Central Information Commission
Neha Dharmani vs Cbi on 10 July, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No: CIC/CBRUI/A/2022/119501
Neha Dharmani अपीलकता/Appellant
VERSUS
बनाम
CPIO,
CENTRAL BUREAU OF
INVESTIGATION, BANKING
SECURITIES FRAUD ZONE, RTI
CELL, PLOT NO. C-35-A,
G-BLOCK, BANDRA KURLA COMPLEX,
BANDRA (E), MUMBAI-400098,
MAHARASHTRA. ितवादीगण /Respondent
Date of Hearing : 15/03/2023
Date of Decision : 04/07/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 14/01/2022
CPIO replied on : 24/01/2022
First appeal filed on : 10/02/2022
First Appellate Authority order : 11/03/2022
2nd Appeal/Complaint dated : 05/04/2022
1
Information sought:
The Appellant filed an RTI application dated 14.01.2022 seeking the following information:
"A. Furnish the copy/ies of Look out notice/(s)/ detention notice/(s) / Lookout Circular (LOC) issued relating to Neha Dharmani.
B. Provide the Name and Designation of Officer who authorized to issue the Lookout notice/Lookout circular (LOC) detention notice relating to Neha Dharmani.
C. Provide a copy of Act, Guidelines, Circulars, Notifications, office Memorandum Rules and Regulations, Copy of Act etc relating to Look out notice/detention notice/Lookout Circular (LOC) relating to Neha Dharmani.
D. Any other relevant details from the Year 2018 to/till date relating to the above said points herein mentioned in this RTI."
The CPIO furnished a reply to the appellant on 24.01.2022 stating as under:
"In this connection, it is hereby informed that CBI is exempted from providing this information u/s 24 of RTI Act, 2005 r/w sec 8 (1) (h) of RTI Act 2005."
Being dissatisfied, the appellant filed a First Appeal dated 10.02.2022 stating inter alia as under:
i) The information sought by the Applicant relates to human right and fundamental right violation of the Applicant by the Central Bureau Of Investigation, Government Of India, Banking Securities Fraud Zone and-the same is not barred under section 8 (h) of the said Act.
j) The information sought by the Applicant by not stretch of imagination would impede the process of investigation or prosecution of offenders.
k) The information sought by the Applicant is in respect of her own travel details and is crucial to the Applicant for a fair opportunity of self-defence.2
l) The Learned Public Information Officer failed to appreciate that the disclosure of information sought as to whether any LOC (s) has been opened against the Applicant would not have the effect of impeding or hampering the investigation process.
m) The response is in teeth of Judgment passed by the Delhi High Court in W.P. (C) No. 3114/2007, Bhagat Singh v. Chief Information Commissioner and others. A copy of the said Judgment is annexed hereto and marked as Exhibit "C".
n) The response is in teeth of Judgment passed by the Central Information Commission in Second Appeal No. CIC/INBRU/A/2018/629310.
o) The response is in teeth of Judgment passed by the Central Information Commission, Decision No. CIC/DEPOL/A/2017/312531, dated 12.10.2017.
p) The Applicant desires to assail the legality and validity of any Look Out Notice (s)/detention notice (s),/ Look Out Circular (LOC), if issued to the Applicant and the same can only be done if information sought is furnished.
q) The impugned Reply fails to consider that no fetters can be put upon the right of an aggrieved party to seek documents in respect of a Look Out Notice. In the facts of present case, the appellant is not seeking information related to any third party but his own travel details to prove his innocence in a criminal proceeding. The information sought is crucial to the appellant for a fair opportunity of self-defence. The Commission is not considering the culpability or innocence of the appellant in the criminal case set up against him, but declining a fair opportunity to arrange for material of self-defence would certainly breach the human right of appellant.
r) Furthermore, there is no impediment in terms of exceptions carved out in Section 8 of the RTI Act prohibiting dissemination of information sought. The impugned Decision violates the settled pronouncements on the issue. In case no.
