@JUDGMENTTAG-ORDER
V. Dhanapalan, J.@mdashThe petitioner, as a party-in-person has filed this writ petition for a direction to the first respondent to forthwith ensure
compliance of the provisions of the Right to Information Act, 2005 by the second and third respondents by ensuring that all the information sought
by him including the documents to be supplied by the second and third respondents are provided to him and further direct the first respondent to
proceed further with the show cause notice issued for imposition of penalty, compensate him and initiate such other steps as are provided under the
provisions of the Right to Information Act, 2005, including initiation of departmental proceedings against the person(s) responsible for denying the
information sought by him.
2. The case of the petitioner is, as follows:
(i) Since 2001, the petitioner has been trying to expose one self proclaimed ""Kalki Bhagawan"" and his multi crore business activities behind the
scene, through media and subject his unlawful activities to the legal scrutiny. In March 2005, when the said ""Kalki Bhagawan"" conspired to kidnap
and kill the petitioner, the police arrested one front-man, namely, Murugappan, along with his vehicle. The said front-man gave a written
confessional statement naming ""Kalki Bhagawan"" and others who were involved in the conspiracy and he was in jail custody for a month, until
conditional bail was granted by this Court. The case was then transferred from Mylapore E-1 Police Station (FIR No. 320/2005) to Central
Crime Branch (C.C.B.), Chennai, which is controlled by the Commissioner of Police, Greater Chennai. One Inspector of Police,
S.V.Mahabharathi (Investigating Officer) re-registered the case in C.C.B. Crime No. 284/2005 and investigated the matter. Later, the
Investigating Officer and 3 other Senior Police Officers took huge bribe from ""Kalki Bhagawan"", completely distorted the case of the petitioner by
manipulating the documents/records and illegally exonerated 5 high profile accused persons and filed charge sheet against the lone front-man
before the Trial Court in C.C. No. 6073 of 2005. When the petitioner was called as a Prosecution Witness No. 1 before the learned Judge, XI
Metropolitan Magistrate Court, Saidapet, he submitted a sworn affidavit stating the corrupt practices of Central Crime Branch, Chennai and
subversion of law and on 27.04.2006, he filed a petition before this Court u/s 482 Cr.P.C. in Crl.O.P. No. 11551 of 2006 for ordering re-
investigation of the entire case and also for punishing the corrupt police officers.
(ii) In order to prove his allegations of corruption and subversion of law against the said ""Kalki Bhagwan"" , the petitioner required 3 documents
from the Central Crime Branch (C.C.B.) and for this purpose, he had struggled to get the required information and documents under the R.T.I. Act
2005, but with malafide intention, the C.C.B. has denied his requests, with one pretext or the other. On 14.11.2006, the State Chief Information
Commissioner has passed an order only partially accepting the petitioner''s case, without properly applying his mind. Being aggrieved by the
impugned order, the petitioner, having no other alternative except to approach this Court has filed the present writ petition for the aforesaid relief.
3. The first respondent, in his counter has specifically denied the averment made by the petitioner that the Commission has passed orders on
09.11.2006 imposing penalty. It is stated that since the Public Information Officer sought adjournment on 09.11.2006 to have interaction with her
superior due the sensitive nature of the case, the Commission merely adjourned the matter to 14.11.2006 and on 14.11.2006, the Commissioner
of Police appeared before the Commission and sought exemption for production of certain records u/s 8(1)(h) of the Right to Information Act,
2005, and after hearing the matter, the Commission passed a detailed order on 14.11.2006.
4. In the counter filed on behalf of the second and third respondents, it is stated as follows:
(i) No prejudice is caused to the petitioner since all the documents have been furnished to him, as per the directions of the Hon''ble State
Information Commission.
(ii) The petitioner, who had been closely associated with a person popularly known as ''Kalki Bhagawan'' parted company with him following a rift,
after the petitioner questioned the activities of the said Kalki Bhagawan and his son. The petitioner stayed in Chennai and started collecting
materials about Kalki Bhagawan for the reasons best known to him. Thereafter, the petitioner became acquainted with one Murugappan, who
posed as a journalist and offered to take the petitioner to ''Akkarai Bungalow'', which was said to be one of the properties of Kalki Bhagawan.
