Bimal Julka DECISION
Bimal Julka, Information Commissioner
Facts:
1. The Appellant vide his RTI application sought information on 02 points seeking inspection of File No. C-14011/23/2017-Ad. V of the O/o the Chief Vigilance Officer, CBEC, D/o Revenue and its connected documents w.r.t. the prosecution sanction order no. 1/2017 dated 25.09.2017 signed by Shri Sukh Lal Meena, US to the Govt. of India, New Delhi, copies of the selected documents after the inspection.
2. The CPIO, vide its letter dated 24.10.2017 stated that as per the advice of the CVC, a prosecution sanction order issued against the Appellant vide order dated 25.09.2017 and sent to CBI for further necessary action at their end. However, it was intimated that most of the documents in the said prosecution file were pertaining to the CBI documents and as per Sub-Section (2) of Section 24 of the RTI Act, 2005, CBI had been exempted to provide the information. Dissatisfied by the response of the CPIO, the Appellant approached the FAA. The FAA, vide its order dated 18.12.2017 while concurring with the response of the CPIO, denied disclosure of information u/s. 8 (1) (j) and (h) of the RTI Act, 2005.
HEARING:
Facts emerging during the hearing:
The following were present:
Appellant: Mr. Vijay Kumar Sharma, (Adv.) Appellant's representative, in person;
Respondent: Mr. Mukesh Sundriyal, US (Adv.);
3. The Appellant's representative reiterated the contents of the RTI application and stated that the information sought by him in his own case was not furnished citing Section 8 (1) (h) of the RTI Act, 2005 without proper justification. In support of his contention, the Appellant referred to the decision of the Commission in Appeal No. CIC/POSTS/A/2017/131334 dated 15.11.2018 in the matter of Shri Manjit Singh Bali vs. CPIO, Dept. of Posts, etc. In its reply, the Respondent while reiterating his submissions submitted that his Appeal was considered by the FAA and rejected as the documents in the said prosecution file are pertaining to CBI documents and as per sub-section 2 of Section 24 of the RTI Act, 2005, CBI has been exempted to provide information under the RTI Act, 2005. He also referred to the order issued by Ministry of Finance dated 18.12.2017 claiming exemption from disclosure of information as it could impede the prosecution of offenders under the Prevention of Corruption Act, 1988 which had no relation with any public activity. Furthermore, it was informed that the suspension of the Appellant was challenged by him in CAT which is sub-judice.
4. The Commission referred to the definition of information u/s. 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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."
5. Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes........ "
6. In this context a reference was made to the Hon'ble Supreme Court decision in MANU/SC/0932/2011 : 2011 (8) SCC 497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:
35. ..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
7. Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No. 34868 of 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, emails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, 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."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
8. Moreover, it was observed that as per the provisions of section 8 (1) of the RTI Act, 2005, no specific exemption is codified which allowed non-disclosure of information on the ground that the matter on which information is sought is sub-judice. In this context, the following extract of the decision of the High Court of Delhi in Municipal Corporation of Delhi v. R.K. Jain in W.P. (C) 14120/2009 dated 23.09.2010 can be cited:
"5. ........... The matter being sub judice before a court is not one of the categories of information which is exempt from disclosure under any of the clauses of Section 8(1) of the RTI Act."
9. The Commission in its decision in Mr. Ashu v. CPIO/Sr. Supdt of Posts, Department of Posts in CIC/BS/A/2015/001578/11769 dated 28.11.2016 had held as under:
"At the outset it is clarified that the RTI Act provides no exemption from disclosure requirements of sub-judice matters. The only exemption for sub-judice matters is regarding what has been expressly forbidden disclosure by a court or a tribunal and what may constitute contempt of court."