CIC/INBRU/A/2O17/118048 - Shri M. Dinesh Vs. PIO Bureau of Immigration/lB...."
FAA's order, dated 11.03.2022, held as under:
"I have perused the RTI Appeal dated 10.02.2022 (received in this Office on 14.02.2022) filed by Ms Neha Dharmani against decision dated 24.01.2022 of CPIO&HoB, CBI, BSFB, Mumbai on her RTI application dated 14.01.2022. I have 3 also perused the decision of CPIO & Head of Branch, CBI, BSFB, Mumbai conveyed vide letter dated 24.01.2022 and other relevant documents. I agree with the CPIO & Hoe. CBI, BSFB, Mumbai that the information sought at points 'A"B' & 'C' of RTI application dated 14.01.2022 cannot be provided. It is noted that further investigation of case RC.6/E/2016/BSFB/MUM U/s 173(8) Cr.PC is continuing. The information sought by the appellant is exempted under Section 8(1)(g)&(h) and Section 24 of RTI Act. 2005. However, the CPIO & HoB, BSFB, Mumbai may inform appellant the reasons for issuing LOC against Ms. Neha Dharmani in response to point 'D'."
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
"p. The Respondents failed to appreciate that the information sought by the Appellant is required to defend the case of the Appellant and the same is required to be provided to defend the case of the Appellant and the same cannot be denied by resorting to section 8 (1)(g) & (h) of the said Act;
q. The Respondents failed to appreciate that the information sought by the Appellant relates to human right and fundamental right violation of the Appellant by the Central Bureau Of Investigation, Government Of India, Banking Securities Fraud Zone and the same is not. barred under section 8 (h) of the said Act;
r. The Respondents failed to appreciate that the information sought by the Appellant by no stretch of imagination would impede the process of investigation or prosecution of offenders;
s. The Respondents failed to appreciate that the information sought by the Appellant is in respect of her own travel details and is crucial to the Appellant for a fair opportunity of self-defence;
t. The Respondents failed to appreciate that the disclosure of information sought as to whether any LOC (s) has been opened against the Appellant would not have the effect of impeding or hampering the investigation process;
u. The lmpugned Order is in teeth of Judgment passed by the Delhi High Court in W.P. (C) No.3114/2007, Bhagat Singh v. Chief Information Commissioner and others.
v. The Impugned Order is in teeth of Judgment passed by Hon'ble Commission in Second Appeal CIC/INBRU/A/2018/629310.
w. The Impugned Order is in teeth of Judgment passed by this Hon'ble Commission in Decision No. CIC/DEPOL/A/2017/312531, dated 12.10.2017.
x. The Impugned Order is passed on the basis of surmises and conjectures by invoking section 8(g) of the said Act."4
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Manish Sawant, representing Advocate Arun Panicker for the Appellant through video conference.
Respondent: Amit Bharadwaj, DSP & CPIO present through video conference.
The Rep. of the Appellant was heard at length whereby he narrated the factual background of the information sought for in the RTI Application; reiterated the queries mentioned therein as well as read out the contents of the CPIO's reply, FAA's order. The emphasis was on the sole argument that the information is required to put forth the self defence of the Appellant and that it does not relate to any third party and reliance placed on certain decisions of the Commission as mentioned in the grounds of First & Second Appeal as above was also reiterated. Upon a query from the Commission, the Rep. of the Appellant submitted that the Appellant got to know of the lookout notice issued in 2018 only upon reaching the airport during one of the COVID impacted years and later she was able to travel overseas only after the intervention of the Court.
The CPIO reiterated the denial of the information and stated that since the case of investigation was ongoing against the Appellant as has been brought out in the FAA's order, the information could not have been provided. Upon a query from the Commission, the CPIO explained that per procedure, request is made to the Immigration authorities to issue look out circular based on the input provided in the case under investigation and the person concerned is not directly issued with the LOC.