But, the petitioner gave a complaint against Murugappan and others which was registered in Cr. No. 320 of 2005 of E1 Mylapore Police Station,
u/s 419, 380 and 506(ii) IPC r/w 120(b) IPC and the same was transferred to Central Crime Branch, Chennai and re-registered on 16.04.2005
as Central Crime Branch, Chennai Cr. No. 284/2005 and investigation taken up again.
(iii) On completion of the investigation, it was found that there was no evidence at all to proceed against the said Kalki Bhagawan, his son and
others. However, based on the available evidence, the Inspector of Police filed a charge sheet against the said Murugappan alone u/s 419, 380
and 506(ii) I.P.C.
(iv) As per G.O.Ms. No. 1043, Public (Estt.1 and Leg.) dated 14.10.2005, the City Central Crime Branch was exempted from furnishing
information. Subsequently, the three documents were given on the directions of the Tamil Nadu State Information Commission by second
respondent to the petitioner forthwith.
(v) The Right to Information Act 2005 (Central Act 22 of 2005) is not applicable to certain departments and organisations as mentioned in
Sections 8 and 24 of the said Act.
(vi) the proviso to Section 24(4) of Right to Information Act has been misused by the petitioner.
(vii) When the petitioner insisted for imposing of levy against public authority for delay in furnishing information as per the Right to Information Act,
the Commission explained to the petitioner that the penal provision of the Act could be invoked only when there is malafide intention.
(viii) As per the provisions of Section 8(g) and (h) and G.O.Ms. No. 1043, Public (Estt.I and Leg.) dated 14.10.2005, the petitioner cannot seek
information as of right and the prayer sought by the petitioner is wholly unsustainable in law.
5. In the additional counter affidavit filed by the third respondent, it is stated that on completion of investigation, the prosecution had referred the
case as ""Mistake of Fact"" on 30.04.2007. The negative final report was also filed in the same CC No. 6073 of 2005 before the learned XI
Metropolitan Magistrate, Saidapet, Chennai on 08.06.2007 after serving RC Notice to this petitioner on 07.06.2007 along with the documents
collected during investigation conducted by CB CID, which includes the documents required to be furnished by the third respondent as mentioned
in the earlier counter affidavit. The documents were checked and received by the learned XI Metropolitan Magistrate, Saidapet, Chennai 600 015
on 18.06.2007. It is further stated that since all the originals and copies of the records collected at the time of investigation including certain
documents asked for by this petitioner have already been filed before the learned XI Metropolitan Magistrate, Saidapet, Chennai, the petitioner
can very well approach the said Court and obtain the copy of the documents by filing appropriate application.
6. The petitioner has also filed rejoinders to the counter affidavits of the respondents and additional counter affidavit of the third respondent, stating
that his allegations are based on the facts and documentary evidences and that not all the documents were given to him as claimed. He has stated
that he never demanded the arrest of ''Kalki Bhagawan'' and his son and he was never a part of his ''Ashram''.
7. Heard Mr. Viswanath Swami, party-in-person, Mr. G. Rajagopal, learned Senior Counsel appearing for the first respondent and Mr. A. Edwin
Prabakar, learned Addl. Government Pleader for the second and third respondents.
8. Mr. Viswanath Swami, party-in-person, has put forth the following contentions:
(a) the order of the first and second respondents are contradictory and as a result of the arbitrary direction on the part of the State Information
Commission, the petitioner has been given the document, censoring vital information.
(b) while the Commissioner of Police has written to the petitioner on 14.09.2006 that the information/documents called for could not be furnished
as they are not available in Chennai City Police Office, after 2 months, i.e. on 14.11.2006, she has furnished certain documents, which, as per the
Right to Information Act, is an act of misleading the petitioner.
(c) while u/s 5(1) of the Right to Information Act, every public shall, within 100 days of enactment of the RTI Act, designate Public Information
Officer, the C.B.C.I.D. has not even appointed a ''Public Information Officer'' till date.
(d) the first respondent has failed to exercise the rights available to it u/s 19(8) of the RTI Act, such as to compensate the complainant for the loss
or other detriment suffered or imposition of penalty, thereby granting premium to the second and third respondents to defy the provisions of the
RTI Act.
