CBI claimed exemption without explaining how disclosing the information on why the agency decided not to prosecute Mukesh and Anil Ambani in the Reliance Infocomm case would affect the court case. The claim was denied by the CIC. This is the eighth in a series of important judgements given by Shailesh Gandhi, former CIC that can be used or quoted in an RTI application
The Public Information Officer (PIO), who is denying information under Section 8(1)(h) of the Right to Information (RTI) Act, must show satisfactory reasons as to why disclosure of such information would impede the process of investigation or apprehension or prosecution of offenders. While giving this important judgement, Shailesh Gandhi, former Central Information Commissioner said the PIO has not been able justify how disclosing the information would impede the process of prosecution of offenders.
“In the instant case, the PIO has relied on Section 8(1)(h) of the RTI Act and argued that disclosing such information would provide clues to other persons accused in the relevant case by which they would be able to argue why they should also not be charged and this would impede the prosecution of offenders. The argument raised by the PIO to justify the denial of information on the basis of Section 8(1)(h) of the RTI Act appears to be nothing more than a mere apprehension on her part,” the Central Information Commission (CIC) said in its order issued on 26 May 2011.
Delhi-based PC Srivastava has sought information about why Mukesh Ambani, who was chairman of Reliance Infocomm, at the time when the offence was committed, has not been named in the CBI charge-sheet as an accused. The PIO and Superintendent of Police, Economic Offences Wing (EOW) of the CBI denied the information. The PIO stated, “As the information sought in the case would impede the process of prosecution of offenders, the same is denied under Section 8(1)(h) of the RTI Act.”
Not satisfied with the reply, Mr Srivastava, then approached the First Appellate Authority (FAA) seeking information about why the owners (at that time) Mukesh Ambani and Anil Ambani were protected from prosecution charges. The FAA also rejected the petition saying, “...the case was finalised after obtaining legal opinion and evaluation of evidence. The information sought was confidential and cannot be disclosed as it would impede the process of prosecution. Hence, rejected under Section 8(1)(h) of the RTI Act.”
Dissatisfied with the order of the FAA, Mr Srivastava, then filed second appeal in the CIC. During the hearing, the PIO stated that the case pertained to Reliance Infocomm (RIL) and that the CBI was prosecuting certain directors of the company under Section 120 B of the IPC read with Sections 20/20(A)/21/25(C)/27 of the Indian Telegraph Act, 1885 and Sections 65/66/85 of the IT Act, 2000 and other substantive offences. The PIO said that the investigation was over and a charge-sheet had been filed and prosecution was underway in CC No 2938/10 in the Court of ACMM, Chennai.
When asked by Mr Gandhi whether reasons for not prosecuting Mukesh Ambani and Anil Ambani were available on record, the PIO stated that the CBI had decided to prosecute certain directors and the reasons for not prosecuting both the Ambani brothers were on record. “However, disclosing such information would provide clues to other persons accused in the said case by which they would be able to argue why they should also not be charged,” the PIO said.
The Commission said as per Section 19(5) of the RTI Act, in any appeal proceedings, the onus to prove that a denial of a request was justified shall be on the PIO who denied the request. And while denying a request for information under the RTI Act, the PIO must have cogent reasons for doing so which must necessarily come within the purview of Sections 8 and 9 of the RTI Act.
Section 8(1)(h) of the RTI Act provides as follows:
“8. Exemption from disclosure of information.- (1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,
(h) information, which would impede the process of investigation or apprehension or prosecution of offenders;”
Section 8(1)(h) of the RTI Act exempts disclosure of information which would impede the process of investigation or apprehension or prosecution of offenders. “Merely because the process of investigation or prosecution of offenders is continuing, the bar stipulated under Section 8(1)(h) of the RTI Act is not attracted; it must be clearly established by the PIO that disclosure of the information would impede the process of investigation or apprehension or prosecution of offenders,” the Commission said.
Mr Gandhi in his order said, “...the PIO has failed to discharge the burden placed upon her under Section 19(5) of the RTI Act to prove that the denial of information under Section 8(1)(h) of the RTI Act was justified. Moreover, this Commission is unable to understand how lack of evidence against a person can be used by another person against whom evidence has in fact been found leading to filing of charge sheet against the latter.”
The Commission ordered the PIO to provide information to Mr Srivastava before 20 June 2011.
CENTRAL INFORMATION COMMISSION
Decision No. CIC/SM/A/2011/000309/SG/12557
Appeal No. CIC/SM/A/2011/000309/SG
Appellant : PC Srivastava,
Respondent : PIO & Superintendent of Police,
Economic Offences Wing,
Central Bureau of Investigation,
III Floor, A- Wing, Rajaji Bhawan,
Besant Nagar, Chennai- 600090
Updates on the case:
In November 2012, the Delhi High Court asked the CBI to respond to a plea for cross examination of the minister for personnel and training in a case related to alleged masking of international calls as local ones by erstwhile Reliance Infocomm for two years from 2000. According to a PTI report, Justice Rajiv Shakdher issued notice to the probe agency and sought its reply by 29 April 2013 on an application filed by PC Srivastava.
The court was hearing a plea filed by Union of India challenging the CIC's 26 May 2011 order.
The CBI had taken up the probe in 2006, a year after Reliance Industries was divided between the feuding siblings—Mukesh and Anil. Reliance Infocomm went to Anil and was rechristened Reliance Communications.
In July 2010, the CBI had filed a charge-sheet before a Chennai court against the Reliance Infocomm officials Manoj Modi, Akhil Gupta, Shankar Adawal, Pankaj Powar, KR Raju and Bhagwan Das Khurana in the case.
After the charge-sheet, Mr Srivastava had sought to know from the CBI the reasons for not making Ambani brothers as accused in the case relating to the alleged manipulation and tampering of calling lines and thereby passing off international calls as local ones and thus causing loss to the government and its PSUs, BSNL and MTNL, worth crores of rupees.