Central Information Commission
Shri Kalu Ram Jain vs Directorate Of Enforcement on 16 July, 2008
CENTRAL INFORMATION COMMISSION
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F.No.CIC/AT/A/2007/01260
Dated, the 16th July, 2008.
Appellant............ Shri Kalu Ram Jain
Versus
Respondents ........ Directorate of Enforcement
PRESENCE Dates of hearing : 06.02.2008 and 12.03.2008.
Appellant : Through Counsel, Shri J.C.Jetli Respondents : Through Counsel, Shri Rajeev Awasthi Third-party : Absent (Dr.J.K. Jain)
This is a second-appeal filed by Shri Kalu Ram Jain (appellant) against the order dated 06.09.2007 of the Appellate Authority, Directorate of Enforcement (DE).
2. The main-point for consideration before the Commission is whether the exemption from disclosure obligation enjoyed by the DE under Section 24 read with Second Schedule of the RTI Act be revoked on grounds that in prosecuting Dr.J.K.Jain his human rights were violated by the DE.
3. The main points urged by the appellant, Shri K.R.Jain are that the Directorate of Enforcement had launched prosecution against Dr.J.K.Jain on trumped-up charges and had systematically persecuted him by forcing him to repeatedly appear before the DE officials for questioning. The enquiry against Dr.J.K. Jain was started by DE in 1995, but was dropped as nothing incriminating was found. However, the enquiry was restarted in 1997-1998 when Dr.Jain was summoned by the DE on 06.01.1998 and was allegedly detained for a full day. Nothing happened in the enquiry till the year 2000 when again, for unknown reasons, it was restarted.
4. According to the appellant, Dr.J.K.Jain wrote several letters dated 06.01.1998, 07.01.1998, 13.01.1998, 27.11.1998, 28.11.1998, 08.01.1999, 30.03.1999, 01.04.1999 and 23.01.2001 but not a single letter was replied to by DE. Yet, it instituted a criminal case against Dr.Jain in 2001 under FERA ― an Act which was repealed in 2002.
Page 1 of 55. The appellant's submission is that the above sequence of events shows that the Directorate of Enforcement all along knew that there was no case against Dr.J.K.Jain, but was pursuing it in order to victimize him and to intimidate him. The usual tactics of the investigating agencies to summon the witnesses and the accused persons for frequent appearances before investigating officers; not to close the case even when nothing objectionable found against the person concerned; to reopen matters in fits and starts and so on were all tried against him.
6. The respondents have countered these allegations of the appellant with their own story of the events. It is the respondents' case that at no time before filing his RTI-application, has the appellant or Dr.J.K.Jain or anybody else has raised this matter of human rights violation of Dr.J.K.Jain. The National Human Rights Commission (NHRC) has been charged with the responsibility of looking into all complaints of human rights violation. Neither the appellant, who is so articulate in claiming the violation of human rights of Dr.J.K. Jain, nor Dr.Jain himself, ever chose to approach the NHRC against the Directorate of Enforcement officials. According to the respondents, Directorate of Enforcement started investigation against M/s. Jain Studios and certain other Television Channels for alleged FERA violations in the year 1995. From 1997 till 2001, Directorate of Enforcement issued 12 summons, i.e. on 20.11.1997, 17.12.1997, 20.02.2001, 12.03.2001, 15.06.2001, 12.07.2001, 01.08.2001, 03.08.2001, 16.08.2001, 02.011.2001, 09.11.2001 and 20.11.2001 to Dr.J.K.Jain but could make him to attend the proceedings before the Directorate of Enforcement only on two occasions, i.e. on 06.01.1998 and 28.02.2002. The second appearance was only when a Court order made it impossible for Dr.J.K Jain to evade appearing before the Directorate of Enforcement.
7. The Directorate of Enforcement had also filed a complaint before a Judicial Magistrate under Section 56 of FERA against Dr.J.K.Jain for non-compliance of its summons. Once Dr.Jain appeared before the Directorate of Enforcement officials on 28.02.2002 and he was examined by the Directorate officials, DE promptly moved the Department of Revenue, Ministry of Finance, Government of India for withdrawal of prosecution against Dr.J.K.Jain. The approval of the Government was received on 14.04.2007 and an application was filed before the ACMM, New Delhi on 24.07.2007 for withdrawal of prosecution against Dr.J.K.Jain, which was approved by the Court on 20.02.2008.
8. Respondents have also pointed out that contrary to the averment of Dr.J.K.Jain that his letters to the DE were not replied to, in fact his letters of 06.01.1998, 07.01.1998 and 28.11.1998 were replied to by the DE on 16.12.1998.
Page 2 of 59. It is the submission of the respondents that it is not true that the Jain TV with which Dr.J.K. Jain is connected with was the only one against whom Directorate of Enforcement started investigation in the year 1995. There were several TV channels besides the Jain TV against which investigations were conducted on an international scale for alleged FERA violations. The respondents urged that it was the duty of the Directorate of Enforcement to start enquiry once a complaint was received by it. No deduction about human rights violation can be made only from the fact of the commencement of an enquiry, which was duly withdrawn against Dr.J.K. Jain once evidence was examined and approval of the appropriate Department was obtained. Dr.Jain and the present appellant (Shri Kalu Ram Jain) cannot have a grievance only on account of the fact that ED started an enquiry again the former. That was for what the Directorate of Enforcement was created in the first place. In fact, much of the delay in disposal of Dr.Jain's matter occurred due to his own attitude of non-cooperation with the Directorate of Enforcement. Between 1997 and 2001 he appeared only once ― in 1998 ― before the Directorate officials. No inference of harassment can be drawn from these facts.
