Central Information Commission
Smt. Guninder Kumar Gill vs Cbi on 24 August, 2010
CENTRAL INFORMATION COMMISSION
Complaint No. CIC/WB/C/2010/000152 dated 15.6.2010
Right to Information Act 2005 - Section 18
Complainant - Ms. Guninder Gill
Respondent - Central Bureau of Investigation (CBI)
Bank Securities & Fraud Cell (BS&FC)
Date of hearing: 9.7.2010
Decision announced: 24. 08.2010
Facts:
By an application of 4.5.10 Ms. Guninder Gill of Safdarjang Enclave, New Delhi applied to the CPIO, CBI, BS&FC Division, seeking the following information:
"Under what express provision of Law or order of what competent authority have the following documents germane to the allegations raised by complainant in FIR 395/04 P. S. Connaught Place been provided to the accused RC/BD1/2009/E/0017 who have relied upon them in writ No. 1837/09 before Delhi High Court for purposes of cancellation of the criminal complaint before filing of charge sheet, thereby seriously compromising the criminal investigation of the CBI, tampering of evidence and witnesses.
1. Statement/ Reply of witness Citibank N.A. dated July 9, 2009 (Annexure-P3 pages 56 to 58 of Quashment writ).
2. FIR 115/09 P.S. EOW (Annexure-P1 pages 41 to 45 of Quashment writ).
3. RC/BD1/2009/E/0017 of CBI (Annexure P1 pages 46 to 53 of Quashment writ)."
To this, Ms Gill received a response dated 21.5.10 from CPIO Shri Mahipal Yadav, SP, CBI, BS &FC informing her as below:
"Information is to be furnished by CPIO as and when it is sought by any person under RTI Act1.
It is also informed that annexure-P3 of the said writ petition and copies of FIRs were furnished to Shri Makarand Khatavkar on 31.3.2010 while disposing his application dated 17.12.2009 and his appeal dated 19.2.2010."1
On which appellant has noted "False & erroneous-cannot be supplied until investigation is concluded."
1Upon this, Ms. Guninder Gill moved a complaint before this Commission u/s 18(1) pleading as follows:
"1. In view of the gravity of the situation that my appeal may be considered out of turn, as the accused are likely to get the benefit in terms of quashment/ cancellation of the complaint in the quashment writ hearing, if no action is taken by the CIC/CBI against them. Hence the earliest date of hearing is earnestly prayed for.
2. Immediate action be taken by the CIC against the CPIO and the AA concerned.
3. The CIC may consider recommending to Director CBI that a thorough investigation be conducted of the criminal conspiracy of how the leakage of information to the accused in December 2009 when the quashment writ was filed by them based on the sensitive documents stated above and what are the other documents an evidence of the investigation which has been and is being leaked to the accused.
4. The CIC may consider recommending to Director CBI that a complaint be registered against the aforementioned officials and action be taken against them under section 217, 120 (B) and other relevant sections of the IPC.
As the Head of the CIC, I would like to point out to you, that the public will lose complete faith in the criminal justice system, if the sensitive documents and evidence provided by them is handed over to the accused persons the very next minute, hence the concerned officers have to be given exemplary punishment otherwise it will lead to complete indiscipline and a collapse of the entire system as a result of a precedent being set without corrective and punitive action.
The matter is extremely serious, I and my family have lost all faith and confidence in the investigation and the officers conducting it and request that immediate action as requested for above be taken."
Given the distress expressed by complainant, a lady who has taken on a powerful MNC, we agreed to give the case an out of turn hearing. The complaint of Ms. Guninder Gill is based on the following:
"The leakage of information has greatly benefited the accused. They have been able to come out with a defence and forge 2 documents which have planted in the investigation and have moved a fraudulent writ based on these fake documents as defence for quashment purposes."
On this basis, Ms Gill has concluded, "The illegal grant of information has had serious ramification in terms of vitiating the entire investigation of the CBI and in attempts at intimidating and framing the complainant and her aged mother."
The specific accusation that has been made by complainant Ms. Gill is, "The entire investigation of the RC in question has been completely compromised and I, a lady complainant who has been facing criminal intimidation, blackmail and extortion by the accused (for which 3 FIRs have been registered by Delhi Police) am now afraid for my life an liberty at the hands of the accused and the CBI officials who are leaking all the evidence in the investigation to the accused."
