Socialpos:
Haryana: Tuesday, December 04, 2018.
In
a bid to seek transparency, Vineet Malik a resident of Gurgaon, Haryana had
sought information from the Public Information Officer Commissioner of Police,
Gurgaon vide 2 RTI applications pertaining to action taken report on a plaint
filed by him along with belt no. of delinquent cops ; namely Ashwani Kumar –
Assistant Sub Inspector and Arvind Dahiya SHO ( Erstwhile SHO , Sector 53 P.S ,
Gurgaon ) now transferred as SHO , Sushant Lok 1 P.S , Gurgaon who deliberately
and willfully contravened and to the effect committed deliberate and willful
contempt of not one but several verdicts of different High Courts of the
Country and Honb’le Supreme Court of India which are binding on all the
authorities under Article 142 of the Constitution of India as also enunciated
in Palitana Sugar Mills Vs Vilasiniben , SC and thereby miserably failed to
register an FIR under Section 154 (1) of Cr.P.C on receiving information of a
cognizable offence and also violated Statutory Notifications pertaining to
advisory on Compulsory Registration of FIR u/s 154 Cr.P.C when the information
makes out a cognizable offence as categorically cited in the said Notifications
issued by the Ministry of Home Affairs, Government of India.
Malik
says, on the basis of documented evidence on record , he would very soon
establish to make one more delinquent Police Officer of SHO rank , other than
mentioned here-in , accountable and answerable for his misadventures undertaken
by him pertaining to deliberate and willful contempt of different Hon’ble High
Courts and Supreme Court for contravening Statutory Notifications issued by the
Ministry of Home Affairs with reference to Guidelines pertaining to mandatory
registration of FIR on receiving information of a cognizable offence.
Malik
, also an RTI Activist since last 11 years anticipated information from the
said authority within 30 days as per the RTI Act, 2005 however to his surprise
, he appears to be perturbed for not receiving the said information within the
stipulated time frame of 30 days, he was therefore compelled to move First
Appellate Authority cum DCP, Gurgaon under Section 19(1) of the RTI Act
alleging “Deemed Refusal of Information” , for deliberately shielding the
errant cops for their misconduct and dereliction of duty.
Thereafter,
a notice was issued to the appellant to appear in person on the date intimated
by Mr. Ashok Kumar HPS FAA-cum DCP, Gurgaon however, the said authority was
communicated vide email to adjudicate the said appeal on the basis of merits
without any prejudice and further provide the order arising out of the said 1st
RTI appeal while expressing the appellant’s inability to appear on the said
date as it is not mandatory to appear before the 1st appellate authority for
the disposal of the appeal.
In
response, the appellant received 2 orders from the FAA cum DCP , Gurgaon by
speed post in which it is categorically stated that, “I have examined the
relevant file and found nothing false or concealed in the requisite reply which
has already been provided to the appellant by SPIO vide her office letter No.
specified with a date.
Since,
the appellant was afforded an opportunity and intimated him for personal
hearing, the appellant did not appear. Hence the present appeal is liable to be
disposed off devoid of any merits.”
Malik
alleges foul play on behalf of the said SPIO and FAA cum DCP , Gurgaon and
expressed his displeasure and frustration and exclaimed that the said authority
is hand in gloves with a deliberate intent to shield errant cops as they belong
to the same fraternity and thereby concealed vital information sought by the
appellant and interfered with the administration of justice.
Now
Malik has communicated with the said FAA cum DCP , Gurgaon vide e mail denying
to have received any such information by the SPIO , Commissioner of Police ,
Gurgaon as claimed by the said authority and yet again requested them to
provide the information in point wise format only , without any further delay ,
substantiate it’s claims for the information already provided to the appellant
by furnishing the evidence along with ink signed receiving of the appellant
against the information furnished vide 2 RTI replies as claimed to have already
provided to the appellant thereof.
