Vigilance and Anti-Corruption.
Even in such cases, as per the First Proviso, notwithstanding such
exemption, there is no immunity if informations are sought for on
the allegations of corruption and human rights violation and
which information can never be excluded from the public purview.
17. That question came up for consideration before this
Court in Superintendent of Police, Central Range, Office of the
Directorate of Vigilance and Anti-Corruption, Chennai-600
028 v. R. Karthikeyan and others, W.P. No. 23507 and 23508 of
2009, dated 12.1.2010. In paragraph Nos. 11 to 14, this Court
held as follows:
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“11. He also submitted that when the said G.O. came to be
challenged, a Division Bench of this Court in P.
Pugalenthi v. State of Tamil Nadu and others in W.P. No. 4907 of
2009, dated 30.3.2009 upheld the validity of the said G.O. In
paragraphs 5, 6, 8, 9 and 11 of the order, the Division Bench had
observed as follows:
“5. As can be seen from the language used in the main part of sub-
section (4), it states that nothing contained in this Act shall apply
to such intelligence and security organisation. Thus, in the first
part, two entities are mentioned in singular as organisation.
Subsequently, they are referred as ‘organisations’ established by
the State Government. If intelligence and security organisation
was only one, there was no need to use the plural term
‘organisations’ subsequently. It clearly indicates that such an
organisation can be for intelligence purpose or for security
purpose. The word “and” between the two words intelligence and
security organisation will have to be read as “or”. Therefore, the
second submission of Mr. Radhakrishnan cannot be accepted.
6. The third submission of Mr. Radhakrishnan was that this
provision affects the fundamental rights envisaged under Article
19(1)(a) of the Constitution of India for freedom of speech and
expression. It is material to note that sub-clause (2) of Article 19
of the Constitution of India provides that any such law insofar as it
imposes reasonable restrictions on the exercise of the right
conferred by the said sub-clause in the interests of [the
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sovereignty and integrity of India,] particularly the security of the
State, friendly relations with foreign States, public order, decency
or morality, or in relation to contempt of Court, defamation or
incitement to an offence, its operation will not be affected by sub-
clause 1(a). In our view, Section 24(4) of the Act provides for
reasonable restriction in the interest of public order.
…
8. As can be seen from this paragraph, these two organisations
primarily deal with investigation into alleged corrupt activities of
public servants. The investigations and subsequent actions
culminate in disciplinary action or criminal action in the
appropriate Courts of law. Thereafter, it is stated that
confidentiality and secrecy in certain cases are required to be
maintained right from the initial stage upto filing of charge-sheet
on the one hand and upto issue of final orders in the case of
disciplinary proceedings. In the latter part of this paragraph, it is
stated that in vigilance cases, giving information at the initial
stage, investigation stage and even prosecution stage, would lead
to unnecessary embarrassment and would definitely hamper due
process of investigation.
9. In our view, the State has given sufficient reasons as to why it
was exercising powers under Section 24(4) of the Act and this is in
exercise of discretionary power, which is otherwise also protected
under sub-clause (2) of Article 19 of the Constitution of India as
stated earlier.
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….
11. The third ground is that the property held by these
organisations or their budgetary allocations must be known to the
public. It is not for us to dictate to the State as to how it has to
function, when it gives exemption to these organisations. Insofar
as the allegation of corruption and human rights violation are
concerned, the First Proviso to Section 24(4) of the Act takes care
of apprehension of the petitioner. It clearly provides that
information on allegation of corruption and human rights will not
be excluded under this sub-section. In our view, there is no reason
for the petitioner to have any such apprehension.”
(Emphasis added)
12. Therefore, he submitted that the petitioner is well within their
right to deny the information sought for by the first respondent in
both the Writ Petitions and that the Information Commission had
erred in directing the petitioner to furnish such information.
13. In the light of the above order of the Division Bench, this
Court is not inclined to go into the efficacy of exemption given to
the Directorate of Vigilance and Anti-Corruption from the purview
of the RTI Act. But, as rightly observed by the Commission, if some
organisations operate in different spheres such as intelligence and
security, in those areas, exemption can be valid. But when the very
same organisation dealt with corruption cases of public servants,
then exemption under Section 24(4) of the RTI Act cannot be taken
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advantage of, since the Proviso to Section 24(4) clearly says that
information pertaining to the allegations of corrupt and human
rights violations shall not be excluded under the sub-section.
14. Therefore, notwithstanding the exemption obtained by the
petitioner organisation, any information relating to the allegations
of corrupt cannot be excluded from the purview of public access.
The information sought for by the first respondent are wholly
statistical information regarding the number of cases filed, their
success rate and the post conviction or post trial action taken
against such officers. These information are vital in a
transparency Government as public are entitled to know the
officers who are facing charge of corruption as well as conviction
or acquittal obtained by them as well as the result of departmental
action initiated by the Government. Perhaps, consequent to
Proviso to Section 24(4), in paragraph 11 the Division Bench has
specifically referred to the Proviso and held that the First Proviso
will take care of apprehension expressed by the petitioner in that
case. The Section cannot be used to exclude the information of
allegation of corruption.
18. The Supreme Court in its decision in Union of India v. Assn.
for Democratic Reforms, 2002 (5) SCC 294, while directing the
personal information of candidates standing in election to be
divulged as it should be available in public domain, in paragraph
44 had observed as follows:
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“44. It is also submitted that even the gazetted officers in all
Government services are required to disclose their assets and
thereafter to furnish details of any acquisition of property
annually. In our view, it is rightly submitted that in a democratic
form of Government, MP or MLA is having higher status and duty
to the public. In P.V. Narasimha Rao v. State (CBI/SPE) the
Court inter alia considered whether Member of Parliament is a
public servant. The Court (in para 162) held thus: (SCC p. 747)
“162. A public servant is ‘any person who holds an office by
virtue of which he is authorised or required to perform any public
duty’. Not only, therefore, must the person hold an office but he
must be authorised or required by virtue of that office to perform a
public duty. Public duty is defined by Section 2(b) of the said Act
to mean ‘a duty in the discharge of which the State, the public or
that community at large has an interest’. In a democratic form of
government it is the Member of Parliament or a State Legislature
who represents the people of his constituency in the highest law-
making bodies at the Centre and the State respectively. Not only is
he the representative of the people in the process of making the
laws that will regulate their society, he is their representative in
deciding how the funds of the Centre and the States shall be spent
and in exercising control over the executive. It is difficult to
conceive of a duty more public than this or of a duty in which the
State, the public and the community at large would have greater
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interest.”
(Emphasis supplied)
The aforesaid underlined portion highlights the important status
of an MP or an MLA.”
19. The Supreme Court in Vineet Narain v. Union of India, 1998
(1) SCC 226, dealing with cases of corruption of public servants
dealt with the role of the judiciary in dealing with such matters
and in paragraph 55, it had observed as follows:
“55. These principles of public life are of general application in
every democracy and one is expected to bear them in mind while
scrutinising the conduct of every holder of a public office. It is trite
that the holders of public offices are entrusted with certain powers
to be exercised in public interest alone and, therefore, the office is
held by them in trust for the people. Any deviation from the path of
rectitude by any of them amounts to a breach of trust and must be
severely dealt with instead of being pushed under the carpet. If the
conduct amounts to an offence, it must be promptly investigated
and the offender against whom a prima facie case is made out
should be prosecuted expeditiously so that the majesty of law is
upheld and the rule of law vindicated. It is the duty of the judiciary
to enforce the rule of law and, therefore, to guard against erosion
of the rule of law.”
20. Therefore, in the light of the above, this Court cannot interfere
with the order passed by the fourth respondent-Information
Commission. Hence, the Writ Petition will stand dismissed. No
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costs. Consequently, connected Miscellaneous Petition stands
closed.
12. In the case of Deputy Commissioner of Police Vs.
D.K.Sharma, reported in 2010 SCC Online Del 4454, the Delhi High Court
held as follows:
“6.This Court is inclined to concur with the view
expressed by the CIC that in order to deny the information under
the RTI Act the authority concerned would have to show a
justification with reference to one of the specific clauses under
Section 8 (1) of the RTI Act. In the instant case, the Petitioner has
been unable to discharge that burden. The mere fact that a
criminal case is pending may not by itself be sufficient unless there
is a specific power to deny disclosure of the information
concerning such case. In the present case, the criminal trial has
concluded. Also, the investigation being affected on account of the
disclosure information sought by the Respondent pertains to his
own case. No prejudice can be caused to the Petitioner if the D.D.
entry concerning his arrest, the information gathered during the
course of the investigation, and the copies of the case diary are
furnished to the Respondent. The right of an applicant to seek such
information pertaining to his own criminal case, after the
conclusion of the trial, by taking recourse of the RTI Act, cannot
be said to be barred by any provision of the CrPC. It is required to
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be noticed that Section 22 of the RTI Act states that the RTI Act
would prevail notwithstanding anything inconsistent therewith
contained in the Official Secrets Act, 1923 and any other law for
the time being in force.
13. In the case of B.S.Mathur Vs. Public Information officer
reported in 2011 (125) DRJ 508, the High Court of Delhi, head as follows:
“19. The question that arises for consideration has already
been formulated in the Court's order dated 21st April 2011:
Whether the disclosure of the information sought by the Petitioner
to the extent not supplied to him yet would “impede the
investigation” in terms of Section 8(1)(h) RTI Act” The scheme of
the RTI Act, its objects and reasons indicate that disclosure of
information is the rule and non-disclosure the exception. A public
authority which seeks to withhold information available with it has
to show that the information sought is of the nature specified in
Section 8 RTI Act. As regards Section 8(1)(h) RTI Act, which is the
only provision invoked by the Respondent to deny the Petitioner
the information sought by him, it will have to be shown by the
public authority that the information sought “would impede the
process of investigation.” The mere reproducing of the wording of
the statute would not be sufficient when recourse is had to Section
8(1)(h) RTI Act. The burden is on the public authority to show in
what manner the disclosure of such information would ‘impede’
the investigation. Even if one went by the interpretation placed by
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this Court in W.P.(C) No. 7930 of 2009 [Additional Commissioner
of Police (Crime) v. CIC, decision dated 30th November 2009]
that the word “impede” would “mean anything which would
hamper and interfere with the procedure followed in the
investigation and have the effect to hold back the progress of
investigation”, it has still to be demonstrated by the public
authority that the information if disclosed would indeed “hamper”
or “interfere” with the investigation, which in this case is the
second enquiry.
24. No grounds have been made out by the Respondent under
Section 8(1)(h) of the RTI Act to justify exemption from disclosure
of the information sought by the Petitioner.
25. The writ petitions are accordingly allowed and the impugned
order dated 6th September 2010 of the CIC is hereby set aside.
Information to the extent not already provided in relation to the
three RTI applications should be provided to the Petitioner by the
Respondent within a period of four weeks from today. While
providing the information it will be open to the Respondent to
apply Section 10 RTI Act where required.
14. In the case of Sudhirranjan Senapati, Addl. Commissioner of
Income Tax Vs. Union of India and other, the High Court of Delhi in
W.P.(C).No.7048 of 2011 dated 05.03.2013, held as follows:
“4.1 More specifically, the information sought was as
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follows:
Certified true copies of all order sheet entries / Note Sheet entries
/ File notings of US, VandL / DS, VandL/Director, VandL/JS
(Admn.)/Member (PandV)/Chairman,CBDT/Secretary,Revenue/M
OS (R), if any, / Finance Minister, if any? pertaining to
prosecution sanction by the Central Government u/s. 19(1)(a) of
Prevention of Corruption Act, 1988 vide such sanction order
dated 09.04.2009 in F.No.C-14011/8/2008-VandL of
Central Board of Direct Taxes, Department of Revenue, Ministry
of Finance, GOI, New Delhi.
4.2 The CPIO vide order dated 16/17.08.2010, declined
the request for furnishing information by taking recourse to the
provisions of Section 8(1)(h) of the RTI Act. Pertinently, no
reasons were set out in the order. All that is said, in the order of
the CPIO is that, requisite information cannot be supplied as the
same is exempted from disclosure under Section 8(1)(h) of the RTI
Act.
5. Being aggrieved, the petitioner preferred an appeal with
the First Appellate Authority. The appeal met the same fate. By an
order dated 05.10.2010, the First Appellate Authority dismissed
the petitioner?s appeal. The sum and substance of the rationale
given in the order of the First Appellate Authority was that, since
criminal prosecution was pending, information sought for by the
petitioner could not be disclosed. The First Appellate Authority
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went on to observe in its order that, any disclosure of information
prior to a final decision would be premature and injurious to the
process of investigation. Accordingly, relying upon the provisions
of Section 8(1) (h) of the RTI Act, it sustained the order of the
CPIO.
