Central Information Commission
Abhishek Shukla vs Cbi on 2 June, 2020
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/2018/624362
Abhishek Shukla ....अपीलकता/Appellant
VERSUS
बनाम
CPIO,
Central Bureau of Investigation,
Policy Division,
Room No. 25 - A,
North Block,
New Delhi - 110001. ... ितवादीगण /Respondent
RTI application filed on : 02/05/2018
CPIO replied on : 09/05/2018
First appeal filed on : 10/05/2018
First Appellate Authority order : 29/05/2018
Second Appeal dated : 23/06/2018
Date of Interim Decision : 07/01/2020
Date of Final Decision : 02/06/2020
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INFORMATION COMMISSIONER : DIVYA PRAKASH SINHA
Information sought:
The Appellant sought details of all Preliminary Enquiries having allegations of corruption which have been closed by the agency without registering the FIR/Regular case between 2014-18 along with copies of these closed PE, date of registering the PE, date of closure of the PE and the reasons behind the closure of the PE.1
Grounds for the Second Appeal:
The CPIO has not provided the desired information.
Relevant Facts emerging during Hearing on 07.01.2020:
The following were present:-
Appellant: Present in person.
Respondent: Anupam Mathur, Inspector & Rep. of CPIO, Central Bureau of Investigation, Policy Division, North Block, New Delhi present in person.
Interim Decision on 07.01.2020 On the basis of the proceedings during hearing, Commission observes that the Appellant desires to contest the exemption taken by the CBI under Section 24 of the RTI Act in the present matter at length. In view of that, Commission directs him to send a written submission highlighting the factum as to how the veil of exemption granted to the CBI will not be applicable in the instant Second Appeal/present matter within 15 days from the date of receipt of this order. A copy of the written submission should also be sent to the Respondent who can send counter submission, if they desire within 15 days from the date of receipt of the written submission of the Appellant.
The appeal is reserved for Final Order.
FINAL DECISION PROCEEDINGS Commission received a detailed written submission of the Appellant arguing the applicability of the proviso of Section 24(1) of RTI Act and contesting the claim of Section 8(1)(g) of RTI Act made by the CPIO with respect to the information sought in the instant RTI Application.
Appellant has relied on a Full Bench Decision of the Commission in the matter of VR Chandran Vs Enforcement Directorate dated 28.10.2010 in File No. CIC/AT/A/2009/000353, related to disclosure of black money lying in Swiss Banks, wherein the following was held:2
File No : CIC/CBRUI/A/2018/624362 "We would like to dwell upon this aspect of argument in the context of a proviso built into the Section 24 itself, i.e. that these exemptions are subject to their not being matters of 'human rights violations' or 'allegations of corruption'.
In our view, all matters now investigated by the Enforcement Directorate in the matter of stashing away of Indian money in foreign banks, come within the definition of allegations of corruption in Section 24. There is eminent and compelling reason why this exception must be applied in the present case."
Further, he has relied upon a decision of the Commission in the matter of CJ Karira Vs. CBI in File No. CIC/SM/C/2012/000374, related to the disclosure of sanction of prosecution sought by the agency, wherein the following was held:
"It is true that the CBI is primarily responsible for investigating into all cases of corruption by public servants of the Central Government. Therefore, most of the information held by it would have a nexus with allegations of corruption. It is also true that the proviso to Section 24 of the RTI Act would make it necessary for the CPIO to entertain all such RTI applications, rendering the exclusion of the organisation from the operation of the Right toInformation (RTI) Act almost pointless. This cannot be helped asthe law is quite clear; this particular section does not exclude the exempt organisations from the ambit of the Right to Information(RTI) Act completely. It is a qualified exemption. It is possible that in some of the security and intelligence organisations, the information held, by and large, may not have much nexus with either allegations of corruption or with human rights violation. By its very nature, the CBI is different from those organisations in the sense that it primarily deals with cases involving allegations of corruption. To that extent, the benefit of the exemption available to other such organisations would not obviously be available to the CBI as most of the information held by it would be covered by the above proviso."
Appellant has also pointed out that the aforesaid decision of the Commission was upheld by the Hon'bleDelhi High Court in CJ Karira Vs CBI in W.P.(C) 7439/2012.
Furthermore, Appellant has relied on the judgment of Hon'ble Delhi High Court in the matter of Sanjeev Chaturvedi Vs Intelligence Bureau, (W.P.(C) No. 5521 of 2016 & CM No. 23078 of 2016) and a judgment of Hon'ble Madras High Court in 3 the matter of The Superintendent, the Directorate of Vigilance and AntiCorruption Vs R Kathikeyan(W.A.Nos.320 & 321 of 2010) to highlight upon the interpretation accorded by superior courts to the legislative intent contained in Section 24(1) of RTI Act. In the context of these citations, he has urged that:
"Neither the Central Information Commission nor any High Courts have disputed, expanded, or narrowed down the scope of Section 24 (1). They have made it clear that exemption under the Section are not available to organisations listed in the second schedule when the information sought pertains to allegations of corruption and human rights violations."
