Central Information Commission
Vihar Durve vs Cbi on 24 September, 2019
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/CBRUI/A/2018/120611/SD
Vihar Durve ....अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Central Bureau of Investigation,
5 - B, 5th Floor,
CGO Complex, Lodhi Road,
New Delhi - 110003 ... ितवादीगण /Respondent
RTI application filed on : 07/12/2017
CPIO replied on : 09/02/2018
First appeal filed on : 19/02/2018
First Appellate Authority order : 21/03/2018
Second Appeal dated : 24/03/2018
Date of Hearing : 28/08/2019
Date of Interim Decision : 28/08/2019
Date of Final Decision : 23/09/2019
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INFORMATION COMMISSIONER : DIVYA PRAKASH SINHA
Information sought:
The Appellant sought information through 6 points regarding total legal expenditure/consultation fees (in India and abroad); total travelling expenditure; names of Advocates, Legal Consultants, Senior Advoctes, Solicitors, Barristers etc. to whom legal fees/consultation fees etc. were paid by Indian Government to bring back Vijay Mallya to India.1
Grounds for the Second Appeal:
The CPIO has not provided the desired information.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through VC.
Respondent: Ravi Gambhir, SP & Rep. of CPIO and Rattan Deep Singh, PP, SIT, Central Bureau of Investigation, CGO Complex, Lodhi Road, New Delhi present in person.
Appellant stated that he is not satisfied with the exemption quoted by the CPIO, CBI vide their reply dated 09.02.2018.
Rep. of CPIO submitted that they have invoked Section 24(1) of the RTI Act as CBI has been placed at Sl. No.23 of the Second Schedule to the RTI Act 2005 vide Notification No. F.No.1/3/2011-IR dated 09.06.2011 of Govt. of India and as such RTI Act is not applicable to the organization except where specific allegations of corruption and/or human rights violation have been made. He further submitted that the information sought in the instant RTI Application is also exempt under Section 8(1)(h) of the RTI Act as there are two cases vide a. RC8(E)2016/BS&FD, Delhi and b. RC6(E)15, IDBI, BS&FB, Mumbai are still pending adjudication.
Appellant interjected to state that the CPIO has wrongly invoked Section 8(1)(h) of the RTI Act without justifying as to how the information sought in the present RTI Application shall impede the process of investigation or apprehension or prosecution of offenders. He further stated that the information sought pertains to corruption since Vijay Mallya has been involved in corrupt practices as well as duped Banks to the tune of Rs. 9,000 Crores. He furthermore stated that this is a fit case of human rights violation since the Central Government has decided to lodge Vijay Mallya at Arthur Road Jail, Mumbai after his extradition and that the condition of the said jail is unhygienic as well as unsafe to Vijay Mallya. In addition, Appellant urged before the bench that elements of corruption and human rights violation are to be seen in separate facets.2
File No : CIC/CBRUI/A/2018/120611/SD Interim Decision Commission observes that the Rep. of CPIO has raised a new issue of exemption under Section 8(1)(h) of the RTI Act during hearing. Commission directs him to send a written submission highlighting the factum as to how the information sought in the instant RTI Application is exempt under Section 8(1)(h) of the RTI Act within 7 days of receipt of this order. A copy of the written submission should also be sent to the Appellant who can send counter submission, if he desires within 7 days of receiving written submission of the CPIO, CBI.
The appeal is reserved for Final Order.
FINAL ORDER:
Commission received the written submission of the CPIO, CBI as directed in the interim decision dated 28.08.2019. Written submission of CPIO, CBI dated 12.09.2019 is reproduced as under:
"The RTI Applicant Sh. Vihar Durve r/o Pune, Maharashtra had filed an RTI application dated 07.12.2017 (received in CBI/AC-VI/SIT, New Delhi on 05.02.2018) seeking information about legal expenditure/consultation fess (in India and abroad); total travelling expenditure; names of Advocates, legal Consultants, Senior Advocates, Solicitors, barristers etc. to whom legal fees/consultation fees etc. paid by Indian Government to bring back Vijay Mallya to India.
The reply was issued to the RTI Applicant by CPIO/SP/CBI/AC-VI/SIT, New Delhi on 09.02.2018 claiming exemption invoking Section 24(1) of the RTI Act as CBI has been placed at Sl. No. 23 of the Second Schedule to the RTI Act 2005 vide Notification No. F. No. 1/3/2011-IR dated 09.06.2011 of Govt. of India. The RTI Applicant filed First Appeal on 19.02.2018 which was received by the branch on 07.03.2018. The reply of the First Appellate Authority i.e. JD/SIT/New Delhi along with PP, SIT had attended the regular hearing on 28.08.2019, whereby arguments were put forward seeking exemption by the CBI on the following grounds:
1. The CBI is exempted under Section 24(1) of the RTI Act as it has been placed at Sl. No. 23 of the Second Schedule to the RTI Act 2005 vide Notification No. F. No. 1/3/2011-IR dated 09.06.2011 of Govt. of India, 3 as such RTI Act is not applicable to it except where specific allegations of corruptions and/or human rights violation have been made.