6. The petitioner being aggrieved, with the order of the
First Appellate Authority, preferred an appeal with the CIC. The
CIC by virtue of the impugned order dated 18.07.2011, rejected
the petitioner?s appeal. By a cryptic order, the CIC accepted the
stand of the respondents that information sought for, could not be
supplied to the petitioner as the case was pending in court and
that disclosure of information would impede the process of
prosecution.
7. The learned counsel for the petitioner has impugned the
decision of the CIC and the authorities below on the following
grounds :-
(i). The investigation is complete. The chargesheet qua the
accused, which includes the petitioner, has been filed in court. On
failure of the respondents to demonstrate as to how the disclosure
of information would impede prosecution of the petitioner, the said
information ordinarily ought to have been supplied to the
petitioner. The learned counsel for the petitioner says that
disclosure of information is the rule, the denial of the same is an
exception. He submits that the exception carved out in Sections 8
and 9 of the RTI Act have thus to be construed strictly.
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8. In support of the submission, the learned counsel for the
petitioner relies upon the judgment of a Single Judge of this
Court in Bhagat Singh Vs. Chief Information Commissioner and
ors., 146 (2008) DLT 385.
9. The contesting respondents i.e., respondent nos.2 and 3
are represented by Mr. Singh, who has largely relied upon the
stand taken in the counter affidavit. Mr. Singh submits that since
the prosecution of the petitioner is ensuing, any disclosure of
information would compromise the case of the prosecution and
hence, cannot be divulged. Recourse was taken to the provisions
of Section 8(1)(h) to support the stand of the respondents.
9.1 Mr. Singh also relied upon a judgment of another
learned Single Judge of this court, dated 10.11.2006, passed in
WP(C) 16712/2006, titled Surinder Pal Singh Vs. Union of India
and Others. Mr. Singh submits with all persuasive powers at his
command that the facts in Surinder Pal?s case are identical to the
present case and therefore having regard to the fact that the court
sustained the stand of the official respondents in that case
wherein information was denied by taking recourse to
the provisions of Section 8(1)(h) of the RTI Act, similar result
ought to follow in the present case.
10. I have heard the learned counsels for the parties and
perused the record.
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11. At the outset, as noticed above, a chargesheet against
the
petitioner has been filed and the trial has commenced. Therefore,
the questions which falls for consideration is: whether the case of
the petitioner would come within the ambit of the provisions of
Section 8(1)(h) of the RTI Act. The said provision reads as follows
:
8. Exemption from disclosure of information ?
(i). Notwithstanding anything contained in this Act, there shall be
no obligation to give any citizen ?
(a). x x x x
(b). x x x x
(c). x x x x
(d). x x x x
(e). x x x x
(f). x x x x
(g). x x x x
(h). Information which would impede the process of investigation
or
apprehension or prosecution of offenders.
11.1 As rightly contended by the learned counsel for the
petitioner, a learned Single Judge of this court in Bhagat Singh?s
case has construed the said provision of the Act to mean that in
order to claim exemption under the said provision, the authority
withholding the information must disclose satisfactory reasons as
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to why the release of information would hamper investigation. The
reasons disclosed should be germane to the formation of opinion
that the process of investigation would be hampered. The said
opinion should be reasonable and based on material facts.
The learned Single Judge, I may note goes on to observe that sans
this consideration, Section 8(1)(h) and other such provisions of
the RTI Act would become a ?haven for dogging demands for
information.
11.2 In the light of the aforesaid observations of the
learned Single Judge in Bhagat Singh?s case, one would have to
see as to whether the affidavit filed on behalf of respondent nos.2
and 3 discloses the reasons as to how information sought, would
hamper the prosecution of the petitioner. A perusal of the affidavit
shows that no such averment is made in the counter affidavit filed
by respondent nos.2 and 3. Undoubtedly, the petitioner here is
seeking information with regard to the sanction accorded for his
own prosecution. It cannot be disputed, as is noticed by my
predecessor, in this very matter, in the order dated 14.10.2011,
that the accused during the course of his prosecution can impugn
the sanction accorded for his prosecution, on the basis of
which the prosecution is launched. For this proposition, the
learned Judge, in its order dated 14.10.2011, relies upon the
following judgments :
State Inspector of Police, Visakhapatmam Vs. Surya Sankaran
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Karri (2006) 7 SCC 172 and Romesh Lal Jain Vs. Naginder Singh
Rana, (2006) 1 SCC 294.
11.3 I have no reason to differ with the view taken either
in Bhagat Singh case or with the prima facie view taken in the
order passed by my predecessor in his order dated 14.10.2010. It
is trite that an accused can challenge the order by which sanction
is obtained to trigger a prosecution against the accused. If that be
so, I do not see any good reason to withhold information which, in
one sense, is the underlying material, which led to the final order
according sanction for prosecution of the petitioner. As a matter
of fact, the trial court is entitled to examine the underlying
material on the basis of which sanction is accorded when a
challenge is laid to it, to determine for itself as to whether the
sanctioning authority had before it the requisite material to grant
sanction in the matter. See observations in Gokulchand
Dwarkadas Morarka vs The King AIR 1948 PC 82 and State of
Karnataka vs Ameerjan (2007) 11 SCC 273. Therefore, the said
underlying material would be crucial to the cause of the petitioner,
who seeks to defend himself in criminal proceedings, which the
State as the prosecutor cannot, in my opinion, withhold unless it
can show that such information, would hamper prosecution.
12. As indicated above, no reasons are set out in the
counter affidavit. The argument of Mr. Singh that a Single Judge
of this court in Surinder Pal Singh?s case (supra) has taken a view
in favour of the respondents, is not quite correct, for the reason
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that the learned Single Judge in the facts and circumstances of
that case came to the conclusion that the apprehension of the
respondent i.e., the State in that case, was ?not without any basis.
12.1 It appears in that case the petitioner, who was
being criminally prosecuted for having fraudulently reduced the
quantum of excise duty to be paid by an assessee, while passing
an adjudication order, had sought information with regard to:
note sheets; correspondence obtaining qua the material in the file
of the CBI; correspondence in the file of the CVC pertaining to the
matter; and correspondence in the file of the Department of
Vigilance, CBES.
12.2 A close perusal of the nature of information sought
seems to suggests that much of it may have been material
collected during the course of investigation, the disclosure of
which could have perhaps hampered the prosecution of the
petitioner.
13. Therefore, in my view, in such like cases when, the
State takes a stand the information cannot be disclosed; while
dilating on its stand in that behalf, the State would necessarily
have to, deal with the aspect as to how the information sought, is
of such a nature, that it could impede prosecution. Much would
thus depend, on the nature of information sought, in respect of
which, a clear stand needs to be taken by the state, while declining
the information. The burden in this regard is on the State (see B.S.
Mathur Vs. Public Information Officer of Delhi High Court, 180
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(2011) DLT 303)
13.1 The facts obtaining in Surinder Pal case?s are
distinguishable and hence, the ratio of that judgment would not
apply to the facts obtaining in the present case.
13.2 It also be noted that the learned Single Judge?s
view in Bhagat Singh case has been upheld by a reasoned order
by the Division Bench in Directorate of Income Tax and Anr. Vs.
Bhagat Singh, dated 17.12.2007 passed in LPA 1377/2007.”
15. In the case of Adesh Kumar Vs. Union of India and others
reported in 2014 SCC Online Del 7203, the Delhi High Court held as
follows:
“9. It is apparent from a bare perusal of the CIC's order
that it does not indicate the reasons that persuaded the CIC to
uphold the viewof the Public Authority that the disclosure of
information sought by the petitioner would impede prosecution of
the petitioner. A co-ordinate Bench of this Court in the case of B.S.
Mathur v. Public Information Officer of Delhi High
Court:W.P.(C)295/2011,decidedon03.06.2011 had considered the
contention with regard to with holding information under Section
8(1)(h) of the Act and held as under:
“19. The question that arises for consideration has already been
formulated in the Court's order dated 21 st April 2011: Whether the
disclosure of the information sought by the Petitioner to the extent
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not supplied to him yet would “impede the investigation” in terms
of Section 8(1)(h) RTI Act? The scheme of the RTI Act, its objects
and reasons indicate that disclosure of information is the rule and
non-disclosure the exception. A public authority which seeks to
withhold information available with it has to show that the
information sought is of the nature specified in Section 8 RTI Act.
As regards Section 8(1)(h) RTI Act, which is the only provision
invoked by the Respondent to deny the Petitioner the information
sought by him, it will have to be shown by the public authority that
the information sought “would impede the process of
investigation.” The mere reproducing of the wording of the statute
would not be sufficient when recourse is had to Section 8(1)(h) RTI
Act. The burden is on the public authority to show in what manner
the disclosure of such information would ‘impede’ the
investigation. Even if one went by the interpretation placed by this
Court in W.P. (C) No. 7930 of 2009 [Additional Commissioner of
Police (Crime) v. CIC, decision dated 30 th November 2009] that
the word “impede” would “mean anything which would hamper
and interfere with the procedure followed in the investigation and
have the effect to hold back the progress of investigation”, it has
still to be demonstrated by the public authority that the
information if disclosed would indeed “hamper” or “interfere”
with the investigation, which in this case is the second enquiry.”
10. A bare perusal of the order passed by the FAA also
indicates that the aspect as to how the disclosure of information
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would impede prosecution has not been considered. Merely, citing
that the information is exempted under Section 8(1)(h) of the Act
would not absolve the public authority from discharging its onus
as required to claim such exemption. Thus, neither the FAA nor
the CIC has questioned the Public Authority as to how the
disclosure of information would impede the prosecution.”
16. The Central Information Commission in the case of
Shri.Madhu K. Farde Vs. Employees Provident Fund, CPIO & RPFC-I
(Vigilance) held as follows:
"It is submitted that to deny file-notings exemption has not been
claimed u/s 8(1)(h) of the RTI Act. Rather exemption is claimed u/s
8(1) (e) and (g) of the RTI Act, 2005 provisos of which exempt
information available to a person in his fiduciary relationship
unless the competent authority is satisfied that the larger public
interest warrants the disclosure of such information; and also
exempts from disclosure of such information, the disclosure of
which would endanger the life or physical safety of any person or
identify the source of information or assistance given in
confidence for law enforcement or security purpose. It is submitted
that confidentiality of note-files is an entirely wholesome principle
conducive to good governance. Any compromise with objectivity
in processing matters extant in the file is potentially damaging to
governance by exposing those entrusted in charge of processing
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the matter to undue and sometimes, intimidating, scrutiny by
interested parties, Anonymity of vigilance officers recording files
notes deserves to be protected in their own interest as well as the
interest of the system they serve. The public authority is duty
bound to protect the interests of its officers who examine through
their notings in files the conduct of other employees of the public
authority and thereby expose themselves to possible revengeful
action by those whose conduct they bring under scanner. Further
applying section 10(1) and hiding the names of the authors of the
file notings will not serve any purpose as even without the authors'
names, the identity of the authors of the notes could be disclosed
by reference to the hierarchies through which the file passed as
well as the handwriting in which the notes were recorded.
Protection needs to be provided to the officers of sensitive
department such as the vigilance in performing their duties from
the probing eyes of outsiders. Also parting file notings with the
applicant serves no public interest as the personal interest of the
applicant cannot be equated with public interest.
The performance of an employee/officer in an organization is
primarily a matter between the employee and the employer and
normally those aspects are governed by the service rules which
fall under the expression "personal information", the disclosure of
which has no relationship to any public activity or public interest.
Hence falls squarely under the dictum of Hon'ble Supreme Court
India judgment in Girish R Deshpande Vs. CIC in special leave
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petition (Civil) No.27734 of 2012 @ 14781/2012 dated
03/10/2012.
If the file-noting is provided to the applicant it would affect the fair
and free expression of view by the officers who have to analyze the
investigation report and evidences on record with the fear that it
would be sought for in future and would prejudice the delinquent
officers against them, if the noting against the officer being
investigated is parted with. In view of the above, provision of
Section 8(1) (e) and (g) of the RTI Act is claimed to deny the file
notings."
17. In the case of Union of India and others Vs. Col.V.K. Shad
and others reported in 2012 SCC Online Del 5710, the High Court of Delhi
held as follows:
“20. Before I proceed further, I may also note that the first
proviso in Section 8 says that, information which cannot be denied
to the Parliament or the State Legislature, shall not be denied to
any person. Sub-section (2) of Section 8, states that
notwithstanding anything contained in the Official Secret Acts,
1923, or any of the exemptions provided in Sub-section (1), would
not come in the way of a public authority in allowing access to
information if, public interest in its disclosure outweighs the harm
to the protected interest.