Decision:
The Commission based on a perusal of the facts on record observes at the outset that the information sought for at paras C & D of the instant RTI Application does not even conform to Section 2(f) of the RTI Act as the query at para C is merely speculative in nature asking for justification for issuance of the alleged LOC, while para D seeks the interpretation of the CPIO to find out relevant information to be provided. The Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal 5 provisions under the RTI Act. For the sake of clarity, the provision of Section 2(f) of the RTI Act is reproduced hereunder:
"2. Definitions.--In this Act, unless the context otherwise requires,--
(f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;.."
In this regard, the Appellant's attention is drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it was held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide `advice' or `opinion' to an applicant, nor required to obtain and furnish any `opinion' or `advice' to an applicant. The reference to `opinion' or `advice' in the definition of `information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act." (Emphasis Supplied) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer &Ors. [SLP (CIVIL) NO.34868 OF 2009], the Hon'ble Supreme Court held as under:
"7....Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to 6 why he had taken such a decision in the matter which was before him...."
(Emphasis Supplied) And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.
Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating authorities and cannot properly be classified as information." (Emphasis Supplied) For the reasons mentioned as above, the FAA's order is set aside to the extent of ordering relief on para D of the RTI Application.
As for the reliance placed by the Appellant on the decisions of the Commission, it has been noted that the decision in File No.CIC/INBRU/A/2018/629310 upholds the response of the CPIO, Intelligence Bureau in denying the information related to issuance of LOC under Section 24 of the RTI Act. While, the decision in File No. CIC/DEPOL/A/2017/312531 provides for limited relief in terms of disclosing "whether or not a LOC was issued" and the same is inapplicable to the instant case as the Appellant here is already aware that LOC has been issued in her name. Similarly, the decision in File No. CIC/INBRU/A/2017/118048 is about an Appellant who was observed to have suffered due to a FIR registered on the basis 7 of a false complaint that led him to 15 days of judicial custody and the endorsements on his passport would have conclusively established that he was not in India during the period in question and the FIR filed against him is false but for want of legible stamps affixed on his passport, therefore relief was ordered in that matter with the following rider:
"The Commission is quite alive to the possible exponential increase in requests for information under RTI Act regarding foreign travel citing the present decision as precedent. It would not be possible to postulate all specific instances in which information shall be divulged. The same depends on facts and circumstances of each case and the present decision cannot be generalised."
Succinctly put, the reliance placed by the Appellant on either of the above- mentioned decisions of the Commission do not apply to the facts of the instant case.
With specific reference to the case of the Appellant, the Commission is not inclined to accept the plea of human rights violation to order for relief under the provisions of the RTI Act when the avenue of appropriate remedy has been already set in motion by the Appellant by approaching the Court and as a matter of fact the Appellant has also travelled during this period of the alleged operation of LOC as admitted by the Advocate of the Appellant. In this context, the Commission is guided by a judgment of the Hon'ble Delhi High Court in the matter of Dr. Neelam Bhalla vs Union Of India & Ors [W.P.(C) 83/2014] dated 03.02.2014, which held as under:
"4. Having heard learned counsel for the petitioner, this Court is of the view that once the CIC has held that DRDO is an exempted organisation under Section 24 of RTI Act and the information sought does not pertain to corruption and/or human rights violation, it was not open to the CIC to carve out any further exemption...." [Emphasis Supplied] The said judgment was later upheld by a division bench of the Court in LPA 229/2014 on 11.03.2014.
Having observed as above, no relief is warranted in the matter.
8Nonetheless, the Commission notes that the CPIO erred in citing Section 8(1)(h) and Section 24 of the RTI Act in conjunction in their reply of 24.01.2021 thereby causing unwarranted confusion to the Appellant. The CPIO was required to assess the allegation of corruption or human rights violation, if any, pertinent in the matter before deciding upon the applicability of the exemptions of Section 8 of the RTI Act. The CPIO is hereby advised to remain careful while acting upon the RTI Applications in future.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) हािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स!यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 9