He has further touched upon the import of the terms "pertaining" and "allegations of corruption", relevant excerpts are reproduced here verbatim:
"18. The language used by the Parliament is clear that any material in anyform held by or under the control of an exempted organisation even loosely related to allegations of corruption will not come under the exemption ofSection 24 (1).
19. A verifiable or a proven allegation means a charge. The Parliament did not use the word 'Corruption and Human Rights Violation' but qualified it in its wisdom with 'allegations'. When the Legislature had applied its mind, there is no scope for further qualification."
"22....Moreover the Law says the Information (any material in any form)"pertaining to" allegations of corruption will not be exempt. As explained earlier Pertaining to means connected to, an accessory. A closure report or any further inquiry, court case, communications, insuch matters will also pertain to allegation of corruption in the complaint."
The second part of Appellant's submissions concern the claim of Section 8(1)(g) of RTI Act made by the CPIO & FAA to deny disclosure of the Preliminary Enquiry reports. Here, Appellant has brought the attention of the bench to the fact that CBI has started putting on its website the FIRs in which names of complainants, accused and investigating officers are made public. Appellant has thus put out a rhetoric question that when disclosure of details in FIR has not invited any such instance of endangerment to life and physical safety of any person then on what grounds the information related to closed preliminary enquiries in which no action is initiated can endanger the life or physical safety of any person. Appellant has also stated that details and summary of Preliminary Enquiries have been put out in the Annual Reports of CBI, which is published on their website for public access and therefore he insists that disclosing the information sought in the RTI 4 File No : CIC/CBRUI/A/2018/624362 Application in the same format as that of the Annual Report is not going to have any bearing on the life and physical safety of any individual. In this context, Appellant has reiterated his grounds of First Appeal wherein he had even trimmed down his request for information in the following terms:
"My intention is not to hurt any individual but to get information which is my Right given by the Constitution. However, the agency cannot adopt double standards on making public all details in FIRs and withholding those in closed Preliminary enquiries.
Identify the source or assistance given in confidence for law enforcement:
i) The agency can severe the names of sources invoking Section 10 of the RTI Act in cases where it feels that disclosure would expose the person.
To make it easy for furnishing information, the CPIO may only provide the same material, about closed preliminary enquiries, which is published in the CBI annual report every year.
It carries PE number and summary of allegations. It does not carry names of any individuals. Along with it only details that I seek is date of registration and date of closure of the PEs.
This material exists in the form of soft copies of annual reports which are held by the Headquarters and will not require diversion of resources."
Following this, he reasserts now at this stage that -
"32. It is evident that I am seeking information about closed PEs and the summary of its allegations as is maintained by the CBI for its annual report..."
"It is imperative to allow public scrutiny in closed PEs because unlike FIRs, the CBI does not file any closure reports before the courts in PEs. It will add to transparency and bring accountability when people will know which PEs were closed by the agency. That area is the domain of the CBI with no public scrutiny so far. The details of the PEs are already published by the CBI in its annual report with PE number and summary of allegation. I am only seeking that much information about PEs closed by the agency."(Emphasis Supplied) 5 Observations Based on the facts on record, the moot questions that arise for adjudication are whether the information sought in the RTI Application concerns allegations of corruption or not; and if so, whether the exemption of Section 8(1)(g) of RTI Act invoked by the CPIO and upheld by the FAA, will be applicable or not.
Having perused the submissions and supporting documents provided by the Appellant, Commission is by and large convinced with the primary averment of the Appellant that the information sought pertains to allegations of corruption. In the context of arguments tendered by the Appellant, this bench is reminded of the following observation made by it in an earlier case concerning the Anti- Corruption branch of CBI in File No. CIC/CBRUI/A/2017/173035/SD vide decision dated 20.05.2019:
"...At this juncture, Commission finds this pressing need to highlight the paradox evident in claiming the exemption of Section 24(1) of RTI Act by the anti- corruption branch of CBI. In other words, given the fact that the cases referred to/investigated/enquired by the anti-corruption branch of CBI invariably pertain to allegations of corruption only; CBI and the Commission cannot be oblivious to the imperativeness of applying a judicious rationale while assessing the applicability of the proviso to Section 24(1) of RTI Act is such cases pertaining to the anti- corruption branch."