Furthermore,
the appellant has also cited a Statutory Notification No.5/52/2016-1-AR issued
by Ms. Santosh Kumari Under Secretary ( Administrative Reforms ) to the Chief
Secretary, Government of Haryana in which it is categorically stated that ,
“If
an appellate authority comes to a conclusion that the appellant should be
supplied information in addition to what has been supplied to him by the SPIO ,
he may either (i) pass an order directing the SPIO to give such information to
the appellant ;or (ii) he himself may give information to the appellant while
disposing off the appeal . In the first case , the appellate authority should
ensure that the information ordered by him to be supplied is supplied to the
appellant at the earliest. It would however , be better if the appellate
authority chooses the second course of action and he himself furnishes the
information along with the order passed by him in the matter.”
The
said Notification also lays emphasis by highlighting the core existence,
purpose and transparency of the RTI Act 2005 and further issues stringent
directions to the First Appellate Authority which categorically states that,
“Deciding appeals under the RTI Act is a quasi-judicial function. It is,
therefore, necessary that the appellate authority should see to it that the
justice is not only done but it should also appear to have been done. In order
to do so, the order passed by the appellate authority should be speaking order
giving justification for the decision arrived at.”
Additionally,
the appellant has also communicated to the said authority with a liberty of
reserving his rights to share the said dismal instance with competent
authorities and is further contemplating strict action against all such errant
Police Officers working in collusion among themselves against public interest and
setting a wrong precedent.
Malik
also intimated about the said mishap by email to Mr. Vikas Kaushik – SHO –
Sector 53 P.S , Gurgaon , State Information Commissioner – Haryana , Under
Secretary ( Administrative Reforms ) to the Chief Secretary – Government of
Haryana , Director General – Bureau of Police Research and Development ,
Ministry of Home Affairs, Government of India.
In
a recent verdict passed by Delhi HC, Justice Suresh Kait observed that the
applicant’s RTI application was not answered and said that, “under the RTI Act,
transparency is rule and secrecy is an exception.”
Malik
says, in the year 2011, he had dragged 2 errant Police officers of Assistant
Sub Inspector and Head Constable rank to the Punjab and Haryana High Court to
which Honb’le Justice Rajive Bhalla after taking cognizance of their deliberate
and willful contempt committed by them was in no mood to spare the said errant
cops, however, only when Malik agreed to accept their “Unconditional Apology”
tendered to him and the Hon’ble Punjab and Haryana High Court , that he decided
to let the said errant Police Officers exonerated from the said Contempt of
Court Case filed against them under Section 12 of the Contempt of Courts Act
under Article 215 of the Constitution of India.
Malik
says, such a grave misconduct of errant cops should not be condoned and
absolved in any given circumstances, as such mishaps are happening on a drop of
a hat, obscuring transparency and thereby giving an opportunity to the accused
to escape from the clutches of law as categorically cited in verdicts passed by
the Constitutional Bench of Hon’ble Supreme Court ; W.P. ( Criminal ) No.68 of
2008 – Lalita Kumari Vs Government of U.P and others , Satvinder Kaur Vs State
, 05 October 1999 – Supreme Court – Criminal Appeal No.1031 of 1999 and more ,
hence are very common till the time someone takes resolve to make such errant
cops accountable on a forum empowered with constitutional rights in larger
public interest.
Malik
says, due to misconduct of the said errant cops he has suffered deprivation of
“Life and Liberty” under Article 21 of the Constitution of India is also
contemplating to initiate appropriate legal proceedings against the said errant
cops u/s 217 and 218 of IPC.
Additionally,
the said errant cops can also be penalized u/s 166A (b) and u/s 119 of IPC for
abetting the Commission of Offence.
Section
217 of IPC states,
“Public
Servant disobeying direction of law with intent to save person from punishment
or property from forfeiture.”
Section
218 of IPC states,
“Public
Servant framing incorrect record or writing with intent to save person from
punishment or property from forfeiture. – Whoever, being a public servant,
charged with the preparation of any record or other writing , frames that
record or writing in a manner which he knows to be incorrect, with intent to
cause , or knowing it to be likely that he will thereby cause , loss or injury
to the public or to any person , or knowing it to be likely that he will
thereby save , any person from legal punishment , or with intent to save , or
knowing that he is likely thereby to save , any property from forfeiture or
other charge to which it is liable by law , shall be punished with imprisonment
of either description for a term which may extend to three years , or with fine
, or with both.”