20.1 A Full Bench of this court in the case of Secretary General,
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Supreme Court of India v. Subhash Chandra Agarwal, 166 (2010)
DLT 305 : 2010 (114) DRJ 505 [FB], in the context of provisions
of Section 8(1)(j) also examined what would constitute a fiduciary
relationship. The observations contained in paragraph 97 to 101,
being apposite are extracted hereinbelow:
“…..97. As Waker defines it: “A “fiduciary” is a person in a
position of trust, or occupying a position of power and confidence
with respect to another such that he is obliged by various rules of
law to act solely in the interest of the other, whose rights he has to
protect. He may not make any profit or advantage from the
relationship without full disclosure. The category includes
trustees, Company promoters and directors, guardians, solicitors
and clients and other similarly placed.” [Oxford Companion to
Law, 1980 p. 469]
98. “A fiduciary relationship”, as observed by Anantnarayanan,
J., “may arise in the context of a jural relationship. Where
confidence is reposed by one in another and that leads to a
transaction in which there is a conflict of interest and duty in the
person in whom such confidence is reposed, fiduciary relationship
immediately springs into existence.” [see Mrs. Nellie Wapshare v.
Pierce Lasha & Co. Ltd. AIR 1960 Mad 410]
99. In Lyell v. Kennedy (1889) 14 AC 437, the Court explained
that whenever two persons stand in such a situation that
confidence is necessarily reposed by one in the other, there arises
a presumption as to fiduciary relationship which grows naturally
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out of that confidence. Such a confidential situation may arise
from a contract or by somegratuitous undertaking, or it may be
upon previous request or undertaken without any authority.
100. In Dale & Carrington Invt. (P) Ltd. v. P.K. Prathaphan:
(2005) 1 SCC 212 and Needle Industries (India) Ltd. v. Needle
Industries Newey (India) Holding Ltd. (1981) 3 SCC 333, the
Court held that the directors of the company owe fiduciary duty to
its shareholders. In P.V. Sankara Kurup v. Leelavathy Nambier:
(1994) 6 SCC 68, the Court held that an agent and power of
attorney can be said to owe a fiduciary relationship to the
principal.
101. Section 88 of the Indian Trusts Act requires a fiduciary not to
gain an advantage of his position. Section 88 applies to a trustee,
executor, partner, agent, director of a company, legal advisor or
other persons bound in fiduciary capacity. Kinds of persons bound
by fiduciary character are enumerated in Mr. M. Gandhi's book
on “Equity, Trusts and Specific Relief (2nd ed., Eastern Book
Company)
(1) Trustee,
(2) Director of a company,
(3) Partner,
(4) Agent,
(5) Executor,
(6) Legal Adviser,
(7) Manager of a joint family,
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(8) Parent and child,
(9) Religious, medical and other advisers,
(10) Guardian and Ward,
(11) Licensees appointed on remuneration to purchase stocks on
behalf of government,
(12) Confidential Transactions wherein confidence is reposed, and
which are indicated by (a) Undue influence, (b) Control over
property, (c) Cases of unjust enrichment, (d) Confidential
information, (e) Commitment of job,
(13) Tenant for life,
(14) Co-owner,
(15) Mortgagee,
(16) Other qualified owners of property,
(17) De facto guardian,
(18) Receiver,
(19) Insurance Company,
(20) Trustee de son tort,
(21) Co-heir,
(22) Benamidar.
20.2 The above would show that there are two kinds of
relationships. One, where a fiducial relationship exists, which is
applicable to legal relationships between parties, such as
guardian and ward, administrator and heirs, executors and
beneficiaries of a testamentary succession; while the other springs
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from a confidential relationship which is pivoted on confidence. In
other words confidence is reposed and exercised. Thus, the term
fiduciary applies, it appears, to a person who enjoys peculiar
confidence qua other persons. The relationship mandates fair
dealing and good faith, not necessarily borne out of a legal
obligation. It also permeates to transactions, which are informal in
nature. [See words and phrases Permanent Edn. (Vol. 16-A, p. 41)
and para 38.3 of the CBSE v. Aditya Bandopadhyay]. As indicated
above, the Supreme Court in the very same judgment in paragraph
39 has summed up as to what the term fiduciary would mean.
20.3 In the instant case, what is sought to be argued in sum and
substance that, it is a fiducial relation of the latter kind, where the
persons generating the note or opinion expects the fiduciary, i.e.,
the institution, which is the Army, to hold their trust and
confidence and not disclose the information to the respondents
herein, i.e., Messers V.K. Shad and Ors. If this argument were to
be accepted, then the persons, who generate the notes in the file or
the opinions, would have to be, in one sense, the beneficiaries of
the said information. In an institutional set up, it can hardly be
argued that notes on file qua a personnel or an employee of an
institution, such as the Army, whether vis-a-vis his performance or
his conduct, in any manner, can benefit the person, who generates
the note or renders an opinion. As a matter of fact, the person who
generates the note or renders an opinion is presumed to be a
person who is objective and not conflicted by virtue of his interest
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in the matter, on which, he is called upon to deliberate. If that
position holds, then it can neither be argued nor can it be
conceived that notes on file or opinions rendered in an
institutional setup by one officer qua the working or conduct of
another officer brings forth a fiduciary relationship. It is also not a
relationship of the kind where both parties required the other to
act in a fiduciary capacity by treating the other as a beneficiary.
The examples of such situations are found say in a partnership
firm where, each partner acts in fiduciary capacity qua the other
partner(s).
20.4 If at all, a fiduciary relationship springs up in such like
situation, it would be when a third party seeks information qua the
performance or conduct of an employee. The institution, in such a
case, which holds the information, would then have to determine
as to whether such information ought to be revealed keeping in
mind the competing public interest. If public interest so demands,
information, even in such a situation, would have to be disclosed,
though after taking into account the rights of the individual
concerned to whom the information pertains. A denial of access to
such information to the information seekers, i.e., the respondents
herein, (Messers V.K. Shad & Co.) especially in the circumstances
that the said information is used admittedly in coming to the
conclusion that the delinquent officers were guilty, and in
determining the punishment to be accorded to them, would involve
a serious breach of principles of natural justice, as non-
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communication would entail civil consequences and would render
such a decision vulnerable to challenge under Article 14 of the
Constitution of India provided information is sought and was not
given. [See UOI v. R.S. Khan 173 (2010) DLT 680].
21. It is trite law that the right to information is a constitutional
right under Article 19(1)(a) of the Constitution of India which, with
the enactment of the RTI Act has been given in addition a statutory
flavour with the exceptions provided therein. But for the
exceptions given in the RTI Act; the said statute recognizes the
right of a citizen to seek access to any material which is held or is
in possession of public authority.”
18. In the case of State (NCT of Delhi) Vs. Sanjay, reported in
(2014) 9 Supreme Court Cases 772, the Hon'ble Supreme Court of India
held as follows:
“63. It is well known that a non obstante clause is a
legislative device which is usually employed to give overriding
effect to certain provisions over some contrary provisions that
may be found either in the same enactment or some other
enactment, that is to say, to avoid the operation and effect of all
contrary provisions.”
19. In the case of Kerala Public Service Commission and others
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Vs. State Information Commission and others, reported in 2011 SCC
Online Ker 3927, the Kerala High Court held as follows:
“21. One of the issues that arise for consideration is the
plea of the PSC that it having made rules for issuance of copies
and dissemination of information to candidates; it ought not to be
compelled to issue such information, also under the provisions of
the RTI Act This argument appears to be quite appealing because
public institutions like PSC meet their expenses from public funds.
Necessarily, it has to be the endeavor of all concerned to ensure
that expenditure from such funds is confined to actual
requirements. At the same time, the mode and provision for access
to information under the provisions of the rules made by the PSC,
as also, the cost factor, if any, involved, may be relevant
considerations to ultimately conclude as to whether there could be
any exclusion of access to such information under the provisions
of the RTI Act and the rules framed there under, on the premise
that alternate, efficacious and cost-friendly modes of access to
information are otherwise provided for by the statutory rules and
other provisions that govern the working of the public authority
from which, information could be sought under the RTI Act. But,
as the law now stands, there is no scope for any judicial
recognition of such a plea and a favourable decision on that issue
through a judicial order. This is because Section 22 of the RTT Act
provides that the provisions of that Act shall have effect
notwithstanding anything inconsistent therewith contained in the
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Official Secrets Act, 1923 (19 of 1923), and any other law for the
time being in force or in any instrument having effect by virtue of
any law other than that Act. Such statutory provision having been
made by the legislature, within its competence, it cannot be
watered down or modified except by recourse to legislative
procedures. We therefore do not find way to accept the contention
of the PSC in this regard.”
20. In the case of The Superintendent of police Vs. R.Karthikeyan and
others, reported in 2011 (3) CTC 241, the High Court of Madras held as follows:
“17. In terms of Section 24(4), the State Government is
empowered to notify in the Official Gazette that nothing contained
in the Right to Information Act shall apply to such intelligence and
security organization being organizations established by the State
Government. Nevertheless, in the light of the First Proviso, such
power being conferred on the State Government to notify
exempting such intelligence and security organizations, it cannot
notify in respect of the information pertaining to the allegations of
corruption and human rights violations. As a necessary corollary,
the power to exempt from the provisions of the Act is not available
to the State Government even in case of intelligence and security
organizations in respect of the information pertaining to the
allegations of corruption and human rights violations. The
Application of the Notification depends upon the nature of
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information required. In this context, we may refer that the First
Respondent in W.A. No. 321 of 2010 has sought for the particulars
relating to the number of investigations completed and the number
of persons convicted for the years from 2003-2004 to 2007-2008
with the details as to the names of such convicted persons, the post
held by them when the act of corruption was done, the charges
framed and the recommendations given to the Vigilance
Commissioner after investigation. Likewise the First Respondent in
W.A. No. 320 of 2010 has sought for the particulars relating to the
number of Police Stations/wings/branches within the Chennai city
were raided by the DVAC officials during the last five years i.e.,
from January, 2003, how many Police officials were caught during
the raids, the list of names, the designation and the address of such
officials who were caught and the amount recovered from each
official, details of departmental actions taken against such official
including the copy of enquiry report, the details of prosecution
launched against such officials, the status of prosecution against
each official, how many have been re-inducted into active service
including the date of rejoining the service and their present
place/station of service, the details of action taken by the
Department to prevent corruption at Police
Stations/branches/wings especially in Chennai city and the
grievance redressal machinery for the public to make a Complaint
against such corrupt official demanding bribe/favour to do the
duty. As all these particulars would certainly relate to corruption,
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the Government Order has no application to the facts of this
case.”
21. In the case of S.Vijayalakshmi Vs. Union of India and others,
reported in 2011 (5) CTC 376, the High Court of Madras held as follows:
“37. The apprehension that the CBI by virtue of its
inclusion in the Second Schedule has got a blanket exemption,
cannot be countenanced for the simple reason that what has been
contemplated under Section 24 is no such blanket exemption. The
Act was intended among other things to contain corruption and to
hold Governments and their Instrumentalities accountable to the
Government. This purpose and intent of the Act is sufficiently
provided for in the two Provisos to Section 24(1) of the Act. The
information pertaining to allegation of corruption and human
rights violation are not excluded under sub-section (1) of Section
24. Therefore, the exemption by virtue of inclusion of CBI in the
Second Schedule to a RTI Act is not a wholesale or a blanket
exemption as contended by the Petitioner. After taking note of the
facts placed before this Court and the law discussed above, it
cannot be stated that every Police Thana is an Intelligence Agency
and should be treated on par with the CBI for the benefit of the
exemption under Section 24 of the Act.”
22. In the case of V.Vidya Vs. The State Information
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Commission, reported in 2017 SCC Online Mad 22613, the High Court of
Madras held as follows:
“7. Both, the first respondent and the learned Single
Judge have declined the appellant's request to furnish the copies
of the report dated 08.07.2015 and 17.08.2015, on the ground that
CBCID was an authority which came within the ambit of sub-
section (4) of section 24 of the RTI Act and hence, the provisions of
the said Act were not applicable to it. In this behalf, reference was
made to the G.O.Ms. No. 1043, dated 14.10.2015, issued by the
Government of Tamil Nadu.
8. In effect, it was contended that the CBCID was one amongst
those establishments, to which the RTI Act would not apply. The
said G.O. was issued by the State Government, admittedly, in
exercise of powers vested upon it under Section 24(4) of the RTI
Act.
13. The main plank of the submission of the counsels appearing
for the respondents, was that, the RTI Act was not applicable to
CBCID, in view of the provisions of Sub-section (4) of Section 24
of the RTI Act. The fact that CBCID had been notified as an
organization, which was exempt from the provisions of the RTI Act,
was sought to be demonstrated by relying upon G.O.Ms. No. 1043,
dated 14.10.2015.
14. We have heard the learned counsel for the parties and perused
the record.
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15. Shorn of unnecessary details and verbiage, the only issue
which arises for our consideration is, as to whether the first
proviso to Sub-section (4) of Section 24 of the RTI Act is
applicable to the facts obtaining in the instant case.
