Central Information Commission
B Bharathi vs Cbi on 9 August, 2018
क यसूचनाआयोग
CENTRAL INFORMATION COMMISSION
बाबागंगानाथमाग
Baba Gangnath Marg,
मुिनरका,
नरका नई द ली -110067
Munirka, New Delhi-110067
Tel: 011 - 26182593/26182594
Email: [email protected]
File No : CIC/CBRUI/A/2017/134473
In the matter of:
B Bharathi
...Appellant
Vs.
The CPIO & Head of Branch,Central Bureau of Investigation
Anti Corruption Branch, 3rd Floor, Shahtri Bhawan No. 26,
Haddows, Road, Nungmbakkam, Chennai - 600006. ...Respondent
Dates
RTI application : 12.11.2016
CPIO reply : 06.01.2017
First Appeal : 16.01.2017
FAA Order : 22.02.2017
Second Appeal : 07.05.2017
Date of hearing : 26.07.2018
Facts:
The appellant vide RTI application dated 12.11.2016 sought information on four points as under;
1. Certified copies of names, designation and addresses of Assistant Public Prosecutors/ Additional Public Prosecutors/Public Prosecutors/Special Public Prosecutors/Director of Prosecution appointed on regular or contract basis or case to case basis for representing CBI in various CBI courts in Tamil Nadu and Puducherry and CBI branch office, Chennai from 01.01.2014.
2. Certified copies of appointment orders issued to the Assistant Public Prosecutors/ Additional Public Prosecutors/Public Prosecutors/Special Public Prosecutors/Director of Prosecution appointed on regular or 1 contract basis or case to case basis for representing CBI in various CBI courts in Tamil Nadu and Puducherry from 01.01.2014.
3. Certified copies of orders of approval issued by Hon'ble Chief Justice of Madras High Court to the Assistant Public Prosecutors/ Additional Public Prosecutors/Public Prosecutors/Special Public Prosecutors/Director of Prosecution appointed on regular or contract basis or case to case basis for representing CBI in the Madras High Court/Chennai High Court, Chennai from 01.01.2013.
4. Certified copies of orders of approval issued by Hon'ble District Judge/Chief Justice/Principal Sessions Judge of Puducherry CBI Court to the Assistant Public Prosecutors/ Additional Public Prosecutors/Public Prosecutors/Special Public Prosecutors/Director of Prosecution appointed on regular or contract basis or case to case basis for representing CBI in the CBI Court/principal & sessions Court, Puducherry from 01.01.2010.
The CPIO replied on 06.01.2017. The appellant was not satisfied with the CPIO's reply and filed first appeal on 16.01.2017. The First Appellate Authority (FAA) vide order dated 22.02.2017 disposed of the first appeal. Aggrieved with the non-supply of the desired information from the respondent authority, the appellant filed second appeal under the provision of Section 19 of the RTI Act before the Central Information Commission on 07.05.2017. Grounds for Second Appeal The CPIO did not provide the desired information.
Order
Appellant : Present
Respondent : Absent
The present respondent CPIO, CBI was absent despite valid and timely notice of the CIC for which warning is issued to the concerned respondent PIO. The concerned PIO should desist from committing such lapse in future. He should either take prior permission of the Commission before absenting himself 2 from the hearing or he should send proper representative to the Commission's hearing after obtaining due permission from the Commission for doing so and after briefing the authorised representative duly.
During the hearing, the appellant submitted that the sought for information should be provided to him as it involves larger public interest and are related to corruption and corrupt practices indulged in by the said organisation. In such situations, the exemption provided u/s 24 of the RTI Act cannot be fully claimed. The CBI is a just like a police organisation of Central Government undertaking investigations related to corruption cases, financial fraud etc. Their main duty is investigation only. He also submitted hat as per Supreme Court Judgment, the CBI is duty bound to upload all its FIRs on its website like other police establishment. So CBI is like other police stations authorised to register FIR, file charge sheets and conduct prosecution and appeals in criminal cases. Actually it is not entitled to blanket exemption from the applicability of RTI Act under Section 24 because its main function is to conduct investigation into cases of such nature.
He relied on the following decisions:
1. WP No. 13211 of 2010, Punjab and Haryana High Court dated 28.07.2010 "13. It is not in dispute that since the information is sought in a particular context viz. prosecution of Parshotam Lal Sondhi, the material to be used by the prosecuting agency would have been served on the defence by way of report filed under Section 173 Cr.P.C. It is relevant to mention that during the trial, the petitioner would have a right to either bring evidence in defence or to cross examine the witnesses brought by the prosecution."