He
further says , such errant Police Officers should be taken to task and must be
dismissed forthwith on the basis of their misconduct for deliberately and
willfully aiding and abetting the illegality at the cost of general public ,
disregarding the directions of law with dishonest intentions and ulterior
motives to shield and save the accused from prosecution and punishment and he
shall go to an extent to get the sanction from the Chief Minister of Haryana
and if the said sanction to dismiss the said cops would not be received within
3 months as per law, in that scenario, as per the Apex Court landmark verdict,
the approval will ought to be received by default and thereafter the law will
take it’s own course.
It
remains to be seen if the said First Appellate Authority cum DCP , Gurgaon
headed by a position accountable for transparency, ethics, accountability and
good governance, Mr. Ashok Kumar, an officer passed out of Haryana Police
Services would accede and abide the directions of the Statutory Notification
No.5/52/2016-1-AR issued by Under Secretary ( Administrative Reforms ) to the
Chief Secretary , Government of Haryana which is accessible to very Citizen as
uploaded by Hon’ble State Information Commissioner , Haryana on it’s website in
public interest.
Mr.
Shailesh Gandhi – Hon’ble Former Chief Information Commissioner had recently
articulated the much needed reforms through a note on The Challenges To
Transparency :
“RTI
Act , 2005 is one of the best transparency laws in the World which can bring
accountability in governance and reduce corruption only if Public Information
Officers do not conceal information to be brought in the public domain however,
of late , there are some signs that the law is stagnating and regressing in
it’s impact as Public Servants are blocking RTI requests by flouting the letter
and spirit of the law. This emboldens public servants to deny citizens their
fundamental right to information which is enshrined in Article 19 (1) (a) of
the Constitution of India.
If
Citizens and media are vigilant, we can defend this and see better governance,
reduction in corruption and respect for the individual Citizen.
Likewise,
recently retired another Stalwart of the RTI Act, 2005, Hon’ble Chief
Information Commissioner – Mr. Sridhar Acharyulu who has authored 30 books on
law and journalism has been
time
and again raising his voice against the replacement of section 8 (1) (j)
dealing with privacy clause which is not warranted. He cautioned that Section 8
(j) if replaced, will expand the scope of denial of information with several
ambiguous and very vide expressions.
Furthermore,
former CIC has elucidated Ten Clauses which will offer Ten Gates for Corrupt
Officers to Escape RTI Scrutiny.
Non-registration
of cases is a serious complaint against the police. The National Police
Commission in its 4th report lamented that the police “evade registering cases
for taking up investigation where specific complaints are lodged at the police
stations”. It referred to a study conducted by the Indian Institute of Public
Opinion, New Delhi regarding “Image of the Police in India” which observed that
over 50% of the respondents mention non- registration of complaints as a common
practice in police stations.
Pertinent
Excerpts From The SC Judgment Presided by 5 Constitutional Bench – Lalita
Kumari vs Govt. Of U.P.& Ors – Writ Petition (Criminal) No. 68 of 2008 with
S.L.P. (Crl.) No. 5986 of 2006 , S.L.P. (Crl.) No. 5200 of 2009 , Criminal
Appeal No. 1410 of 2011 , Criminal Appeal No. 1267 of 2007 and Contempt
Petition No.D26722 of 2008
The
Committee on Reforms of Criminal Justice System headed by Dr. Justice V.S.
Malimath also noticed the plight faced by several people due to
non-registration of FIRs and recommended that action should be taken against
police officers who refuse to register such information.
Principles
of democracy and liberty demand a regular and efficient check on police powers.
One way of keeping check on authorities with such powers is by documenting
every action of theirs.
Burking
of crime leads to dilution of the rule of law in the short run; and also has a
very negative impact on the rule of law in the long run since people stop
having respect for rule of law. Thus, non-registration of such a large number
of FIRs leads to a definite lawlessness in the society.
It
is pertinent to mention that , a Parliamentary panel has strongly recommended
to the Government to consider making any refusal to file the First Information
Report ( FIR ) a criminal offence and action be taken against such errant
police officers. The panel also doubted the claim of the Government that around
78% ( approx 12000 ) police stations in the country are registering 100% FIR’s.
“It
is surprising to know that despite the RTI Statue in India remaining the same
along with it’s legal framework, India has slipped from it’s second position to
fourth, fifth and sixth in 2016 , 2017 and 2018 respectively.”
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