10. The respondents questioned the right of the present appellant (Shri Kalu Ram Jain) to speak about human rights violation of a third-person viz. Dr.J.K. Jain. Their Counsel pointed out that this matter was also taken up by the Central Vigilance Commissioner, who through a communication dated 04.04.2007 rejected all allusions of corrupt motive in holding the enquiry against Dr.Jain. The Counsel pointed out that Shri Kalu Ram Jain had filed an RTI-application dated 16.03.2007 before CPIO of Central Vigilance Commission, which was decided in first-appeal on 01.06.2007, but he never filed the second-appeal. However, now he has taken up parallel RTI-proceedings (through CPIO, Directorate of Enforcement) after he failed to persuade the First Appellate Authority of CVC to decide the case in his favour. Counsel alleged that this was a misuse of the RTI Act because the same matter (decided by AA, CVC) is now being raised through a second proceeding (before CPIO, ED). According to the Counsel, once this matter was not carried in second-appeal by this appellant against the First Appellate Authority (CVC)'s order, it was construed that it stood resolved. The present petition is hit by the principle of Res judicata.
11. Appellant's Counsel rejected these contentions and stated that there is no Res Judicata in this matter because the subject-matters of the two RTI-applications (before the CVC and the DE) were different. First petition was relating to the complaints filed by Dr.J.K.Jain before the CVC against Shri Ashok Agarwal, Deputy Director of Directorate of Enforcement; and the second RTI-petition was relating to the letters written by Dr.J.K.Jain to the Directorate of Enforcement. According to the appellant, it is also wrong to say that CVC was consulted. It is true that he had made an RTI-application to the Page 3 of 5 CVC but it had nothing to do with the present RTI-proceeding. It was against Shri Ashok Agarwal, who was Deputy Director of Enforcement and, his conduct.
Decision:
12. It is an admitted fact that Directorate of Enforcement is exempted from the purview of the RTI Act under Section 24 read with Second Schedule of the RTI Act. The matter for decision is whether on the grounds urged by the appellant, a conclusion about human rights violation or corruption or both could be drawn against the Directorate of Enforcement officials, which would warrant revoking that exemption.
13. The expression used in Section 24 about grounds that would permit exemption under this Section to be revoked is "allegations of corruption and human rights violation". The appellant's case is that a mere fact that an 'allegation' was made would be enough to satisfy the requirement of the exception in the Section 24. It is necessary to examine this aspect in some detail.
14. Allegation of corruption and human rights violation in the context of this Section should be construed to mean 'verifiable allegations', that is to say, not mere charge of corruption or human rights violation, but supporting material that such charge in terms of its evidentiary value had strength. Whether the allegations have evidentiary support is to be determined by the circumstances of those allegations and evidence produced by a party. It is, therefore, the Commission's view that allegation of corruption and human rights violation should be construed not merely in terms of whether somebody has chosen to make those allegations, but in terms of prima-facie evidence that such allegations would lead to a reasonable conclusion that there was a possibility of these allegations being true. For that, not only the allegations but also the surrounding evidence needed to be examined.
15. In the present case, the appellant wishes the Commission to draw an affirmative conclusion about prima-facie evidence of Dr.Jain's human rights violation on the basis of the launching of an enquiry against Dr.Jain by the Directorate of Enforcement, frequency of summoning Dr.Jain for appearance, and eventual petition to the Court to withdraw the prosecution against Dr.Jain as nothing incriminating was found against him.
16. I am not persuaded that the reasons as submitted by the appellant could lead to a prima-facie conclusion about prosecution having been launched against Dr.Jain due to malice or any ulterior intentions with a view to intimidate or to cow him down. That Dr.Jain was not specifically targetted is evident from the fact that there were several other similarly placed persons who, in the year 1996, Page 4 of 5 were subjected to enquiry and investigation by DE on the basis of the complaints the Directorate had received.
17. It is true that the enquiry ran a rather long course but as pointed out by the respondents, it was largely due to the fact that the enquiry had international ramifications and, that Dr.J.K.Jain needed several summons before he made his appearances before the Directorate of Enforcement officials. Respondents have strongly refuted any allusion of wrong-doing based upon the nature and the manner of conducting the enquiry against Dr.Jain.
18. Commission finds that there is merit in the submission of the respondents. Commission has taken particular note of the fact that the matter regarding Dr.Jain's human rights violation suddenly came up only in 2007 when the appellant filed his RTI-application and never before through any proceeding before an appropriate Tribunal such as NHRC. This matter also was not agitated before the law courts who considered this case, nor did Dr.Jain seek any relief from such courts, or a superior court, against his alleged human rights violations.
19. Commission also finds merit in the respondents' submission that the Directorate of Enforcement as an investigating agency holds enquiries in most matters brought to its notice about wrong-doing by a certain category of persons. To allude that starting such an enquiry alone could amount to a person's human right violation, is far-fetched and unconvincing. Even if it is assumed, for the sake of argument, that the enquiry against Dr.Jain by Directorate of Enforcement officials was a lacklustre, slack and an inefficient piece of work, that alone could not prove any ulterior motive on the part of those officials; much less could it be cited as evidence of violation of Dr.Jain's human rights.
20. On account of these reasons, appellant's plea of the violation of the human rights of Dr.Jain that would warrant revoking the exemption enjoyed by the Directorate of Enforcement from disclosure under Section 24 read with Second Schedule of the RTI Act ― fails. Rejected.
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(A.N. TIWARI) INFORMATION COMMISSIONER Authenticated by -
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( D.C. SINGH ) Under Secretary & Asst. Registrar Page 5 of 5