Punjab SIC judgment which allows case diary from police through RTI

The judgment below has been copied from original link of Punjab SIC website given below as given by google search.

http://www.google.com/url?sa=t&source=web&ct=res&cd=2&ved=0CAwQFjAB&url=http%3A%2F%2Fwww.infocommpunjab.com%2Fhtm%2Fdocuments%2F2009%2FOrders%252016%255B1%255D.11.2009.doc&ei=5rjZS-u5HI2gsgPOiJGwAQ&usg=AFQjCNFVw0qpmHUtxfMf6l8ttTJ6hpdMcg&sig2=Ys-RWEwowx4Wn-PDqFtsMA

Note: The garbled text in 2 paras in judgment below is as in original judgment.

The main points of the judgment are:

1. That section 22 of RTI act has overriding effect on Sec 172 of CrPC.
2. That case diary maintained by police is “information” as per RTI Act.
3. To claim exemption under sec 8 (h) of RTI act, the police should not only allege but also at least prima facie show that disclosure of information would impede the process of investigation / prosecution etc.

Now go ahead and be empowered with police.

The important portions are in bold below:

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STATE INFORMATION COMMISSION, PUNJAB

SCO No. 84-85, 2^nd Floor, Sector 17-C, CHANDIGARH.

Smt. Jagvinder Kaur,

w/o Gurpreet Singh Mansahia,

c/o Master Sukhdev Singh,

Uchhi Pully, Shivam Chowk,

Chahal Colony, St. No. 3,

Patiala Bye-pass, Sangrur, Punjab.

_________Complainant

Vs.

Public Information Officer,

O/o Senior Superintendent of Police,

Bathinda.

________ Respondent

CC No. 3209 of 2009

ORDER

Jagvinder Kaur vide her application dated 08.09.2009, addressed to the PIO, office of the SSP, Bathinda had sought information under Right to Information Act, as per the details mentioned below: –

“A complaint dated 22.3.09 and 23.04.2009 filed by me to DGP/Pb./CHD for conducting enquiry into FIR No. 36 dt. 18.03.09 registered at PS Rampura Phool against Gurpreet Singh s/o Sh. Harpal Singh Mansahia and Jagvinder Kaur w/o Gurpreet Singh. Kindly arrange to supply the following information:

1. Attested copies of complete inquiry report alongwith noting file.

2. Attested copies of complete case diary (Zimni) relating to FIR No. 36 dt. 18.03.09.”

In response, SSP, Bathinda vide his letter No. 731/RTI dated 10.10.2009 informed the information seeker that: –

“ÒÒfe w[eZdwK BzL 36$09Hn$XH302, 307, 447, 511, 506, fjzLvzL EkDk okwg[ok ftZu nkg d’ôD j’. nkg B{z ubkD g/ô ndkbs eoB ;w/A ;pzXs BebK fdZshnK ik u[ZehnK jB. i’ foekov wzfrnk j? d/Dk n;zGt j?.”

Aggrieved against the denial of the information under RTI, Jagvinder Kaur filed a complaint with the State Commission alleging that the PIO has failed to provide information within the specified time under Section 7(1) of the Right to Information Act. It was further alleged that the information sought concerns the life and liberty of her husband, who is in judicial custody and lodged in Bathinda jail.

Contd…P2/-

-2-

It was pleaded that the information be provided within 48 hours and that a direction to this effect should be issued to the PIO.

Notice was issued to the parties. In response to the notice, SSP, Bathinda vide his letter No. 24328/C dated 03.11.2009 placed on record his reply. The operative part of the reply is reproduced below : –

“w[edwk T[es d/ ;pzX ftu fog’oN w[Zy nc;o EkDk okwg[ok gk;’A jk;b ehsh rJh j? fizBk dh fog’oN w[skfpe w[eZdwk dk ubkB g/ô ndkbs eod/ ;w/A gqkoED B{z ;kohnK BebK fdZshnK ik u[ZehnK jB. fJ; s’A fJbktk gqkoED tZb’A w[eZdwk dhnK fiwBh fog’oNK dh wzr ehsh j? fi; d/ ;pzX ftu vhHvhHJ/Hbhrb pfmzvk gk;’A eB {zBh okfJ jk;b ehsh rJh j? fiBK dh okfJ w[skfpe wzrh rJh ;{uBk ;?e;B 172 ns/ 172(3) ;hHnkoHghH;hHsfjs nkT[Adh j? ns/ i’ Indian Evidence Act 1872 d/ w[skpe w[jJhnk BjhA ehsh ik ;edh. “

During the course of hearing, the difference of opinion between the complainant and the respondent was narrowed down to only one issue: – Whether attested copies of complete case diary (Zimni) relating to FIR No. 36/9 of Police Station Rampura Phool could be obtained by the complainant under the provisions of the Right to Information Act?

