Central Information Commission
Brij Mohan vs Department Of Consumer Affairs on 19 March, 2018
क यसूचनाआयोग
CENTRAL INFORMATION COMMISSION
बाबागंगानाथमाग
Baba Gangnath Marg,
मु नरका, नई द ल -110067
Munirka, New Delhi-110067
Tel: 011 - 26182593/26182594
Email: [email protected]
File No :CIC/DOCAF/A/2017/179464
In the matter of:
Brij Mohan
...Appellant
Vs.
CPIO/Section Officer(Vig),
Ministry of Consumer Affairs, Food
and Public Distribution, Department of
Consumer, KrishiBhawan, NewDelhi
&
CPIO, Central Bureau of Investigation
Suptd of Police, Bank Securities and Frauds
Cell, Plot No C-35-A, G Block, BandraKurla
Complex, Bandra, Mumbai, Maharashtra- 400098
&
CPIO, the Comptroller and Auditor General
Of India, RTI Cell, Pocket-9, DeenDayalUpadhyay
Marg, New Delhi-110024
...Respondents
Dates RTI application : 11.04.2016 CPIO reply : 28.04.2016 First Appeal : 09.05.2016 FAA Order : 10.06.2016 Second Appeal : 17.10.2016 Date of hearing : 04.12.2017, 23.01.2018 Interim Order : 04.12.2017 Appellant : Absent Respondent : Shri P. Gopalakrishnan, Section Officer 1
1. Shri Brij Mohan, the appellant, sought copy of enquiry report on irregularities in the operation of NSEL submitted by CBI; comments sent to CVC; first stage advice received from CVC and official noting regarding issuing show-cause to the appellant.
2. The CPIO intimated the appellant that the CBI was an exempt organization and the information sought could not be provided. Dissatisfied, the appellant approached the FAA. The FAA transferred the RTI application to CBI. Aggrieved, the appellant came in appeal before the Commission stating that no information had been provided tohim.
3. The matter was heard by the Commission. The appellant sent a letter dated 01.12.2017 to the Commission stating that his father passed away on 19.11.2017, hence, he was unable to attend the hearing. The appellant sought adjournment in the matter.
4. The CPIO submitted his written submissions dated27.11.2017
5. The Commission accepts the request from the appellant. The matter is adjourned and the next date of hearing will be communicated to the parties in due course.
(ManjulaPrasher)
Information Commissioner
2
Final Order : 23.01.2018
Appellant : Present with representative,
Shri VidyaSagar
Respondent : Shri P.Gopalakrishnan,
Section Officer cum representative of PIO,
Department of Consumer Affairs,New Delhi
CPIO (Absent) in Mumbai
On perusal of the second appeal, it was seen that the appellant contested the reply of the CPIO on para 1(a) of the RTI application and requested to direct the respondent to provide copy of inquiry report on irregularities in the operation of the National Spot Exchange Limited (NSEL) submitted by CBI. He further stated in his second appeal that information relating to CBI report does not attract Sec 24(1) of the Act, rather it is covered by "proviso" to Section 24(1) of the RTI Act as the report relates to investigatory powers exercised by the CBI under Delhi Special Police Establishment Act, 1946 relating to allegations of corruption.
In para 1(a) of the RTI application, the appellant had sought copy of the inquiry report on irregularities in the operation of the National Spot Exchange Limited (NSEL) submitted by Central Bureau of Investigation (CBI).
