--- In rti4ngo@yahoogroups.com, "Dhirendra Krishna"
<dhirendrakrishna@...> wrote:

Friends,

CBI cases in the Court result in conviction of the Accused in 50%
cases and the "success rate" of other Police agencies is far lower.
CBI and Police are unable to secure conviction in large number of
cases, due the either inadequate evidence to substantiate the charges
OR the Accused is able to produce evidence that was overlooked by the
investigating agency.

The moot question is whether an Accused should be allowed to use RTI
Act 2005 to get copies of public records that may enable him to defend
his position. Typically, CBI /Police would fight tooth and nail, to
prevent use of RTI Act that may weaken the case prepared by them.

In " V.K.Puri's Digest of CIC Decisions under RTI Act 2005" by Prakash
Kumar IAS and Dr. K.B.Rai, out of 510 cases summarised by them
(i)There are 57 cases pertaining to Service Matters, (ii) 28 cases on
Vigilance Matter and Enquiry Reports and (iii) 28 cases of "Court
Cases and Subjudice Matters." Perusal of these cases indicates
divergent views of CIC / Information Commissioner, depending upon the
fact of each case.

RTI Act is two years old and on the basis of ratio of decisions of CIC
and SICs, some common principles can be derived, such as:

(a) The only exemption from RTI Act in sub-judice matters is regarding
what has been expressly forbidden by the Court or would amount to
contempt of court.

(b)Where judicial authority is seized of the matter and passed order
regarding impugned documents, RTI Act cannot be used to obtain such
documents.

(c)Documents pertaining to matter under investigation should not be
given under RTI Act.

(d) Where proceedings in a case are at advanced stage, inspection of
file of CBI/Police may impede the prosecution and such documents may
impede the prosecution; such public records are exempt from disclosure
under the RTI Act.

(e) Copy of all public documents that are used against an accused,
(including the Investigation Report and related documents)which result
in framing charges are to be given to him. However if his defence
lies in records not considered by the investigating officer to arrive
at wrong conclusions, public records that enables him to defend his
stand should also be provided to him under RTI Act 2005.

(f) Daily Diary of Police, which discloses the names of informant,
witnesses and other contacts, should not by disclosed, as it would
impede the investigation process.

(g) In sub-judice matters, prosecution is deemed to start only after
the Charges are framed by the Court. Before the framing of charges,
exemption under section 8(1)(h) is not applicable

These are few illustrations where existing "case laws" should be
examined by Police / CBI /CVC to arrive at suitable administrative
instructions. CIC / SICs are not vested with powers to issue
administrative directives and the onus lies on the concerned Public
Authorities.

In my humble opinion, Police Authorities may prefer to allow the
existing mess in criminal jurisprudence to continue, as it provides
vast powers to them. Transparency, accountability and clarity reduces
their powers. However, it is in public interest to reduce unnecessary
burden on judicial system, if criminal cases initiated by the Police
/CBI are based on incorrect factual premises. In relation of
corruption elated cases, CVC is in the nodal position to issue
instructions regarding impact of RTI Act in anti-corruption /
vigilance machinery. Public interest lies in clarity and transparency.

Dhirendra Krishna IA&AS (Retired)

--- End forwarded message ---