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Police are not giving any information nor taking any action against accused

(Querist) 04 December 2015 This query is : Resolved 

police are not giving any information to complainant even after preferring RTI application nor taking any action against accused in my fir with sections 420
questions in my RTI application were as follows
to which they refused to answer by taking recourse of rule 8 g RTI without giving any explanation about how information if given to complainant will hamper the investigation?
IV] Day to day actions/activities, progress and investigation carried out by IO from 30.07.2015 to 27.08.2015 in respect of and related to FIR 227/15 dated 30.07.2015 Vishram bag police station.
VI]Legal formalities completed in respect of and related to my registered FIR 227/15 by IO or on his behalf.
V] Summons issued by IO or on his behalf in respect of this F.I.R.227/15 from 30.07.2015 to 27.08.2015
VI] Correspondences including Applications for certified copies submitted /sent during 30.07.2015 to 27.08.2015 and record collected by IO or on his behalf in respect of and related to FIR 227/15.
VII] Daily Diary/Case diary/Station diary entries maintained by IO in respect of and related to FIR 227/15 in Vishrambag Police station Pune.
VIII] Statements recorded by IO or on his behalf in respect of and related to this FIR227/15 dated 30.07.2015 from 30.07.2015 to 27.08.2015
IX] DCR and press note generated in respect of this FIR 227/15 dated 30.07.2015
X] All correspondences in respect of and related to FIR 227/15 dated 30.07.2015 from 30.07.2015 till 27.08.2015
XI] Computer in Vishrambag police station used for and in respect of FIR 227/15
XII] Entries related to and in respect of FIR 227/15 dated 30.07.2015 Vishrambag Police station Pune in Inward and Outward registers maintained
please

Guest (Expert) 04 December 2015
No one is supposed to interfere in investigations conducted by IO. Not even his boss.If there is complaint against IO or progress not satisfactory SP can transfer the case. It is important to give such powers to IO so he/she can conduct investigations without fear and interference or pressure from any quarter.But this does not happen.

1.You can go to SSP/DCP of your district and submit written complaint about poor progress. Instead asking file of Police and police diary you should provide clues and evidences with you to SSP.

2. When investigations are over even magistrate cant interfere,unless there are specific allegations of abuse of police powers. But that is the case applicable to accused not complainant.

3. Of course you can approach high court which has inherent powers.

4. You can wait till police either files challan in court or files application to FR of your FIR. You will be summoned by magistrate and you can file objections and get case reopened or even got investigated by a senior officer.

5. When case begins in court you can join prosecution directly or through your lawyer.

Please don't waste your energy is spying on police records but help them uncover truth and roots of crime.

It is our misfortune that in India we have unaccountable and corrupted system were state servants have lost accountability and sense of duty. Money and power is all that matters. Other wise 80% of current politicians would be in jail.

WE can easily call our judicial system a nautanki of affidavits, bails and dates. It is endless process it looks like. Bad for society
K.S.Srinivas (Expert) 10 December 2015
File first appeal to the first appellate authority under RTI Act, 2005.
Guest (Expert) 10 December 2015
As advised earlier Police is not supposed to give status of investigation diary to complainant or any one else including accused. This is provided in CrPC. Everything is not covered under RTI.
You can complain to senior officers who will call the file and see it.Or you can go to magistrate who will call the file and do needful .Once challan is ready and filed in court you will be given a copy by court.
No body including SP of area is supposed to give direction or interfere with an IO who has full powers to investigate a case.

Day to proceedings of case are supposed to be entered into police diary of case and inspected by SHO and senior officers if needed from time to time.

Instead of all this please file complaint to SSP of area that case is being tempered and not progressing.
K.S.Srinivas (Expert) 10 December 2015

"If there are any provisions of
the Criminal Procedure Code which are inconsistent with the provisions of
the RTI Act,as far as disclosure of information is concerned,they would
undoubtedly be overruled by the RTI Act. The RTI Act makes no exception to this provision of overruling and therefore the question of nondisclosure of documents in accordance with the Cr.P.C. does not arise in the present case."
(Ref:- Appeal No. CIC/AT/A/2008/01238 dated 19.09.2008, of the Central Information Commission.

In the above case....
51. To summarise :a.
The information sought is not exempt under Section 8 (1) (e) or (h) for
reasons explained above.
b. The RTI Act clearly overrides all other prior Acts in matters of
disclosure of information as per Section 22.
c. Refusal of information can only be based on the RTI Act, when an
application is made under this Act. The Commission is a creation of the
RTI Act and can only agree to denial of information which is expressly
exempted under Section 8 (1) or 9 of the RTI Act.
d. If there are various routes by which a Citizen can access information, it
is his prerogative to use one which he finds convenient.
e. Section 11 is not a provision which can be used to justify exempting
information from being disclosed, unless it is covered by Section 8 (1).


