Central Information Commission
Mohammad Khurram vs Ut Of Jammu And Kashmir on 21 January, 2022
केन्द्रीयसूचनाआयोग
Central Information Commission
बाबागंगनाथमागग, मुननरका
Baba Gangnath Marg, Munirka
नईनिल्ली, New Delhi - 110067
द्वितीय अपील संख्या / Second Appeal No. CIC/UTOJK/A/2020/673111
CIC/UTOJK/A/2020/673108
CIC/UTOJK/A/2020/673107
CIC/UTOJK/A/2020/673106
CIC/UTOJK/A/2020/673102
Shri Mohammad Khurram ... अपीलकताा /Appellant
VERSUS/बनाम
PIO ...प्रद्वतवादीगण /Respondent
1. Zonal Police Hq, Batmaloo, Srinagar
2. O/o Divisional Commissioner,
AmarniwasTankipora, Srinagar
3. Department of Home, Civil Secretariat,
Jammu
4. Zonal Police Hq, Panjtirthi, Jammu
5. General Administration Department, Civil
Secretariat, Jammu
Date of Hearing : 20.01.2022
Date of Decision : 21.02.2022
Chief Information Commissioner : Shri Y. K. Sinha
Relevant facts emerging from appeal/complaint:
Since both the parties are same, the above mentioned cases are clubbed
together for hearing and disposal.
Case RTI Filed CPIO reply First appeal FAO 2nd Appeal
No. on dated
673111 01.06.2019 21.06.2019 12.07.2019 - -
673108 01.06.2019 10.07.2019 12.07.2019 - -
673107 01.06.2019 10.07.2019 12.07.2019 - -
673106 01.06.2019 10.07.2019 12.07.2019 - -
673102 01.06.2019 24.06.2019 12.07.2019 - -
Information soughtand background of the case:
Page 1 of 7(1) CIC/UTOJK/A/2020/673111 The Appellant filed an RTI application dated 01.06.2019 seeking the following information:-
The CPIO/Zonal Police HQ, Kashmir, vide letter dated 21.06.2019 replied as under:-
Dissatisfied with the reply from the CPIO, the Appellant filed a First Appeal dated 12.07.2019 which was not adjudicated by the First Appellate Authority as per available records.
Feeling aggrieved over non receipt of the information, the Appellant approached the Commission with the instant Second Appeal.
(2) CIC/UTOJK/A/2020/673108 (3) CIC/UTOJK/A/2020/673102 The Appellant filed an RTI application dated 01.06.2019 seeking the following information :-
Page 2 of 7The CPIO/Deputy Secretary to Government Home Department, vide letter dated 10.07.2019 transferred the Application to PIO, Office of Inspector General of Police, Kashmir Zone/Jammu Zone under section 6(3) of the J&K RTI, Act 2005.
The CPIO/Deputy Secretary to GovernmentGeneral Administration Department, vide letter dated 24.06.2019 transferred the Application to Home Department, Civil Secretariat, Srinagar under section 6(3) of the J&K RTI, Act 2005.
The Appellant filed a First Appeal dated 12.07.2019 which was not adjudicated by the First Appellate Authority.
Feeling aggrieved over non receipt of the information, the Appellant approached the Commission with the instant Second Appeal.
A written submission has been received from the PIO, Zonal Police HQ, Jammu vide letter dated 03.01.2022 wherein it was stated that the RTI application was forwarded to all districts of Jammu on 31.07.2019 and after consultation with the districts, a reply dated 26.08.2019 was sent to the Appellant. No first appeal against the reply has been received by their office.
(4)CIC/UTOJK/A/2020/673107 (5)CIC/UTOJK/A/2020/673106 The Appellant filed an RTI application dated 01.06.2019 seeking the following information :-
Page 3 of 7The CPIO/Deputy Secretary to Government, Home Department, vide letter dated 10.07.2019 transferred the Application to PIO, Office of Inspector General of Police, Kashmir Zone/Jammu Zone under section 6(3) of the J&K RTI, Act 2005.
The Appellant filed a First Appeal dated 12.07.2019 which was not adjudicated by the First Appellate Authority.
Feeling aggrieved over non receipt of the information, the Appellant approached the Commission with the instant Second Appeal.
Facts emerging in Course of Hearing:
A written submission has been received from the PIO, Zonal Police HQ, Jammu vide letter dated 03.01.2022 wherein it was stated that the RTI application was forwarded to all districts of Jammu on 31.07.2019 and after consultation with the districts, a reply dated 26.08.2019 was sent to the Appellant. No first appeal against the reply has been received by their office.
The Appellant participated in the hearing through audio conference. At the outset he stated that the queries raised in his RTI applications under consideration in Second Appeal No CIC/UTOJK/A/2020/673111 and CIC/UTOJK/A/2020/673102 are answered and hence he does not wish to pursue the said matters any further. With regard to the remaining Second Appeals i.e., CIC/UTOJK/A/2020/673108, CIC/UTOJK/A/2020/673107 and CIC/UTOJK/A/2020/673106 he stated that that no reply was received by him subsequent to the transfer of the RTI application by the Home Department, Government of Jammu and Kashmir to the Zonal Police, HQs, Jammu/Kashmir. He further stated that in none of the matters his first appeals have been adjudicated till date .During the hearing, he also made a reference to para 152 of Page 4 of 7 the judgement of the Hon'ble Supreme Court in Anuradha Bhasin vs Union of India WP (C) No 1031/ 2019 decided on 10.01.2020 which reads as under:
"152. In this view, we issue the following directions:
a. The Respondent State/competent authorities are directed to publish all orders in force and any future orders under Section 144, Cr.P.C and for suspension of telecom services, including internet, to enable the affected persons to challenge it before the High Court or appropriate forum.
