Central Information Commission
Ram Prakash Paswan vs Telecom Regulatory Authority Of India on 31 December, 2020
Author: Vanaja N Sarna
Bench: Vanaja N Sarna
क य सच ु ना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगनाथ माग
Baba Gangnath Marg
मु नरका, नई द ल - 110067
Munirka, New Delhi-110067
File no.: CIC/TRAOI/A/2019/121385
In the matter of:
Ram Prakash Paswan
... Appellant
VS
1.Central Public Information Officer
Telecom Regulatory Authority of India
Mahanagar Doorsanchar Bhawan, JLN Marg,
Old Minto Road, New Delhi- 110 002
2. Dy. Secretary (Coord.) & Nodal Officer RTI
Department of Telecommunication
Ministry of Communication & IT
Sanchar Bhawan, 20, Ashoka Road, New Delhi - 110 001
...Respondents
RTI application filed on : 13/11/2018 CPIO replied on : 06/12/2018 First appeal filed on : 07/01/2019 First Appellate Authority order : 24/01/2019 Second Appeal filed on : 04/05/2019 Date of Hearing : 16/12/2020 Date of Decision : 16/12/2020 The following were present: Appellant: Present over phone
Respondent: Shri S.K Dutta, Joint Director and CPIO, Shri Kaushal Kumar (Director (G) & CPIO- Patna), present over phone Information Sought:
The appellant has sought information pertaining to customer application form, call details record, call/tower location details, whatsapp messages and 1 facebook history of mobile No.9128121170 - Idea and Reliance Jio mobile number - 6201935525 - during the period from 01st Feb 2018 to 19th April 2018.
Grounds for Second Appeal The CPIO did not provide the desired information.
Submissions made by Appellant and Respondent during Hearing:
The appellant in his appeal submitted that his daughter was raped and murdered by a friend cum accused on 24.04.2018 and the process of law was set into motion but police favored the accused and conducted a biased investigation and crucial electronic evidence such as call details/cell tower location, whats app messages and facebook history of the victim and the accused were not procured from the concerned service providers and then the applicant filed an RTI application before the CPIO of TRAI on ground of parity i.e. order passed by the CIC in file no. CIC/DS/A/2010/OOO789/LS on 17.01.2011 in which the same CPIO was ordered to provide information to the applicant but instead of doing the needful for furnishing information, the CPIO forwarded the RTI application to DoT merely to mislead and dodge the demand for information and the CPIO of DoT also did not furnish any information. He further requested to treat his first appeal as part and parcel of his second appeal.
That the applicant has placed reliance upon the order passed by the CIC dated 17.01.2011 and order passed by Hon'ble High Court of Delhi in Advocate Kabir Shankar Bose Vs/ TRAI but the FAA has simply tried to white wash the procedure of 1st appeal without any intention to take notice. He objected that the FAA did not bother to ask for preservation of record of the subject matter which is perhaps deleted after one years' passage of time in the ordinary course and under this situation the case of the applicant shall suffer irreparable loss and injury which is totally illegal, unjustified, arbitrary and in violation of the law of the land. He therefore requested that proper action be taken against the PIO and direct the respondents to provide the requisite information to the applicant forthwith.
His representative submitted that a copy of the customer application form (CAF), call details record (CDR), Cell Tower Location (CTL), whatsapp messages and facebook history of mobile numbers of the deceased i.e 9128121170 (Service Provider Idea) and 6201935525 (Service Provider Jio) and accused's 2 mobile number 9631572206 should be given so that it can be proved that Dheerak Kumar and victim were together at the time of murder, for the period of 1st Feb 2018 to 19th April 2018. He also submitted that as the deceased marriage was fixed on 11.05.2018 the accused had threatened to kill her and her would be husband. Meanwhile on 18.04.2018 she was found hanging in a hut almost 1 km from her house, therefore, there is strong possibility that the accused had killed her and therefore the above stated information is very vital and may point out the irregularity in the investigation done by the Investigation Officer. He also submitted that the mobile phone was gifted by her would be husband Chandra Mohan Kumar Chandan with sim card which she was using from 1st Feb 2018 till the day of her murder. The CPIO vide written submissions dated 10.12.2020 submitted that the RTI application was already forwarded to Director & CPIO, Bihar LSA vide letter dated 20.12.2018. The RTI Appeal dated 04.05.2019 of the applicant was also forwarded to Bihar LSA vide letter dated 20.06.2019. Since the matter pertains to CPIO Bihar LSA he was requested to take suitable necessary action and attend the hearing at CIC at the scheduled date and time on behalf of DGT, HQ. The CPIO Bihar LSA submitted that information desired by the appellant was not available in their office and hence it could not be provided to the appellant.
