The learned counsel for the respondents contended that no prejudice
would be caused to the petitioner as a result of denial of information, as all
material relied upon by the prosecution to prosecute the petitioner would be
available to the petitioner. In my view, this cannot be a ground to deny
information to the petitioner.
First of all, the question whether the
information sought by the petitioner is relevant or necessary, is not relevant
or germane in the context of the Act; a citizen has a right to information by
virtue of Section 3 of the Act and the same is not conditional on the
information being relevant. Secondly, the fact that the petitioner has access
to the material relied upon by the prosecution does not prevent him from
seeking information, which he considers necessary for his defence.
THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 16.12.2014
W.P.(C) 3543/2014
ADESH KUMAR
versus
UNION OF INDIA & ORS.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
Dated;DECEMBER 16, 2014
The petitioner impugns an order dated 16.04.2014 passed by the
Central Information Commission (hereafter ‘CIC’) rejecting the petitioner’s
appeal against an order dated 14.11.2012 passed by the First Appellate
Authority (hereafter ‘FAA’). The FAA had, by an order dated 14.11.2012,
rejected the appeal filed by the petitioner against the decision of the CPIO
denying the information as sought by the petitioner under the provisions of
the Right to Information Act, 2005 (hereafter the ‘Act’).
2.
The CPIO had denied the information as sought for by the petitioner
claiming that the same was exempt from disclosure under Section 8(1)(h)
of the Act.
3.
Briefly stated, the relevant facts necessary to consider the
controversy are as under:
3.1
The petitioner was posted as Superintendent Engineer, CPWD,
Patna. During his tenure, an FIR was lodged in respect of an alleged
offence under Section 7 of the Prevention of Corruption Act, 1988 and
Section 120B of the Indian Penal Code. Subsequently, a chargesheet, inter
alia, against the petitioner was submitted after obtaining the sanction from
the competent authority.
3.2
After receipt of the chargesheet, the petitioner applied for the
following information under the provisions of the Act:-
“1 The recommendation of Director General (Works),
CPWD against sanction sent to Ministry of Urban
Development.
2. The noting on file note Sheet/copy of letter if any sent
to CVC for comments/advice if any.
3. The copy of all letters written to Director CBI, New
Delhi by Additional Secretary and Secretary, Ministry
of Urban Development. Govt. of India and reply
received from CBI, New Delhi/Patna as the case may
be.
4. Initial recommendation of Ministry of Urban
Development, Govt. of India against sanction of
prosecution of Adesh Kumar sent to CVC.
5. The details of noting of various officers before
declining sanction of prosecution.
6. Copy of details of noting of various officers before
declining sanction of prosecution.
7. Copy of details of noting of various officers at the
time of according present sanctions for prosecution of
Adesh Kumar, the then SE, PCC.”
3.3
The request for the aforesaid information was rejected by the CPIO
claiming that there was no obligation to provide the same by virtue of
Section 8(1)(h) of the Act. The appeal preferred by the petitioner before
the FAA was also rejected and the second appeal preferred by the petitioner
before the CIC also met the same fate. The petitioner has challenged the
said order passed by the CIC.
4. I have heard the learned counsel for the parties.
5. Before proceeding further, it would be necessary to refer to Section
8(1)(h) of the Act which reads as under:-
“8(1)(h) information which would impede the process
of investigation or apprehension or prosecution
of offenders;”
6.
A plain reading of the aforesaid provision indicates that information
which would impede the process of investigation or apprehension or
prosecution of offenders could be denied. In order to deny information, the
public authority must form an affirmative opinion that the disclosure of
information would impede investigation, apprehension or prosecution of
offenders; a mere perception or an assumption that disclosure of
information may impede prosecution of offenders is not sufficient. In the
present case, neither the FAA nor the CIC has considered as to how the
information as sought for would impede the process of investigation or
apprehension or prosecution of the petitioner and other accused.
7.
It is not disputed that the investigation is over and the only issue
urged is that the disclosure of information would impede prosecution of the
petitioner.
8.
After hearing the parties, the CIC had concluded as under:-
“The Commission heard the submissions made by
appellant as well as respondents at length. The
Commission also perused the case-file thoroughly;
specifically, nature of issues raised by the appellant in his
RTI application dt. 21.06.12, CPIO’s response dt.
18.07.12 FAA’s order dt. 14.11.12 and also the grounds
of memorandum of second appeal and the Commission is
of the considered view that the plea taken by the
respondents u/s 8 (1) (h) of the RTI Act is not only
justified but even legally tenable in the case.”
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 view of 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, decided on 03.06.2011 had considered the
contention with regard to withholding 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 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 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.”
10.
A bare perusal of the order passed by the FAA also indicates that the
aspect as to how the disclosure of information 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.
11.
The learned counsel for the respondents contended that no prejudice
would be caused to the petitioner as a result of denial of information, as all
material relied upon by the prosecution to prosecute the petitioner would be
available to the petitioner. In my view, this cannot be a ground to deny
information to the petitioner.
First of all, the question whether the
information sought by the petitioner is relevant or necessary, is not relevant
or germane in the context of the Act; a citizen has a right to information by
virtue of Section 3 of the Act and the same is not conditional on the
information being relevant. Secondly, the fact that the petitioner has access
to the material relied upon by the prosecution does not prevent him from
seeking information, which he considers necessary for his defence.
12.
Accordingly, the writ petition is allowed. The impugned order passed
by the CIC is set aside and the matter is remanded to the CIC to consider it
afresh in view of the aforesaid observations.
VIBHU BAKHRU, J
DECEMBER 16, 2014
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