2. The RTI Applicant's argument that the information sought pertains to corruption of Vijay Mallya who have duped banks to the tune of Rs.
9,000/- crores as such he may be given information, hold no ground as the two cases against Mr. Vijay Mallya i.e. RC 8 (E) 2016 SBI Consortium Banks and RC 6 (E) 2015 Kingfisher IDBI Bank are still under investigation/further investigation in the branch and the accused Mr. Vijay Mallya's extradition matter is at a crucial stage in the London High Court, UK and fixed in February, 2020 as such exemption was also invoked u/s 8(1)9h) of the RTI Act as the parting information would impede the investigation of the case.
3. The RTI Applicant's argument that this is a fit case of human rights violation also, since the Central Government has decided to lodge Mr. Vijay Mallya at Arthur Road Jail, Mumbai and the condition of the jail is unhygienic and unsafe and for Mr. Vijay Mallya, holds no ground as the Extradition Court of London was satisfied with the condition of the jail." [Emphasis Supplied] Written submission of Appellant dated 16.09.2019 is reproduced as under:
1. ..
b. That, the exemption sought by CPIO, CBI is wrong, incomplete, misconceived, factually wrong & misleading and afterthought.
c. That, CPIO CBI has not discharged / demonstrated the burden by showing that how disclosure of information of total legal expenditure / consultation fees (in India and abroad); total travelling expenditure; names of Advocates, Legal Consultants, Senior Advocates, Solicitors, Barristers to whom legal fees/consultation fees etc were paid would impede the process of investigation or apprehension or prosecution of offenders. CPIO didn't demonstrate reasons and had not applied his/her mind for denying information.
d. That Vijay Mallya is charged under Sections 120B (criminal conspiracy) and 420 (cheating) of the Indian Penal Code, and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act. CBI has not denied/refuted the information pertaining to the allegations of corruption in their written statement.
e. CBI's written submission refers to Extradition Court of London was satisfied with the condition of the jail.
4CIC/CBRUI/A/2018/120611/SD As per Vijay Mallya, jails in India are over-crowded with poor hygiene and are violating human rights...
1) Findings in Inspection Report of Principal Accountant General, (Audit) 1, Maharashtra Pratisha Bhavan, 101, Maharshi Karve Road, Mumbai 400020 to Superintendent, Mumbai Central Prison Arthur Road:
In the said Inspection Report received by me under RTI from 1/11/2010 to 31/07/2017 submitted by Principal Accountant General, Churchgate Mumabi to Superintendent, Mumbai Central Prison Arthur Road, Mumbai under Comptroller & Auditor General's (DPC) Act 1971 (Maharashtra State Level CAG's office) auditors have following findings: ..........
Para 4: Overcrowding in the Mumbai Central Prisons.
Bathing places.
Latrines Hospital Clothing Para 5: Positioning of Guarding Staff.
2) High number of custodial deaths in India is crying for redressal Custodial deaths are unacceptable. India is a signatory to the UN Convention against torture, which makes custodial deaths a violation of the principles the country professes. One possible reason for the incidence of custodial deaths is that 22 years after India signed the UN Convention, the legal process of its ratification hasn't been completed. This indicates that acting against torture is a low priority for the political class. It shouldn't be. A clampdown on custodial torture is needed for its own sake.
In addition, a legislation against torture will have another important benefit. It will strengthen India's legal case when it seeks to extradite fugitives from jurisdictions which take a dim view of custodial torture.
In 2017, the law commission recommended that India ratify its UN obligation against torture by creating a legislative framework. There has been progress since then as the Centre has asked state governments for inputs on the legislation. It should translate into a watertight law. A law is necessary to safeguard some of the fundamental rights guaranteed by the Constitution. India has a plethora of harsh laws to check crime. It now needs a legislative framework to stamp out criminal behavior in custody.
5CBI in it's written submission refers to Extradition Court of London was satisfied with the condition of the jail.
It is humbly submitted that it was the duty of CBI/concerns to bring to the notice of Hon'ble Extradition Court of London the above facts referred in Para e (1) & (2) which may not have necessarily brought to the notice of Hon'ble Extradition Court of London in order to take informed decision as per many Supreme Court judgments.