9. The petitioner, in support of his contentions, has relied on certain Sections of the Right to Information Act, 2005, which read as follows:
8. Exemption from disclosure of information:
(h) Information which would impede the process of investigation or apprehension or prosecution of offenders;
10. Severability: (1) Where a request for access to information is rejected on the ground that it is in relation to information which is exempt from
disclosure, then, notwithstanding anything contained in this Act, access may be provided to that part of the record which does not contain any
information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information.
(2) Where access is granted to a part of the record under sub-section (1), the Central Public Information Office or State Public Information
Officer, as the case may be, shall give a notice to the applicant, informing -
(a) that only part of the record requested, after severance of the record containing information which is exempt from disclosure, is being provided;
(b) the reasons for the decision, including any findings on any material question of fact, referring to the material on which those findings were
based''
24. Act not to apply to certain organisations:
(1) Nothing contained in this Act shall apply to the intelligence and security organisations specified in the Second Schedule, being organisations
established by the Central Government or any information furnished by such organisations to that Government:
Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section:
(4) Nothing contained in this Act shall apply to such intelligence and security organisations being organisations established by the State
Government, as that Government may, from time to time, by notification in the Official Gazette, specify:
Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section:
Provided further that in the case of information sought for is in respect of allegations of violation of human rights, the Information shall only be
provided after the approval of the State Information Commission and notwithstanding anything contained in section 7, such information shall be
provided within forty-five days from the date of receipt of request.
10. Further, the petitioner has also brought to the notice of this Court the notification issued by the Government of Tamil Nadu in Government
Gazette Part-II, Section 2, Issue No. 226, the orders passed in G.O.Ms. No. 1043, Public (Estt.I & Leg.), dated the 14th October 2005, which
reads as follows:
No. II(2)/PUEL/778/(c)/2005 : In exercise of the powers conferred by sub-section (4) of section 24 of the Right to Information Act, 2005
(Central Act 22 of 2005), the Governor of Tamil Nadu hereby specifies the following Intelligence and Security Organizations established by the
Government of Tamil Nadu for which the said Act shall not apply:
1. Crime Branch CID
2. Special Investigation Team
3. Video Piracy Cell
4. Narcotics Intelligence Bureau
5. Anti-Dacoity Cell
6. Economic Offence Wing
7. Economic Office Wing - II
8. Idol Wing
9. CCIW CID
10. Civil Supplies CID
11. Cyber Crime Cell
12. District Crime Branches and City Crime Branches
13. Special Task Force
14. Tamil Nadu Commando Force
15. Tamil Nadu Commando School
16. Coastal Security Group
17. Finger Prints Bureau
18. Police Radio Branch
11. Learned Senior Counsel for the first respondent has put forth the following contentions:
(a) the frivolous allegations of the petitioner against the first respondent Commission are highly reprehensible.
(b) it is incorrect that the Commission passed orders on 09.11.2006 imposing penalty on the petitioner, since the Commissioner of Police
appeared before the Commission and sought exemption for production of certain records under Sections 8 of the Right to Information Act, 2005
and after hearing the matter, the Commission passed a detailed order only on 14.11.2006, a copy of which has also been given to the petitioner.
12. Learned Addl. Government Pleader appearing for the second and third respondents has contended that:
(a) this writ petition has been preferred by the petitioner only because Kalki Bhagawan and his son were not arrested.
(b) the averments made by the petitioner against the police officers are false.
(c) the first respondent did not impose any fine, but directed the then Public Information Officer to furnish the documents to the petitioner and as
directed, the documents were furnished to the petitioner.
(d) the Right to Information Act, 2005 (Central Act 22 of 2005) is not applicable to certain Departments and organisations as mentioned in
Section 8 and 24 of the said Act.
(e) the proviso to Section 24(4) of the Right to Information Act has been misused by the petitioner
(f) the first respondent would be the proper authority to respondents.
(g) partial documents can be furnished as per the provisions contained in Section 10 of the Right to Information Act.
(h) From the Rule 339 of the Criminal Rules of Practice , the petitioner can apply before the Criminal Court to ask for the copies on payment of
proper court fee and instead, he is asking the same before this Court.
(i) G.O. Ms. No. 1043 is clear on the exemption as the Department has been exempted from the applicability of the same.