16. For the sake of convenience, the relevant part of the aforesaid
Section is extracted hereafter:
“24. (1) xxxx
(2) xxxx
(3) xxxx
(4) Nothing contained in this Act shall apply to such intelligence
and security organisation being organisations established by the
State Government, as that Government may, from time to time, by
notification in the Official Gazette, specify:
Provided that the information pertaining to the allegations of
corruption and human rights violations shall not be excluded
under this sub-section:
Provided further that in the case of information sought for is in
respect of allegations of violation of human rights, the information
shall only be provided after the approval of the State Information
Commission and, notwithstanding anything contained in section 7,
such information shall be provided within forty-five days from the
date of the receipt of request.”
(emphasis is ours)
17. It is not in dispute that by virtue of G.O.Ms. No. 1043, dated
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14.10.2005, CBCID has been notified as an agency by the
Government of Tamil Nadu, to which the provisions of RTI Act
would not apply. The issue, which arises for consideration is as to
whether the instant case falls within exception carved out to in the
first proviso to Sub-section (4) of Section 24 of the RTI Act.
18. The first proviso of Sub-section (4) of Section 24 of the RTI
Act, stipulates that information pertaining to allegations of
corruption and human rights violation, shall not stand included in
the Sub-section, i.e., Sub-section (4) of Section 24 of the RTI Act.
19. The facts narrated above would show that the appellant
alleges that because of the association of Mr. S.R. Jangid (the then
Suburban Commissioner) with Mr. K.C. Bose, her complaint
against the latter was not taken forward, and instead six (6) false
cases were foisted upon her. The fact that out of the six (6) false
cases, four (4) cases were closed, has not been disputed by the
counsel for the respondents. As a matter of fact, the record also
shows that the appellant had filed a writ petition against Mr. S.R.
Jangid for initiating departmental action against him. The said
writ petition, we are informed, is pending adjudication in this
Court.
20. Furthermore, as indicated above, the appellant has also filed a
civil suit for damages on the alleged ground of malicious
prosecution and defamation. As noticed above, vide order dated
24.02.2014, two (2) criminal complaints of cheating being C.C.
No. 101 of 2010 and 426 of 2010, were quashed by this Court on
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the ground that both cases had falsehood and mala fides as its
edifice. The observations made by a learned Single Judge of this
Court, tend to indicate that the then Suburban Commissioner may
have had something to do in the lodgement of the complaints. This
order of the learned Single Judge, despite a SLP having been filed
by the complainant in those cases, was not interfered by the
Supreme Court. As a matter of fact, the complainant made himself
scarce as he was not available at the given address. The police, in
fact, were unable to effect service in the Crl.O.P. filed by the
appellant, to quash the said criminal complaints.
21. The matter thus boils down to one aspect, which is, do these
broad assertions bring the case within the purview of the first
proviso to Section 24(4) of the RTI Act.
21.1. The term “human rights” has not been defined in the RTI
Act. However, the expression “human rights” has been defined in
the Protection of Human Right Act, 1993 (in short “1993 Act”).
Section 2(1)(d) of the 1993 Act, which provides a definition of
human rights reads as follows:
“2. Definitions-(1) In this Act, unless the context otherwise
requires—
XXXXX
(d) “human rights” means the rights relating to life, liberty,
equality and dignity of the individual guaranteed by the
Constitution or embodied in the International Covenants and
enforceable by courts in India. XXXX”
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21.2. “Human rights” means the rights relating to life, liberty,
equality and dignity of the individual guaranteed by the
Constitution or embodied in International Covenants and
enforceable by a Court in India. Therefore, quite clearly, a citizen
of this country is entitled to live his life with dignity. Deprivation of
dignity would, to our minds, involve violation of human rights.
21.3. The appellant contends that six (6) false criminal cases were
lodged against her, out of which four (4) were closed. These being:
Crime Nos. 1225/2009, 1247/2009, 960/2009 and 804/2009.
Besides these four (4) cases, the appellant has referred to, two
other cases i.e., C.C. No. 101 of 2010, pending before the Judicial
Magistrate, Ambattur, and C.C. No. No. 426 of 2010, pending on
the file of the Judicial Magistrate, Alandur. These cases as noted
herein above were quashed by the learned Single Judge of this
Court vide judgement dated 24.02.2014, on the ground that they
were predicated on falsehood and mala fides.
21.4. Having regard to these facts and circumstances, to our
minds, it was incumbent upon the first respondent to make further
inquiries in the matter.
21.5. The first respondent, on the other hand, rejected the
appellant's plea on the short ground that it was for her to establish
that her complaints related to corruption and violation of human
rights. Furthermore, the first respondent went on to observe that in
the complaints lodged against her, by Mr. K.C. Bose, investigation
was carried out and she was placed in judicial custody. According
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to the first respondent, since, the police officer acted in
accordance with law, it could not be said that their action violated
human rights or they had indulged in corrupt activities.
21.6. The learned Single Judge, more or less, adopted the same
reasoning. In our view, the reasoning is flawed. The reason for the
same is this: While, the police officers in lodging cases against the
appellant, based on the complaints made against her, and in
having her prosecuted thereafter may have acted under the
authority of law-the fact that four (4) out of the six (6) cases fell by
the wayside did denude the appellant of her dignity, while she was
being prosecuted. The reasoning given by the first respondent that
the police officer acted under the authority of law, may be a valid
defence in an action for malicious prosecution, provided they are
able to show good faith that, however, by itself would not prevent
the appellant from contending that her dignity was impaired and
hence, violated her human rights. If, that be the position, surely,
information with regard to the result of the enquiries carried out,
based on her complaints ought to be furnished to the appellant for
whatever they are worth.
22. In view of the foregoing discussion, we are inclined to allow
the writ appeal. Consequently, the order of the learned Single
Judge is set aside. This would result in the order of the first
respondent dated 19.08.2016 also being set aside. Consequently,
the second respondent will furnish the information sought by the
appellant in her applications dated 18.12.2014 and 24.08.2015.
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23. In the case of The Superintendent of Police Vs.M.Kannappan,
reported in 2012 SCC Online Mad 4747, the High Court of Madras held as
follows:
“5. On the other hand, Mr. G. Rajagopalan, learned senior
counsel appearing for the second respondent has submitted that
as per the provisos to Section 24(4) of the RTI Act, the information
pertaining to allegations of corruption and human rights
violations are not excluded and the authorities shall provide the
information relating to those allegations. He has relied on the
judgment of a Division Bench of this Court in The Superintendent
of Police, Central Range, Office of the Directorate of Vigilance
and Anti-Corruption v. R. Karthikeyan, 2011 (3) CTC 241. He has
also taken me through Sections 2(f), 4(1)(b)(v) and 8 of the RTI Act
and has submitted that in view of the aforesaid provisions viz.,
Sections 2(f), 4(1)(b)(v) & 8 and the provisos to Section 24, the
first respondent is entitled to a copy of the manual.
7. We are not concerned with sub-sections (1) to (3) of Section 24
and are concerned only with sub-section (4) of Section 24 and the
provisos thereto. The provisos to Section 24(4) make it clear that
even if the intelligence and security organizations established by
the State Government are exempted from the application of the Act
under Section 24(4), the information pertaining to the allegations
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of corruption and human rights violations shall not be excluded.
In these circumstances, this Court dismissed the Writ Petition Nos.
23507 and 23508 of 2009 by a common order dated 12.1.2010,
which were preferred by the writ petitioner herein questioning the
order of the Tamil Nadu Information Commission directing the
authorities to furnish the details relating to the number of police
officials who were caught during the raid by DVAC together with
the list of names, designation and the address of officials, number
of investigations completed and convictions arrived at between the
years 2003-04 and 2007-08 etc., in corruption matters to the
applicants therein. The order of the learned single Judge was
upheld by the Division Bench in the judgment reported in 2011 (3)
CTC 241. Paragraphs 4 & 5 of the order dated 12.1.2010 in W.P.
Nos. 23507 & 23508 of 2009 and paragraphs 16 & 17 of the
judgment of the Division Bench reported in 2011 (3) CTC 241 are
extracted hereunder:-
“4. In W.P. No. 23507 of 2009, the first respondent sought for
information regarding the number of police officials who were
caught during the raid by DVAC together with the list of names,
the designation and the address of officials, who were caught
during raids along with the amount recovered from each officials
as well as the details of departmental action taken against each
officials, the details of prosecution launched against the officials
under the Prevention of Corruption Act and the status of such
prosecution against each officials and whether the persons whose
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names are furnished were reinstated in service and if so, the date
on which they had rejoined service as well as the details of list of
action taken by the department to prevent corruption at Police
Station/Branches/Wings in Chennai City.
5. The letter which was originally sent to the State Government
was forwarded to the Director of Vigilance and Anti-Corruption.
On such redirection, the appellate authority further directed the
petitioner organization to examine the scope of giving such
information in accordance with law. It was, thereafter, the
petitioner organization by an order dated 2.2.2009 informed the
first respondent that they are exempted from the purview of the
RTI Act. When the first respondent made a complaint to the second
respondent Information Commission, the second respondent
passed the impugned order directing the petitioner to furnish the
information.
16. The validity of the said Government Order was questioned
before this Court in P. Pugalenthi v. State of T.N. represented by
the Secretary to Government, Personnel and Administrative
Reforms (N) Department, Chennai and others, W.P. No. 4907 of
2009 and the same has been upheld by order dated 30.3.2009. The
contention of the learned Special Government Pleader is that in
view of the above, the Chief Information Commissioner should not
have directed the furnishing of information required by each of
the first respondent in the appeals and consequently the learned
Judge should not have dismissed the writ petitions filed by the
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department. In our opinion, the said contention is totally
unacceptable. Even in the said judgment, the Division Bench has
categorically held that in the event the information required by an
applicant relates to the allegations of corruption, the said
Government Order cannot be made applicable and accordingly
the department cannot claim the exemption from furnishing those
particulars relating to corruption. The learned Judge has
correctly applied the above judgment with reference to the
particulars required by each of the first respondent in these
appeals, as they relate only to corruption.
17. In terms of Section 24(4), the State Government is empowered
to notify in the Official Gazette that nothing contained in the Right
to Information Act shall apply to such intelligence and security
organization being organizations established by the State
Government. Nevertheless, in the light of the first proviso, such
power being conferred on the State Government to notify
exempting such intelligence and security organizations, it cannot
notify in respect of the information pertaining to the allegations of
corruption and human rights violations. As a necessary corollary,
the power to exempt from the provisions of the Act is not available
to the State Government even in case of intelligence and security
organizations in respect of the information pertaining to the
allegations of corruption and human rights violations. The
application of the notification depends upon the nature of
information required. In this context, we may refer that the first
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respondent in W.A. No. 321 of 2010 has sought for the particulars
relating to the number of investigations completed and the number
of persons convicted for the years from 2003-2004 to 2007-2008
with the details as to the names of such convicted persons, the post
held by them when the act of corruption was done, the charges
framed and the recommendations given to the Vigilance
Commissioner after investigation. Likewise the first respondent in
W.A. No. 320 of 2010 has sought for the particulars relating to the
number of police stations/wings/branches within the Chennai city
were raided by the DVAC officials during the last five years i.e.,
from January, 2003, how many police officials were caught during
the raids, the list of names, the designation and the address of
such officials who were caught and the amount recovered from
each official, details of departmental actions taken against such
official including the copy of enquiry report, the details of
prosecution launched against such officials, the status of
prosecution against each official, how many have been re-
inducted into active service including the date of rejoining the
service and their present place/station of service, the details of
action taken by the Department to prevent corruption at police
stations/branches/wings especially in Chennai city and the
grievance redressal machinery for the public to make a complaint
against such corrupt official demanding bribe/favour to do the
duty. As all these particulars would certainly relate to corruption,
the Government Order has no application to the facts of this
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case.”
8. The Division Bench has taken note of the fact that G.O.Ms. No.
158 dated 26.8.2008 was upheld in W.P. No. 4907 of 2009 on
30.3.2009. Thereafter, the Division Bench upheld the order of the
learned single Judge dismissing the writ petitions preferred by the
Public Information Officer, the petitioner herein in refusing to
furnish the information.
9. The first appellate authority has stated that a proposal had been
sent to the Government for preferring Special Leave Petition. The
Tamil Nadu Information Commission also noted that no stay order
was produced staying the operation of the order of the Division
Bench. Even today, though the learned Special Government
Pleader has stated that an SLP was preferred against the order of
the Division Bench, he is not able to state that the order of the
Division Bench is stayed by the Apex Court.
10. In view of the judgment of the Division Bench read with the
provisos to Section 24(4) of the RTI Act, I am of the view that the
first respondent herein is entitled to have the manual of the DVAC.