b. We declare that the freedom of speech and expression and the freedom to practice any profession or carry on any trade, business or occupation over the medium of internet enjoys constitutional protection under Article 19(1)(a) and Article 19(1)(g). The restriction upon such fundamental rights should be in consonance with the mandate under Article 19 (2) and (6) of the Constitution, inclusive of the test of proportionality.
c. An order suspending internet services indefinitely is impermissible under the Temporary Suspension of Telecom Services (Public Emergency or Public Service) Rules, 2017. Suspension can be utilized for temporary duration only.
d. Any order suspending internet issued under the Suspension Rules, must adhere to the principle of proportionality and must not extend beyond necessary duration.
e. Any order suspending internet under the Suspension Rules is subject to judicial review based on the parameters set out herein.
f. The existing Suspension Rules neither provide for a periodic review nor a time l imitation for an order issued under the Suspension Rules. Till this gap is filled, we direct that the Review Committee constituted under Rule 2(5) of the Suspension Rules must conduct a periodic review within seven working days of the previous review, in terms of the requirements under Rule 2(6).
g. We direct the respondent State/competent authorities to review all orders suspending internet services forthwith.
h. Orders not in accordance with the law laid down above, must be revoked. Further, in future, if there is a necessity to pass fresh orders, the law laid down herein must be followed.
i. In any case, the State/concerned authorities are directed to consider forthwith allowing government websites, localized/limited ebanking facilities, hospitals servicesand other essential services, in those regions, wherein the internet services are not likely to be restored immediately.
j. The power under Section 144, Cr.P.C., being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an "emergency" and for the purpose Page 5 of 7 of preventing obstruction and annoyance or injury to any person lawfully employed.
k. The power under Section 144, Cr.P.C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.
l. An order passed under Section 144, Cr.P.C. should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order.
m.While exercising the power under Section 144, Cr.P.C., the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter, apply the least intrusive measure.
n. Repetitive orders under Section 144, Cr.P.C. would be an abuse of power.
o. The Respondent State/competent authorities are directed to review forthwith the need for continuance of any existing orders passed under Section 144, Cr.P.C in accordance with law laid down above."
The Respondents represented by Shri Qazi Abdul Qayoom, Dy Director (Prosecution), Zonal Police HQ (Kashmir); Shri Mohammed Salim, Erstwhile PIO, Zonal Police HQ (Kashmir); Shri Mohammed Munshi, ADO, Zonal Police HQ (Jammu) and Shri Aziz Ahmed, Assistant Commissioner (Central), O/o the Divisional Commissioner (Kashmir) participated in the hearing through audio conference. Shri Qayoom stated that vide letter dated 11.07.2019 a reply was provided to the Appellant denying information in all the 3 RTI applications under consideration herein u/s 8 (1) (a) of the J&K RTI Act, 2009 on the ground that the internet being the fastest medium to transmit information that can be misused by miscreants to spread false rumours across the state thereby creating law and order problems and in such emergent situations the internet services are sometimes blocked. Such recourse is taken in exceptional circumstances under the Telegraph Act strictly in accordance with the notification issued by the M/o Communications, Government of India (Temporary Suspension of Telecom Services, Public Emergency or Public Safety Rule). In addition, Shri Mohammed Salim stated that prior to the judgement of the Apex Court in the matter of Anuradha Bhasin, orders for internet shutdown were issued at the Divisional/ Sub Divisional level by officers of the rank of SP or Sub Divisional Police Officers depending on the facts and circumstances at the relevant time period. Therefore no data pertaining to that period is available in compiled form. Shri Mohammed Munshi also reiterated the reply dated 26.08.2019 provided to the Appellant by the Jammu Zone wherein the information was denied u/s 8 (1) (a) of the J&K RTI Act, 2009.
Page 6 of 7Decision Keeping in view the facts of the case and the submissions made by both the parties, the Commission at the outset notes that based on the submission of the Appellant the Second Appeal Nos CIC/UTOJK/A/2020/673111 and CIC/UTOJK/A/2020/673102 stand disposed off as withdrawn. With regard to the remaining matters, the Commission observes that several developments have taken place subsequent to the filing of the Second Appeals which have been highlighted by both the parties during the instant hearing. The first appeals have not been decided in the above matters as per the submission of both the parties and as per the available records with the Commission. The Appellant has also highlighted the decision of the Hon'ble Supreme Court in Anuradha Bhasin vs Union of India WP (C) No 1031/ 2019 decided on 10.01.2020. The response of the CPIO/ FAA ought to be provided in compliance/ conformity with the said judgement. The Commission therefore finds this as a fit case to be remanded back to Shri Jawed Hasan Bhat, FAA and SSP, Staff Officer to IGP, Kashmir and Shri Ashok Sharma, FAA and SSP, Staff Officer to ADG, Jammu to examine the replies provided by the respective zones and pronounce a reasoned, speaking orders on the First Appeals after providing an opportunity of fair hearing to both the parties. The above-mentioned direction should be complied with by 31.03.2022 under intimation to the Commission.
The instant Second Appeals stand disposed off with the above direction.
Y. K. Sinha (वाई. के. नसन्हा) Chief Information Commissioner (मुख्य सूचना आयुक्त) Authenticated true copy (अद्विप्रमाद्वणत सत्याद्वपत प्रद्वत) S. K. Chitkara (एस. के. द्विटकारा) Dy. Registrar (उप-पंजीयक) 011-26186535 Page 7 of 7