13. I have considered the submissions made by the petitioner-in-person and the learned Counsel for the respondents.
14. On a careful analysis of the case, it is seen that the relief sought by the petitioner is three-fold, viz.,
(i) to direct the first respondent to ensure compliance of the provisions of the Right to Information Act, 2005 by the second and third respondents
by ensuring that all the information sought by the petitioner including the documents to be supplied by the second and third respondents are
provided to the petitioner,
(ii) to direct the first respondent to proceed further with the show cause notice issued for imposition of penalty and compensate the petitioner and
(iii) to initiate such other steps as are provided under the provisions of the Right to Information Act, 2005 including initiation of departmental
proceedings against the person(s) responsible for denying the information sought for by the petitioner.
15. In this case, it is seen that the petitioner who had been closely associated with Kalki Bhagavan, parted company with him following a rift after
the petitioner questioned the activities of the latter and his son. Due to this rift, the petitioner had come out from the Ashram and stayed in Chennai
for gathering information about Kalki Bhagavan to take certain action against him. It is also seen that the petitioner had given a complaint against
one Murugappan and others who had taken him to Akkarai bungalow belonging to Kalki Bhagavan and a complaint had been registered in Crime
No. 320 of 2005 of E.1 Mylapore Police Station u/s 419, 380 and 506(ii) IPC read with 120(b) IPC. It appears that the petitioner had been
insisting that the police should take action against Kalki Bhagavan and his son and this case filed before E.1 Police Station had been transferred to
Central Crime Branch, Chennai and re-registered on 16.04.2005 as Central Crime Branch Cr. No. 284 of 2005 and investigation had been taken
up therein. The investigation had been processed and on completion of the investigation, it was found that there was no evidence to proceed
against Kalki Bhagavan, his son and others. However, based on the evidence available, the Inspector of Police filed a charge sheet against
Murugappan alone who had taken the petitioner to Akkarai bungalow u/s 419, 380 and 506 IPC and the same was taken on file by the learned XI
Metropolitan Magistrate, Saidapet in CC No. 6073/2005 on 05.10.2005.
16. To decide whether the relief sought by the petitioner for providing the information and the documents and for initiating action to proceed further
with the show cause notice and also for departmental action can be granted, the records and the materials placed before this Court have been
perused and taken into consideration and it appears that some documents filed in the typed-set of papers would reveal certain particulars which
are shown in the following tabular column.
Sl. No. Information sought by Information provided by Reasons for not providing
the petitioner the P.I.O. information
1 Copy of the letter No. Furnished on 14.11.2006 As per the directions of
180 of DC, Mylapore except one paragraph of the State Chief Information
addressed to the JCOP, the letter Commissioner, RTI Act,
South dated 30.03.2005 Chennai dated 14.11.2006
with held para directed to be
communicated after investig-
ation is completed by CBCID
2 The complaint letter dated COP has replied in --
17.05.2006 before the her letter dated
Commissioner of Police, 14.11.2006 to the petitioner
Chennai City, what
necessary action was
taken on that to redress
necessary the petitioner''s
grievance
3 161 statement given by the Not furnished The entire case diary
petitioner in English to file has been handed over
the I.O. - 3 page original to CBCID, Chennai on
statement copy 18.07.2006 itself. In
the absence of the relevant
filed which was handed over
to CBCID, Chennai, the
information/documents called
for are not available in
Chennai City Police Office
and therefore could not be
furnished. The reasons
adduced in this column have
been intimated to the
petitioner on 14.09.2006
itself.
4 Departmental action initiated Information furnished - --
against I.O. And other police Departmental action
officers initiated against the
I.O. and other police
officers can be decided
only after the completion
of the investigation by
the CBCID - petitioner
informed of the same on
14.09.2006 itself
5 Opinion of the Deputy Furnished on 14.11.2006 --
Director of Prosecution
6 Information sought by the Third respondent (CBCID) --
petitioner pertaining to would be the proper
telephone records obtained authority to respond as
by the I.O. per the directions of
the Information Commission
17. In this context, it would be useful to analyse the following information gathered from the records available before this Court.