The CPIO vide letter dated 28.04.2016 replied as follows:
"Please refer to your application dated 11.04.2016 on the abovementioned subject and to say that the information sought by your application point no. (a) to (d), in this regard it is informed that as per notification no. 1/3/2011-IR dated 09.06.2011 published by the Government of India has been placed at Sl. No. 23 of the second schedule to the Right to Information Act, 2005 and therefore, RTI Act is not applicable for seeking information about the matter related to CBI report u/s 24(1) of the RTI Act, 2005. Hence the information is denied u/s 24(1) of RTI Act."3
The First Appellate Authority (FAA) vide order dated 10.06.2016 held as follows:
"2. The undersigned as 1st Appellate Authority has found that Section 24(1) of the RTI Act, as amended vide notification no. GSR 4420 dated 09.06.2011 includes the name of CBI at Sl No. 23 of the second schedule of RTI Act 2005. However, the provision below reads that "provided that the information pertaining to allegation of corruption and human rights violation shall not be excluded under the subsection.
3. In view of the above it is felt that since based on the allegation in the report RDA for major penalty has been initiated against Shri Brij Mohan, the copy of the report may be made available under the RTI Act to the applicant. However in view of the mention made in the forwarding letter of CBI that in case any clarification is requested the same may be forwarded to CBI to take a view. Accordingly the RTI application, the response of the CPIO and the 1st appeal of the applicant Shri Brij Mohan are transferred to you in terms of Sec 6(3) of RTI Act, to take a view and provide the information to the applicant directly under intimation to the undersigned."
Smt. Harshita Attalauri, IPS, Superintendent of Police, CBI Mumbai letter dated 04.08.2016 reads as follows:
" Please refer to your RTI application dated 11.04.2016 vide which you have requested for the copies of documents under the RTI Act, 2005.
2. In this connection, it is intimated that under section 8(1)(h)- it would impede the process of investigation and apprehension or prosecution of offences.
3. CBI is exempted from providing information u/s 24 of the RTI Act, 2005.
4. The information sought by you pertaining to companies can not be provided to you. Since it will impede the process of 4 complaints/SIR/Investigation is exempted u/s 8(1)(h) of the RTI Act, 2005. Moreover, CBI is exempted from providing information u/s 24 of the RTI Act, 2005 by the Central Government."
The CPIO, CBI vide letter dated 02.09.2016 replied as follows:
" Please refer to your appeals dated 04.08.2016 & 11.08.2016 on the subject as mentioned above.
2. In this regard, it is intimated that vide notification no. F.No. 1/3/2011- IR dated 09.06.2011 of Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training, Government of India, New Delhi, the Central Bureau of Investigation has been put at Sl. No. 23 of the Second Schedule to Right to Information Act, 2005. Subject to the provision of Section 24 of the Right to Information Act, 2005, the RTI is not applicable to the organisation.
3. With this letter of intimation, the appeals dated 04.08.2016 and 11.08.2016 stand disposed off."
The appellant relied on the decision of the Hon'ble Delhi High Court in the case of B.S Mathur vs PIO of Delhi High Court in WP(C) 295/2011 dated 03.06.2011. The operative portion of the decision is extracted below:
"22. The reliance placed by the Respondent on the conclusion of the CIC in the impugned order that the disclosure of the information would impede the process of investigation "in the peculiar facts and circumstances" begs the question for more than one reason. First, there is a marked change in the circumstances since the impugned order of the CIC. The second enquiry has, by a decision of the Chief Justice of 3rd March 2011, been kept in abeyance which was not the position when the appeals were heard by the CIC. Secondly, it is difficult to appreciate how disclosure of information sought by the Petitioner could hamper the second inquiry when such second inquiry is itself kept in abeyance. The mere pendency of an investigation or inquiry is by itself not a sufficient justification for withholding information. It must be shown that the disclosure of the information sought would "impede" or even on a lesser threshold "hamper" or "interfere with" the investigation. This burden the Respondent has failed to discharge.5
23. It was submitted by Mr. Bansal that this Court could direct that if within a certain timeframe the second enquiry is not revived, then the information sought should be disclosed. This submission overlooks the limited scope of the present writ petition arising as it does out of the orders of the CIC under the RTI Act. It is not within the scope of the powers of this Court in the context of the present petition to fix any time limit within which the Respondent should take a decision to recommence the second enquiry which was kept in abeyance by the order dated 3rd March 2011 of the Chief Justice.