In Appeal No. CIC/AT/A/2008/01238 dated 19.09.2008, the Central Information Commission opined that :-

Para 52: "52. In view of the reasons stated above, I find the arguments put
forward for the denial of information to be untenable. Hence I cannot
agree with the majority decision, and it is my considered opinion that the
information sought by the Appellant is not covered by the exemptions of
Section 8(1) of the RTI Act and hence should be disclosed."

In view of the above, the author of the query is advised to file an appeal to the first appellate authority.
Guest (Expert) 10 December 2015
Srinivas sir, can you further elaborate if one can get information of a third party lying in some government department. Wont it be infringement of privacy.Can some one ask information about any individual or organisation unless he has material relations and interest in that individual or institution?

For example can I find your details in passport office or your tax returns records in Income tax department. That will result in chaos.

Kindly clarify about curiosities to make issues very clear.

Dont the section 8(h) and (j) prevent disclosure of sensitive information including criminal investigation? That is why police refuses to tell media when investigation is on?
K.S.Srinivas (Expert) 10 December 2015
8 (1) (h) of RTI Act- demonstration that the information if disclosed would impede investigation

The Public Authority need to demonstrate that the information if disclosed would indeed “hamper” or “interfere” with the investigation. The burden is on the public authority to show in what manner the disclosure of such information would 'impede' the investigation. The mere reproducing of the wording of the statute would not be sufficient when recourse is had to Section 8 (1) (h) RTI Act.

Disclosure of information is the rule and non-disclosure the exception. A public authority which seeks to withhold information available with it has to show that the information sought is of the nature specified in Section 8 RTI Act.

A co-ordinate Bench of this Court in the case of B.S. Mathur v. Public Information Officer of Delhi High Court: W.P.(C) 295/2011, decided on 03.06.2011 had considered the contention with regard to withholding information under Section 8(1)(h) of the Act

9. The question that arises for consideration has already been formulated in the Court's order dated 21st April 2011: Whether the disclosure of the information sought by the Petitioner to the extent not supplied to him yet would “impede the investigation” in terms of Section 8 (1) (h) RTI Act? The scheme of the RTI Act, its objects W.P.(C) No. 3543/2014 Page 4 of 6 and reasons indicate that disclosure of information is the rule and non-disclosure the exception. A public authority which seeks to withhold information available with it has to show that the information sought is of the nature specified in Section 8 RTI Act. As regards Section 8 (1) The relevant decision Delhi High Court “Adesh Kumar vs Union Of India & Ors. on 16 December, 2014” is referred and attached with this article.