The manual cannot be kept as a secret document. It is nothing but
a set of rules as to how the DVAC is functioning. I am not able to
understand as to why the DVAC feels shy to furnish the manual. In
fact, the information that were the subject matter before the
Division Bench were concerned with the corruption and the
consequent action taken by the DVAC and those details were
directed to be furnished. Hence, the DVAC cannot refuse to
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furnish the manual maintained by it. At this juncture, I wish to
refer to the submission made by the learned senior counsel for the
second respondent that the manual is not exempted from
disclosure as per Section 8 of the RTI Act. While Section 8 states
that there shall be no obligation to give the information relating to
various documents mentioned therein, the manual of the DVAC is
not one among them. Likewise, the public authorities shall
maintain the rules, regulations, instructions, manuals and records
for discharging their functions as contemplated under Section
4(1)(b)(v) of the RTI Act. Section 2(f) defines “information” and
the same is also extracted hereunder:-
“2. Definitions.--In this Act, unless the context otherwise
requires,--(f) “information” means any material in any form,
including records, documents, memos, e-mails, opinions, advices,
press releases, circulars, orders logbooks, contracts, reports,
papers, samples, models, data material held in any electronic form
and information relating to any private body which can be
accessed by a public authority under any other law for the time
being in force.”
11. On a cumulative reading of Sections 2(f), 4(1)(b)(v), 8 and the
provisos to Section 24(4), I am of the view that the first respondent
is entitled to the manual of DVAC. Hence, finding no infirmity in
the impugned order, the writ petition fails and the same is
dismissed. No costs.”
24. In the case of First Appellate Authority-cum-Additional
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Director General of Police and Anr. Vs. Chief Information
Commissioner, Haryana and Anr. reported in 2011 SCC Online P&H
17663, the High Court of Punjab and Haryana, held as follows:
“4. Since the question of law raised in both appeals is
common, therefore, the appeals are being taken for decision
together. It is argued by learned counsel for the appellant that the
appellant-authority is exempted from the purview of the Act on the
basis of the notification dated 29.12.2005. Since, the Act itself is
not applicable, the information cannot be sought under the Act by
respondent No. 2. It is argued that the information which is sought
does not pertain to violation of human rights or corruption,
therefore, the same cannot be supplied in terms of exception to
Section 24(4) of the Act. The notification dated 29.12.2005 and the
relevant extract of Section 24(4) of the Act reads as under:
Notification: dated 29th December, 2005
No. 5/4/2005-IAR - In exercise of the power conferred by sub-
section (4) of section 24 of the “Right to Information Act” 2005
(Central Act No. 22 of 2005), the Governor of Haryana hereby
specifies the intelligence and security organizations as mentioned
in the schedule given, below for the purpose of the said sub-
section.
Schedule
(i) State Criminal Investigation Department (C.I.D.) including the
Crime Branch:
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(ii) Haryana Armed Police:
(iii) Security Organization of Police:
(iv) Haryana Police Telecommunication Organization:
(v) India Reserve Battalion:
(vi) Commando
Section 24(4)
Nothing contained in this Act shall apply to such intelligence and
security organizations, being organizations established by the
State Government, as that Government may, from time to time, by
notification in the Official Gazette, specify:
Provided that the information pertaining to the allegations of
corruption and human rights violations shall not be excluded
under this sub-section:
Provided further that in the case of information sought for is in
respect of allegations of violation of human rights, the information
shall only be provided after the approval of the State Information
Commission and, notwithstanding anything contained in Section 7,
such information shall be provided within forty-five days from the
date of the receipt of request.
5. Learned counsel for the appellant has argued that the learned
State Information Commissioner has found that the information,
which is sought by the applicant-respondent No. 2, is not sensitive
in nature dealing with sovereignty and integrity of India, therefore,
such information can be disclosed is not tenable as such ground
for non-disclosure is contemplated by Section 8 of the Act. It is
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contended that in terms of Section 24(4) of the Act, the information
which can be disclosed is in respect of the allegations of
corruption and human rights violations but since the information
sought does not relate to any of the excepted matters, the
information cannot be sought. We have heard learned counsel for
the appellant and find no merit in the present appeal. Learned
single Judge has held that the information sought pertains to
allegation of corruption and, therefore, cannot be withheld by the
appellant. The question needs to be examined is whether the
information in respect of encroachment of the public land or of
filling up the public post can be said to be the information
“pertaining to allegation of corruption”.
6. The expression “pertaining to allegation of corruption”.is not
defined in the Act. Even, the Prevention of Corruption Act, 1988
does not define what are the allegations pertaining to corruption?
In the absence of any statutory definition in the Act, the ordinary
meaning to the expression used in the Act has to be applied. The
expression “pertaining to allegation of corruption” cannot be
defined. It includes within its meaning many colours and shades of
corruption. There cannot be any exhaustive definition that what
are the allegations pertaining to corruption. But an attempt can be
made to understand the scope of the expression used in the statute.
13. As mentioned above, the expression pertaining to allegation of
corruption cannot be exhaustively defined. The Act is to step-in-aid
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to establish the society governed by law in which corruption has
no place. The Act envisages a transparent public office. Therefore,
even in organizations which are exempt from the provisions of the
Act, in terms of the notification issued under Section 24(4) of the
Act Still information which relates to corruption or the information
which excludes the allegation of corruption would be relevant
information and cannot be denied for the reasons that the
organization is exempted under the Act. The information sought in
the present case is in respect of the number of vacancies which
have fallen to the share of the specified category and whether such
posts have been filled up from amongst the eligible candidates. If
such information is disclosed, it will lead to transparent
administration which is antithesis of corruption. If organization
has nothing to hide or to cover a corrupt practice, the information
should be made available. The information sought may help in
dispelling favouritism, nepotism or arbitrariness. Such information
is necessary for establishing the transparent administration.
Therefore, we do not find any illegality in the order passed by the.
State Information Commissioner, Haryana and affirmed by
learned single Judge in the orders impugned in the present
appeals.”
25. In the case of Ym.Md.Abid Hussain Vs. The State of Manipur,
reported in 2015 SCC Online Mani 129, the High Court of Manipur, held as
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follows:
“[8] The Right to Information Act, 2005 (hereinafter
referred to as the “Act”) was enacted in the year 2005 for setting
out the practical regime of right to information for citizens to
secure access to information under the control of public
authorities, in order to promote transparency and accountability
in the working of every public authority as mentioned in the
Preamble to the said Act. The said Act was enacted keeping in
mind the necessity of democracy of having an informed citizenry
and transparency of information which are vital to its functioning
and also to contain corruption and to hold Governments and their
instrumentalities accountable to the governed and to harmonise
the conflicting interests of the equally public importance which
may arise to maintain efficient operations of the Governments,
optimum use of limited fiscal resources and preservation of
confidentiality of sensitive information. Thus, while enacting the
Right to Information Act, 2005, the Parliament had kept into
consideration these two conflicting public interests and while
allowing access to information relating to the public authorities,
certain restrictions have been also placed, for example, by
enumerating the areas as provided under Section 8 of the Act,
which provides that notwithstanding anything contained in this
Act, there shall be no obligation to give any citizen information
relating to the matters indicated in Section 8 of the Act. Similarly,
certain information relating to the third party has also been
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restricted as provided under Section 11 of the Act. Section 24 of
the Act further provides that nothing contained in the Act shall
apply to the intelligence and security organisations specified in
the Second Schedule, being organisations established by the
Central Government and such organisations established by the
State Government as the State Government may from time to time
by Notification in official gazette specify. Thus, in respect of these
intelligence and security organisations referable to Section 24 of
the Act no one will have a right under the Act to seek for
information. Yet, a certain exception has been made by opening a
window of limited access in respect of information pertaining to
allegations of corruption and human rights violation relating to
these intelligence and security. In other words, even though these
intelligence and security organisations are outside the purview of
the Right to Information Act, 2005, yet, in respect of any
information pertaining to allegations of corruption and human
rights violation relating to these organisations, provisions of the
Right to Information Act will become applicable.
[9] It is clear from the pleadings and submissions made, the core
objection of the respondents in denying the information to the
petitioner relating to the recruitment process of Sub-Inspector of
Police is that the Manipur Police Department has been exempted
from the applicability of the Right to Information Act, 2005 in
terms of Section 24(4) of the Act. Since the Manipur Police
Department has been exempted and as no allegation pertaining to
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corruption and violence of human rights had been made, the
petitioner is not entitled to the information sought for.
[10] In view of the above objection of the respondents, the scope
of Section 24 of the Right to Information Act, 2005 needs to be
understood properly. In this regard, the relevant portion of
Section 24 (4) may be reproduced hereinbelow:-
“Section 24(4). Nothing contained in this Act shall apply to such
intelligence and security organisations, being organisations
established by the State Government, as that Government may,
from time to time, by notification in the Official Gazette, specify :
Provided that the information pertaining to the allegations of
corruption and human rights violations shall not be excluded
under this sub-section:
Provided further that in the case of information sought for is in
respect of allegations of violation of human rights, the information
shall not be provided after the approval of the State Information
Commission and, notwithstanding anything contained in Section 7,
such information shall be provided within forty-five days from the
date of the receipt of request.”
[11] Thus, a reading of the aforesaid provisions of the Act would
clearly show that what had been taken out from the purview of the
Right to Information Act, 2005 by the main part of sub-Section 4 of
Section 24 of the Act, has been brought back by the proviso as far
as information pertaining to allegations of corruption and human
rights violation are concerned. In other words, even if any
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intelligence or security organisations have been excluded from the
purview of the Act on the basis of notification issued in the official
gazette by the State such exemption would not be applicable as
regards information pertaining to allegations of corruptions and
human rights violence. Hence, if the information sought for
pertains to allegations of corruptions and human rights violence,
even in respect of such intelligence and security organisations, the
provisions of the Right to Information Act, 2005 will be applicable.
In that context, the expression “information pertaining to
allegations of corruption and human rights violence” needs to be
understood properly for if any information is covered by the said
expression, the authorities are under obligation to provide the
information. As to the scope of the aforesaid expression
“information pertaining to allegations of corruption and human
rights violence” this has been analysed and explained by the
Hon'ble Punjab and Haryana High Court in an order dated
28.04.2011 rendered in LPA No. 744 of 2011 and LPA No. 745 of
2011 (supra) which has been relied on by the counsel for the
petitioner. The Hon'ble Punjab and Haryana High Court has
examined the scope of the expression “information pertaining to
allegations of corruption and human rights violence” with
reference to the issue involved in the said case as to whether any
information in respect of encroachment of the public post or of
filling up the public post can be said to be “information pertaining
to allegations of corruption and human rights violence”. The
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Hon'ble High Court observed that this expression is not defined in
the Act and even in the definition clauses in the Corruption Act,
1988. Referring to the resolution of the General Assembly of the
United Nations in its meeting held on 8th January, 1997 which
dealt with the seriousness of the problems of corruption and
various facets of corruption, the Hon'ble High Court observed that
the public officers are to be attentive, fair and impartial in the
performance of their functions and at no time should afford any
undue preferential treatment to any group or individual or
improperly discriminate against any group or individual, or
otherwise abuse the power and authority vested in them and
information which relates to the working of a public office and
whether such office acted in accordance with laws would be
relevant so as to exclude the allegation of corruption. The Hon'ble
High Court in the said case held that the information sought for
which is in respect of the number of vacancies which have fallen to
share of the specified category and whether such posts have been
filled up from amongst the eligible candidates, if disclosed, will
lead to transparent administration which is antithesis of
corruption and help in dispelling favouritism, nepotism or
arbitrariness. Accordingly, the Hon'ble Punjab & Haryana High
Court directed furnishing of such information.
[12] This Court respectfully agrees with the reasoning and
conclusion arrived at for holding that information in the nature
sought for in the said case could not be withheld and ought to be
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disclosed. In the present case, the information sought for relates to
the marks obtained by the successful candidates as well as the
petitioner and it is the case of the petitioner that the information
sought for before this Court is to dispel any doubt over corruption.
Therefore, it can be said that the information sought for by the
petitioner in the present case also pertains to the allegations of
corruption. In this respect, it may be observed that the expression
used in this provision is about “information pertaining to the
allegations of corruption” and not “information pertaining to
corruption”. The earlier expression is of wider import. As per the
earlier expression which has been used in the statute, the
allegation need not be about a proven corruption or clearly shows
existence of corruption. Allegation of corruption may or may not
result in proving existence of corruption but there must be
indication of the possibility of existence of corruption. However, it
does not mean that anybody can seek information by making an
allegation of corruption. There must be some proximity or nexus
with the information sought and possibility of a corruption. In the
present case, if it is found on the basis of the information sought
by the petitioner that persons who do not otherwise qualify in
terms marks obtained by the candidates have been included in the
select list, obviously, the charge of corruption can certainly be
validly raised. To that extent such information sought for by the
petitioner can be said to be pertaining to allegations of
corruption. It is not necessary that the information so furnished
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would prove an instance of corruption. It would be sufficient if the
information so provided leads to a genuine complaint or
allegation about the existence of corrupt practice. Therefore, this
Court would hold that if the information sought for has a
proximate link with the charge of corruption, such information
would be covered by the expression “information pertaining to
allegations of corruption”. Similar position is with the case where
there is allegation of human rights violation. The information
sought for so provided per se may not establish corrupt practice
or violation of human rights but it forms a valid and reasonable
basis for making allegations of corrupt practice or violation of
human rights, such information would come within the scope of
the expression “information pertaining to allegations of
corruption and human rights violation”. This Court would hold
that if any such information has the potential to raise a serious
question of the existence of corruption or violation of human
rights, it can be certainly considered to be “pertaining to
allegations of corruption and human rights violation”. In that
event, such information cannot be withheld, if sought for.
