Central Information Commission
Sudhir Chaudhary vs Department Of Law, Justice And ... on 15 November, 2018
CENTRAL INFORMATION COMMISSION
Baba Gang Nath Marg, Munirka,
New Delhi-110067
F. No.CIC/DLJLA/A/2017/194084
Date of Hearing : 18.06.2018
Date of Decision : 01.08.2018
Date of Hearing (Show Cause) : 20.09.2018
Date of Decision (Show Cause) : 12.11.2018
Appellant/Complainant : Shri Sudhir Chaudhary
Respondent : PIO/Executive Magistrate,
Chanakya Puri, Sub-Divison, O/o
the District Magistrate, (Govt. of
NCT of Delhi)
2.PIO/Department of Law Justice &
Legislative Affairs (Govt. of NCT of
Delhi),
3.PIO/Sub-Divisional Magistrate-
III-(HQ), Legal Cell, O/o. the
Divisional Commissioner (Govt. of
NCT of Delhi)
4. PIO/ O/o. the Dy.
Commissioner, Revenue
Department (Govt of NCT of Delhi)
Information Commissioner : Shri Yashovardhan Azad
Relevant facts emerging from appeal:
RTI application filed on : 12.05.2016
PIO replied on : 21.10.2016
First Appeal filed on : 05.11.2016
First Appellate Order on : -
2nd Appeal/complaint received on : 20.12.2016
Page 1 of 8
ORDER
1. The present appeal is predicated upon non receipt of information by the appellant. It would be relevant to narrate the factual matrix espousing the present case.
2. On 9th February 2016, a protest was allegedly staged at Jawaharlal Nehru University (JNU) campus against the capital punishment meted out to the 2001 Indian Parliament attack convict Afzal Guru. A radical group of individuals, shouted "anti-India" slogans. The event was video graphed and broadcasted by some prominent news channels. The same went on to become a national headline and sparked outrageous reactions nationwide. However, a controversy as regards the authenticity of the video footage showing certain persons shouting anti-national slogans soon erupted. In the foregoing context, some JNU students were arrested by Delhi Police for their alleged role in the anti national activities.
3. In April 2016, the Delhi Govt. took cognizance of the controversy involved and approached the Court of Chief Judicial Magistrate, New Delhi seeking criminal action against the three news channels alleged to have broadcasted a 'doctored' video of the JNU protest. A criminal complaint was filed against Zee News, News X, and India News with allegations of having knowingly and with malicious intent caused damage to JNU students and the university. Charges under Sections 465 (punishment for forgery) and 471 (using as genuine forged document or electronic record) of the IPC were pressed against the news channels and their respective editors.
4. In the aforesaid context, the appellant herein, being the editor of the Zee news sought the following information vide RTI application dated 12.05.2016 :
1. What is the process of filing a criminal complaint on behalf of Govt. of NCT of Delhi?
2. Who holds the authority in granting permission to file complaint on behalf of NCT of Delhi, whether Hon'ble Lieutenant Governor or Hon'ble Chief Minister of NCT of Delhi?
3. What process was followed in filing criminal complaint under section 190 and 200 of Code of Criminal Procedure tilted State (NCT of Delhi) Page 2 of 8 Vs M/s. Zee News & Ors. Filed in the court of Shri Sumit Dass, Hon'ble CMM, Patiala House Courts, New Delhi which was listed on 25.04.2016?
4. Who has granted the permission to Shri Sunil Dutt Sharma, working as SDM, Vasant Vihar Delhi to file complaint against news channels titled as State (NCT of Delhi) Vs Zee News & Ors. Filed in the court of Shri Sumit Dass, Hon'ble CMM, Patiala House Courts News Delhi and listed on 25.06.2016?
5. Copy of entire file granting the permission to file the complaint titled as State (NCT of Delhi Vs Zee News & Ors.) filed in the court of Shri Sumit Dass, Hon'ble CMM, Patiala House Courts News Delhi and listed on 25.06.2016 etc.
5. The APIO/Executive Magistrate, Chanakya Puri Sub-Division vide letter dated 25.07.2016 stated that the requisite information was not available in Sub-Division, Chanakya Puri. The RTI application was transferred successively to concerned department many times but the appellant did not get the reply of his RTI application. The appellant filed first appeal and same remained unheard. Feeling aggrieved as dissatisfied, the appellant approached the Commission.