The appeal was heard on 9.7.2010. The following are present:
Appellant Ms. Guninder Gill Ms. Harjyot Kaur Ms. Harprakash Kaur Gill Ms. Kuldip Randhawa Respondents Mr. Mahipal Yadav, SP, CBI, BS&FC Respondent Shri Mahipal Yadav SP submitted that no confidential documents have been supplied and such documents as have been supplied have been so supplied after detailed examination and discussion with the Investigating Officer, after the CPIO has satisfied himself that these will in no way impede investigation. Shri Mahipal Yadav then displayed before us a complete copy of the documents supplied, which includes a number of letters, which are part of the correspondence of Citibank and Deutsche Bank which are owners of all these documents. He had, in the first instance, actually refused disclosure to 3 the accused but on the orders of the Appellate Authority to examine the reasons as to how such disclosure would impede the process of investigation the documents had been disclosed after careful re-examination. Appellant Ms. Guninder Gill on her part submitted that documents supplied by her to CBI as the Investigating Agency, were supplied in confidence. In her view, such documents did not require to be especially marked as confidential to make them so, since they were submitted in relation to the investigation of a case registered on her complaint. She conceded that the other party had obtained copies of these documents but this was done illegally. Their purpose in obtaining these documents from CBI was to give a legal cover to the possession of such documents, thereby compromising her case. She had, in this context, moved a representation before both the Lt. Governor of Delhi and Shri Ashwani Kumar, Director, CBI on 30.4.10 concluding that there was collusion between the Investigating Agency, the Delhi Police or the CBI whom she accused of criminal conspiracy with the accused Deutsche Bank, AG, Germany, submitting as follows:
"The criminal investigation of both the Police and the CBI has been compromised in a material and deliberate way and there is danger of this conduct recurring in the hands of the investigators and Deutsche Bank AG Germany. Hence, penal action must be taken against officials found guilty of 'leaking' this sensitive and confidential information to the accused illegally.' Ms. Gill further cited an OM of the DOPT directing close adherence to Sec. 11(1) in disclosing information regarding third party under the RTI Act. In this case, she contended that even such information held by Citibank, which concerned her personal accounts, should not have been disclosed. She further stated that it is not only the documents of Citibank and Deutsche Bank that had been disclosed, but also her own representations made to the Director, CBI and Lt. Governor and the responses provided by the CBI to these, thereby compromising her position before the Court. The summary of her oral arguments received by e-mail subsequently is as follows:4
"A. The issue raised - can copy of FIR and all supporting documents be supplied to the accused by the investigating agency?
The answer provided was yes - High Court judgments & CIC judgments support this view.
However, the question I would like to get back to you on the following points:
Who is the competent authority empowered to do so? Under what express/provision of Law can they do so? Under Section 207 Cr.PC Supply to the accused of copy of Police report and other documents. -
In any case where the proceeding has been initiated on a police report, the Magistrate shall without delay furnish to the accused, free of cost, a copy of each of the following: -
(i) the police report; (ii) the first information report recorded under section 154; (iii) the statements recorded under sub-section (3) of section
161 of all persons whom the prosecution proposes to examine as its witness, excluding there from any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of Section 173;
(iv) the confessions and statements, if any, recorded under Section 164;
(v) any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of Section 173:
As per my understanding the competent authority therefore to provide the information is not the Investigating agency but the Court of Law where the proceeding has been initiated on a police report.
Further, as observed from the Cr. PC there is no express provision of law under any Act under which they (the investigating agency) can do so.
The investigating agency is only bound under provisions of the Cr.PC and IPC in which there is no provision binding on them to disclose the FIR but only on the court where the proceeding has been initiated on the Police report.
Hence, only relevant Court of Law as described above has the authority to give a copy of the registered complaint.5
If the investigating agency is to automatically hand over a copy of FIR to the accused at 4 pm of what was filed at 2 pm by the victim it can only do so if the Cr.PC is amended Judgments of High Court etc. are only binding directly on the lower Courts.
Police/CBI is bound by Cr.PC Moreover the information in FIR was supplied by the complainant who is the third party u/s 11 of the RTI Act.
If the information is being sought under the RTI Act, then the complainant has to be issued notice u/s 11 if the FIR and evidence is to be supplied under RTI Act.
We can't have a mix and match of 2 systems, a cherry picking of Cr. PC and RTI Act as it suits various persons-there would be complete chaos.
Hence the CBI should not have handed over the FIR/RC to the accused without issuing notice under Section 11. The accused/applicant in this case, had to apply for it under Cr.PC to the magistrate where the case was registered.
B. In a criminal investigation, Information which is supplied by complainant to investigating agency or information which is supplied by Banks concerning details of complainant's account is to be treated as confidential by the investigating agency and cannot be disclosed to accused without issuing notice to the complainant u/s 11 of RTI Act, which in this case the representations of the complainant and the information regarding the bank account of the complainant has been disclosed to the accused without issuing notice u/s 11 of RTI Act. Only information, which is filed by the Police in the concerned Court, can be given to the accused without issue of notice u/s 11 of RTI Act. Hence not only the FIR but also the letters of the witnesses concerning the complainant and the representations of the complainant cannot be handed over to the accused without issuing notice to the third party in this case the complainant u/s 11 of RTI Act. The information provided by the bankers of the complainant viz. witness Citibank also cannot be provided without giving notice to the complainant u/s 11 of RTI Act.
