Business Standard: New Delhi: Monday,
August 01, 2016.
The Central
Information Commission has given a split verdict holding information on the
basis of which sanction of prosecution was sought by CBI cannot be disclosed as
it will prejudicially affect prosecution.
Dissenting
with the verdict, Information Commissioner Sridhar Acharyulu said basic tenet
of criminal justice system tested over a period of time is that an accused
should be given every bit of information/evidence and nothing should be heard
on his back.
"Withholding
such crucial information from the accused will result not only in breach of his
right to information, but also his right to fair trial and access to justice,
which are, undoubtedly, the human rights guaranteed by law," he said.
Acharyulu
said the Commission has a duty to analyse whether denial to sanction related
information on the ground of impeding the trial is impeding the fair trial.
"Can
information be denied at the cost of fair trial? Is it in public interest?
No," he said.
The
transparency panel, however, refused to pass a verdict on whether the agency
can claim immunity from disclosure as it has been put in the list of security
organisations which are exempt from provisions of RTI Act except when
information sought is related to allegations of corruption and human rights violation.
The majority
decision by Information Commissioners Sudhir Bhargava and Sharat Sabharwal said
since CIC has earlier taken two different positions and matter is under stay at
high court it will not pass its order.
The
Commission said it agrees with the position of CBI that disclosure of
information would impede the process of prosecution and attracts section
8(1)(h) of the Act.
When the
appellant said Section 22 of the RTI Act overides any other law which bars
disclosure of information, the bench said it is for the court to decide whether
a information which is to be presented to it can disclosed.
The case
related to Gulab Singh Rana, who had sought to now details
relating to the sanction for prosecution accorded to the CBI by the bank and
related correspondence between the CBI and the respondent.
In his
dissent verdict, Acharyulu said in view of Section 22, the contention that
decision on disclosing should be left to trial court is against the intention
of Parliament expressed in unambiguous terms of Section 22, and objectives and
preamble of RTI Act.
In an
exhaustive decision, Acharyulu cited number of high court and Supreme Court
orders to counter the majority decision given by other two members.
"Even
according to CBI the investigation was over, charge sheet was filed and the
trial commenced. Hence, apprehension of impeding the prosecution is baseless.
As accused, he is legally entitled to challenge the validity of sanction of
prosecution, but denial of information about details of sanction will obstruct
him from exercising the legal right," he said.
Acharyulu
said bank has held and having control over the file, in which the reasons for
sanction are expected to have been recorded.
"Just
because some inputs are used to take a final decision, and that inputs coming
from an exempted organisation, public authority cannot prohibit its disclosure,
especially when such sanction was not given in the first instance, but granted
at a later stage," he said.
Acharyulu
said the accused and court should be assisted in arriving at proper decision
about guilt or innocence by disclosure.
"Hence
the Bank has to provide the information sought as its disclosure will not
impede prosecution. There are no grounds to invoke Section 8(1)(h) ignoring a
significant Section 8(2), which mandates judicious examination of comparative
public interest," he said.
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