24. No grounds have been made out by the Respondent under Section 8 (1) (h) of the RTI Act to justify exemption from disclosure of the information sought by the Petitioner.
25. The writ petitions are accordingly allowed and the impugned order dated 6th September 2010 of the CIC is hereby set aside. Information to the extent not already provided in relation to the three RTI applications should be provided to the Petitioner by the Respondent within a period of four weeks from today. While providing the information it will be open to the Respondent to apply Section 10 RTI Act where required."
The appellant also relied on the decision of the Hon'ble Supreme Court in the case of Adesh Kumar Vs. Union of India in WP(C) 3543/2014 dated 16.12.2014. The operative portion of the decision is extracted below:
"10. A bare perusal of the order passed by the FAA also indicates that the aspect as to how the disclosure of information would impede prosecution has not been considered. Merely, citing that the information is exempted under Section 8(1)(h) of the Act would not absolve the public authority from discharging its onus as required to claim such exemption. Thus, neither the FAA nor the CIC has questioned the Public Authority as to how the disclosure of information would impede the prosecution.
11. The learned counsel for the respondents contended that no prejudice would be caused to the petitioner as a result of denial of information, as all material relied upon by the prosecution to prosecute the petitioner would be available to the petitioner. In my view, this cannot be a ground to deny information to the petitioner. First of all, the question whether the information sought by the petitioner is relevant or necessary, is not relevant or germane in the context of the Act; a citizen has a right to information by virtue of Section 3 of the Act and the 6 same is not conditional on the information being relevant. Secondly, the fact that the petitioner has access to the material relied upon by the prosecution does not prevent him from seeking information, which he considers necessary for his defence.
12. Accordingly, the writ petition is allowed. The impugned order passed by the CIC is set aside and the matter is remanded to the CIC to consider it afresh in view of the aforesaid observations."
He further relied on the decision of the Hon'ble Delhi High Court in the matter of Union of India vs. Sh. O. P. Nahar, WP (C) 3616/2012, judgement dated 22/04/2015, held as follows:
"13. A careful reading of the provision would show that the holder of the information can only withhold the information if, it is able to demonstrate that the information would "impede" the process of investigation or apprehension or prosecution of the offenders.
14. In the present case, the facts, as set out hereinabove, clearly demonstrate that the investigation is over. The charge sheet in the case was filed, as far back as on 31.12.2010."
On perusal of the case record, it was seen that RTI application was not transferred u/s 6(3) of the RTI Act and an invalid transfer of the first appeal was done by the first appellate authority. Be that as it may, as the RTI application was not transferred u/s 6(3) of the RTI Act it is presumed that the Ministry of Consumer Affairs is the holder of information and the same authority is not exempted u/s 24 of the RTI Act. However it is a fact that the said inquiry report was submitted by CBI. Moreover the CBI is placed under second schedule u/s 24 of the RTI Act.
The Central Bureau of Investigation (CBI), initially dealt with the offences that were notified by the Central Government related only to corruption by Central Govt. servants. In due course, with the setting up of a large number of public sector undertakings, the employees of these undertakings were also brought under CBI purview. Similarly, with the nationalisation of the banks in 1969, the Public Sector Banks and their 7 employees also came within the ambit of the CBI.As the CBI, over the years, established a reputation for impartiality and competence, demands were made on it to take up investigation of more cases of conventional crime such as murder, kidnapping, terrorist crime, etc. Apart from this, even the Supreme Court and the various High Courts of the country also started entrusting such cases for investigation to the CBI on petitions filed by aggrieved parties. Taking into account the fact that several cases falling under this category were being taken up for investigation by the CBI, it was found expedient to entrust such cases to the Branches having local jurisdiction.