[13] One may look at this issue from another perspective. The
exclusion of certain organisations under the main provisions of
Sub-sections(1) and (4) of Section 24 is to ensure efficient
functioning and operations of the Government, optimum use of
limited fiscal resources, preservation of confidentiality of sensitive
information and as such other public interest and to protect such
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other public interest as clearly mentioned in the Preamble to the
Act. It is a well established principle that provisions of preamble
could be invoked for a proper construction of the statute if the
language used is too general. As already discussed above, the
expression used in the proviso i.e., “information pertaining to
allegations of corruption and human rights violence” is of too
general and of wide amplitude which has not been defined in the
Act or any cognate Act. However, giving a too wide interpretation
may defeat the very purpose of ensuring preservation of the public
interests as clearly mentioned in the Preamble. Therefore, a
balanced and reasonable interpretation of the said expression can
be done by referring to the Preamble as mentioned above. The
Preamble is a key to open the mind of the Legislative and proves
the board parameters of the enactment which impelled the
lawmakers to craft such statutes. The aforesaid preamble is
reproduced hereinbelow:-
“An Act to provide for setting out the practical regime of right to
information for citizens to secure access to information under the
control of public authorities, in order to promote transparency
and accountability in the working of every public authority, the
constitution of a Central Information Commission and State
Information Commissions and for matters connected therewith or
incidental thereto.
WHEREAS the Constitution of India has established democratic
Republic;
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AND WHEREAS democracy requires an informed citizenry and
transparency of information which are vital to its functioning and
also to contain corruption and to hold Governments and their
instrumentalities accountable to the governed;
AND WHEREAS revelation of information in actual practice is
likely to conflict with other public interests including efficient
operations of the Governments, optimum use of limited fiscal
resources and the preservation of confidentiality of sensitive
information;
AND WHEREAS it is necessary to harmonise these conflicting
interests while preserving the paramountcy of the democratic
ideal;
NOW, THEREFORE, it is expedient to provide for furnishing
certain information to citizens who desire to have it.”
[14] Therefore, in the context of the Preamble, what is evident is
that these organisations referred to in Section 24 of the Act have
been specifically sought to be taken out of the purview of the Right
to Information Act, 2005 in order to protect certain public
interests including efficient operations of Government, optimum
use of limited resources and preservation of confidentiality of
sensitive information. However, an exception has been made to
this exclusionary provision by inserting the said proviso where the
“information pertaining to allegations of corruption and human
rights violence” will be subject to the provisions of the Right to
Information Act, 2005. This Court is of the view that if any
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information sought for does not relate to any of these areas
referred to in the Preamble which the Act seeks to protect and
preserve and thus keep away from public domain but are also
relatable to any allegation of corruption and violence of human
rights, there is no reason why such an information should be
withheld, if sought for.
[15] This issue can be viewed from another perspective. The
legislature in their anxiety to keep certain organisations which are
engaged in activities involving sensitive information, secrecy of
the State, have sought to keep these organisations away from the
purview of the Act by including such organisations in the Second
Schedule of the Act as far as Central Organisations are concerned
and in the official gazette in respect of State organisations. It does
not, however, mean that all information relating to these
organisations are completely out of bound of the public. For
example, even though the Central Bureau of Investigations is one
of the organisations included in the Second Schedule to the Act, it
does not mean that all information relating to it are out of bound
of the public. If one looks at the website of the Central Bureau of
Investigation which is in the public domain, there are so many
information about the organisation which are already voluntarily
made open to the public. This is for the simple reason that
disclosure of these information does not in any way compromise
with the integrity of the organisation or confidentiality of the
sensitive nature of works undertaken by this organisation. The
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purpose of excluding all these organisations from the purview of
the Act as provided under Section 24 is to merely protect and
ensure the confidentiality of the sensitive works and activities
undertaken by these organisations. Therefore, if there are any
information which do not impinge upon the confidentiality of the
sensitive activities of the organisation and if such information is
also relatable to the issues of corruption or violation of human
rights, disclosure of such information cannot be withheld.
Similarly, in respect of the police organisations in the State of
Manipur if anybody seeks any information which does not touch
upon any of the sensitive and confidential activities undertaken by
the police department and if the said information also can be
related to the issues of any allegation of corruption or violation of
human rights, such information cannot be withheld. We may
further clarify this position by borrowing the concept of doctrine
of “pith and substance”. The doctrine of “pith and substance”
was evolved by the courts primarily to determine whether a
particular law relates to a subject mentioned in one list or the
other and while doing so, the Court looks into the substance of the
enactment. Thus, if the substance of the enactment falls within the
Union List then the incidental and encroachment by the enactment
on the State list would not make it invalid. Thus, the essence of this
doctrine centred round the substantive part of the enactment or
the core subject of the enactment. Though this doctrine cannot be
invoked to decide the issue raised in this petition, the principle
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behind it may be referred to while deciding the issue at hand. By
doing so, this Court will hold that if any information relates to the
core activity of the organisation because of which such an
organisation has been excluded from the purview of the Act, any
such information can be withheld except which relates to
allegation of corruption and violation of human rights. Therefore,
if there be any information which does not relate to the principal
or the core function of the organisation which is sought to be
protected by including in Section 24 of the Act, but if it can have
some reference or relatable to corruption or violation of human
rights, such an information cannot be withheld. It may be observed
that the core function of the police organisation is to maintain law
and order, security of the State and discharge such activities
which are related to and ancillary to these functions. It that
context, undertaking the exercise of a recruitment process is not
part of the core function of the police department. It is some
function which could be outsourced to any other agency like the
Public Service Commission etc. and this activity does not form
part of the core function of the Police Department which cannot be
outsourced to any other agency. Of course, recruitment of
intelligence officials may form part of the core function. But in the
present case, such is not the case. The recruitment in issue is the
general recruitment process of the personnel of the police
department generally.
[16] There is of course, one aspect this Court has to keep in mind.
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Section 8 of the Act provides for exemption from certain
information. It starts with the non-obstantive expression
“Notwithstanding anything contained in this Act.” Therefore, even
if any information sought for comes under any of the clauses
mentioned in Section 8 of the Act, the authority can withheld such
information. In the present case, disclosure of the marks obtained
by a candidate in a recruitment process cannot be said to be hit by
any of the clauses mentioned in Section 8 of the Right to
Information Act, 2005. This Court has already observed that such
information is relatable to the allegations of corruption and
human rights violations, such information cannot be withheld.
[17] The information sought for by the petitioner as mentioned
above, in the opinion of the Court will not be covered by any of the
inhibiting factors mentioned in Section 8 of the Act, nor impinge
upon the core activity of the Manipur Police Organisation and if
furnished would rule out any allegation of corruption, hence is
“pertaining to allegations of corruption”. The Court, therefore,
holds that such information cannot be withheld on the strength of
any provision of the Act.”
26. In the case of Shri Phairembam Sudesh Singh Vs. State of
Manipur, reported in 2016 SCC Online Mani 13, the High Court of
Manipur, held as follows:
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“5. The subject matter in issue relates to the interpretation of the
provisions of Section 24 of the RTI Act, 2005 and in particular, Section 24(4)
which is reproduced herein below:
“Section 24(4). Nothing contained in this Act shall apply to such
intelligence and security organisations, being organisations
established by the State Government, as that Government may,
from time to time, by notification in the Official Gazette, specify:
Provided that the information pertaining to the allegations of
corruption and human rights violations shall not be excluded
under this sub-section:
Provided further that in the case of information sought for is in
respect of allegations of violation of human rights, the information
shall not be provided after the approval of the State Information
Commission and, notwithstanding anything contained in Section 7,
such information shall be provided within forty-five days from the
date of the receipt of request.”
6. Shri Th. Khagemba, learned counsel appearing for the
petitioner has heavily relied upon the judgment and order dated
13-10-2015 passed by this court in W.P. (C) No. 880 of 2014
wherein this court had examined the question as to whether the
petitioner therein was entitled to information sought for by him
when the Police Department, Government of Manipur had been
exempted and no allegation pertaining to corruption and violence
of human rights had been made by him. Similar issue has arisen in
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the present case and the only difference is that in the said case, the
information sought for was with regard to the recruitment process
of Sub-Inspector of Police whereas in the present case, the
information sought for by the petitioner are as regards his service
namely the initial appointment, suspension order, documents
relating to departmental proceedings, termination order etc. On
perusal of the said judgment and order, this court is of the view
that the issue involved herein is covered by it and in that case, this
court held that the information sought for by the petitioner therein
which pertained to allegations of corruption, would be covered by
the expression “information pertaining to allegations of
corruption”. It has further been held that if any information has
the potential to raise a serious question of the existence of
corruption or violation of human rights, it can be certainly
considered to be “pertaining to allegations of corruption and
human rights violation”. The para 12 thereof is as under:
“[12] This issue can be viewed from another perspective. The
legislature in their anxiety to keep certain organisations which are
engaged in activities involving sensitive information, secrecy of the
State, have sought to keep these organisations away from the
purview of the Act by including such organisations in the Second
Schedule of the Act as far as Central Organisations are concerned
and in the official gazette in respect of State organisations. It does
not, however, mean that all information relating to these
organisations are completely out of bound of the public. For
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example, even though the Central Bureau of Investigations is one
of the organisations included in the Second Schedule to the Act, it
does not mean that all information relating to it are out of bound
of the public. If one looks at the website of the Central Bureau of
Investigation which is in the public domain, there are so many
information about the organisation which are already voluntarily
made open to the public. This is for the simple reason that
disclosure of these information does not in any way compromise
with the integrity of the organisation or confidentiality of the
sensitive nature of works undertaken by this organisation. The
purpose of excluding all these organisations from the purview of
the Act as provided under Section 24 is to merely protect and
ensure the confidentiality of the sensitive works and activities
undertaken by these organisations. Therefore, if there are any
information which do not impinge upon the confidentiality of the
sensitive activities of the organisation and if such information is
also relatable to the issues of corruption or violation of human
rights, disclosure of such information cannot be
withheld. Similarly, in respect of the police organisations in the
State of Manipur if anybody seeks any information which does not
touch upon any of the sensitive and confidential activities
undertaken by the police department and if the said information
also can be related to the issues of any allegation of corruption or
violation of human rights, such information cannot be withheld.
We may further clarify this position by borrowing the concept of
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doctrine of “pith and substance”. The doctrine of “pith and
substance” was evolved by the courts primarily to determine
whether a particular law relates to a subject mentioned in one list
or the other and while doing so, the Court looks into the substance
of the enactment. Thus, if the substance of the enactment falls
within the Union List then the incidental and encroachment by the
enactment on the State list would not make it invalid. Thus, the
essence of this doctrine centred round the substantive part of the
enactment or the core subject of the enactment. Though this
doctrine cannot be invoked to decide the issue raised in this
petition, the principle behind it may be referred to while deciding
the issue at hand. By doing so, this Court will hold that if any
information relates to the core activity of the organisation because
of which such an organisation has been excluded from the purview
of the Act, any such information can be withheld except which
relates to allegation of corruption and violation of human rights.
Therefore, if there be any information which does not relate to the
principal or the core function of the organisation which is sought
to be protected by including in Section 24 of the Act, but if it can
have some reference or relatable to corruption or violation of
human rights, such an information cannot be withheld. It may be
observed that the core function of the police organisation is to
maintain law and order, security of the State and discharge such
activities which are related to and ancillary to these functions. It
that context, undertaking the exercise of a recruitment process is
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not part of the core function of the police department. It is some
function which could be outsourced to any other agency like the
Public Service Commission etc. and this activity does not form part
of the core function of the Police Department which cannot be
outsourced to any other agency. Of course, recruitment of
intelligence officials may form part of the core function. But in the
present case, such is not the case. The recruitment in issue is the
general recruitment process of the personnel of the police
department generally.”