C. Gravity of the actions of the CPIO/AA 6 The accused are threatening the complainant for which 3 cases of criminal intimidation have been registered by the Police. By disclosing this important information regarding criminal investigation in this illegal manner, the accused have been aided and abetted and the criminal investigation has been compromised. It has enabled the accused to tamper with the statements of the witnesses and has exposed the complainant who has been facing blackmail, extortion and threats at the hands of the accused to even more risk than before.
D. Prayer The complainant is therefore aggrieved and is appealing to the CIC to recommend disciplinary action against the CPIO and Appellate Authority.
The complainant feels that if exemplary punishment is not meted out to the delinquent officials, a dangerous precedence would be set to the benefit of criminal elements and to the detriment of the victims, which would lead to the collapse of the criminal justice system.
The express provisions of law have to be followed and information cannot be disclosed at the whims and fancies and caprices of the PIO, which it has been in this case where we see a clear abuse of power by CPIO and Appellate Authority."
In response to this argument, respondent Shri Mahipal Yadav SP submitted that all these documents were already in the possession of the High Court when copies were supplied by CBI to the accused. It is for this reason that it had been decided that this will in no way impede the process of investigation.
Appellant Ms. Guninder Gill has also asked for copies of all the documents provided by the CBI to the Deutsche Bank, which had not been provided to her thus far. Respondent Shri Mahipal Yadav readily agreed to supply these copies within the time limit mandated by the RTI Act on receipt of the necessary fee, but had hesitation in supplying certified copies. In this context, it is brought to his notice that as per Sec. 2(j) sub sec. (ii), the 'right to information' means right to information accessible under this Act, which is held by or under the control of any 7 public authority and includes "taking notes, extracts or certified copies of documents2 or records".
DECISION NOTICE What emerges from the discussion above is that in fact the documents disclosed by CPIO were already in the public domain before copies were supplied to the accused in the investigation i.e. Deutsche Bank West Germany. The question here is, however, whether on disclosing the information with the authority of the CBI, the CPIO has in fact compromised appellant's contention that these documents had been illegally obtained by the accused. Ms. Guninder Gill e has also contended that it was not for the CPIO to disclose the copy of the FIR since there is no express provision in the Cr.P.C. allowing him to do so, but for the court of law. It was, in her view, only a Court of Law, which has authority to provide a copy of the FIR.
On this question of disclosure of the FIR, this Commission has already held in Appeal No. CIC/WB/A/2009/00023 announced on 9.3.'09 that an FIR is discloseable. This decision has been upheld by the High Court of Delhi in WP(C) No. 7930/2009. The law as quoted by complainant Ms Gill requires only that the copy of the FIR be provided free of cost to the complainant3. Further we have held in Appeal No. CIC/WB/A/2009/00462 & 00476; Ms Inder Kaur vs. DCP (Economic Offences Wing) & Anr. announced on 14.5.'09 as follows:
"In Prashant Bhushan vs. Deputy Commissioner Police (DCP), Crime & Railways, on the issue of disclosure of FIRs to the accused it had been similarly argued before us on 24.2.'09 that the FIR on the encounter at Batla House, Delhi of 19.9.08 cannot be provided since the Cr.P.C. mandates the provision of providing a copy of the FIR only to the complainant or the accused. However, on being questioned whether the law debarred providing a copy of the FIR to a person other than the complainant or the accused, respondent Sh. Satyendra Garg, Addl. CP referring to Sec 154 (2) 2 Underlined by us for emphasis 3 Sec 154 (2) reads as follows: 2) A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant.8
conceded that there was no such bar. The FIR is a public document and an accused is entitled to have its certified copy. As held in Jayat Bhai Lalu Bhai Patel vs. State of Gujarat, 1992 Cr LJ 2377 (Guj), the denial of a copy will be against the principles of natural justice and violative of Article 21 of the Constitution From the above it will be clear that a copy of the FIR indeed cannot be denied to a party to the case although under Sec 154 (2) of the Cr. P.C. a complainant himself/herself receives this free of cost."
