M.S.Malik vs Central Information Commission & others

The challenge in the present writ petition is to the orders dated

16.06.2009 (Annexure P3), 08.07.2009 (Annexure P5) and 05.07.2013

(Annexure P9) whereby the application of the petitioner seeking

information has been rejected under the Right to Information Act, 2005 (for

short, the ''Act'').

The reasoning given in the order passed by respondent No.1/

Commission dated 05.07.2013 (Anneuxre P9) is that the information sought

would fall under the exemption clause under Section 8(1)(g) & (h) of the

Act and therefore, the second appeal was, accordingly, dismissed. It was

held that by providing the said information, the strength and weaknesses of

any individual evidence as assessed and evaluated by various officers of the

CBI would come into the hands of the accused and the proposed strategy for

prosecuting him. Besides, it would also reveal the identity of the individual

officers along with the chain of command recording comments and views in

favour and against the evidence at hand and probably, the evidence

against each individual person sought to be made as accused in the case.

It would also expose the officers to possible threats to their personal

safety apart from also revealing the identities of the various sources of

information which might have been collected and incorporated as

evidence. In view of the above reasoning given, the petitioner, who was

seeking the information, was, thus, denied the same. Resultantly, this

Court has been approached.

The petitioner, who is a retired Director General of Police,

Haryana, was, as per his case, allegedly falsely implicated in the FIR

No.Chandigarh CBI ACB, Chandigarh 2006 RCCHG 2006 A0017 dated

19.06.2006, on the administrative orders of Shri Vijay Shankar, IPS, the

then Director, CBI. It is the case of the petitioner that the said officer was

the batch-mate of the then DGP, Haryana, namely, Shri Nirmal Singh,

who had a service rivalry with the petitioner and thus, he had been falsely

implicated in the above-noted case. Resultantly, he had filed an

application dated 27.04.2009 (Annexure P1), seeking various information

pertaining to the above-said FIR. It is pertinent to mention that at the

present point of time, this Court is only concerned with the information

qua points B & C, as admittedly, the copy of the preliminary enquiry,

mentioned at Sr.No.A has already been supplied to him. The information

sought reads as under:

"A) Certified copy of the preliminary enquiry No. PECHG.2005A0002 dated 25.8.2005 regarding recruitment in G.R.P. against Sh. Ravi Azad, IPS, the then SP/GRP/Haryana, Ambala and two Deputy

Superintendents of Police who were Chairman and members of the Section Board. B) Statement of all the witnesses recorded while conducting the preliminary enquiry No. PECHG.2005A0002 dated 25.8.2005 prior to the registration of criminal case vide FIR No.Chandigarh CBI ACB, Chandigarh 2006 RCCHG 2006 A0017 dated 19.06.2006 against Sh. Ravi Azad, IPS the then SP/GRP/Haryana, Ambala and others. C) Certified copy of the official case file of the CBI containing remarks/ opinion/ observations/ recommendations made by Sh. Vijay Shankar, IPS, the then Director, CBI in the case registered vide FIR No.Chandigarh CBI ACB, Chandigarh 2006 RCCHG 2006 A0017 dated 19.06.2006 under Section IPS 120- B, 420, 468, 471 & 201 and PC Act 1988 Sections 13 (2) r/w 13(1)(d) for including the name of the Dr. M.S.Malik, IPS (Retd.) former Director General of Police, Haryana in the final report u/s 173 CR.P.C. and for recommending the prosecution of Dr.M.S.Malik, IPS (Retd.) in the court of Special Judge, CBI, Ambala in this criminal case registered against Sh. Ravi Azad, IPS, the then S.P./GRP, Haryana, Ambala and Chairman of the Selection Board and two Deputy Superintendents of Police & members of the Selection Board namely Sh. Udai Shankar and Sh. Arun Kumar vide FIR as mentioned above."

The information was denied to him vide order dated

16.06.2009, passed by respondent No.3-CPIO, on the ground that case

was pending trial in the Court of the Special Judge, CBI, Ambala and

none of the documents sought have been relied upon by the CBI in its

charge-sheet filed before the Court. It was held that the information

could not be supplied as it would impede the process of prosecution and

is exempted under Section 8(1)(h) of the Act.