10. Furthermore, the Commission in CIC/SM/A/2011/000343/SG/13645 can be cited wherein it was held as under:
"The stay order(s) of the High Court of Delhi do not appear to have framed a specific issue for determination and have granted a stay specifically only on the operation of the order of the Commission dated 24/08/2009. No claim for the exemption has been made by the PIO as per the RTI Act. However, the Commission assumes that the PIO is claiming that disclosure of information is exempt since the matter is sub- judice. The only exemption which may relate to matters in court is Section 8(1)(b) of the RTI Act. Section 8(1) (b) of the RTI Act exempts from disclosure "information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court". From a plain reading of Section 8(1)(b) of the RTI Act, it is clear that it does not include sub- judice matters. As mentioned above, information may be exempted from disclosure in accordance with Section 8 and 9 only and no other exemptions can be claimed while rejecting a demand for disclosure. Hence, disclosing information on matters which are sub- judice cannot constitute contempt of Court, unless there is a specific order forbidding its disclosure. The mere claim that a matter is sub-judice cannot be used as a reason for denying information under the RTI Act. In view of the same, the Commission rules that the denial of information by the PIO on queries 36 and 38 of the RTI application is legally untenable. Moreover, in view of the observations laid down above, the decisions cited by the PIO are not relevant to the present matter."
11. The Commission in the matter of Shri Nanak Chand Arora v. State Bank of India in CIC/MA/A/2006/00018 dated 30.06.2006 had also held as under:
"10 The CPIO and the Chief Manager of the Bank has not responded to the information seeker in the spirit in which the Act seeks to promote transparency in functioning of the Bank. He has mis-interpreted the provision of the Act and informed that there was no provision for inspection of the record in the Act. This is contrary to the provision u/s 2 (f). He has also not indicated as to why the report could not be disclosed, except that the matter was sub-judice. There is no provision in the Act which restricts the disclosure of information merely on the ground of the fact that matter is pending with the Consumer Court. In the instant case, the Court has not forbidden the disclosure of investigation report or inspection of record."
12. With regard to Appellant's case pending adjudication before the appropriate forum, the Commission referred to the decision of the Hon'ble High Court of Delhi in the matter of Union of India vs. Shiv Narain, WP(C) 7204/2016 dated 27.03.2019 held as under:
"2. The respondent herein sought information from the petitioner on the following two issues:- "1. Whether the report vide letter no. RSVY/CE/CE & PM/55(1) 892 dated 12.02.2013 addressed to Inspector of police, CBI, ACB, Patna by Shri D.S. Kapur CE cum PM RSVY project Zone, CPWD, Patna in connection with the subject referred above was submitted by the CBI before the sanctioning Authority before grant of prosecution sanction. 2. The certified copy of the note sheet of the above mentioned case from the beginning to the issue of prosecution sanction may also be given for which I am ready to pay the requisite fee."
4. Learned counsel for the respondent has fairly drawn my attention to an order dated February 12, 2019 passed by the Supreme Court in Civil Appeal No. 1632/2019, which is an appeal arising from the orders passed by the Coordinate Bench of this Court in W.P.(C) 2272/2013 dated September 16, 2014 and the Division Bench in LPA 471/2015 dated August 17, 2015, wherein information also includes copy of the note sheet for processing the decision to refer the said case to Anti Corruption Branch of CBI for investigation. In the said case, the said information was denied to the petitioner Ashok Kumar Sharma.
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 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.
6. The learned counsel for the respondent submits that the respondent herein shall have the liberty to seek the document, which he has sought under the RTI Act from the learned Trial Court, in terms of the order of the Supreme Court. Suffice it would be to state that it is for the respondent herein to seek appropriate orders from the learned Trial Court.
In view of the order of the Supreme Court, the order of the CIC dated February 29, 2016 is set aside, the writ petition is allowed."
DECISION:
13. Keeping in view the facts of the case and the submissions made by both the parties and in the light of above referred judgments, the Commission directs the First Appellate Authority to reexamine the matter and furnish a suitable reply to the Appellant in accordance with the provisions of the RTI Act, 2005 within a period of 15 days from the date of receipt of this order.
14. The Appeal stands disposed accordingly.
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