Central Information Commission
Radha Raman Tiwari vs Cbi on 11 January, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/CBRUI/A/2021/639245
Radha Raman Tiwari ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Central Bureau of Investigation,
Banking Securities Fraud Branch,
RTI Cell, Plot No. 5B, CGO Complex,
Lodhi Road, New Delhi-110003 .... ितवादीगण /Respondent
Date of Hearing : 26/09/2022
Date of Decision : 06/01/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 31/05/2021
CPIO replied on : 16/06/2021
First appeal filed on : 21/06/2021
First Appellate Authority's order : 15/07/2021
2nd Appeal/Complaint dated : 25/08/2021
Information sought:
The Appellant filed an RTI application dated 31.05.2021 seeking information as under:
"Background of this Application
1. That after having classified the Borrowal account of Krishna Containers as Fraud, Mr. Brajesh Kumar Singh, Deputy General Manager & Regional Head, 1 Bank of Baroda, Kanpur Region, submitted an Application in 2018/2019 to CBI, Banking Security & Fraud (BS & F) Zone, New Delhi to register First Information Report (FIR) under Section 154 of Cr.P.C against Krishna Containers, its directors Mr. Arora and unknown public/private persons.
2. That Applicant to this Application, vide his letter dated 10.02.2020, addressed to Director, Central Bureau of Investigation (CBI), Banking Security & Fraud (BS & F) Zone, Plot No. 5-B, 6th Floor, CGO Complex. Lodhi Road, New Delhi- 110 003, sent via Speed post number EU149806452IN dated 10.02.202 and delivered to addressee on 12.02.2020, highlighted the instances of blatant violations of Bank's guidelines in borrowal account of Krishna Containers, coupled with willful inordinate delay made by concerned authorities of Bank of Baroda in examination of Staff Accountability and so much so declaring the account of Krishna Containers as Fraud to shield and protect a few select Officials of Bank from Disciplinary Action for their safe retirement from Bank's Services.
3. That it is understood that so far, the FIR is not registered with CBI.
Information being requested..
1) Please furnish the authenticated copy of application given by Bank, showing date of its delivery to CBI Banking Security & Fraud (BS & F) Zone, New Delhi to register FIR in the fraud case of Krishna Containers.
2) Please furnish the authenticated copy of correspondences exchanged (after receipt of Bank's application to register FIR) with Bank of Baroda related to register the FIR.
3) Please furnish the authenticated copy of laid-down /extant guidelines, to be followed by CBI to register FIR in Fraud cases, reported by Banks.
4) Please furnish the authenticated copy of cogent reasons/ noting/ orders resulting, into delay in registering the FIR in the fraud case of Krishna Containers.
5) Please furnish the authenticated copy of laid-down /extant guidelines, to be followed by CBI on receipt of complaint from public and course of action taken by CBI on Applicant's letter dated 10.02.2020."
The CPIO furnished a reply to the appellant on 16.06.2021 stating as under:-
"............it is intimated that Government of India vide Notification F. No. 11312011 - IR dated 0910612011 has exempted Central Bureau of Investigation from RTI Act, 2005."
Being dissatisfied, the appellant filed a First Appeal dated 21.06.2021. FAA's order dated 15.07.2021 held as under:
2"I have perused your RTI Appeal bearing No.CBIMH/A/E/21/00074 dated 21.06.2021 received through RTI web portal, your RTI application bearing No.CBIMH/R/E/21/00251 dated 31.05.2021 and the reply of CPIO bearing No.3410/4/2/2021(10)-BSFB/DLI dated 16.06.2021. As per available records, the CPIO (Head of Branch, CBI, BSFB, New Delhi) had disposed off your RTI Application dated 31.05.2021 by denying the information under Government of India Notification F. No. 1/3/2011-IR dated 09/06/2011 vide which Central Bureau of Investigation has been exempted from RTI Act. 2005.
2. The information sought in the instant case is regarding complaint submitted by Bank of Baroda to Central Bureau of Investigation (CBI) and disclosure of information would impede the process of investigation or apprehension or prosecution of offenders. Disclosure of such information is exempted u/s 8(1)(g) & (h) of RTI Act, 2005. Moreover, Government of India has exempted CBI from RTI Act, 2005 u/s 24 of RTI Act, 2005 vide Notification dated 9th June, 2011 issued by Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training).