The petitioner filed First Appeal that his name has been

included in the array of accused at the last stage and, as mentioned above,

it was on account of department rivalry. While supplying a copy of the

preliminary enquiry report, asked for, as per clause A, the remaining

information sought was again denied on the ground that there was an

exemption under Section 8(1)(g) and 8(1)(h) of the Act and the disclosure

of the statements would endanger the life and physical safety of the

witnesses and identify the source of information or assistance given in

confidence for law enforcement or security purposes and impede the

process of prosecution.

Resultantly, the petitioner filed a Second Appeal before the

respondent No.1-Commission, claiming that the documents could not be

withheld and that it was required to be ascertained at what stage of

investigation and at whose instance the name of the petitioner had been

added in the case as an accused. Initially, respondent No.1-Commission

rejected the same on 12.01.2011 (Annexure P7) on the ground that they

had examined the notings recorded at various levels and therefore, the

apprehension that his name has been added arbitrarily at the highest level

because of some partisan reasons was not borne out as per the record and

his Second Appeal, had, accordingly, been dismissed.

However, the said order was challenged before this Court in

CWP-3879-2011 by the petitioner and the same was allowed on

26.03.2013 (Annexure P8) on the ground that the ambit of respondent

No.1 was only to see whether the information sought fell under any of the

exemption clauses under Section 8 of the Act which had not been done

and that it was not the jurisdiction of the Commission to read and

appreciate the files in question. Resultantly, the matter was remanded for

fresh decision, which has resulted in passed of the subsequent order dated

05.07.2013 (Annexure P9).

Counsel for the petitioner has, thus, vehemently submitted

that the petitioner has been brought into the ambit of being an accused,

against whom the charge-sheet has been filed and therefore, as such, he

was entitled for the statements of the witnesses which had been recorded

while conducting the preliminary enquiry dated 25.08.2005. Similarly,

the recommendations of the then Director, CBI, for including the name of

the petitioner in the FIR, filed under Sections 120-B, 420, 468, 471 &

201 and PC Act 1968 Sections 13(2) and 13(1)(d) was required by

supplying the certified copy of the official case file.

Counsel for respondents No.2 to 4, on the other hand,

submitted that the order passed by the Commission was well justified, in

the facts and circumstances of the case. That the challan had been

presented and the case was pending adjudication before the Trial Court.

The information sought was well within the ambit of Section 8(1)(g) &

(h), in the facts and circumstances. The disclosure of the statements

would identify the source of information and therefore, endanger the life

and physical safety of the witnesses and assistance given in confidence

for law enforcement or security purposes.

The issue which, thus, arises for consideration before this

Court is whether the petitioner has an absolute right for the statements of

all the witnesses recorded while conducting the preliminary enquiry and

also the recommendations made by the then Director, CBI, for including

his name in the FIR recorded under Section 13 of the Prevention of

Corruption Act, 1988 and for recommending his prosecution.

The dispute primarily revolves around the selection process

resorted to by one Ravi Azad, who was serving as Superintendent of

Police, Railways, who was entrusted for filling up 160 posts of

Constables exclusively from candidates belonging to the Scheduled Caste

category in Haryana Armed Police and 350 posts of Constable (all

categories) in Government Railway Police by direct recruitment. The

Selection Board comprised of two more officials, i.e., Shri Arun Kumar,

Deputy Superintendent of Police, Headquarter, GRP, Ambala Cantt and

Shri Udey Shankar, Deputy Superintendent of Police, Ambala and the

FIR had been registered under the directions passed by this Court on

account of the fact that there was a discrepancy in the waiting list and the

original had not been produced. This Court had noticed that the original

record depicting the marks awarded had not been produced and the same

had been referred to the CBI for investigation, which revealed that the

whole selection process had been fabricated and the original record had

been destroyed which had led to the initiation of criminal prosecution.

The above facts, as noticed, would go on to show that the

petitioner was never accused, as such, at the initial stage, when the

directions were issued on 13.12.2004 by this Court in CWP-18346-2004

titled Shailender Kumar Vs. State of Haryana & others, to lodge an FIR.