As per Section 24(1) of RTI Acct:
".. the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub- section:"
As per Section 2(f) of RTI Act:
"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;
f. That this is a fit case of corruption at highest level, as despite the fact that Mallya duped Banks to the tune of Rs. 9000/- Crores, the concerns have converted Lookout notice for Mallya into inform notice. The information sought under RTI has been denied by concerns and I have filed Second Appeal in the office of Hon'ble Central Information Commission. The very fact that CBI refused to furnish information leads to the basis for the belief that something illegal, arbitraty, ultra vires, has taken placed.
g. That, I have been denied the CCTV footage of meeting between Mallya and Late Finance Minister in the Central Hall of parliament in March 2016 and I have filed Second Appeal in the office of Hon'ble Central Information Commission.
h. That, disclosure of information related to corruption within the organization.
i. That, CBI is also responsible for investigation of interstate and international rackets, large-scale frauds affecting the property or revenue of the Government and crimes of national importance. Providing information sought in RTI Application will increase the credibility of CBI. It is now widely recognized that openness and accessibility of people to 6 CIC/CBRUI/A/2018/120611/SD information about the government's functioning is a vital component of democracy. Disclosure of allowable information would lead to better system and it would be in the public interest that a public authority should throw open the process of public scrutiny, which would result in evolving a better system. The people of this country have the right to know every public act, everything that is done in a public way by their public functionaries. They are entitled to know the particulars of every public transaction in its bearing. The right to get information in a democracy is recognized all throughout and it is a natural right flowing from the concept of democracy.
j. That as per the RTI Act, its objects and reasons indicate that disclosure of information is the rule and non-disclosure the exception.
k. The information is in the custody of PIO is in official capacity & not fiduciary capacity.
l. The information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.
m. There is overriding public interest n furnishing information.
n. Ex parte order was passed by First Appellate Authority.
o. Hon'ble Supreme Court had passed damning stricture against CBI. Recently, Hon'ble Supreme Court hold formed CBI chief Nageswara Rao guilty of contempt, imposed a fine of Rs 1 lakh for contempt and made him sit in a corner as punishment. Obviously, this has brought CBI (India) under disrepute on international platform. Therefore, it is important to bring Transparency, accountability for efficient functioning of CBI.
[Emphasis supplied] Commission has perused the written submission of the CPIO, CBI and the Appellant in detail and has made the following observations:
The CPIO has given a point-wise counter to the Appellant's oral submissions during the hearing dated 28.08.2019. CPIO in his written submission dated 12.09.2019 has pressed on the factum that since the investigation/further investigation of cases filed against Vijay Mallya is at a crucial stage in the London 7 High Court, UK and parting information at this stage would impede the investigation in the case, hence exempted under Section 8(1)(h) of the RTI Act.
Further, in response to the averment of Appellant that the condition of the Arthur Road Jail, Mumbai is unhygienic and unsafe for Vijay Mallya, CPIO in his written submission asserted that the Extradition Court of London was satisfied with the condition of the jail.
Appellant in his detailed counter submission has relied upon only those facts and findings of the Inspection Report of Principal Accountant General, (Audit), Mumbai submitted to Superintendent, Mumbai Central Prison which primarily deals with the functioning of prisons in the State of Maharashtra; grants allotted by State and Central Governments and details of expenditure; audit objectives and criteria and other significant findings inter alia. Further, the Appellant has emphasized on the verity that the information sought in the instant RTI Application has been denied by the Respondent without demonstrating any reasons and non-application of mind, which the Commission does not accept. Commission summarily rejects the grounds of the Second Appeal as well the counter submissions of the Appellant dated 16.09.2019, as he has merely relied on conjecture and surmises to emphasize upon his 'perception' of how CBI should have dealt the case of Vijay Mallya. In other words, merely because Appellant is of the opinion that the swindling of money by Vijay Mallya to the tune of Rs. 9000 crores and not putting forward the factual reality of conditions of Jails before the Extradition Court of London amounts to corruption and human rights violation respectively, the proviso to Section 24(1) will not become operative.
Appellant shall note that the expression ''allegation of corruption'' and ''violation of human rights'' is not defined in the Act, it is thus open for the Commission to decide the veracity of allegations on both counts on a case to case basis. The allegations of corruption and human rights violation should be construed to mean verifiable allegations, in other words, a mere charge of corruption or human rights violation is not sufficient in the absence of any supporting material that proves such charge in its evidentiary value has strength. It is a well settled proposition that every RTI Applicant who utters the word 'corruption' or alleges corruption or violation of human rights does not become entitled to get information from public authorities exempted u/s 24(1) of the RTI Act. The onus of substantiating the allegation of corruption and human rights violation lies on the RTI Applicant and 'perception' is certainly no ground to agitate right to information under the proviso to Section 24(1) of RTI Act.
8CIC/CBRUI/A/2018/120611/SD Appellant has sought the details of legal expenditure/consultation fees (in India and abroad); total travelling expenditure; names of Advocate, Legal Consultants, Senior Advocates, Solicitors, Barristers etc. to whom legal fees/consultation fees etc. were paid by Indian Government to bring back Vijay Mallya to India, qui dem, information sought in the instant RTI Application pertains to administrative action and legal expenses which is nowhere related to allegation of corruption and/or human rights violation.
With the above observations, Commission upholds the reply of the CBI dated 09.02.2018 and dismisses the instant Appeal as bereft of merit.
The appeal is disposed of accordingly.
Divya Prakash Sinha ( द काश िस हा )
Information Commissioner ( सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
Haro Prasad Sen
Dy. Registrar
011-26106140 / [email protected]
हरो साद सेन, उप-पंजीयक
दनांक / Date
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