2. WP No. 22229 of 2011, Punjab and Haryana High Court dated 07.05.2012 "In view of the aforesaid order, the information sought by the petitioner in respect of the recruitment is the information which is 3 not exempted from disclosure. Consequently, the present writ petition is allowed. The order dated 01.11.2011 (Annexure P-12) passed by the Sate Information Commission is set aside. The respondents are directed to disclose the information sought for, in accordance with law."
3. WP No. 7439 of 2012, Delhi High Court on 07.09.2017 "10. The aforesaid question is squarely covered by the decision of the Coordinate Bench of this Court in CPIO, Intelligence Bureau v.
Sanjiv Chaturvedi: W.P.(C) 5521/2016, decided on 23.08.2017, whereby this Court has held as under:-
"30. The proviso "Provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub-section" has to be read in the light of the preceding phrase "or any information furnished by such organisations to that Government".
4. WP ( C ) 5521 of 2016, Delhi High Court on 23.08.2017 "31. When read together, the only conclusion that can be drawn is that, if the information sought pertains to allegation of corruption and human right violation, it would be exempt from the exclusion clause, irrespective of the fact that the information pertains to the exempt intelligence and security organizations or not or pertains to an Officer of the Intelligence Bureau or not."
5. WP No. 805 of 2012, Madras High Court on 28.11.2012 "10. In view of the judgment of the Division Bench read with the provisos to Section 24(4) of the RTI Act, I am of the view that the first respondent herein is entitled to have the manual of the DVAC. The manual cannot be kept as a secret document. It is nothing but a set of rules as to how the DVAC is functioning. I am not able to understand as to why the DVAC feels shy to furnish the manual. In fact, the information that were the 4 subject matter before the Division Bench were concerned with the corruption and the consequent action taken by the DVAC and those details were directed to be furnished. Hence, the DVAC cannot refuse to furnish the manual maintained by it. At this juncture, I wish to refer to the submission made by the learned senior counsel for the second respondent that the manual is not exempted from disclosure as per Section 8 of the RTI Act. While Section 8 states that there shall be no obligation to give the information relating to various documents mentioned therein, the manual of the DVAC is not one among them. Likewise, the public authorities shall maintain the rules, regulations, instructions, manuals and records for discharging their functions as contemplated under Section 4(1)(b)(v) of the RTI Act. Section 2(f) defines "information" and the same is also extracted 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."
11. On a cumulative reading of Sections 2(f), 4(1)(b)(v), 8 and the provisos to Section 24(4), I am of the view that the first respondent is entitled to the manual of DVAC. Hence, finding no infirmity in the impugned order, the writ petition fails and the same is dismissed. No costs."
6. WP No. 14461 of 2007, Madras High Court dated 13.04.2010
13.In the light of the above order of the division bench, this court is not inclined to go into the efficacy of exemption given to the Directorate of Vigilance and Anti-Corruption from the purview of the RTI Act. But, as rightly observed by the Commission, if some organisations operate in different spheres such as intelligence and security, in those areas, 5 exemption can be valid. But when the very same organisation dealt with corruption cases of public servants, then exemption under Section 24(4) of the RTI Act cannot be taken advantage of, since the proviso to Section 24(4) clearly says that information pertaining to the allegations of corrupt and human rights violations shall not be excluded under the sub-section.
18.The Supreme Court in its decision in Union of India v. Assn. for Democratic Reforms reported in (2002) 5 SCC 294 while directing the personal information of candidates standing in election to be divulged as it should be available in public domain, in paragraph 44 had observed as follows:
"44. It is also submitted that even the gazetted officers in all government services are required to disclose their assets and thereafter to furnish details of any acquisition of property annually. In our view, it is rightly submitted that in a democratic form of government, MP or MLA is having higher status and duty to the public. In P.V. Narasimha Rao v. State (CBI/SPE)22 the Court inter alia considered whether Member of Parliament is a public servant. The Court (in para 162) held thus: (SCC p.747) 162. A public servant is any person who holds an office by virtue of which he is authorised or required to perform any public duty . Not only, therefore, must the person hold an office but he must be authorised or required by virtue of that office to perform a public duty. Public duty is defined by Section 2(b) of the said Act to mean a duty in the discharge of which the State, the public or that community at large has an interest . In a democratic form of government it is the Member of Parliament or a State Legislature who represents the people of his constituency in the highest law-making bodies at the Centre and the State respectively. Not only is he the representative of the people in the process of making the laws that will regulate their society, he is their representative in deciding how the funds of the Centre and the States shall be spent and in exercising control over the executive. It is difficult to conceive of a duty more public than this or of a duty in which the State, the public and the community at large would have greater interest. (emphasis supplied) The aforesaid underlined portion highlights the important status of an MP or an MLA."