7. While passing the said judgment and order, this court has
agreed to and subscribed to the views of the Hon'ble Punjab and
Haryana High Court rendered in its order dated 28-04-2011 in
LPA No. 744 of 2011 and LPA No. 745 of 2011 wherein it has
examined the scope of the expression “information pertaining to
allegations of corruption and human rights violence” as regards
the issue whether any information, in respect of encroachment of
the public post or of filling up the public post, can be said to be
“information pertaining to allegations of corruption and human
rights violence”. The said Hon'ble High Court has observed that
this expression is not defined in the Act and that the public officers
are to be attentive, fair and impartial in the performance of their
functions and at no time should afford any undue preferential
treatment to any group or individual or improperly discriminate
against any group or individual, or otherwise abuse the power and
authority vested in them and information which relates to the
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working of a public office and whether such office acted in
accordance with laws would be relevant so as to exclude the
allegation of corruption. The said Hon'ble High Court has further
held that the information sought for which is in respect of the
number of vacancies which have fallen to the share of the specified
category and whether such posts have been filled up from amongst
the eligible candidates, if disclosed, will lead to transparent
administration which is antithesis of corruption and help in
dispelling favouritism, nepotism or arbitrariness. Accordingly, the
Hon'ble Punjab & Haryana High Court are directed for furnishing
of such information.
8. This court proposes to add further observations to its earlier
judgment and order referred to above. There can be no any
dispute that the RTI Act, 2005 is enacted with the avowed objective
of conferring a statutory right on the citizens in India to have
access to Government-controlled information or to seek
information from Central Government/State Governments, local
bodies and other competent authorities as a matter of right. The
idea is that it would prove to be instrumental in bringing in
transparency and accountability in Government and Public
Institutions which would help in bringing the growth of corruption
in check. The scope of the Act is wide enough to cover all the
Constitutional Institutions and subject to exemptions, universally
applies to all Public Authorities. Section 3 gives statutory
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recognition to the right to information subject to the other
provisions of the Act. Section 8 sets out limitations on the right of
access as exemptions from disclosure of information. Similarly,
Section 24(4) confers power on the State Government to exempt
any intelligence and security organisation established by it from
the purview of the provisions. It may be noted that the right to
information is a facet of “freedom of speech and expression”, as
contained in Article 19(1)(a) of the Constitution, which are the
foundation of all democratic organisations. Fundamental rights
should not be cut down by too restricted an approach. Even prior
to the enactment of RTI Act, 2005, the expression “freedom of
speech and expression” has been construed by the Hon'ble
Supreme Court, in a catena of decisions, to include not only liberty
to propagate one's views, ideas, opinions and thoughts but also the
right to acquire information. In other words, the right to
information can be said to be a fundamental right subject to the
exemptions as contained in Section 8 and 24 of the RTI Act. As has
been held by the Hon'ble Punjab & Haryana High Court, the
expression “information pertaining to allegations of corruption
and human rights violence” is not defined in the Act but it has a
wide connotation in view of the objective sought to be achieved in
the Act. The relevance of transparency and accountability in the
administration has arisen because of the corruption being
rampant and power allegedly being misused by the Public
Authorities in the country. Article 19 of the Universal Declaration
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of Human Rights, 1948 provides that everyone has the right to
freedom of pinion and expression; this right includes freedom to
hold opinions without interference and to seek, receive and impart
information and ideas through any media and regardless of
frontiers. To comprehend the intent of the Legislature while
enacting the RTI Act specially as regards the said expression, the
provisions of the Act, as a whole, are to be read keeping in mind
the purpose for which the RTI Act is enacted and it may further be
noted that the exemptions cannot be construed so as to defeat the
very objective sought to be achieved in the RTI Act, 2005.
Therefore, it has been rightly held by this court in the said case
of Md. Abid Hussain v. State of Manipur, W.P. (C) No. 880 of 2014
that any information which does not touch upon any of the
sensitive and confidential activities undertaken by the Police
Department, Government of Manipur cannot be withheld at all. In
other words, access to such information cannot be denied to the
citizens. It can be seen from the facts of the present case that the
information sought for by the petitioner have nothing to do with
the sensitive and confidential activities undertaken by the Police
Department, Government of Manipur and therefore, the same
cannot be denied to him.
9. In view of the above, the instant writ petition is allowed and
consequently, the decision/order dated 26-06-2015 passed by the
State Chief Information Officer, Manipur Information Commission,
Imphal in Appeal Case No. 17 of 2015 is quashed and set aside
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with the direction that the respondent No. 4 shall provide the
information sought for by the petitioner within a period of three
weeks from the date of receipt of a copy of this judgment and
order. There shall be no order as to costs.”
27. In the case of CPIO CBI Vs. C.J.Karira, reported in 2017 SCC
Online Del 10475, the High Court of Delhi held as follows:
“4. In view of the above, the only controversy to be
addressed is whether the information sought by the petitioner falls
within the proviso to Section 24(1) of the Act.
5. The respondent had filed an application dated
31.01.2012 with the petitioner, inter alia, seeking the following
information for the period January 2007 to December 2011.
“1. All the Ministries/Departments of the Government of India.
2. Union Public Service Commission/Lok Sabha Secretariat/Rajya
Sabha Secretariat/Cabinet Secretariat/Central Vigilance
Commission/President's Secretariat/Vice-President's
Secretariat/Prima Minister's Office/Planning Commission/Election
Commission.
3. Central Information Commission/State Information
Commissions
4. Staff Selection Commission, CGO Complex, New Delhi
5. Office of the Comptroller & Auditor General of India, 10,
Bahadur Shah Zafar Marg, New Delhi
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6. All Officers/Desks/Sections, Department of Personnel &
Training and Department of Pension & Pensions Welfare”
6. The petitioner had responded to the aforesaid request by a
letter dated 05.03.2012 claiming that CBI was included within the
second schedule to the Act and, thus, in terms of section 24(1) of
the Act was excluded from the applicability of the Act.
7. Before proceeding further, it would be relevant to refer to
Section 24(1) of the Act, which is set out below:—
“24. Act not to apply in certain organizations.—(1) Nothing
contained in this Act shall apply to the intelligence and security
organisations specified in the Second Schedule, being
organisations established by the Central Government or any
information furnished by such organisations to that Government:
Provided that the information pertaining to the allegations of
corruption and human rights violations shall not be excluded
under this sub-section:
Provided further that in the case of information sought for is in
respect of allegations of violation of human rights, the information
shall only be provided after the approval of the Central
Information Commission, and notwithstanding anything contained
in section 7, such information shall be provided within forty-five
days from the date of the receipt of request.”
8. It is apparent from the plain reading of the first proviso to
Section 24(1) of the Act that information pertaining to allegations
of corruption and human rights violation are not excluded from
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the purview. The petitioner contended that since the information
sought related to allegations of corruption, the same were not
excluded from the scope of Section 24(1) of the Act.
9. The learned counsel for the petitioner had countered the
aforesaid contention and submitted that the proviso must be read
in a restricted manner and, only information pertaining to
allegations of corruption relating to the public authority - in this
case CBI - was excluded from the purview of Section 24(1) of the
Act. It was contended that since the information sought by the
respondent pertain to allegations of corruption in other
organisations, the first proviso would be inapplicable and, the
petitioner would not be obliged to disclose the same.
10. The aforesaid question is squarely covered by the decision of
the Coordinate Bench of this Court in CPIO, Intelligence
Bureau v. Sanjiv Chaturvedi: W.P.(C) 5521/2016, decided on
23.08.2017, whereby this Court has held as under:—
“29. The plain reading of the proviso shows that the exclusion is
applicable with regard to any information. The term “any
information” would include within its ambit all kinds of
information. The proviso becomes applicable if the information
pertains to allegations of corruption and human rights violation.
The proviso is not qualified and conditional on the information
being related to the exempt intelligence and security
organizations. If the information sought, furnished by the exempt
intelligence and security organizations, pertains to allegations of
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corruption and human rights violation, it would be exempt from
the exclusion clause.
30. The proviso “Provided that the information pertaining to the
allegations of corruption and human rights violations shall not be
excluded under this sub-section” has to be read in the light of the
preceding phrase “or any information furnished by such
organisations to that Government”.
31. When read together, the only conclusion that can be drawn is
that, if the information sought pertains to allegation of corruption
and human right violation, it would be exempt from the exclusion
clause, irrespective of the fact that the information pertains to the
exempt intelligence and security organizations or not or pertains
to an Officer of the Intelligence Bureau or not.”
11. The respondent who is present in Court states that the
information sought by him has become stale and, he be permitted
to file a fresh application under the Act. Plainly, the respondent is
not precluded from filing an application before the petitioner for
information relating to allegations of corruption or human rights
violation. In the event such application is filed, the petitioner
would examine the same. Although, it would not be open for the
petitioner to claim that information relating to allegations of
corruption in other organisation is exempt from disclosure,
however, the petitioner would be at liberty to examine whether the
information sought by the petitioner is exempt under any of the
clauses of Section 8(1) of the Act.”
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28. Relying on the above judgments, the learned counsel for the
petitioner reiterated that in all the above judgments relied, all the Courts
have consistently held that right of information cannot be denied in ordinary
circumstances and the right being the Statutory right conferred, must be
provided to the information seekers in all circumstances. Rejection of
application cannot be done in a mechanical manner by wrongfully invoking
Section 8 of the RTI Act. Merely because the informations sought for are
relating to the corruption cases and a criminal case is registered, the same
would not deprive information seekers from getting information and
documents or otherwise under the provisions of the Right to Information
Act.
29. The learned counsel appearing on behalf of the respondents
objected the contentions raised by the petitioner by stating that the F.I.R was
registered on 23.02.2012 and the petitioner was arrayed as an accused. The
petitioner worked as Assistant General Manager in Defence Colony Branch
of Indian Overseas Bank from 24.06.2007 to 29.04.2008. Indian Overseas
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Bank is the leader Bank for the Consortium of Banks, who sanctioned term
loans to M/s. Century Communications Limited. The limits sanctioned by
the Consortium Banks were released through a no-lein account maintained
with Indian Overseas Bank, Defence Colony Branch. During his tenure, the
petitioner as Assistant General Manager of the Branch had committed
serious irregularities of disbursing an amount of Rs.69.85 Crores without
collecting the invoices/quotations, credit report of suppliers and further, he
had failed to monitor the no-lein account and allowed operations using check
books and thereby the company diverted the funds by issuing various
cheques. These irregularities on the part of the petitioner had facilitated the
borrower to defraud the Consortium of Banks by diverting the funds to their
own associate concerns without creation of the asset, for which, the limits
were sanctioned. The fraud was detected during December, 2011 and is
reported to the Reserve Bank of India on 22.02.2012 and thereafter, the
Central Bureau of Investigation/3rd respondent lodged an F.I.R against the
company, its directors, several Bank officials and others as admitted by the
petitioner himself.
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30. The CBI had sought sanction for prosecution of the petitioner
and the competent authority had granted the same in order dated
10.09.2014. The information sought for by the petitioner under the Right to
Information Act relates to the correspondence between the CBI and the
sanctioning authority and also the administrative decisions of the
sanctioning authority. Thus, the application of the petitioner was rejected by
invoking Section 8 (1) (d), (g), (h) of the RTI Act.
31. The learned counsel for the respondents reiterated that in
various decisions of the Central Information Commission and the Courts, the
exemption under Section 8(1) (h) is a continuous exemption till the
prosecution of the offenders. Hence, it is not mandatory to furnish the
information, if charge sheet is laid. In fact, the Central Information
Commission had impleaded the CBI as the 3rd respondent and found that the
informations sought for by the petitioner relates to the confidential
correspondence between the sanctioning authority and CBI. Thus, there is
no infirmity as such in rejecting the application filed by the petitioner.
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32. With reference to the above contentions, the learned counsel for
the respondent relied on the judgment of the Central Information
Commission in the case of Shri K.L.Bablani Vs. Directorate General of
Vigilance, Customs and Central Excise dated 16.09.2009 and the
observations are as follows:
“7. It is my belief, therefore, that a pubic authority
which is authorized to hold file-notings in sensitive files,
such as vigilance and disciplinary matters, confidential
under the provisions of Section 124 of AT-16092009-04.doc
the Indian Evidence Act can also hold such documents (file-
notings) confidential under Section 11(1) of RTI Act read
with Section 2(n), on satisfying certain conditions, Section
2(n) of RTI Act, which states that a “third party” means a
person other than the citizen making a request for
information and includes a public authority.”
33. The Hon'ble Division Bench of the High Court of Madras in the
case of the S.Vijayalakshmi Vs. Union of India, reported in 2011 (5) CTC
376, elaborately considered the rights of the information seekers with
reference to the provisions of the RTI Act and made the following
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observations, which is relevant to the present case:
“22. Repeated reference has been made by stating that the
exemption under Section 24 (1) is a blanket exemption or in
other words a whole sale exemption. In the preceding
paragraphs we have reproduced Section 24 of the Act. In
terms of sub-Section (1) of Section 24, nothing contained in
the RTI Act shall apply to the Intelligence and Security
Organisations specified in the Second Schedule being
organisations established by the Central Government or any
information furnished by such organisations to that
Government. As noticed above, First Proviso to Section 24 (1)
of the Act states that information pertaining to the allegations
of corruption and human right violation shall not be excluded
under Section 24(1) of the Act. In terms of the Second
Proviso, to sub-Section (1) of Section 24, that in case of
information sought for is in respect of allegations of violation
of human right, the information shall only be provided after
the approval of the Central Information Commission and
notwithstanding anything contained in Section 7 (which deals
with the disposal of requests), and such information shall be
provided within 45 days from the date of receipt of request.