6. The appellant is absent during the course of hearing. The respondent from Dept of Law & Justice, GNCTD is present and heard. The respondent submits that the RTI application was transferred to the relevant quarter i.e. SDM - Vasant Vihar area. Upon a query from the Commission as to whether the RTI was replied, the respondents are clueless. The Commission finds that the PIO ought to have transferred the notice of hearing to the transferee PIO. A perusal of the record shows that the complaint in the matter on behalf of Delhi Govt was pursued by SDM, Vasant Vihar. Hence, he is the custodian of information as regards the authorization / basis of his complaints made before CMM, New Delhi.
7. The appellant has been approached against on the basis of the complaint filed by Delhi Govt. Thus, he had an equitable right to know as to on the basis of what incriminating material, fact finding enquiry and under whose directions, the SDM approached the court of Chief Metropolitan Magistrate against him and other similarly situated journalists. Freedom of press is hallmark of democracy. The present instance of denial of information has a direct bearing on the moral of the fourth pillar of Page 3 of 8 democracy. If as per the respondents, the appellant and others were not doing fair reporting of news, the respondents ought to have readily shared the information. Stonewalling the information sought does not further the cause of transparency. Delay or denial in such cases invokes suspicion.
8. None of the queries are exempted from disclosure. The PIO/SDM Vasant Vihar is directed to furnish complete information within 3 weeks of the receipt of the order.
9. Since there has been no justification brought on record for the delay in replying to the RTI application and the apparent stonewalling of the information; let a show cause for the maximum penalty u/s 20 of the RTI Act be issued to the then PIO/ SDM Vasant Vihar. Reply, if any be filed before the Commission by 14.09.2018. Show cause be served through the FAA & the present PIO.
10. List for further penalty proceedings on 20.09.2018.d PENALTY PROCEEDIGS UNDER SECTION 20 OF THE RTI ACT 2005
11. As a sequel to the order passed by the Commission dated 01.09.2018, a show cause notice was issued to then PIO, Shri Sunil Dutt Sharma, who as PIO/SDM Vasant Vihar had replied to the RTI application. A detailed reply alongwith supporting documents are placed on record by the noticee. It would be worthwhile to reproduce the relevant extracts from the reply:
Kind attention is invited to order No. CIC CIC/DLJLA/A/2017/194084 dated 01.08.2018 cited in the subject (copy enclosed) wherein it has been observed that SDM, vasant vihar did not repry to RTI application fired by Shri Sudhir Chaudhary, applicant apparently with a view to stonewalling of the information desired in the RTI application filed by the applicant to PIO, Department of Law Justice and Legislative Affairs, GNCT of Delhi on 12t5t16. ln this regard, at the outset, it is humbly informed that the undersigned had been posted to the post of SDM Vasant Vihar with effect from 26.03.2016 to 15.12.2016 and transferred to post of SDM Delhi Cantt. with effect from 16.12.2016 to 31.07.2018 and presently posted and working as Deputy secretary, Legislative Assembly' NCT of Delhi with effect from 01.08.2018. lt is pertinent to Page 4 of 8 inform here that after the perusal of the concerned file made available to me by the office of the SDM Vasant Vihar, the name of undersigned was approved by the Hon'ble Deputy Chief Minister/Divisional Commissioner, Revenue Department for filing the complaint against M/s Zee News & ors vide approval dated 21.04.2016 in the relevant file Thereafter, as advised by the standing counsel, GNCTD the concerned fire was sent to Pr.
Secretary, Home through Divisional commissioner, Revenue vide a note dated 25.04.2016 put up by undersigned in order to obtain sanction for prosecution under Section 196 of CrPC. lt has also been revealed after the perusal of the file that the said file has been received back on 28 04 2017 i e after a gap of nearly 01 (one) year. Accordingly, on receipt of RTI application dated 12.05.2016 transferred under Section 6(3) of RTI Act, 2005 by APIO/Tehsildar(HQ) New Delhi District and received in the office of SDM, Vasant Vihar 28.06.2016, the undersigned was not in possession/custody of the main file relevant to filing of complaint and other related information against the above noted News Channels and therefore the reply stating that "lt is hereby informed that the desired information is not available in this office" was furnished to Shri Sudhir Chaudhary vide dated 13.07.2016.
It is appropriate to record here that another reply to the same RTI application received again in the office of SDM Vasant Vihar 05.07.2016 was duly furnished vide letter dated 18.07.2016. Copies of replies/letters dated 13.07.2016 and 18.07.2016 are hereby enclosed as Annexure-A and Annexure-B respectively.
It is sincerely submitted that the undersigned was handicapped to provide point wise reply to the application filed by the Sudhir Chaudary in the absence of the main File No F.36/148/CWRD/DIV.Comm/2016, Computer No.087371791 Subject.- Enquiry report noted the undersigned which to play in JNU on 9th February 2016, which was submitted to Principal Secretary (Home) through Divisional Commissioner (Revenue) for grant of sanction to prosecute under Section 196, CrPC on 25.04.2016.