On this issue, the respondent’s stand is that he had obtained legal opinion from District Attorney, Bathinda, who had opined that this information can not be supplied in view of the provisions of Section 172 of the Cr.P.C. The respondent submitted that there is a specific bar imposed by Section 172(3) Cr.P.C. against supply of this information.

Complainant on the other hand argued that Section 22 of the RTI Act overrides all other Acts for the time being in force. To the extent the provisions of Section 172 and 172(3) Cr.P.C. are contrary to the substantive provisions of The Right to Information Act, these Sections of Cr.P.C shall stand superseded and will have no adverse effect on the request of an information seeker. He further argued that in the present case, ‘challan’ has been presented in the Court. Since investigation has been completed and trial is under process before the judicial court, discloser of information relating to case-diary (Zimni) could not possibly have any prejudicial effect on investigation or prosecution of the accused. The information, therefore, should not be denied under provisions of RTI Act.

Contd…P2/-

-3-

On 04.11.2009, respondent sought an adjournment, which was allowed and the case was heard on 12.11.2009. The respondent, in the meantime, placed on record letter No. 7411/Spl.C dated 11.11.2009. A copy of the opinion of the District Attorney which had been obtained by the respondent, was enclosed with the letter dated 11.11.2009. The opinion given by the District Attorney is reproduced: –

“w?A T[es ohg’oN B{z tkfunk j? w/oh okJ/ d/ wskfpe 1996(1)R.C.R. g/i Bzpo 650 (c’N’ ekgh bc j?) ns/ The Right to Information Act, 2005 dh Xkok 8( H ) prosecution of offenders ekoB vke{w?AN ;gbkJh eoB go eB{zBh o’e j?. feTAfe d’ôh d/ fybkc ;wkfJs wkD:’r e’oN nkc bkn d/ ftZu ehsh ik ojh j?.

;jh$F

T[g fibk nNkoBh pfmzvk

11H11H09”

To sum up, the plea of the respondent is two –fold:-

i) In view of the express bar contained in Section 172 and 172(3) Cr.P.C. against supply of case diary, the same cannot be given to the information seeker. The respondent relied on 1996(1) RCR 650.

ii) There is a bar under Section 8(1)(h) of the RTI Act against supply of document in cases where prosecution of offenders is pending in court of law.

I have heard the parties and gone through their respective stand. It is true that Section 172(3) imposes a bar qua the accused or his agent from calling the record of case diary. The relevant provision is produced below: –

Section 172 (3) : –

“Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145 as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply.”

A perusal of the above Section of Cr.P.C makes it clear that there is no blanket blacking-out of the contents of the case diary; the bar contained in Section 172(3) is only qua the accused or his agent. This bar also is tempered by the fact that if these are used by police officer who made them to refresh his memories, or if Court uses them for the purpose of contradicting such police officers, the provision of Section 116 or Section 145 as the case may be of the Indian Evidence Act shall apply.

However, the issue before me does not pertain to what happens to daily-diary in a criminal trial before a judicial court; it may or may not be sharable with an accused or his agent under Section 172 Cr. P.C. The question which needs determination is:- can copies of daily-dairy be withheld from an information seeker under the provisions of RTI Act, on the ground that Section 172 Cr.P.C. bars an accused or his agent from calling for such diaries in trial?

Section 22 of the RTI Act, 2005, which is reproduced below, makes it clear that the provisions of the Right to Information Act shall apply, even if there is any inconsistency in any other law for the time being in force.

Section 22: –

“Act to have overriding effect. – The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Officials Secrets Act, 1923 (19 of 1923), and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.”

The provisions of Section 22 have an overriding effect and therefore it must be held that so far as supply of information under RTI Act is concerned, the provisions of Section 172 Cr. P. C shall not act as a bar.