Therefore, it can hardly be stated to be case of a whole sale
exemption or a blanket exemption. If an RTI applicants comes
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with a query alleging corruption in any of the Agencies or
Organisations, listed out in the Second Schedule to the RTI
Act, such information sought for is bound to be provided and
the protection under Section 24 (1) cannot be availed of.
Similar is the case relating to violation of human rights.
Therefore, the safeguard is inbuilt in the Statute so as to
ensure that even in respect of the Agencies or Organisations
listed out in the Second Schedule are not totally excluded
from the purview of the RTI Act.”
34.The High Court of Madras in the above judgment, in
unequivocal terms, held that agencies or organizations listed out in the
Second Schedule are not totally excluded from the purview of the RTI Act.
Further, with reference to the 1st Proviso to Section 24(1) of the Act, which
is also relied upon by the learned counsel for the petitioner. The Court states
that information pertaining to the allegations of corruption and human rights
violation shall not be excluded under Section 24(1) of the Act.
35. The learned counsel for the respondent reiterated that though
there is no absolute prohibition for providing information in respect of the
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organizations listed out in the Second Schedule, the nature of the
informations sought for is to be considered by the Public Information
Officer. Thus, in the present case, the information sought for was considered
as confidential and under those circumstances, the application was rejected.
36. In the case of Chandra Bhushan Sahay Vs. CPIO & General
Manager (MP and IR), Central Information Commission, passed an order
dated 10 July, 2020 and the relevant paragraph held as follows:
“5. The Supreme Court in its order dated February 12, 2019
has held as under:
4. The dispute remains about document Nos.1, 3 and
4 as they were not supplied considering the provisions of
Section 8 (i) (h) of the Right to Information Act which
prohibits disclosure of information connected with ongoing
investigations and prosecutions and it was opined that it was
source information that has triggered the anti-corruption
proceedings and nothing should be done which affects the
proceedings or which compromises the position of the
sources of information. 5. In view of the aforesaid reasons
employed by the Information commissioner, we are of the
opinion that there was justification in refusing to supply the
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aforesaid documents. However, as rightly pointed out by
learned counsel for the appellant that during the course of
trial, if the trial Court feels it appropriate and if a prayer is
made, the documents may be called by court in accordance
with law.”
37. Considering the arguments as advanced by the respective
learned counsels appeared on behalf of the parties to the lis, let us consider
the information sought for by the petitioner.
38. The petitioner requested for a copy of request letter received
from CBI for seeking sanction, copy of internal office memorandum
containing the opinion/views of Disciplinary Authority for giving sanction
for prosecution, copy of first advice given by CVC, New Delhi, the outcome
of the reconciliatory meeting between Disciplinary Authority and CBI office
of the New Delhi, the copy of any further clarification sought for by the
CVC, the copy of internal office memorandum containing the opinion/views
of Disciplinary Authority for giving sanction for prosecution, the copy of
latest correspondence from CVC requesting/advising the Bank, the copy of
internal office memorandum containing the opinion/views of the present
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Disciplinary Authority and finally copy of draft sanction supplied by CBI.
39. Considering the nature of questions sought for, interestingly,
the first information is the request letter received from the CBI for seeking
sanctioning. The said letter may have certain informations pertaining to the
investigation/interrogation. The second document is copy of internal office
memorandum containing the opinion/views of the Disciplinary Authority.
40. This Court is of the considered opinion that note file, opinions,
views of the Disciplinary Authority may vary from time to time based on the
informations and based on the collection of facts and evidences. Even at later
point of time, initial opinion may not be final opinion in many cases.
Subsequent facts may provide a different views and opinion and therefore, if
the copy of the opinion and views are supplied, it will create unnecessary
hindrance for the peaceful investigation, interrogation and to proceed with
the departmental disciplinary proceedings as well as the criminal
proceedings. For example, on receipt of the preliminary report, the
Disciplinary Authority would have formed certain opinions or expressed
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some views. However, those opinions and views cannot be construed as
final, as far as the decisions to be taken. During subsequent period, if further
documents are made available or certain other facts are placed, then the
Disciplinary Authority may change his opinion or views. This is exactly the
reason why, in disciplinary case, the rule contemplates opportunities to the
deliquent officials. Therefore, the internal office memorandum containing
opinion/views if supplied, undoubtedly, would create unnecessary issues as
the petitioner will certainly rely on the document for the purpose of
destroying the case. However, any accused/delinquent officials is entitled to
defend his case in the manner known to law.
41. Thus, furnishing of such opinions and views of the Disciplinary
Authority at various stages, if provided under the RTI Act, then it will
hamper the continuation of the disciplinary proceedings and further, disrupt
the investigation to be conducted by the investigating agency.
42. Perusal of other documents and informations sought for by the
petitioner are all relatable to the reconciliatory meeting between the officials.
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Clarifications sought for by the CVC, latest correspondence etc., of such
informations and documents sought for reveals that it is between the
authorities and more so, relating to views/opinions, internal correspondences
etc.,
43. No doubt, all such correspondences are protected under Section
8 of the RTI Act. However, it is the “subjective satisfaction” of the
authorities. The “subjective satisfaction” must be considered by the Public
Information Officer, while complying with the request of the information
seekers. This exactly is the purpose and object of 8 (h) of the Act.
“Section 8 (h) contemplates of information which
would impede the process of investigation or apprehension or
prosecution of offenders.”
44. Where the circumstances narrated under Section 8 (h) on that
informations, which would impede the process of investigation or
apprehension or prosecution of offenders. Thus, if the information provided,
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would cause any hindrance to the investigation or apprehension or
prosecution of offenders. The language employed is “Apprehension”. Thus,
“Apprehension” of the competent authority is also considered in the
legislation. The word “Apprehension”, no doubt, can be interpreted widely
and further, it provides discretion to the authorities for forming an opinion,
whether there is an an “Apprehension” or not. In this regard, the subjective
satisfaction of the competent authority is of paramount importance. The
Public Information Officer is expected to consider in the event of furnishing
such informations, which all are connected with the investigation or
prosecution of offenders and providing of such informations, would impede
the process, then, he is empowered to exercise power of discretion and reject
the application of the information seeker. Thus, the scope of section 8 (h) is
to be understood, with reference to the context and to the subjective
satisfaction of the authorities competent. If the competent authority satisfied
that there is a likelihood of impede the process of investigation or
prosecution of offenders, then such informations or documents shall be
denied.
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45. The purpose and object of the exemption clause is to ensure that
the administrative confidentiality are protected and because of providing of
information, the further continuation of investigation or prosecution cannot
be impeded. This being the scope of exemption under Section 8 (h), the
questions sought for by the petitioner in the present case with reference to 8
(h) is to be considered.
46. As discussed in the aforementioned paragraphs, the questions
and documents sought for by the petitioner in the present case is relatable to
internal office memorandum containing opinions/views of reconciliatory
meeting between the Disciplinary Authority and CBI clarification sought for
by CVC internal office memorandum containing opinions/views latest
correspondences from CVC etc.,
47. This Court is of the considered opinion that such informations,
if provided, it will create unnecessary hampering of the Disciplinary
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Proceedings or the prosecution. Even an apprehension in this regard is
sufficient is to deny information to the applicants. The word “Apprehension”
is employed in the Act, so as to protect the prosecution and process of
investigation, which should not be paralyzed at any circumstances in the
public interest. When the investigation is undertaken, then the authorities
must be provided with an amount of discretion for the purpose of culling out
the truth in respect of the allegations. Thus, any hindrance in between,
would undoubtedly paralyze the investigation process, which would dilute
the prosecution and would extend unlawful benefit to the accused persons.
48. The opinions and views formed by the competent authorities on
every stage may vary or change depending on the progress made in the
investigation and based on the further facts culled out from and out of the
evidences. During the course of such investigation or prosecution, if
informations are provided regarding the opinions already formed, then
undoubtedly the same will hamper further investigation and disrupt the
prosecution to be conducted by the agency. If such nature of informations or
documents are provided, then it may not be possible to proceed with the
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prosecution for the purpose of establishing the offence.
49. In this context, the rights of both the parties should be
considered by the Courts. It is not only the right of the information seekers,
but the right of the information provider must also considered by this Court.
Whenever a statutory right is conferred to the citizen, equally such right is
conferred to the other citizen, whose interest is also to be protected before
allowing a person to exercise such a statutory right. To elaborate, right and
duties are corresponding terms, so also, rights can be exercised by any
citizen, honoring the corresponding rights of the other citizen. It is exactly
the constitutional perspective and the philosophy. Take a case, where
informations or documents are mechanically provided to the information
seekers in all circumstances, then the right and duties of the investigating
agency and the prosecutors are denied, establishing their cases before the
competent Court of law or before the Disciplinary Authority. Thus, a
balancing approach is required, while implementing the provisions of the
RTI Act. It is not as if, an information seeker is entitled to get all
informations and documents including certain internal correspondences and
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views or opinions recorded by the competent authorities then and there and
time to time. Therefore, practical and pragmatic approach coupled with rules
of constructive interpretation is of paramount importance to take a decision
in such circumstances. In the event of committing any lapses, the same
would provide unlawful gain to the accused/delinquent persons, which
would result in destruction of the prosecution or the case of the Disciplinary
Authority and larger the public interest involved in the matter of criminal
prosecution is also to be considered by the Court. State being the
prosecutors, right of investigation, collected evidence, record the opinions
and views in those files must be protected in all circumstances and by
obtaining all such informations and documents from the competent
authorities, the accused may not be allowed to destroy the basis of
prosecution as such views/opinions or internal correspondence can never be
construed as final opinion/views or the final decision.
50. Considering the fact that the Central Information Commission
elaborately considered the grounds raised by the petitioner in the order
passed in the Second Appeal, arrived a conclusion that the exemption
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granted to CBI from applicability of the RTI Act, in terms of Section 24 (1)
would became meaningless. If RTI applicants would get information from
another Public Authority, the very information that they cannot get from the
CBI or information, inexplicably linked to the information and materials
provided by the CBI to the Public Authority.
51. The above findings of the Central Information Commission
explicitly clarifies that what an information seeker could not able to get from
the CBI, cannot attempt to get from his employer or from other agencies.
Such calculated applications filed under the RTI Act, at no circumstances,
are entertainable. In the present case, the informations and documents
sought for are no doubt relating to the files being maintained by the CBI and
about the investigation of the Criminal case, so also pertaining to the
sanction, which all are relatable to investigation/interrogation or prosecution.
Thus, the first proviso to Section 24 (1) cannot be extended merely under the
ground that the word 'Corruption' is employed in the Statute.
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52. Distinctions are to be drawn in this regard and Section 24 (1)
proviso must be read and understood along with the spirit of Section 8 (h) of
the Right to Information Act. Rule of constructive interpretation in such
circumstances are imminent to ensure that the purpose and object of the RTI
Act is not defeated. So also at the time of providing informations or
documents, the rights of other parties and the criminal laws system of
prosecution by the State is not affected or destroyed on account of providing
such confidential informations to the information seekers.
53. In view of the principles considered by this Court in the
aforementioned paragraphs, this Court is able to form a concrete opinion
that the informations and documents sought for by the petitioner are rightly
rejected by the Public Information Officer, Indian Overseas Bank, First
Appellate Authority and finally by the Central Information
Commission/Second Appellate Authority.
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54. Thus, this Court do not find any infirmity or perversity as such
in respect of the reasons and findings given, which all are candid and
convincing. Consequently, the Writ Petition fails and stands dismissed. No
costs.
08.12.2021
Jeni
Internet : Yes
Index : Yes
Speaking order:Yes
To
1.The Central Public Information Officer,
Indian Overseas Bank,
Central Office, #763, Anna Salai,
Chennai – 600 002.
2.The First Apellate Authority cum General Manager,
Law Department, (RTI Cell)
Indian Overseas Bank,
Central Office,
#763, Anna Salai,
Chennai – 600 002
3.The Head of the Branch,
The Central Bureau of Investigation
Bank Securities & Fraud Cell,
5th Floor, CBI Head Quarters,
5-B, CGO Complex, Lodhi Road,
New Delhi – 110 003
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W.P.No.37231 of 2016
4.The Registrar,
The Central Information Commission
Room No. 306, 3rd Floor,
“B” Wing, August Kranti Bhavan,
Bhikaji Cama Place,
Old JNU Campus,
New Delhi – 110 066
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W.P.No.37231 of 2016
S.M.SUBRAMANIAM, J.
Jeni
W.P.No.37231 of 2016
08.12.2021
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