Central Information Commission
Abhishek Shukla vs Central Reserve Police Force on 6 September, 2018
CENTRAL INFORMATION COMMISSION
BABA GANGNTH MARG, MUNIRKA
New Delhi-110067
F. No.CIC/CRPFO/A/2017/603514
Date of Hearing : 26.03.2018, 28.05.2018,
06.09.2018
Date of Interim Decision : 23.04.2018, 03.07.2018,
06.09.2018
Appellant/Complainant : Abhishek Shukla
Respondent : PIO,
Dy. Inspector General
Directorate General
CRPF
With
PIO, MHA; Police Division
Through: (On 26.03.2018)
Shri M.K. Verma, 2IC
Shri Gagan Bharti, SM
Shri Vijay Sharma, Inspector
Information Commissioner : Shri Yashovardhan Azad
Relevant facts emerging from appeal:
Case No. RTI filed on CPIO reply First appeal FAO
603514 26.05.2017 31.05.2017 31.05.2017 03.07.2017
Information soughtand background of the case:
Vide online RTI application dated 26.05.2017, the appellant sought information as under:-
1. Has IG RajnishRai sent any report on the encounter with two suspected members of the National Democratic Front of Bodoland (Songbijit) on March 30.
2. When was this report received?
3. What action has been initiated on the basis of the report.
4. Please provide a copy of the report along with action taken on the basis of it.
5. Is CRPF or the Home Ministry carrying out any inquiry against IGP RajnishRai.
PIO denied information claiming exemption under Section 24(1) of RTI Act. Dissatisfied with response received from PIO, the appellant filed first appeal. FAA in response to appeal upheld the reply of PIO. Feeling aggrieved onnon- receipt of information, the appellant approached the Commission. Relevant facts emerging during hearing (26.03.2018):
Both the parties are present and heard. The appellant while relying on the media reports filed on record, submits that an alleged encounter took place on 30 March 2017 at Chirang, Assam wherein two alleged extremists; identified as LukashNarzary alias Langfa and David Islarybelonging to prohibited terrorist organization National Democratic Front of Boroland were confronted and killed by a joint operation team of CRPF, Army, SSB, Assam Rifles and Assam Police.He states that as per the official version, the joint operation was reported as a successful operation wherein reportedly a party of insurgents in the wee hours of the day were engaged by the joint forces in gun battle and later two of the militants were neutralised in cross-firing.He states that as per national media reports, the aforesaid 'encounter' was inquired into by the then Inspector General, CRPF (North East), Mr. RajnishRai, IPS who submitted his report to the Director General, CRPF. The appellant while referring to the media reports claims that the encounter, 'presents a fictitious account of the joint operation by the security forces to cover up pre-planned murders of two persons in custody and present it as some brave act of the professional achievement.'In this backdrop, the appellant asserts that a prima facie case of human rights violation has been made out and the information sought cannot be denied to him inasmuch as the same qualifies for disclosure under first and second proviso appended to Section 24 (1) of the RTI Act.Relevant statutory provision reads as:
24. Act not to apply to certain organizations.--
(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:
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 Central Information Commission, and notwithstanding anything contained in Section 7, such information shall be provided within forty-five days from the date of the receipt of request.
In the factual backdrop, the appellant presses for disclosure of information as having made out a prima facie case of alleged human rights violation.
On the other hand, the PIO apart from raising plea of exemption from disclosure under Section 24 in general, asserts that revelation of information sought wound not only prejudicially affect the sovereignty and integrity of India and the allied security interest of the state but will adversely impact the morale of armed forces deployed in the North East for maintaining law and order. Thus, the PIO places reliance on Section 8(1)(a) of the RTI Act, 2005.
8. Exemption from disclosure of information.--
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen,
(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
Upon a query by the Commission as regards the status of processing and action taken upon of the report in question, both the parties plead ignorance. However, the appellant expressed apprehensions that the report was 'buried' by the higher authorities to discourage any plea of further investigation by any 'external independent agency', as reportedly recommended by Mr. RajnishRai.
Interim Decision(23.04.2018):
Having heard the parties and length, the Commission is of the view that the appellant has made a prima facie case warranting disclosure of information sought, by bringing it within the ambit of first proviso of Section 24 of the RTI Act. The language of Section 24 is unambiguously clear. The expression 'allegations of corruption and human rights violations' do not cast a burden upon the information seeker to establish the instance of actual corruption or human rights violation beyond reasonable doubt. 'Allegation' has to be interpreted purposively in line with the Act.
However, the information sought ipso facto would not qualify for disclosure. Each query has to be tested on the touchstone of Section 8. The Commission is of the view that queries no 1 and2 do not attract any bar under Section 8(1)(a) and there is no impediment in disclosure of information on the same to the appellant.The fact of existence of report in question, date of receipt and action initiated does not qualify for exemption under Section 8(1)(a). As such, the CPIO CRPF is directed to furnish reply on point no. 1 and 2 forthwith to the appellant within 2 weeks of receipt of this order.
