Central Information Commission, New Delhi (Two Same Cases) Right to Information Act-2005-Under Section (19) Date of hearing Date of decision : : 10th January 2017 10th January 2017 Name of the Appellant : SHRI RAJBIR PHOGAT H NO 1161/21 PHOGAT VILLA, MAIN HAFED ROAD, PREM NAGAR, ROHTAK, HARYANA -124001 Name of the Public Authority/Respondent : CENTRAL PUBLIC INFORMATION OFFICER, DENA BANK ZONAL OFFICE, NORTH INDIA REGION, 2ND FLOOR, SCO-66, SECTOR-11, PANCHKULA, HARYANA-134 112 RTI Application filed on : 03/08/2015 and 03/09/2015 CPIO replied on : 03/09/2015 and 22/09/2015 First Appeal filed on : 06/09/2015 First Appellate Authority order on : 01/10/2015 2 nd Appeal received on : 14/10/2015 The Appellant was present at the NIC Studio, Rohtak. On behalf of the Respondents, Shri Ram Dayal Negi, Chief Manager was present at the NIC Studio, Panchkula. Information Commissioner : Shri Sharat Sabharwal File No. CIC/SH/A/2015/002195 Information sought This matter concerns an RTI application filed by the Appellant, seeking information on nineteen points regarding the case of M/s HRM Exports Private Limited and related issues.
The CPIO reply The CPIO provided some information to the Appellant. Grounds of the First Appeal Not satisfied with the CPIO s reply. Order of the First Appellate Authority The FAA upheld the CPIO s reply. Grounds of the Second Appeal Not satisfied with the reply given by the Respondents. File No. CIC/SH/A/2016/000031 This file contains an RTI application dated 3.9.2015, seeking the same information as in the RTI application dated 3.8.2015, contained in File No. CIC/SH/A/2015/002195. Relevant facts emerging during the Hearing, Discussion and Decision The Respondents submitted that a loan of 30 crores was sanctioned to M/s HRM Exports Pvt. Ltd. and the Appellant was Chief Manager in the bank. Subsequently, a fraud was found to have been committed in respect of this loan. Disciplinary action was taken against the Appellant and he was dismissed from service. The matter was also investigated by the CBI and the issue of criminal prosecution is pending against the Appellant in a CBI Court. 2. The Appellant stated that complete information has not been provided to him. In his appeal to the Commission, he has expressed his dissatisfaction with the information provided to him in response to points No. 1 to 3, 6 to 14 and 16 to 19.
3. We have perused the records. With regard to point No. 1, the Appellant stated that he had sought a copy of the minutes of the credit committee of the RO and HO for recommending the proposal in the case of M/s HRM Exports Pvt. Ltd. However, he has been provided only a copy of the proposal of the Zonal Office. The CPIO is directed to provide to the Appellant the specific information sought by him, as available on records of the bank. As regards points No. 2 and 3, we note that the CPIO stated that the information was not available with the branch. We do not agree with this reply because the RTI application was filed to the public authority and the response cannot be confined to the records of a branch. Therefore, the CPIO is directed to get this information from the office(s) concerned of the public authority and provide it to the Appellant. At points No. 7 and 8, the Appellant sought information regarding suspension and reinstatement of third party officers of the bank. This information is exempted from disclosure under Section 8 (1) (j) of the RTI Act in view of the Supreme Court judgment dated 3.10.2012 in Girish Ramchandra Deshpande Vs. Central Information Commissioner & Ors. [Special Leave Petition (Civil) No. 27734 of 2012]. Regarding point No. 9, the CPIO is directed to provide to the Appellant hard copies of the various circulars mentioned in his reply dated 22.9.2015. Regarding points No. 10 and 11, we note that the CPIO has given a categorical reply that no such letter is on record and we would not interfere with the above reply. At points No. 6, 12, 13 and 14 of the RTI application, the Appellant has sought information regarding the copy of the complaint sent by the bank to the CBI and the FIR lodged by the CBI as well as copies of the closure report of the CBI, their findings and correspondence between the bank and the CBI. We see no ground to interfere with the CPIO s reply to point No. 6. As regards points No. 12, 13 and 14, we note that the matter is before a CBI Court. In this context, we further note that in its full bench decision dated 7.6.2010 in appeal No. CIC/AT/A/2008/01238, the Commission made the following observations:- 25. In our view, the word impede used in Section 8(1)(h) holds the key to whether information requested by the appellant should be allowed to be disclosed.
26. We note that the essential information which appellant wants is all that happened between the CBI and the competent authority records of discussion, telephonic conversations, filenotings, etc. which led to the sanction of prosecution dated 02.08.2007 against appellant s son, Shri Srinivas for action under prevention of corruption Act. We have been informed that this sanction of prosecution is an absolute requirement for a Trial Court to allow prosecution proceedings against an accused, who happens to be a government employee. It is always open to the accused to impeach the sanction of prosecution, in course of which he is free to request the Trial Court to summon all such evidence which may be relevant for him to prove his point. Such evidence would include every single item of information appellant has now demanded through RTI proceeding. The Court s decision, whether to allow the appellant access to such evidence, is taken after hearing both sides. 27. It is thus obvious that in the matter of access to the requested information, appellant is not all that helpless. He can seek the same information through the Trial Court in full measure and should he succeed in persuading the Court he would have received the records and documents which he is wanting now to access through RTI Act. In our view, an information which is evidence or is related to evidence in an ongoing prosecution comes under the control of the Trial Court within the meaning of Section 2(j) of the RTI Act, which states as follows: 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 the right to.. 28. It is significant that this Section uses two expressions about the location of a given information, i.e. held and under the control of. In our view, expression held implies that a public authority has physical possession of a given information. The word under the control of implies that the information, regardless of which public authority holds it, is under the control of a specific public authority on whose orders alone it can be produced in a given proceeding. In the present case, the material sought by the appellant is undoubtedly related to an ongoing court proceeding and hence it can be rightly said to be under the control of the Trial Court, who alone can decide how the information is to be dispensed. Any action under the RTI Act or any other Act for disclosure of that information to the very party who is arraigned before the Trial Court or to anyone representing that party, would have the effect of interfering with the discretion of the Court, thereby impeding an extant prosecution proceeding. In S.M.Lamba Vs. S.C.Gupta and another Delhi High Court has held This court would like to observe that under the Code of Criminal Procedure, 1973 once the stage of an order framing charges have been crossed, it would be open to the accused to make an appropriate application before the learned trial court to summon the above documents in accordance with the law.
30. It is, therefore, important that all determinations about disclosure of any information relating to an ongoing prosecution should be through the agency of the Trial Court and not otherwise. The above observations of the Commission are germane to the matter before us concerning points No. 12, 13 and 14 of the RTI application. Therefore, we would refrain from directing the Respondents to provide any information in response to the above three points. As regards point No. 16, the CPIO should provide the specific information sought by the Appellant regarding the minutes and approval of the competent authority. In our view, the information sought at point No. 17 is clear and the CPIO should provide it, if available on records. If, however, no review meetings regarding continued suspension were conducted, the CPIO should state so categorically. Regarding points No. 18 and 19, the CPIO should provide to the Appellant hard copies of the various circulars mentioned in his reply dated 22.9.2015. The CPIO should comply with our above directives, within thirty days of the receipt of this order, under intimation to the Commission. Such information, as is provided, should be provided free of charge. 4. With the above directions and observations, the two appeals are disposed of. 5. Copies of this order be given free of cost to the parties. Sd/- (Sharat Sabharwal) Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission. (Vijay Bhalla) Deputy Registrar