section 8 (e)(j) Refusal under section 8 I j

[khan1978]

Sir, I had asked for some information related to the FIR.So the PIO has refused to give it under sub-section J of section 8. I had sought the case diary and the investigation report made by the IO and the information of the arrested persons.The PIO has refused to give it.Can i appeal Pls help me

[Prasad GLN]

If you require precise guidance it is necessary to post the exact query and exact denial with such justification.  Simple denial without justification for applying such section 8 sub section J .  The denial according to PIO is on invasion on privacy of the alleged.  But for a fair investigation on accused there is no such thing as invasion on a privacy when the authorities already believed that some one is accused and in larger public interest that information must be disclosed for a fair trial.

[Sunil Ahya]

GROUNDS OF FIRST APPEAL:

1. The PIO has declined information against point no. XX of the RTI application by merely quoting the exemption to information under section 8(1)(j) of the RTI Act, 2005 without giving meaningful justification for arriving at that reason for denial. This is against letter and spirit of RTI Act.

Please find the following persuasive precedents wherein the concerned authorities have ruled that merely quoting the bare clause of the Act does not imply that the reasons have been given:

DECISIONS OF THE CENTRAL INFORMATION COMMISSION (CIC) IN THIS REGARD:

A] “Through this Order the Commission now wants to send the message loud and clear that quoting provisions of Section 8 of the RTI Act ad libitum to deny the information requested for, by CPIOs/Appellate Authorities without giving any justification or grounds as to how these provisions are applicable is simply unacceptable and clearly amounts to malafide denial of legitimate information attracting penalties under section 20(1) of the Act.”

Refer: CIC/OK/A/2006/00163 dated 7 July, 2006.

B] “The PIO has to give the reasons for rejection of the request for information as required under Section 7(8)(i). Merely quoting the bare clause of the Act does not imply that the reasons have been given. The PIO should have intimated as to how he had come to the conclusion that rule 8(1)(j) was applicable in this case.”CIC/OK/C/2006/00010 dated 7 July, 2006.

Refer: CIC/SG/A/2011/003607/17371 dated 10-03-2012

C] “Access to information, under Section 3 of the Act, is the rule and exemptions the exception. The information can be denied only if it is exempt as per the provisions of Section 8 or Section 9 of the RTI Act. Further, while denying information the authority withholding the information must show satisfactory reason and such reason should be germane and based on some material. Sans this consideration the information cannot be denied………”

Refer: CIC/BS/A/2013/000681/4968 dated 24-04- 2014.

COURT JUDGMENTS IN THIS REGARD:

D] “6. This Court is inclined to concur with the view expressed by the CIC that in W.P. (Civil) 12428/2009 order to deny the information under the RTI Act the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the RTI Act. In the instant case ………….” Hon’ble HIGH COURT OF DELHI in W. P.  (C) 12428/2009 & CM APPL 12874/2009 DEPUTY COMMISSIONER OF POLICE versus D.K.SHARMA –Judgement dated 15-12-2010

E] “If no reasons are given in the appellate orders, then it is injustice to the natural justice because quasi judicial obligations are giving reasons for order, since justice is not expected to wear the inscrutable face of a sphinx” Hon’ble High Court of Kerala in Ibrahim Kunju v. State of Kerala AIR 1970 Ker 65.

F] Judgment of HON’BLE HIGH COURT OF DELHI in WP(C) No. 3114/2007 decided on  03.12.2007 :

“Para 12………As is reflected in its preambular paragraphs, the enactment seeks to promote transparency, arrest corruption and to hold the Government and its instrumentalities accountable to the governed. This spirit of the Act must be borne in mind while construing the provisions contained therein.

Para 13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become the haven for dodging demands for information”

2. Furthermore, the FAA has declined information against point no. xx of the RTI application by merely quoting the exemption to information under section 8(1)(j) of the RTI Act, 2005. This is against letter and spirit of RTI Act in general and section 19(5) read with section 22 in particular.

Please find the following Case Laws / Persuasive Precedents wherein the concerned authorities have ruled disclosure of information pertaining to police investigation, Police Diary / Daily Diary / Case Diary:

A] IN THE HIGH COURT OF DELHI AT NEW DELHI in W.P.(C) 12428/2009, DEPUTY COMMISSIONER OF POLICE versus D.K.SHARMA.

The Delhi High Court has asked Delhi Police to provide to an accused the daily diary (DD) entry mentioning his arrest, information collected during the investigation and copies of the case diary. Justice S. Muralidhar passed the direction dismissing an appeal by the Deputy Commissioner of Police (Anti-Corruption Branch) against an order by the Central Information Commission (CIC) on a petition by the accused, D.K. Sharma, when the officer refused to provide the documents asked for by him. The police had denied the information to the accused on the ground that trial of the case had been completed and that he was not entitled to a case diary in terms of Section 172 (2) of the Criminal Procedure Code and that the provisions of the RTI Act had to be read subject to Section 172. Countering the police’s argument, the accused in person argued that his right to ask for the information under the RTI Act could not be denied citing the quoted Section of the Code and that no prejudice would be caused to the investigating agency as the trial had been completed. Dismissing the appeal, Justice Muralidhar said: ``This Court is inclined to concur with the view expressed by CIC that in order to deny information under the RTI Act, the authority concerned would have to show a justification with reference to one of the specific clauses under Section 8 (1) of the Act.’’ ``In the instant case, the police have been unable to discharge that burden. The mere fact that a criminal case is pending may not by itself be sufficient unless there is a specific power to deny disclosure of the information concerning such case’’, Justice Muralidhar said. ``No prejudice can be caused to the police if the D.D. entry concerning his arrest, the information gathered during the course of the investigation, and the copies of the case diary are furnished to the accused. The right of an applicant to seek such information……cannot be said to be barred by any provision of the Cr.P.C’’, Justice Muralidhar further said. ``It is required to be noticed that Section 22 of the RTI Act states that the RTI Act would prevail notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923 and any other law for the time being in force’’, Justice Muralidhar said, elucidating the provision of the RTI Act.

B] Smt. Jagvinder Kaur v/s. PIO,Senior Superintendent of Police, Bathinda:

Following is the relevant excerpt from the Decision of the Hon’ble Punjab State Information Commission:

“What holds good for matters under investigation, would in fact apply with greater vigour to cases where investigation has been completed. In the present  case, investigation has been completed and ‘challan’ has been presented. Trial is going on in the court. The respondent has not shown how and in what way discloser of the case diary at this stage, will impede the prosecution of the accused.  No reason or justification has come forward from the respondent.

In conclusion, therefore, it must be held that the complainant has a right to access the information sought by him and the respondent is under a statutory obligation to supply attested copies of the case dairy to him.”

C] Sri Virag R. Dhulia Versus PIO & lnspector of Police, Mahadevapur Police Station, Bangalore AND FAA & Deputy police Commissioner, DCP East Zone, Ulsoor Police Station, Bangalore

Following is the relevant excerpt from the Decision of the Hon’ble Karnataka State Information Commission:

“5. Respondent states that it is a confidential document which will be produced before the Court if called for and if Commission intends he is ready to provide the copy of Case dairy to the Appellant.
6. Since Section 22 of RTI act overrides any other act for the time being in force; nothing prevents the Respondent to provide the copy of the Case Dairy to the Appellant.
7. Commission directs the Respondent to provide copy of the Case Dairy to the Appellant.”