The next question which needs to be determined is: whether a case diary is an information within the meaning of Section 2(f) of the RTI Act. Information has been defined under Section 2 (f) as any material in any form including, ‘records’, ‘documents’, ‘memos’, ‘logbooks’, ‘reports’, ‘papers’ etc. What is a case diary? A perusal of Section 172(1) of the Cr.P.C. makes it clear that a case diary or a zimni is merely a day by day record of investigation made by police officers. The investigating officer is required to mention proceedings of the investigation in a diary setting forth time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him and a statement of the circumstances ascertained through his investigation. From the description of case diary in Section 172(1) of the Cr.P.C, it is clear that a case diary is nothing but a record of the sequence of investigation and the various stages or steps of investigation reduced in writing on a sheet of paper/s. A case-diary therefore would be a paper and a document or a logbook well within the meaning of Section 2(f) of the RTI Act. It is also a memo, which is colloquial for memorandum. A case diary, I have no hesitation in holding, certainly falls well within the definition of word ‘information’ as defined in the RTI Act.

Coming to the second argument of the respondent that the information is exempt from disclosure under Section 8 of RTI Act, it is correct that the “information which would impede the process of investigation or apprehension or prosecution of offenders” can be withheld. Under Section 8(1) (h), there is no legal obligation to give such information to an information seeker.

In the present case, it is admitted that investigation has been completed and the challan was presented before judicial court long time back. It is also admitted that the evidence is going on. The question which needs to be determined is whether disclosure of a case diary or Zimni will impede prosecution of offenders? It would depend on the facts of each case and no general policy or principal could be laid.

In the present case, the respondent has taken, vide his letter dated 744/Spl.C dated 11.11.2009, a simple one line plea that information cannot be supplied because there is a bar against supply of this information under Section 8(h). The fact that a criminal case is pending in a court of law at the prosecution stage has been interpreted by the respondent as an automatic empowerment under Section 8 (h) to deny information. The District Attorney whose opinion was obtained by the respondent has relied on 1996(1) RCR 650 in support of this contention. In this case the Hon’ble Supreme Court had held that:

“Criminal Procedure Code, 1973, Sections 172(1) and 162 – Case diary – Case diary and statements recorded under section 161(3) are two different records – Case diary not to be used as evidence in the case.”

To my understanding, this authority of the Hon’ble Supreme Court is of little help to the respondent at it does not squarely address the issue involved in the present complaint case. It is true that under Section 8(h) exemption can be availed, if disclosure of the information would impede the process of prosecution. However, it is not an automatic exemption implying that in each and every case where investigation or prosecution is pending, information is not discloseable. For the respondent, it is not enough to merely plead that investigation or prosecution is pending; he has to plead and show that such a discloser of information would impede the process of investigation or prosecution etc. Without substantiating such a plea or without giving any cogent justification, the information cannot be withheld. The respondent should not only allege but also at least prima facie show that disclosure of information would impede the process of investigation / prosecution etc.

Hon’ble Supreme Court has held that access to information is a fundamental right. Its roots lie in Articles 19 and 21 of the Constitution of India; RTI Act has not conferred this right afresh; it merely provides a statutory recognition to the existing fundamental right and lays down the processes, procedures and statutory enforcement mechanism for actualizing the right.

Exemptions under Section 8 of the RTI Act are by way of reasonable restrictions on this fundamental right and therefore must be construed strictly. The exemption should not be interpreted so as to the shadow the right itself. The Hon’ble Delhi High Court, which dealt with this issue in W(PC) No. 3144 of 2007, has held that: –

“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 demand for information”

In the above mentioned case decided by the Hon’ble Delhi High Court, the matter was under investigation when information was sought by an information seeker and it was denied under Section 8 (h). 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. I direct the respondent to supply the copies within 20 days. I am intentionally allowing the period of 20 days to the complainant as he has a right to challenge this order, which he may like to exercise. Undoubtedly, this order has for reaching implications not only for the right of the information seekers, but the manner in which the investigating agencies conduct investigation and maintain its record. For this reason, I further direct that copies of this order be forwarded by the Deputy Registrar to both, the Principal Secretary, Home, Punjab and the Director General of Police, Punjab to bring the contents of this order to their pointed notice.

(R.I. Singh)

Chief Information Commissioner

16^th November, 2009 Punjab