It is earnestly submitted that there was no iota of any deliberate intention to obstruct the flow of information with regard to the RTI Page 5 of 8 application filed by Shri Sudhir Chaudhary to the Department of Law, Justice of Legal Affairs, GNCT of Delhi and subsequently transferred to Department of Revenue, GNCTD and received in the office of SDM Vasant Vihar on 28.06.2016.
The perusal of the appeal filed before the Hon'ble Central Information Commission had been received in the office of SDM Vasant Vihar vide Diary No. 474F 58 / 65 58 / 66 58 / 81 14736 dated 16.12.2017 whereas the undersigned was transferred from SDM Vasant Vihar to SDM Delhi Cant on 16.12.2016. The perusal of this appeal also reveal the fact that Shri Sudhir Chaudhary applicant, being aggrieved by the letter/replies dated 13.07.2016, 18.07.2016 and 25.07.2016, preferred the first appeal on 26.08.2016 before the First Appellate Authority/ADM District, New Delhi, Room No.05, 12/1, Jam Nagar House on 26.08.2016. However, it appears that inadvertently the appeal was not heard in a timely manner by the First Appellate Authority (New Delhi). Subsequently no hearings were conducted on the appeal filed by the applicant and no relevant orders to furnish the information etc were issued by FAA in favour of the applicant as a result of which Shri Sudhir Chaudhary, applicant aggrieved by act of FAA/ADM ( New Delhi District) approached the Hon'ble Central Information Commission.
In light of averment recorded above the undersigned fervently beseech and reverently pray that the Show Cause Notice issued to undersigned may kindly be withdrawn. Further, that the undersigned hereby assures his presence for the hearing of the penalty proceedings scheduled for 201912018 at 3.00 PM in compliance of the orders of Hon'ble Information Commissioner.
12. The noticee as well as the present PIO/SDM, Vasant Vihar are present and heard. The noticee apart from reiterating his contentions mentioned on record accedes that the RTI was not replied with diligence. Upon a query by the Commission as to what prevented him from seeking assistance under Section 5(4) or transferring the RTI application to the quarter, where the file/ record was sent, the PIO has no justification to offer.
Page 6 of 813. It is thus, apparent that the noticee failed to exercise ordinary diligence expected from a PIO and furnished an evasive & inchoate reply which failed to address queries of the appellant. The reply of notice submitted to the appellant reads as:
Kindly refer to your application dated 11-05-2016 and received in this office on 28-06-2016. It is hereby informed that the desired information is not available in this office.
The reply marks dead end of the RTI application. It does not seem that the noticee did any attempt to inform the appellant about the whereabouts of the official record. Had the noticee informed the appellant that the relevant record was under submission to some other custodian or transferred the RTI application to the relevant custodian holding information, the Commission could have accepted the explanation of noticee.
14. There is an apparent violation of the mandate of RTI Act, 2005. The appellant had to approach this Commission for seeking basic information concerning his fate in a criminal complaint. This is nothing but a systematic failure of the RTI regime in respondent public authority and the noticee is blameworthy of not exercising due diligence and thereby obstructing flow of information. Accordingly, the Commission finds the noticee to be erring in his duty as PIO and imposes a penalty of Rs. 25,000/-.
15. The Commission had occasion to examine the revised reply furnished by the PIO in compliance to the decision of the Commission. The same is also not adequate. Ends of justice would require that the copy of entire file notings in the matter whereby a decision was taken by GNCTD to file a criminal complaint as submitted to the Commission, is also made available to the appellant.
(Yashovardhan Azad) Information Commissioner As per the decision of Commission of even date, in exercise of powers vested under Section 20(1) of the RTI Act, 2005 penalty/s of Rupees Twenty Thousand is being imposed on Shri Sunil Dutt Sharma, the then PIO/SDM Vasant Vihar, Page 7 of 8 Delhi. He is presently posted as Dy. Secretary (Legislation), Legislative Assembly Secretariat, NCT Delhi - 110054. The penalty shall be payable in two equal instalments of Rupees Twelve Thousand Five Hundred only.
The first instalment of the aforesaid penalty/s should reach the Commission by 21.12.2018 and the last instalment of penalty/s should reach by 31.01.2019. The penalty/s imposed should be remitted through Demand Draft or a Banker's Cheque drawn in favour of the Pay & Accounts Officer, CAT, payable at New Delhi and the same should be sent to Shri Shanti Priye Beck, Joint Secretary (Admn.), Central Information Commission, Baba Gangnath Marg, New Delhi-110067.
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 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 Page 8 of 8