S. No. Information sought by Action in this regard
the petitioner
1 Letter addressed to the COP, Information sought - letter of DC,
Chennai City from the petitioner Mylapore addressed to the COP,
dated 21.03.2006 (Application Chennai City dated 30.03.2005
form enclosed)
On behalf of P.I.O, Inspector of Section 24 of RTI Act provisions
Police, Central Crime Brnach, Team quoted.
VIII informed the applicant about
the existence of G.O. Ms. No. 1043,
Public (Estt. I & Leg.) dated
14.10.2005.
2 Letter addressed to the P.I.O. by Not furnished - Section 24 of RTI
the petitioner dated 15.07.2006 Act and G.O. Mentioned above
- seeking 6 information relied upon.
3 First Appeal preferred by the P.I.O. Acknowledged - Intimating the
petitioner to the appellant petitioner that reply will be
authority/ Senior Public sent shortly - letter dated 25.08.2006
Information Officer dated
24.08.2006
4 Reminder sent to the COP by the Replied to the petitioner in her
petitioner dated 14.09.2006 letter Rc. No. 39/70279/PG.I(1)/RTI/06
dated 14.09.2006 - reply given by
the COP for the petitions given
by the petitioner dated 14.08.2006
and 14.09.2006
5 Appeal preferred by the petitioner Appeared and argued since there was
u/s 19 of RTI Act before the no mala fide intention on the part
State Chief Information of the respondents, no fine was
Commissioner on 05.10.2006 imposed. But Commission directed to
furnish information to the petitioner
as prayed for. In deference to the orders
of the Commission, information
furnished forthwith.
6 Information sought by the petitioner Alleged Show Cause Notice not issued.
from the T.N. State Information Filing of reply did not arise.
Commission dated 14.12.2006 with No fine was imposed.
regard to show cause notice alleged
to have been issued by the Commission
and reply of the P.I.O. Alleged to ahve
been filed before the State Information
Commission.
18. From a perusal of the above information, it is seen that certain information has been furnished and certain information not furnished in view of
the relevant provisions contemplated under Sections 8(1)(h), 10 and 24 of the Act as well as G.O. Ms. No. 1043, Public (Estt. I & Leg.) dated
14.10.2005.
19. It is to be noted that the first respondent, in its order dated 14.11.2006, had opined as under:
However, during the period this transfer took place and there was a time gap when the documents were still in the possession of COP. Also since
there is an allegation of corruption, immunity granted to CCB and the CB-CID over the documents does not operate. Under the circumstances,
the petitioner came on 2nd appeal to the Commission. The Commission rules that such documents which are not part of the current investigation by
CB-CID has to be handed over to the petitioner and those which are part of the investigation should be given to him after the investigation is over
and case is filed.
20. In this context, it would also be useful to refer to the directions given by the first Respondent in its order, dated 14.11.2006.
(i) The original 161 statement made by the complainant in English. This is the document which is given by the petitioner himself and cannot be held
as confidential has to be handed over to him;
(ii) The Commissioner of Police''s remarks on his complaint letter dated 17.05.2006 presented to COP, as to whom the letter was referred and
what action has been taken for redressal of his complaint.
This information should also be furnished to the petitioner as no privilege for this arises also;
(iii) The telephone record obtained by the Investigation Officer for telephone Nos. 98840 26688, 98840 12348 and 5587 1728. It was averred
by the officer from the CB-CID that these records are pertaining to a third party. As such, under RTI Act notice have to be issued to the third
party concerned and 10 days time should be given for them to respond and their response evaluated and a decision should be taken by the Public
Information Officer. If no valid objection is raised or reply is not received within 10 days or if any overwhelming public purpose is seen, the
information must be given. Public Information Officer, CB-CID is to ensure this.
(iv) The report of the Deputy Director of Prosecution dated 10.06.2006 to the CCB. This document does not appear to be a privileged document
under the Act and may be given.
(v) A copy of the Mylapore Deputy Commissioner''s report dated 30.03.2005 stating that he is transferring the case to CCB from Mylapore E1
police station. The Public Authority represented that this report contains vital information pertaining to another ongoing investigation and which
should not be revealed now and as it will jeopardize the investigation at the movement. The commission would suggest that the other 3 paragraphs
of the report may be given immediately to the petitioner and withheld paragraph, may be given communicated to him after the investigation is
completed, which according to the CB-CID would be over by the end of January 2007.