In pursuance of the same, a preliminary enquiry was conducted on

25.08.2005, which was registered against Ravi Azad IPS and 2 other

DSPs'' and other members of the Selection Board. The said members had

been nominated by the Director General of Police, Haryana on

22.09.2003. On the basis of the preliminary enquiry and the observations

and recommendations made by the then Director, CBI, the name of the

petitioner had, thus, been included.

Section 8 of the Act provides the exemption from disclosure

of information. Under Section 8, various categories have been delineated

wherein there would be no obligation to the authorities to give any

information, provided the said information would fall within the ambit of

the said section. In the present case, Section 8(1)(g) & (h) would be

applicable. The same reads as under:

"8. Exemption from disclosure of information: (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,- (g) 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 purposes. (h) Information which would impede the process of investigation or apprehension or prosecution of offenders."

The identification of the source of information is such that it

could threaten the safety of an individual. The source could be an

informer to the police and who may play significant role in giving the

information to the police and there would be public interest, as such,

involved. Therefore, it would be in the public interest in maintaining the

confidentiality of such a person and therefore, the legislature, in its

wisdom, has exempted these kinds of information from disclosure. The

assistance, thus, given in confidence by such persons to the prosecution,

could also be compromised by the disclosure of the information. The

same could endanger the life and physical safety of the said persons and

therefore, would attract the exemption clause under the Act, as such.

Giving the petitioner the said information would only result in ensuring

that such kind of source which the police has, would not be there in

future once such information is disclosed at the asking of an accused. The

far-reaching consequences of disclosing the confidentiality of the

information received, thus, would overwhelm the right of the petitioner,

as such.

Similarly, under Section 8(1)(h), once the prosecution of the

offender is still in the pipeline, as it is not disputed that the challan has

been filed but the trial is in progress, therefore, the definition ''prosecution

of the offender'' has to be read separately apart from the earlier part

wherein the exemption is claimed for the purpose of investigation. The

investigation might be over but the prosecution of the offender continues

and therefore, vital public interest which is available to the prosecution,

as such, pertaining to the accused of corruption, thus, would be

compromised if the required information, as such, is allowed to be

acceded at the request of the petitioner. The apprehension which has

been, thus, put-forth by the respondent-authorities, cannot be said to be

make-belief and is an actual apprehension and not a mere camouflage to

deny the information. The procedure or the methodology involved in the

investigation, as such, would also be, thus, exposed and would lead to

hampering the prosecution case, if, at this stage, the information is

supplied which is of vital public interest and any deviation allowed,

would, thus, only lead to the impeding the prosecution of the offenders.

The intrusion into the supervision, as such, of the investigation, which is

sought by an accused person, would only expose the officers to the

external pressures and constrict the freedom with which the investigation

had been conducted and the prosecution which has to be carried on. It

would only be counter-productive to the criminal trial which is yet to be

concluded. The petitioner, as noticed, is asking for certified copies of the

official case file which would contain the remarks of the investigating

officers and the supervisory remarks of the then Director, CBI. The

information, as such, therefore, would necessarily fall within the ambit of

Section 8(1)(g) & (h) and as such, cannot be supplied to him. The

respondent-Commission has, thus, rightly come to the conclusion that by

disclosing all the said information would endanger the life and physical

safety of the persons apart from identifying the source of information.

As noticed, the ambit of the Commission is only to see

whether the denial of the information sought was justified by the

authorities or not, under the Act. The information was, rightly denied, on

the above grounds. The Commission was, thus, well justified in coming

to the conclusion that by giving the noting portion of the remarks and the

reasons which had prevailed with the then Director, CBI to include the

name of the petitioner as an accused, would fall within the ambit of

Section 8(1)(g) & (h) as the noting portion would identify the source of

information from whom the assistance had been given in confidence for

the law enforcement. Therefore, the Commission has given valid

reasons, as such, in not allowing the appeal of the petitioner for the claim

of the information. Once the Act provides for exemption from disclosure

of certain types of information provided the respondents can justify

denial on the grounds that it falls under the said provisions, then the said

order does not suffer from any legal infirmity, as such, which would

warrant interference by this Court, under Articles 226/227 of the

Constitution of India.

Resultantly, finding no merit in the present writ petition, the

same is, hereby, dismissed.