3. I am satisfied that the information sought by you cannot be disclosed in view of Section 8(1)(g)(h) and Section 24 of RTI Act, 2005.
4. CPIO, CBI, BSFB, New Delhi shall inform the applicant about action taken on his letter dated 10.02.2020."
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video conference.
Respondent: Vivek Priyadarshi, DIG & CPIO present through intra-video conference.
The Appellant narrated the factual background of the case as mentioned in the RTI Application reproduced above and further reiterated some of the contentions mentioned in his Second Appeal as under:
"The dictum that provided that the information pertaining to the allegations of corruption and human rights violations shall not be excluded under this sub- section. forming an integral part Section 24 RTI Act, leads to conclusion that information pertaining to the allegations of corruption shall not be excluded under this sub-section. A co-joint read of brief background as mentioned in RTI 3 Application dated 31.05.2021, Appellant's letter dated 10.02.2020, delivered to Director, Central Bureau of Investigation (CBI), Banking Security & Fraud (BS & F) Zone, New Delhi on 12.02.2020, establishes beyond doubt that entire case/ matter when examined in totality. there are definite allegations of corruption against a few Bank's Officials.
Lodgement of FIR with CBI under Section 154 of Cr.P.C. is a established process. put into place since decades. Accepting the Bank's application. CBI registers case under Section 154 of Cr.P.C. and pursuant to Supreme Court directive, copy of FIR is uploaded on CBI's website.
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b) Regarding the averment that in this regard, it is intimated that Government of India vide Notification F.No. 1/3 2011- IR dated 09/06/2011 has exempted Central Bureau of Investigation from RTI Act, 2005 as mentioned in letter no. 3410/4 /2/ 2021 (10)-BSFB/DL dated 16.06.2021, Appellant wishes to draw kind attention to following excerpts of judgment of Hon'ble Delhi High Court in the matter of CPIO, Intelligence Bureau Vs Sanjiv Chaturvedi [W.P.(C) 5521/2016 & CM No. 23078/2016] dated 23.08.2017. wherein the following was held:
"29. The plain reading of the proviso shows that the exclusion is applicable with regard to any information. The term "any information" would include within its ambit all kinds of information. The proviso becomes applicable if the information pertains to allegations of corruption and human rights violation. The proviso is not qualified and conditional on the information being related to the exempt intelligence and security organizations. If the information sought, furnished by the exempt intelligence and security organizations, pertains to allegations of corruption and human rights violation, it would be exempt from the exclusion clause."
"30. The proviso 'Provided that the information pertaining to the allegations of corruption and human rights violations shall not he excluded under this sub- section' has to be read in the light of the preceding phrase 'or any information furnished by such organisations to that Government..".
"31. When read together, the only conclusion that can be drawn is that, if the information sought pertains to allegation of corruption and human right violation, it would be exempt from the exclusion clause, irrespective of the fact that the information pertains to the exempt intelligence and security organizations or not or pertains to an Officer of the Intelligence Bureau or not."4
The CPIO submitted relied on the contents of his written submissions as under:
"4. While deciding the appeal, the Appellate Authority mentioned that the disclosure of information as regards complaint filed by Bank of Baroda to the CBI would impede the process of investigation or apprehension or prosecution of offenders and that disclosure of such information is exempted U/s. 8(1) & (g) & (h) of RTI Act, 2005 and also that Government of India vide Notification dated 09.06.2011 has exempted Central Bureau of Investigation from RTI Act 2005 Accordingly, the Appellate Authority decided that he was satisfied that the information sought by him cannot be disclosed in view of Section 8(1)(g) & (h) and section 24 of the RTI Act.
5. Further, the Appellate Authority directed the CPIO, CBI, BSFB, New Delhi to inform the RTI applicant about the action taken on letter dated 10.02.2020 sent by the applicant to CBI highlighting the instances of violations of bank's guidelines in borrowal account of Krishna Containers.
6. That, in compliance to the decision of the Appellate Authority, the DIG/CPIO, CBI, BSFB, Delhi sent a letter No. 4242 /4/2/2021 dated 20.07.2021 to the RTI Applicant, informing that his complaint dated 10.02.2020 has been forwarded to Head of Branch, CBI, ACB, Lucknow for further necessary action and accordingly, any further correspondence may be made with CBI, ACB, Lucknow.
