First Appeal in RTI 2005 Guide Lines

13 Simple Guidelines to follow while filing 1st Appeal under Right to Information Act 2005.

1. First appeal has to be filed within 30 days from date of receipt of decision of CPIO by the applicant with First Appellate Authority (FAA).
2. If no reply is received within 30 days (35 days if application is lodged with ACPIO) from the date ofreceipt by CPIO (ACPIO), then first appeal has to be filed within 30 days from the date when reply was due from CPIO.
3. Find out name, designation and address of first appellate authority from the decision letter of CPIO. If no reply is received, visit the web-site of the govt. dept/office/undertaking and refer RTI icon for these details.
4. Despite above efforts, if you are not in a position to locate details of FAA, address your first appeal as under:
   The First Appellate Authority under RTI Act 2005
   C/O.
   Head of _______________Dept/office
   and mention address of CPIO’s dept/office
5. If you want to be present during the first appeal hearing, mention it at the end of your appeal.
6. No fee is prescribed for first appeal for Public Authorities under the Central Government.
7. Some States have a prescribed fee and a specified format for First Appeal. Please check RTI Rules of individual Sates regarding First Appeal fees (if any), mode of payment, format (if any) if your First Appeal is to a Public Authority falling under State Government. Please visit www.rti.gov.in for details of various states.
8. All photocopies of enclosures mentioned in the appeal should be self-attested by the applicant under the word ‘Attested’ and full signature.
9. Retain one set of appeal and postal receipt and AD receipt.
10. You can deliver personally also, but mailing by registered ad/speed post is preferable. Couriers should be avoided.
11. FAA has to decide on the appeal within 30 days from the date of receipt of first appeal. He can take a further 15 days (total 45 days), provided he gives the reasons for the delay in writing.
12. The FAA can give either a "spoken" order or a written order.
13. Department of Personnel and Training (DoPT) has issued specific instructions to FAA's. These can be referred to here:

http://www.rtiindia.org/forum/2987-i...authority.html

Please also visit 
http://www.rtiindia.org/forum/blogs/...ate-govts.html 
http://www.rtiindia.org/forum/blogs/...uidelines.html
http://www.rtiindia.org/forum/blogs/...vt-format.html

Experience with FAA is not encouraging so far, as he belongs to the same dept/office of which information is sought. Usually FAA concurs with the CPIO. FAA is a senior officer in the office/dept of CPIO. Below find attached the format for First Appeal.

Lokpal and Lokayuktas Act, 2013 (No. 1 of 2014)

The Lokpal and Lokayuktas Bill, 2013 is published as Act No.1 of 2014 in the Gazette of India, Extraordinary, Part-II, Section-1, dated the 1st January 2014. The Bill got the assent from President Pranab Mukherjee, providing for setting up of an anti-corruption watchdog. The Bill was passed by the Rajya Sabha on December 17 and by the Lok Sabha the next day.

The object of the Bill is to set up a Lokpal at the Centre and Lokayuktas in states by State law enacted by respective legislatures within one year of coming into force of the Act.The Bill was first passed by the Lok Sabha in the winter session of 2011, but not by the Rajya Sabha, where it was debated and the house was adjourned before voting on it.Later, the Rajya Sabha Select Committee had suggested changes in the Bill, most of which are incorporated in the present Act.

The Lokpal can inquire into offences under the Prevention of Corruption Act, 1988 committed by members of Parliament, group A and B government officials, employees of a company, society or a trust set up by an Act of Parliament, or financed or controlled by the central government.The Lokpal And Lokayuktas Act, 2013  also made amendments to the Commission of Inquiry Act 1952, Delhi Police Establishment Act 1946, Prevention of Corruption Act 1988, Code of Criminal Procedure 1973 and Central Vigilance Commission Act 2003.

Meanwhile CBI sources have expressed their displeasure to the newly incorporated Section 8B(2) of the Central Vigilance Commission  Act which mandates that any agency (including the Delhi Special Police Establishment) shall, in respect of cases referred to it by the Central Vigilance Commission, submit the investigation report to the Central vigilance Commission.

Section 8A and 8B deal with the inquiry and investigation relating to corruption of public servants belonging to Group C and Group D officials of the Central Government. According to S.8A where, after the conclusion of the preliminary inquiry relating to corruption of public servants belonging to Group C and Group D officials of the Central Government, the findings of the Commission disclose, after giving an opportunity of being heard to the public servant, a prima facie violation of conduct rules relating to corruption under the Prevention of Corruption Act, 1988 by such public servant, theCommission shall proceed with one or more of the following actions, namely:—

(a) cause an investigation by any agency or the Delhi Special Police Establishment, as the case may be;

(b) initiate disciplinary proceedings or any other appropriate action against the concerned public servant by the competent authority;

(c) closure of the proceedings against the public servant and to proceed against the complainant under section 46 of the Lokpal and LokayuktasAct, 2013.

AS per Section 8B(1), in case the Commission decides to proceed to investigate into the complaint under clause (a)of sub-section (1) of section 8A, it shall direct any agency (including the Delhi Special Police Establishment) to carry out the investigation as expeditiously as possible and complete the investigation within a period of six months from the date of its order and submit the investigation report containing its findings to the Commission. Sub-section 2 of S.8B mandates thatnotwithstanding anything contained in section 173 of the Code of Criminal Procedure, 1973, any agency (including the Delhi Special Police Establishment) shall, in respect of cases referred to it by the Commission, submit the investigation report to the Commission.

