New Delhi: The CBI correspondence seeking
sanction of prosecution cannot be termed as given in fiduciary
capacity, Information Commissioner Shailesh Gandhi said in a
dissenting note on the decision of a three-member bench of the
It is for the first time where an Information Commissioner
has expressed his dissent over a decision endorsed by the
majority of commissioners on the bench.
The case relates to the plea of C Seetharamaiah whose
son, an inspector with Customs, is facing CBI probe in an
alleged corruption case.
Seetharamaiah had filed an RTI application seeking
correspondence of CBI with the Additional Customs Commissioner
requesting for sanction of prosecution and related documents.
The CBI raised objections to disclosure of these, saying
it would impede the process of prosecution. It also said that
report and correspondence with the said department and
ministry is given in fiduciary capacity to the department, and
hence, exempt from disclosure under the RTI Act.
The bench comprising Satyananda Mishra, A N Tiwari and
Shailesh Gandhi gave a split verdict, with the majority
(Mishra, Tiwari) supporting the CBI`s view and rejecting the
appeal for disclosure.
They said the issue of disclosure should be left with
the trial court which has powers under the CrPC to decide if
the accused had access to the said documents.
"It is an admitted fact the CBI as third-party, seeking
prosecution of the accused... had handed over to the Chief
Commissioner of Central Excise and Customs, Vadodara evidence
collected by it against the accused.
"Transmission of this evidence was done in confidence
for the exclusive purpose of helping the public authority make
up its mind regarding whether there was a case to order
prosecution against the accused public servant, the son of the
appellant," Mishra and Tiwari had said.
However, the arguments put forth by the agency were
outrightly rejected by Gandhi who said, "In the present case,
the information the appellant is seeking is that which has
been sent by the CBI to the Department for the grant of the
sanction of prosecution.
"This is a procedural requirement in the CBI’s Crime
Manual 2005 as mentioned in the submissions made by the CBI
and therefore, the CBI does not have choice with regard to who
they would submit this report to...Therefore exemption under
Section 8(1)(e) claimed by the CBI is not tenable under the
Right to Information Act," he said.
He said CBI has advanced no reasons to show how the
process of prosecution would be impeded by disclosing the
"When denying a right to the citizen, it has to
be established beyond doubt that prosecution or apprehension
of an offender would be impeded," Gandhi said.