7. That, the RTI Applicant moved an appeal before the Hon'ble CIC on 25.08.2021 against the decision of the Appellate Authority. In his appeal, the applicant has mentioned that denial of information under section 24 of the RTI Act, 2005 is highly misplaced for the reasons mentioned at column 12 of his appeal filed before the Hon'ble CIC.
8. That, from the perusal of the queries raised by the RTI Applicant, Shri Radha Raman Tiwari, it is clear that the information sought by him does not pertain to violation of 'Human Rights' or 'Corruption'. Hence, exemption clause is applicable in the present case.
9. Further, the Appellate Authority had along with Section 24 of the RTI Act also mentioned Section 8(1)(g) & (h) of the RTI Act as one of the grounds for no disclosure of information. RTI Applicant at Clause 10 of his present appeal has mentioned that, 'the contention to deny the information that the information sought in the instant case is regarding complaint submitted by Bank of Baroda to Central Bureau of Information (CBI) and disclosure of information would impede the process of investigation or apprehension or prosecution of offenders is altogether highly misplaced since FIR is not registered and without registration of FIR what kind of investigation is taking place is not clear?"
10. That, Section 8(1)(h) specifies that, "Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information 5 which would impede the process of investigation or apprehension or prosecution of offenders". The clause does not only include investigation rather it includes 'apprehension' as well as 'prosecution of offenders', which the RTI Applicant opted not to mention and only mentioned that, "since FIR is not registered and without registration of FIR what kind of investigation is taking place is not clear". Disclosure of information on a complaint under process would certainly have impeded the process of likely 'apprehension' of the accused/suspect getting alert. As such, the information was denied to the applicant on the ground of exemption provided under Section 8(1)(g) & (h) of the RTI ACT."
Decision:
The Commission based on a perusal of the facts on record observes that the CPIO at the original instance erred in claiming the exemption of Section 24 of the RTI Act when the subject matter as well as the contents of the RTI Application clearly referred to allegations of corruption as it was premised on Bank of Baroda's communication to CBI for registering a FIR against an alleged fraud. To this extent, the CPIO appears to have taken a mechanical stand while replying to the Appellant vide their letter of 16.06.2021. Subsequently, the FAA has further caused avoidable anomaly in the matter by conjointly invoking the exemptions of Section 8 and Section 24 of the RTI Act, which is an absurdity. In other words, the determination of the applicability of Section 8 of the RTI Act will become operative upon deciding whether the RTI Application attracts the proviso to Section 24(1) of the RTI Act, i.e if the matter pertains to an allegation of corruption or human rights violation, the proviso to Section 24(1) of the Act will become operative and the disclosure of information will be determined based on the applicability of the exemptions of Section 8 of the RTI Act thereafter.
Now, having observed that the information sought for by the Appellant clearly pertained to an allegation of corruption, the question that arises for determination is whether the exemption of Section 8(1)(g) and 8(1)(h) of the RTI Act is applicable or not considering the argument of the Appellant that no FIR was registered at the time, hence there was no investigation while the CPIO has explained in his written submissions that the averred complaint was under
process hence disclosure of the information would have impeded the 'apprehension' of the accused/suspect getting alert.
Upon a careful consideration of the averments of both the parties as well as considering the fact that the documents sought for at points 1 & 2 of the RTI Application appear to be a substantial record for taking forward the averred complaint of Bank of Baroda, therefore, the Commission finds the applicability of 6 Section 8(1)(g) and 8(1)(h) of the RTI Act, rather tenable. The CPIO having suitably discharged his onus to justify the denial of the information as per Section 19(5) of the RTI Act leaves no scope of relief to be ordered on the said points.
As for points 3, 4 and 5 of the RTI Application, the Commission finds that the Appellant has not sought for any specific information as per Section 2(f) of the RTI Act, yet the FAA ordered to provide the action taken information on the Appellant's letter dated 10.02.2020 which was duly complied with by the CPIO, leaving no further scope of intervention at this stage.
However, the CPIO & FAA are advised to acquaint themselves well with the import of Section 24 of the RTI Act for future.
With the above observations, the appeal is disposed of.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 7