Moreover, if complainant Ms Gill is of the view that the CBI has transgressed the provisions of Cr.PC concerning action that might be taken only by a court of law, it is not for this Commission to take a view on that. Besides, under Right to Information Act, 2005, Smt. Guninder Kaur Gill's representation can neither be considered an appeal nor a complaint with regard to disclosure of information pertaining to Citibank N.A. and Deutsche Bank. This is a matter which borders around "Contempt of Court' as CPIO, in the considered opinion of Mrs. Gill parted with the information which only Courts / designated Courts can do. She states, "These documents are sacred to the investigation and under express provisions of law are exempted from disclosures in the interest of the prosecution of offenders". The violation of Cr.P.C. is not the domain of RTI Act. In case express provisions of Cr.P.C. have been violated, the remedy available is under IPC. Besides the provisions of Sec 11(1) of the RTI can indeed be invoked by a third party but not the customer of a third party. To seek remedy for this therefore, appellant Ms. Guninder Kaur Gill is advised to approach the competent forum, which would include the court of law whose authority has, in Ms Gill's view, been transgressed, to obtain redress of her grievance.
The larger issue, however, of whether CPIO should have disclosed the remaining correspondence including correspondence that appellant Ms. Guninder Gill had initiated and supplied to the Investigating Agency requires determination. Supreme Court of India in SLP (Civil) 34868/2009, Khanapuram Gandaiah vs. Administrative Officer & Ors has decided on 04.01.2010 that "under the RTI Act, an applicant is entitled to get a copy of the opinions, advices, 9 circulars, orders etc. but he cannot ask for any information as to why such opinions, advices, circulars, orders etc. have been passed especially in matters pertaining to judicial decisions. A judge speaks through his judgments or orders passed by him. If any party feels aggrieved by the order/ judgment passed by a judge, the remedy available to such a party is either to challenge the same by way of appeal or by revision or any other legally permissible mode. No litigant can be allowed to seek information as to why and for what reasons the judge had come to a particular decision or conclusion. A judge is not bound to explain later on for what reasons he had come to such a conclusion."
The factual matrix of the present case is that Ms. Guninder Kaur Gill is agitated about an order passed by the High Court. Now by her statement about who has relied upon these documents in WP No. 1837/09 before Delhi High Court for purposes of cancellation of the criminal complaint, she conjectures that the order has been passed due to the presence of these documents and, hence, her complaint under RTI Act. The question that arises then is whether complainant is interpreting the reasons of the order given. To our mind, Ms. Guninder Kaur Gill is presuming the reasons for the order and based upon her presumptions, she is asking CIC to penalise CPIO, CBI. What she cannot do directly, therefore she is seeking to do indirectly through the medium of this Commission. While in perusing the salacious language resorted to by the accused in this case, one can have every sympathy for appellant Ms Gill, we can only conclude that the present complaint is an inappropriate use of the provisions of RTI Act .
In an e-mail of 27.7.'10 Ms Gill has attached a copy of Chapter 8 of the CBI Manual and contended as follows:
I would like to draw your attention to Chapter 8, Section 8.1 of the CBI Manual entitled "Complaints" in which the CBI has stated very pointedly in the last sentence of the first paragraph that "All complaints will be treated as confidential at all stages"
(emphasis my own).10
Thereby, it is evident that all correspondence and evidence i.e. information concerning my case/ complaint were perforce by very definition, being treated by the CBI as confidential and therefore Shri Mahipal Yadav SP and CPIO BS & FC, CBI did not have any grounds whatsoever to release them to the accused (or for that matter any third party), on the basis that the complaint and the connected material including my letters to the Director /LG and the replies / statements of the witnesses were not stamped or marked as "confidential", notice had to be issued by him under Section 11 of the RTI Act to me which he did intentionally and deliberately did not do.
Further, the complaint related material/ information was addressed to Director CBI and the LG of Delhi. Mr. Yadav was merely the physical custodian. He had to therefore obtain the permission of the addressees of the confidential information which also he did not do."
In this very argument complainant has talked of the material, which she contends has been illegally disclosed, as 'complaint related' and not the complaint. It is only when a complaint is entered into the complaint sub-module or in the temporary complaints register maintained in a Branch Office that it will be entitled to protection of Chapter 8. "Complaint related material/ information"
cannot in itself be deemed the complaint, thus warranting invocation of Sec 11 in disclosure. In her arguments in the hearing Ms Gill has described these as having been were submitted in relation to the investigation of a case registered on her complaint. We are in full agreement that complaints registered with CBI should be handled in full compliance with their Manual, and their unauthorized disclosure discouraged, we must also concede that it is not the responsibility of this Commission to ensure that their Manual is complied with, except inasmuch as it has a bearing on Sec 8 (1) of the RTI Act, 2005. Although as we have said earlier Ms Gill has our sympathy in her fight to establish her rights in the face of a powerful opposition, none of the contentions of Ms Gill in this complaint/ appeal [which in fact is neither a complaint u/s 18 (1) nor an appeal u/s 19(3) under RTI] therefore stands and can only be dismissed.11
Reserved in the hearing, this decision is announced in open chambers on this twenty-fourth day of August 2010. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner
24. 8.2010 Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
(Pankaj K.P. Shreyaskar) Joint Registrar
24. 8.2010 12