In every case where the sought for information is related to a CBI enquiry, it would not be appropriate to direct disclosure of information when the information sought is related to the information prepared by the CBI. In such cases where information sought related to CBI are disclosed by other public authorities, the intention of the legislature in issuing notification no. F. No. 1/3/2011-IR dated 09.06.2011 of the Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training, Government of India, New Delhi or in regard to the placing of CBI under the exempted category u/s 24, Second Schedule of the RTI Act would become infructuous. Though the CPIO did not explain the applicability of the provisions of Sec 8(1)(h) of the RTI in the present case i.e. whether the sought for information cannot be provided to the appellant as the necessary investigation was still under way in the case by the concerned investigating/vigilance agency. However, the Commission is not inclined to accept the contention of the appellant in regard to the claiming of exclusion of exemption of Sec 24, as the sought for information is related to CBI. It is also relevant to rely on the decision of the Hon'ble Delhi High Court in the case of Intelligence Bureau vs Sanjiv Chaturvedi. The relevant part of the order dated 23.08.2017 reads as follows:
8"25. The question that arises for consideration is whether the exception carved out by the proviso to Section 24 would apply only if the allegation of corruption or human rights violations were with regard to the Intelligence Bureau itself or pertaining to an Officer of the Intelligence Bureau?
26. Section 24 (1) of the Act reads as under:-
"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.
(2) ****** ******
27. Section 24 (1) inter alia make the Act inapplicable to intelligence and security organizations, established by the Central Government, specified in the Second Schedule and further excludes any information furnished by such organisations to the Central Government from being liable to be disclosed. However, an exception is carved out to the exclusion clause 9 with respect to information covered by the proviso. The proviso stipulates that if the information pertains to allegations of corruption and human rights violations, it shall not be excluded under this sub-section.
28. A distinction is drawn by the proviso between intelligence and security organizations and the information furnished by such organisation to the Central Government. The exception carved out by the proviso to the exclusion clause is only with regard to the information and not with regard to the intelligence and security organizations. 29. The plain reading of the proviso shows that the exclusion is applicable with regard to any information. The term "any information" would include within its ambit all kinds of information. The proviso becomes applicable if the information pertains to allegations of corruption and human rights violation. The proviso is not qualified and conditional on the information being related to the exempt intelligence and security organizations. If the information sought, furnished by the exempt intelligence and security organizations, pertains to allegations of corruption and human rights violation, it would be exempt from the exclusion clause.
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".
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 10 intelligence and security organizations or not or pertains to an Officer of the Intelligence Bureau or not.
35. Clearly, the information sought by the respondent falls in the category of being exempt from the exclusion clause and is liable to be supplied.
36. The judgment in the case of ADARSH SHARMA (supra) relied upon by learned counsel for the petitioner has no applicability in the facts of the present case. The Court in that case was dealing with information sought, concerning one doctor from the Ministry of Home Affairs. The information sought was about the date of last departure of the doctor from India, the destination, airlines and the passport number. The application was transferred by the CPIO, Ministry of Home Affairs to the Intelligence Bureau. The Intelligence Bureau claimed exemption under Section 24 of the Act. The information sought for, pertained to the Immigration Department of the Intelligence Bureau. Since the information was not related to the allegations of corruption or human rights violation, learned Single Judge held that the said information did not come within the purview of the exceptions carved out by the proviso to Section 24 of the Act. It is, in these circumstances, that the directions of the CIC, directing supply of information, were quashed.
37. In view of the above, looked at from any angle, there is no infirmity with the view taken by the CIC by the impugned order dated 21.04.2016. There is no merit in the petition. The same is accordingly dismissed. No orders as to costs."
11In view of the above ratio, the Commission is of the opinion that the information sought, i.e the inquiry report was submitted by CBI. Hence, Sec 24 exemption is covered in this aspect and as the appellant was unable to prove allegation of corruption or human rights violation, the information sought cannot be disclosed.
With the above observation, the appeal is dismissed.
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 12