In the instant case also, the above paradox holds true, in as much as Appellant specifically sought information regarding Preliminary Enquiries made into allegations of corruption.Yet, the CPIO and FAA failed to appreciate the same and rather denied the information in almost what seems like a mechanical disposal of RTI Applications and First Appeals.
Now, the second question is whether Section 8(1)(g) of RTI Act is applicable for exempting the information or not.
At the outset, Commission notes that discussion on this aspect has been significantly narrowed down at this stage with the Appellant having limited his request to the summary of Preliminary Enquiries as contained in the Annual Reports, sans the name or identifying particulars of concerned individuals.It is also noted that Respondent office has not tendered any submission to rebut the arguments of the Appellant submitted vide his above referred email of 6 File No : CIC/CBRUI/A/2018/624362 24.01.2020, copy of which was marked to the Respondent office at [email protected]. However, in keeping with the principle of equity and fairness, Commission will threadbare analyse the justification tendered by the FAA in his order dated 29.05.2018. FAA has held therein that in addition to identifying the source of information given inconfidence forlaw/security/enforcement purposes, disclosure of names, information about suspects of Preliminary Enquiry'may reveal their assets, allegations of corruption etc.'.That, since the allegations have not been substantiated for registering a Regular case, thereby disclosure of the case details may endanger the life or physical safety of the suspected persons and cause loss of reputation, if it falls in wrong hands.
Commission is of the considered opinion that the apprehension of the FAA that disclosure of Preliminary Enquiries may make the suspected persons and concerned officers vulnerable would have weighed in had the subject matter pertained to a particular case or a handful of cases. Here, even so, RTI Act does not mandate disclosure of intent of RTI Applicants in seeking information, Appellant has highlighted the issue of lack of transparency and probity in the domain of Preliminary Enquiries, as these remain distant from public scrutinyand he has sought for this information in the capacity of an ordinary citizen, without whatsoever ostensible personal interest. Moreover, Appellant has sought for the information of cases pertaining to a period of 5 years (2014-18), it is difficult to imagine how one would narrow down these many cases to pose endangerment to life and physical safety of the suspects or the concerned officer(s). Neither the material on record nor the disposition of the Appellant during hearing suggest any perceivable threat that he can pose to the said individuals.It will also not be out of place to point out here that there is an overriding public interest in the disclosure of this information as envisaged under Section 8(2) of the RTI Act as it concerns allegations of corruption against public servants that were enquired into by the premier investigating agencyof the country for a period of 5 years. Such disclosure will strengthen the structure of this vital law enforcement arm of the government, per contra, opacity will only add to casting aspersions on its working.
Commission is piqued by the fact that similar disclosure has been made in the past in the Annual Report of CBI, as evinced from the Annual Report of 2013, copy of which was submitted by the Appellant for perusal. Having considered the said 7 report, Commission finds no reason as to why the Respondent office should deny disclosure of the limited details sought by the Appellant. Appellant in his wisdom has made the limited request of information since the stage of First Appeal, yet, FAA appears to have not even considered the prayer for discussion.
FINAL DECISION Adverting to the aforesaid observations, Commission directs the CPIO to provide the Preliminary Enquiry Number, Summary of Allegations, Date of Registration and Date of Closure of the preliminary enquiries pertaining to allegations of corruption which have been closed by the agency without registering Regular case between 2014-2018. The said information may be provided in the form it is available for the purpose of Annual Report publication. Commission is according this liberty of severing the names or identifying particulars as per the provision of Section 10 of RTI Act in view of the Appellant's limited prayer.
However,having allowed the disclosure in larger public interest as per Section 8(2) of RTI Act, in the event, the said information is not available in the form requested for by the Appellant, i.e if the summary of Preliminary Enquiries is not available as per the format used for Annual Reports, then Commission deems it fit to order inspection of relevant records.The inspection is ordered keeping in view the fact that in the absence of readily available summary of cases as insisted upon by the Appellant, preparing the summary of cases will amount to creation of information which does not conform to Section 2(f) of RTI Act in addition to causing disproportionate diversion of resources of the public authority as per section 7(9) of RTI Act.Therefore, alternatively, CPIO is directed to afford an adequate opportunity of inspection of the Preliminary Enquiry reports concerning allegations of corruption for the period between 2014-2018 to the Appellant on a mutually decided date & time intimated to him telephonically and in writing. Copy of documents, if desired by the Appellant may be provided free of cost up to 100 pages, and for pages beyond this limit, prescribed fees as per Rule 4 of RTI Rules, 2012 may be sought.
Either one of the aforesaid directions for disclosure, as applicable, shall be complied within 15 days from the date of receipt of this order and a compliance report to this effect be duly sent to the Commission by the CPIO.
8File No : CIC/CBRUI/A/2018/624362 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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