19.The Supreme Court in Vineet Narain v. Union of India reported in (1998) 1 SCC 226 dealing with cases of corruption of public servants dealt 6 with the role of the judiciary in dealing with such matters and in paragraph 55, it had observed as follows:
"55. These principles of public life are of general application in every democracy and one is expected to bear them in mind while scrutinising the conduct of every holder of a public office. It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet. If the conduct amounts to an offence, it must be promptly investigated and the offender against whom a prima facie case is made out should be prosecuted expeditiously so that the majesty of law is upheld and the rule of law vindicated. It is the duty of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law."
6. W.A. Nos. 320 & 321 of 2010, Madras High Court Dated 06.04.2011 "17. In terms of Section 24(4), the State Government is empowered to notify in the Official Gazette that nothing contained in the Right to Information Act shall apply to such intelligence and security organization being organizations established by the State Government. Nevertheless, in the light of the first proviso, such power being conferred on the State Government to notify exempting such intelligence and security organizations, it cannot notify in respect of the information pertaining to the allegations of corruption and human rights violations. As a necessary corollary, the power to exempt from the provisions of the Act is not available to the State Government even in case of intelligence and security organizations in respect of the information pertaining to the allegations of corruption and human rights violations. The application of the notification depends upon the nature of information required. In this context, we may refer that the first respondent in W.A.No.321 of 2010 has sought for the particulars relating to the number of investigations completed and the number of persons convicted for the years from 2003-2004 to 2007-2008 with the details as to the names of such convicted persons, the post held by them when the act of corruption was done, the charges framed and the 7 recommendations given to the Vigilance Commissioner after investigation. Likewise the first respondent in W.A.No.320 of 2010 has sought for the particulars relating to the number of police stations/wings/branches within the Chennai city were raided by the DVAC officials during the last five years i.e., from January, 2003, how many police officials were caught during the raids, the list of names, the designation and the address of such officials who were caught and the amount recovered from each official, details of departmental actions taken against such official including the copy of enquiry report, the details of prosecution launched against such officials, the status of prosecution against each official, how many have been re-inducted into active service including the date of rejoining the service and their present place/station of service, the details of action taken by the Department to prevent corruption at police stations/branches/wings especially in Chennai city and the grievance redressal machinery for the public to make a complaint against such corrupt official demanding bribe/favour to do the duty. As all these particulars would certainly relate to corruption, the Government Order has no application to the facts of this case."
He further submitted that although CBI is placed in the second schedule of the RTI Act, the CBI should not be given total exemption. He submitted a prayer that the CPIOs who failed to give correct and complete information within time limits should be punished under penal section of the RTI Act. Secondly, the CPIOs of the CBI consistently denied information involving sensitive public interest and information of corrupt practices in public authorities including the CBI over a period of four years. So, an enquiry is required to be ordered into the irregularities and denial of information under RTI Act. The appellant submitted that he incurred financial loss and that he was subjected to mental agony due to denial of information. Moreover the fundamental right was denied to him. Hence he should be compensated by paying Rs 5 Lakhs as compensation. He also submitted that the concerned CPIO failed to provide him information within the time limit as specified in Section 7(1) of the RTI Act. Hence he should get all requisite information free of cost.
8Observation:
The Commission after considering the submission of the appellant and after thoroughly checking the decisions relied on by the appellant, is of the opinion that the basic contention of the appellant that blanket exemption u/s 24 of the RTI Act cannot be granted to the CBI is valid. The Commission agrees to the same principle and notes that it is a settled law that if allegation of corruption or human rights violation is involved in the case, then proviso to Sec 24(1) of the RTI Act becomes applicable. It is also relevant to note here however that in the present case the appellant could not provide any material to substantiate his claim that instances of corruption are involved in the subject matter of the information sought. Hence, the Commission is not inclined to lift the veil of exemption granted u/s 24 to the concerned public authority, i.e. the CBI.
Decision:
The CBI is placed under second schedule of the RTI Act and is accordingly exempted u/s 24 of the RTI Act. The appellant in the present case had not substantiated his allegation regarding corruption or violation of human rights in this case. Hence, the reply of the CPIO is considered as just and proper and no further action lies in this case.
With the above observation, the appeal is disposed of Copies of the order be sent to both the parties free of cost.
[Amitava Bhattacharyya] Information Commissioner Authenticated true copy (A.K. Talapatra) Deputy Registrar 9