As regards the rest of the queries, ie. 3, 4& 5, the Commission is of the opinion that without examining the contents of the report in question, the applicability of Section 8(1)(a) cannot be evaluated.
Apart from hearing the respective versions of the parties, the Commission takes suomotu notice of the fact that the place of occurrence, Chirang province in Assam was declared a disturbed area under the Armed Forces (Special Powers) Act (AFSPA) at the relevant time. Considering the apparently conflicting interests of human rights violation and national security; as portrayed by parties hitherto, the Commission is inclined to summon and call for the complete records of the case before deciding the present appeal. The Commission hastens to clarify that the said exercise shall be confined to deciding the question of disclosability of the information sought under the RTI Act.
In view of the nature of matter and the fact that various central agencies jointly executed the encounter operation, CPIO, MHA is also impleaded as a party. The CPIO, CRPF as well as CPIO, Ministry of Home Affairsshall remain present before the Commission with the enquiry report authored by then IG (North East) CRPF and the complete records of the processing of the filealongwith final decision taken thereon, by CRPF and MHA. The PIOs shall also submit a status report on the matter before the Commission.
Re-notify on 28.05.2018 for further proceedings and presence of PIOs with records called for as directed.
Relevant facts emerging during further hearing [28.05.2018]:
The appellant is absent. Respondents from CRPF Shri RakeshSethi, DIG (Adm) with Shri Gurshakti Singh Sodhi, DIGare present and heard. The CPIO, MHA is absent despite notice. The respondents from CRPF submit that on point no. 1 & 2 information has been furnished to the appellant vide reply dated 04.05.2018. Copy of reply taken on record.
The PIO, CRPFfurther submits that all other queries under points no. 3 to 5 pertain to MHA and CRPF is not the custodian of information. Upon a query from the Commission, it is submitted by the respondent that a discreet enquiry was conducted at the instance of Mr. RajnishRai. The report was then transmitted to MHA by DG, CRPF for appropriate action.
Upon further enquiry, the Commission is apprised that a Magisterial enquiry was conducted in the incident which established that there was nothing untoward and the same has been accepted as final. The report is stated to be filed before the National Human Rights Commissionas well as State Human Rights Commission.
Interim Decision (03.07.2018):
In view of the submissions made by PIO, CRPF, the Commission finds that information under the control of CRPF has been furnished to the appellant. The presence of PIO, CRPF is dispensed with in the present case for further hearing.
Rest of the queries at Sr. No 3-5 pertain to MHA. In view of the absence of PIO, MHA in course of hearing, a final opportunity of hearing is granted to MHA. PIO, MHA to remain present with complete records of the case and report authored by Mr. RajnishRai under question.PIO is at liberty to file submission clearly bringing out a reply as against each of the remaining unreplied queries of the RTI application.
It is clarified that ex-parte decision shall be taken if the PIO, Police I Division, MHA remains absent on next date of hearing. Re-notify for final hearing on 06.09.2018 at 1230 hrs. Relevant facts emerging during further hearing [06.09.2018]:
Appellant: Absent Respondent: Shri R.S. Vaidya, Dy. Secy. MHA, Shri Anil Subramanian, Director MHA, Shri SS Sejwal, Legal officer.
The appellant is absent. The respondents are present and heard. A written submission has been brought on record by the respondents indicating reply of MHA as against query no. 3-5. In reply to the RTI queries, the respondents have held the information sought to be classified and barred from disclosure under various provisions of Section 8. The report, as authored by Mr. Rajneesh Rai however has not been presented before to the Commission despite a clear direction to that effect. The respondents reiterated that the information sought cannot be disclosed to the applicant. The written submission filed before Commission is stated to be approved by the Secretary, Ministry of Home Affairs, GoI.
Interim Decision (06.09.2018):
The contention advanced by the respondent justifying non-disclosure merits consideration and same shall be considered at appropriate time. However, the rival contention of parties cannot be weighed and adjudicated until and unless, the very report which is the subject matter of adjudication is not available with the Commission. Until and unless, the contents of report are made known to the Commission, no adjudication on the dispute over disclosability of the report can be done. It is neither feasible nor pragmatic or judicious to have an opinion over the disclosability of a document without actually knowing the actual contents.
A last and final opportunity is granted to MHA to produce the enquiry report with the connected files before the Commission. The Commission shall take a view after examining the report and other documents in ambit of the queries no. 3-5. The record is being summoned under Section 18(3)(a) & (e) of the RTI Act. The respondent MHA through Secretary, MHA shall take due notice under Section 18(4) of the RTI Act and no part of the document summoned shall be withheld from the Commission. Let the record be produced before the Commission on 17.09.2018 at 1 pm. The respondents have made a prayer for conducting in-camera proceedings. The same is allowed. The registry is directed to make necessary arrangements accordingly. Adjourned for final proceedings and hearing on 17.09.2018.
A copy of the present decision shall be issued dasti to office of Secretary, MHA.
(Yashovardhan Azad) Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges prescribed under the Act to the CPIO of this Commission.
(R.P.Grover) Designated Officer