Delhi High Court
Adesh Kumar vs Union Of India & Ors. on 16 December, 2014
Author: Vibhu Bakhru
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 16.12.2014
+ W.P.(C) 3543/2014
ADESH KUMAR ..... Petitioner
versus
UNION OF INDIA & ORS. ..... Respondents
Advocates who appeared in this case:
For the Petitioner : Mr Pramod Singh.
For the Respondents : Ms Suparna Srivastava, CGSC.
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J (ORAL)
1. The petitioner impugns an order dated 16.04.2014 passed by the Central Information Commission
(hereafter 'CIC') rejecting the petitioner's appeal against an order dated 14.11.2012 passed by the
First Appellate Authority (hereafter 'FAA'). The FAA had, by an order dated 14.11.2012, rejected the
appeal filed by the petitioner against the decision of the CPIO denying the information as sought by
the petitioner under the provisions of the Right to Information Act, 2005 (hereafter the 'Act').
2. The CPIO had denied the information as sought for by the petitioner claiming that the same was
exempt from disclosure under Section 8(1)(h) of the Act.
3. Briefly stated, the relevant facts necessary to consider the W.P.(C) No. 3543/2014 Page 1 of 6
controversy are as under:
3.1 The petitioner was posted as Superintendent Engineer, CPWD, Patna. During his tenure, an FIR
was lodged in respect of an alleged offence under Section 7 of the Prevention of Corruption Act,
1988 and Section 120B of the Indian Penal Code. Subsequently, a chargesheet, inter alia, against the
petitioner was submitted after obtaining the sanction from the competent authority.
3.2 After receipt of the chargesheet, the petitioner applied for the following information under the
provisions of the Act:-
"1 The recommendation of Director General (Works), CPWD against sanction sent to
Ministry of Urban Development.
2. The noting on file note Sheet/copy of letter if any sent to CVC for comments/advice
if any.
3. The copy of all letters written to Director CBI, New Delhi by Additional Secretary
and Secretary, Ministry of Urban Development. Govt. of India and reply received
from CBI, New Delhi/Patna as the case may be.
4. Initial recommendation of Ministry of Urban Development, Govt. of India against
sanction of prosecution of Adesh Kumar sent to CVC.
5. The details of noting of various officers before declining sanction of prosecution.
6. Copy of details of noting of various officers before declining sanction of
prosecution.
W.P.(C) No. 3543/2014 Page 2 of 6
7. Copy of details of noting of various officers at the time of according present
sanctions for prosecution of Adesh Kumar, the then SE, PCC."
3.3 The request for the aforesaid information was rejected by the CPIO claiming that there was no
obligation to provide the same by virtue of Section 8(1)(h) of the Act. The appeal preferred by the
petitioner before the FAA was also rejected and the second appeal preferred by the petitioner before
the CIC also met the same fate. The petitioner has challenged the said order passed by the CIC.
4. I have heard the learned counsel for the parties.
5. Before proceeding further, it would be necessary to refer to Section 8(1)(h) of the Act which reads
as under:-
"8(1)(h) information which would impede the process of investigation or
apprehension or prosecution of offenders;"
6. A plain reading of the aforesaid provision indicates that information which would impede the
process of investigation or apprehension or prosecution of offenders could be denied. In order to
deny information, the public authority must form an affirmative opinion that the disclosure of
information would impede investigation, apprehension or prosecution of offenders; a mere
perception or an assumption that disclosure of information may impede prosecution of offenders is
not sufficient. In the present case, neither the FAA nor the CIC has considered as to how the
information as sought for would impede the process of investigation or apprehension or prosecution
of the petitioner and other accused.
7. It is not disputed that the investigation is over and the only issue urged is that the disclosure of
information would impede prosecution of the petitioner.
8. After hearing the parties, the CIC had concluded as under:-
"The Commission heard the submissions made by appellant as well as respondents at
length. The Commission also perused the case-file thoroughly; specifically, nature of
issues raised by the appellant in his RTI application dt. 21.06.12, CPIO's response dt.
18.07.12 FAA's order dt. 14.11.12 and also the grounds of memorandum of second
appeal and the Commission is of the considered view that the plea taken by the
respondents u/s 8 (1) (h) of the RTI Act is not only justified but even legally tenable
in the case."
9. It is apparent from a bare perusal of the CIC's order that it does not indicate the reasons that
persuaded the CIC to uphold the view of the Public Authority that the disclosure of information
sought by the petitioner would impede prosecution of the petitioner. A co-ordinate Bench of this
Court in the case of B.S. Mathur v. Public Information Officer of Delhi High Court: W.P.(C)
295/2011, decided on 03.06.2011 had considered the contention with regard to withholding
information under Section 8(1)(h) of the Act and held as under:-
"19. The question that arises for consideration has already been formulated in the
Court's order dated 21st April 2011: Whether the disclosure of the information sought
by the Petitioner to the extent not supplied to him yet would "impede the
investigation" in terms of Section 8 (1) (h) RTI Act? The scheme of the RTI Act, its
objects W.P.(C) No. 3543/2014 Page 4 of 6 and reasons indicate that disclosure of
information is the rule and non-disclosure the exception. A public authority which
seeks to withhold information available with it has to show that the information
sought is of the nature specified in Section 8 RTI Act. As regards Section 8 (1)
(h) RTI Act, which is the only provision invoked by the Respondent to deny the
Petitioner the information sought by him, it will have to be shown by the public
authority that the information sought "would impede the process of investigation."
The mere reproducing of the wording of the statute would not be sufficient when
recourse is had to Section 8 (1) (h) RTI Act. The burden is on the public authority to
show in what manner the disclosure of such information would 'impede' the
investigation. Even if one went by the interpretation placed by this Court in W.P. (C)
No.7930 of 2009 [Additional Commissioner of Police (Crime) v. CIC, decision dated
30th November 2009] that the word "impede" would "mean anything which would
hamper and interfere with the procedure followed in the investigation and have the
effect to hold back the progress of investigation", it has still to be demonstrated by
the public authority that the information if disclosed would indeed "hamper" or
"interfere" with the investigation, which in this case is the second enquiry."
10. A bare perusal of the order passed by the FAA also indicates that the aspect as to how the
disclosure of information would impede prosecution has not been considered. Merely, citing that the
information is exempted under Section 8(1)(h) of the Act would not absolve the public authority
from discharging its onus as required to claim such exemption. Thus, neither the FAA nor the CIC
has questioned the Public Authority as to how the disclosure of information would impede the
prosecution.
W.P.(C) No. 3543/2014 Page 5 of 6
11. The learned counsel for the respondents contended that no prejudice would be caused to the
petitioner as a result of denial of information, as all material relied upon by the prosecution to
prosecute the petitioner would be available to the petitioner. In my view, this cannot be a ground to
deny information to the petitioner. First of all, the question whether the information sought by the
petitioner is relevant or necessary, is not relevant or germane in the context of the Act; a citizen has
a right to information by virtue of Section 3 of the Act and the same is not conditional on the
information being relevant. Secondly, the fact that the petitioner has access to the material relied
upon by the prosecution does not prevent him from seeking information, which he considers
necessary for his defence.
12. Accordingly, the writ petition is allowed. The impugned order passed by the CIC is set aside and
the matter is remanded to the CIC to consider it afresh in view of the aforesaid observations.
Ms.Usha Kapoor (Expert) 23 June 2018
I agree with Rajendra Gupta.


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