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
know 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.