(vi) The details of departmental action initiated against some police officials mentioned in the complaint dated 17.05.2005.
21. The main grievance put forth by the petitioner is that the documents furnished to him are not exempted ones and certain documents which have
been furnished are not relevant. It is to be decided whether this Court, in the light of the above provisions, can examine whether the documents
furnished are relevant or not. As the matter has been completely seized of by the first respondent under the relevant provisions of the Act, the only
issue involved in this petition is whether certain documents which were not furnished can be exempted from the purview of the Act or not and if it is
not exempted, whether the directions sought in this petition can be considered or not.
22. From an analysis of the provisions and the exemptions u/s 24 of the Act and G.O. Ms. No. 1043, the issue for consideration comes under the
purview of the allegation of corruption. From the petitioner''s case, as culled out from the materials available on record, it is not known for what
reasons he has parted company with Kalki Bhagavan to expose the latter''s multi-crore business activities behind the scene through media and
subject his unlawful activities to legal scrutiny and as to why he apprehends certain conspiracy against him. The documents/information which the
petitioner is not entitled to have under the Act have to be scrutinised by the first respondent. Accordingly, a direction has been issued and the same
has been scrupulously followed and certain documents were furnished and some of them were not given. Also, the action initiated and the relief in
respect of taking action against the responsible officers are all matters which can be considered at the stage on the finality of the culmination of the
criminal proceedings and the ultimate conclusion whether the responsible officers are found guilty or not are all matters to be decided at a later
point of time. So far as the relief in question whether the mandamus directing the respondents 2 and 3 to provide the documents sought by the
petitioner can be given and whether the documents which were denied are exempted under the relevant provisions, can be considered only in the
light of the provisions of the Act and this can be exempted on the allegation of corruption and human rights violation.
23. The petitioner has specifically pleaded that the Investigating Officer and the three other senior Police officers took huge bribe from Kalki
Bhagavan and illegally exonerated five high profile accused persons and filed charge sheet against the lone front man before the Trial Court (C.C.
No. 6073/2005) and in order to do this, the Investigating Officer has completely distorted his case and manipulated the documents/records and he
has consistently contended that this is a case coming under the purview of corruption and therefore, exemption provided under the Act u/s 24
which specifically provide that information pertaining to allegation of corruption and human rights violation shall not be excluded under this sub-
section 4. However, in G.O.Ms. No. 1043 which has already been extracted, under item 1, Crime Branch, CB-CID which is the subject matter of
this writ petition, has been listed. Because of this notification under the Tamil Nadu Gazette dated 14.10.2005, in exercise of the powers conferred
upon the Government to notify and the applicability of the Act, in the instant case, CB-CID is exempted from the applicability of the Act and
accordingly, the respondents have acted on it in the light of the provisions contemplated under Sections 8(1)(h) and 24 of the Act and G.O.Ms.
No. 1043. As the notification has not made anything clear about the exemption granted under the proviso, the Government of Tamil Nadu has to
clarify the position of exemption available under the provisions of the Act in the first proviso to Section 24 of the Act. The point in case of what
allegations of corruption, the applicability of the Act precludes certain documents to be revealed, can be considered only when the above referred
to Government Order is clarified. Therefore, the Public Department of the Government of Tamil Nadu has to clarify G.O.Ms. No. 1043, though it
has not been impleaded as a party to this writ petition and hence, either the petitioner or the respondents is directed to approach the Secretary,
Public Department, Government of Tamil Nadu with regard to the clarification in respect of first proviso to Section 24 of the Act and the
Government of Tamil Nadu has to come out with a clarification to clear that in cases of allegation of corruption, whether the applicability of the
Act, can be considered. Thereafter, it is left open to the parties to the proceedings to clarify the position and the petitioner may approach the first
respondent for the remaining relief in respect of his claim for furnishing certain information and documents under the provisions of the Act. Only
then, the relief sought in this writ petition may be considered as otherwise, the information furnished to the petitioner as per G.O. Ms. No. 1043,
appears to be in accordance with the provisions of the Act.
With the above directions and observation, the writ petition is disposed of. No costs. Consequently, connected M.P. No. 1 of 2007 is closed.