According to subsection (3) of Section 8B, the Commission shall consider every report received by it under sub-section (2) from any agency (including the Delhi Special Police Establishment) and may decide as to—

(a) file charge-sheet or closure report before the Special Court against the public servant;

(b) initiate the departmental proceedings or any other appropriate action against the concerned public servant by the competent authority.”

CBI sources say, as per S.173 of Cr. PC which have been upheld by various courts in the country, an investigating officer shall file the final report only before competent magistrate but now the new provision make it necessary to show it to CVC as well which is a serious dilution of its powers. Senior officials said they would soon write to Law Ministry seeking clarity on the issue and, if necessary, make changes in the Lokpal and CVC Act accordingly.

In H.N. Rishbud and Inder Singh vs. The State of Delhi  a three Judge Bench of the Supreme Court, after delineating the different steps in investigation as contemplated in Cr.P.C, has pointed out that the formation of the opinion, whether or not there is a case to place the accused on trial, should be that of the officer in charge of the police station and none else.

In State vs. Raj Kumar Jain a two judge bench considered the legality of an order passed by a Special Judge before whom the CBI filed final report in respect of a junior engineer who was pitted against offences under the Prevention of Corruption Act. The CBI in the report held that the allegations made against him were unsubstantiated. But the Special Judge declined to accept the said report as in his opinion the CBI should have taken the view of the Sanctioning Authority. So the Special Judge directed the CBI to conduct further investigation after approaching the Sanctioning Authority. Though the High Court of Delhi did not interfere with the said direction, the Supreme Court interfered with it and observed as follows;-

“Viewed in that context, the CBI was under no obligation to place the materials collected during investigation before the sanctioning authority, when they found that no case was made out against the respondent. To put it differently, if the CBI had found on investigation that a prima facie case was made out against the respondent to place him on trial and accordingly prepared a charge-sheet (challan) against him, then only the question of obtaining sanction of the authority under Section 6(1) of the Act would have arisen for without that the Court would not be competent to take cognizance of the charge-sheet. It must, therefore, be said that both the Special Judge and the High Court were patently wrong in observing that the CBI was required to obtain sanction from the prosecuting authority before approaching the Court for accepting the report under Section 173(2) Cr.PC for discharge of the respondent.”

In Sarala Vs Velu the Apex Court while dealing with a case where in the investigation officer concerned was directed by the High Court to take back the case from the court (whereat it was laid by him after completing the investigation) and further directed to consult the Public Prosecutor and submit a fresh charge- sheet in tune with the opinion of the Public Prosecutor, after quoting the above Judgments, clarified that the formation of opinion in a case is the exclusive domain of the investigating officer and at any rate no investigating agency can be compelled to seek opinion of anybody including a Public Prosecutor even under the orders of court.

The issue will be debated further especially when the court had already gone through situations where the Central Vigilance Commissioner himself was charge sheeted under the Prevention of Corruption Act.

To view Gazette Notification, please CLICK HERE.

Central Vigilance Commission ( CVC )

The Central Vigilance Commission was set up in 1964 on the recommendation of Santanam Committee. The CVC was a one man Commission for about three and a half decades for exercising general superintendence over vigilance administration in the Government. Justice Nottoor Srinivasa |Rau became the first Central Vigilance Commissioner with effect from 19thFebruary, 1964. The Supreme Court of India , in criminal writ petitions nos.340-343/1993 (Vineet Narain and others Vs.Unionof India and others) popularly known as Jain Hawala case, had directed on 18.12.1997 that statutory status should be conferred upon the Central Vigilance Commission. It came on the statute book as the CENTRAL VIGILANCE COMMISSION ACT, 2003 (45 OF 2003).

The Central Vigilance Commission Act,2003 provides for constitution of Central Vigilance Commission to inquire or to cause inquiries to be conducted into offences alleged to have been committed under the Prevention of Corruption Act,1988 by certain categories of public servants . The Act also empowers the Commission to exercise superintendence over the functioning of the Delhi Special Police Establishment (DSPE) now called Central Bureau of Investigation (CBI). The Commission is also empowered to review the progress of investigations conducted by the CBI and the progress of applications pending with the competent authorities for grant of sanction for prosecution for offences alleged to have been committed under the Prevention of Corruption Act,1988. The Commission also exercises superintendence over the vigilance administration of the various organizations under the Central Government.

The Commission’s jurisdiction to cause inquiry/investigation into alleged offences of corruption suo-moto extends only to the upper echelons of public servants viz. members of All India Services serving in connection with the affairs of the Union, Group ‘A’level officers of the Central Government and such level of officers in the corporations, Government companies, societies and other local authorities of the Central Government.

The emphasis of the Commission has been to have in place effective preventive measures to fight corruption and also to increase transparency and accountability in the functioning of the Government. In tune with the emphasis on good governance, the Commission closely looks at the prevailing systems and procedures of the Government departments and its organizations and recommends system strengthening and improvements. The Commission has also been continuously emphasizing on Leveraging technology by adopting e-procurement, e-payment, reverse auction etc. for reducing scope for corruption and improving transparency, equity and competitiveness in public procurement.

The Commission has been engaging with various international anti-corruption agencies/organizations, as a measure of international co-operation. Creating a Knowledge Management System for international Association of Anti –Corruption Authorities (IAACA) has been one of the recent collaborative initiatives.

Source : PIB  via sapost.blogpost.in