Union of India v. O.P. Nahar

1. These are two writ petitions placed before me. The first writ petition; being W.P.(C) No.3616/2012, assails the order dated 5.12.2011, passed by the Central Information Commission (in short the CIC). In the second writ petition, being W.P. (C) No.405/2014, a challenge has been laid to order dated 26.6.2013, passed by the CIC.

2. There are two issues which, according to the learned counsels for the parties, arise for consideration of this court. These are as follows:- 2015:DHC:3678

(i) Whether, the respondent, is entitled to the information sought which, essentially, pertains to his own prosecution in a criminal case lodged by the Central Bureau of Investigation (in short the CBI)?

(ii) Whether, the notification dated 9.6.2011 whereby, the CBI has been included in the second schedule to the Right to Information Act, 2005 (in short the RTI Act), will impact the applications filed by the respondent prior to the said date, i.e., on 28.02.2011 and 5.5.2011?

3. Before I proceed further, I may only indicate that the respondent had filed a third application under the RTI Act, which is, dated 26.12.2011. The respondent, who appears in person, says that he does not wish to press the application dated 26.12.2011.

4. The matter has reached this court in the background of the following facts: 4.[1] The respondent, who at one time, was serving as the Chairperson of the Appellate Tribunal for Foreign Exchange (in short the Tribunal), had a criminal case registered against him by the CBI. This case was registered by the CBI, in 2007. The investigation, in this case, was carried on and, admittedly, a charge sheet was filed by the CBI, in the competent court on 20.12.2010. 4.[2] I am informed by the respondent that no charges have been framed to date. 4.[3] Be that as it may, on 28.2.2011, the respondent filed an application before the Central Public Information Officer (in short the CPIO) of the CBI, seeking information with regard to certain aspects. Since, information was not furnished to the respondent, the respondent preferred an application with the First Appellate Authority (in short the FAA). 4.[4] On 18.4.2011, some part of the information was supplied to the respondent. The CPIO, also filed, its reply to the appeal, on 3.5.2011, which was finally disposed of by the FAA on 5.5.2011. The petitioner on that very date, filed a second application under the RTI Act. This application is also dated 5.5.2011. 4.[5] The respondent, being aggrieved by the order dated 5.5.2011, passed by the FAA, decided to prefer a second appeal with the CIC. This appeal was filed on 1.6.2011. Pertinently, while the appeal was pending before the CIC, on 9.6.2011, the Government of India issued a notification whereby, CBI was placed in the second schedule of the RTI Act, as indicated above. The effect of this notification and the inclusion of the CBI in the second schedule was that it could avail of the protective shield provided by Section 24 of the RTI Act. In other words, agencies which are included in the second schedule of the RTI Act, are exempted from the provisions of the RTI. The exception of course being, qua information pertaining to allegations of corruption and human rights violation. 4.[6] The CIC, vide order dated 5.12.2011 partially allowed the appeal of the respondent. The operative directions contained in the order of the CIC are as under:

4.9. Insofar as the second order of the CIC is concerned, which is dated 26.6.2013, the operative directions passed by the CIC are contained in paragraph 10 of the said order. For the sake of convenience, the same are extracted hereinbelow: “10. Having considered the submissions of the parties and perused the relevant documents on the file, the Commission finds that the CBI has been exempted under the provisions of the RTI Act vide Notification dated 9.6.2011 whereas the appellant’s RTI application is dated 5.5.2011, which is prior to the said Notification. Therefore, the CBI was not an exempted organisation at the time of filing of the RTI application. Moreover, it has not been explained by the respondent how the disclosure of the information in the present case can impede the process of investigation or apprehension or prosecution of offenders, which is admittedly over. The Commission hereby directs the Deputy Secretary/Vig. & CPIO to provide to the appellant the documents as requested by him at Para 9 above within two weeks of receipt of this order.”

5. The issues, therefore, in these facts, which arise for consideration, have been set out hereinabove.

6. Mr. Mishra, who appears for the CBI, says that CBI is not obliged to provide any information of the kind that CIC has directed for the reason that it is an agency which falls within the ambit of the second schedule of the RTI Act. 6.[1] This apart, it is Mr. Mishra’s contention that the provisions of Section 8(1)(h) of the Act clearly provides that notwithstanding anything contained in the RTI Act, there would be no obligation on the holder of information to provide such information which would impede the process of investigation or apprehension or prosecution of the offenders. 6.[2] This submission is made by Mr. Mishra in support of his contention that, even if, the respondent’s stand was to be accepted, that a vested right enured in his favour, on 28.2.2011, and thereafter on 5.5.2011, the said information, can be denied if, the information would “impede” investigation or apprehension or prosecution of the offender.