Observations:
Based on a perusal of the record, it was noted that the earlier bench of the Commission on 17.01.2011 in the matter of Dilip Kumar vs TRAI had held as follows:
"5. Notwithstanding the above the concerns expressed by Shri Rajesh do not appear to be without merit in as much as if the TRAI is ordered to supply call details in every case, considering the huge number of mobile connections in the country, it will be humanly possible for a small regulatory body like TRAI to handle the RTI applications that may be filed with it. Besides, the point raised by him regarding this being third party information also cannot be totally ignored.
6. Be that as it may, for the time being, the CPIO is hereby directed to exercise powers u/s 12 of TRAI Act, 1997, to ascertain from the service provider as to whether the requested information is available with it. The other issues raised by Shri Rajesh would be considered in their true perspective after he has obtained the aforesaid feedback from the service provider."3
The FAA had passed a detailed order on 24/01/2019, in which he held that since the said information was not available with the Public Authority, TRAI, the CPIO, TRAI informed this to the appellant that the application is being transferred to CPlO DoT for providing information. The appellant, however, not being satisfied with the reply has filed this appeal. Upon examination, it is seen that the details of information required by the appellant such as cell tower location details, whatsapp messages and facebook history of ldea and Reliance Jio mobile numbers is not available with the Public Authority, TRAI and this has been clearly conveyed by the CPIO, TRAI. Since the matter pertains to DoT, the application had been transferred to the CPIO, Department of Telecommunications (DoT), which is a separate Public Authority. ln view of this if considered necessary, the appellant may approach the said Public Authority directly. He further mentioned that as per provisions of the TRAI Act, 1997 providing of information under RTI Act, 2005 is not under the functions of TRAl. Therefore, TRAI cannot exercise the process to call for information under section 12(1xa) of the TRAI Act, 1997 provides " where the Authority considers it expedient so to do, it may, by order in writing, call upon any service provider at any time to furnish in writing such information of explanation relating to its affairs as the Authority may require"
From the above provision of the TRAI Act, it appears that TRAI may call for only such information which it requires for discharging its functions entrusted to it under TRAI Act, 1997. Further, it is also intimated that in the case of Shri Kabir Shankar Bose Vs. TRAI- the matter is sub judice, before the Hon'ble High Court of Delhi, therefore, there is no additional information which can be provided to the appellant. It was noted that the single bench of the Delhi High Court had upheld the CIC order but the same was again challenged by TRAI and the same is pending before Division bench of the same Court in LPA 721/2018. The next date of hearing was on 26.08.2020 however the outcome is not known.
Decision:
In the interest of justice and following judicial discipline, the Commission observed that the matter can be decided only after a final decision is taken by the bench. Therefore, the CPIO is directed to contact the service provider and instruct them to preserve the records relating to the victim. As far as the 4 information relating to the third party is concerned the same need not be preserved. However, after the final decision is taken in the LPA/721/2018 a final reply shall be given to the applicant by CPIO TRAI and care shall be taken that the information related to the victim is not destroyed by the service provider till that period.
The CPIO TRAI shall inform the service providers regarding the same fortwith. The CPIO shall also take information regarding availability and shall take adequate care by informing the applicant in case the information was already weeded out.
The appeal is disposed of accordingly.
Vanaja N. Sarna (वनजा एन. सरना) Information Commissioner (सच ू ना आय! ु त) Authenticated true copy (अ भ मा णत स या पत त) A.K. Assija (ऐ.के. असीजा) Dy. Registrar (उप-पंजीयक) 011-26182594 / दनांक/ Date 5