Central Information Commission
Shri G.S. Reddy vs Central Bureau Of Investigation (Cbi), ... on 18 January, 2010
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2008/01156 dated 1-7-2008
Right to Information Act 2005 - Section 19
Appellant: Shri G.S. Reddy;
Respondent: Central Bureau of Investigation (CBI), Mumbai
Decision announced : 18.1.2010
FACTS
This application was from Shri G.S. Reddy of Mumbai to the CPIO, CBI, Kolaba, Mumbai dated 22-2-08 seeking the following information:
"All the papers and the reports contained in the Case Number PE/A0017/1999 or and (if this number is technically incorrect or incomplete) then alternatively together with PE BAI/1999/A0017."
To this Shri Reddy received a response dated 19-3-08 from Shri Parveen Saluke, CPIO and SP, CBI, ACB, Mumbai as follows:
"In this connection it is to inform that the Crime file in PE. 17/99 is not traceable, at present. The PE has been closed on 18.8.2000 and such Action was deemed fit has been recommended against Shri Ashok Kacker, IRS, on deputation to SEBI. The documents cannot be provided due to non availability of Crime File in PE 17/99-Mumb."
Aggrieved Shri Reddy moved an appeal before Ms. Sonali Mishra, DIG, ACB, CBI, Kolaba, Mumbai submitting as below:
"I would also like to bring to your kind notice that it is a very active and important file as some complaints filed on this file some years ago and also various agencies have called for this information on this file which includes CVC and a parliamentary committee. In view of this, there cannot be a possibility of either file missing or that it cannot be traced. In case if it is finalized that the file is missing, it could be a deliberate attempt and hand work by some outside miscreants or interested parties to destroy the file. In case the file is not traceable, I pray to constitute an independent person of repute from outside to appoint as an Inquiry Officer to find the truth and also recompose the file from the correspondence taken place with various authorities is like SEBI, CVC, and Parliamentary Committee etc."
Upon this Ms. Sonali Mishra, DIG, CBI through her letter of 3-4-08 informed Shri Reddy as follows:
1"The file in question is available in the office of CBI, ACB, Mumbai. However, information requested by you is denied u/s 8 (1) (e) of RTI Act, 2005 since it does not pertains to public interest."
Shri Reddy has then moved a second appeal before us with the following prayer: -
"(a) In view of the provisions contained in RTI Act a penalty as may be deemed fit, be levied on the CPIO for not furnishing information.
(b) To give suitable directions to the CPIO and FAA to furnish the said information (all the papers and the reports contained in the Case Number PE/A/0017/1999, as mentioned in the application addressed to CPIO and FAA) without any delay as this information was no way prohibited by the RTI Act as the investigations are completed long before and the file has been closed on 18.8.200, as mentioned by the CPIO.
(c) The RTI Act has prohibition clause only to the extent on the cases under investigation, and there is no bar at all to part with the information on the cases that were closed.
In this case the case was closed on 18.8.2008."
In this case, therefore, there are clearly two issues requiring a decision:
1. Whether in light of the decision of Appellate Authority Ms. Sonali Mishra, CPIO Shri Parveen Saluke has rendered himself liable to a penalty of Rs. 25,000/- under sub Section (1) of Section 20 having "malafidely denied the request for information or knowingly given incorrect, incomplete or misleading information".
2. Since no reason has been given for exempting information from disclosure under sub Section (e) of Section 8 (1), except a bald statement citing this clause, whether indeed this exemption is applicable in this case in which investigation is completed and now closed.
The appeal was heard on 18-1.2010. Arrangements had been made for videoconference with Mumbai. The following are present at NIC Studio, Mumbai.
Appellant Shri G.S. Reddy Respondents Shri Azhar Ali Ansari, SP, CBI, CPIO.
2Shri Praveen Saluke, DIG, CBI, Appellate Authority.
On the two issues framed by us then CPIO Shri Praveen Saluke, now DIG, CBI in place of Ms. Sonali Mishra submitted that at the time of receipt of the application the concerned file was not available. He further clarified that the CBI had only 10,000 sq. feet in Mumbai distributed in three offices. When the matter went before the First Appellate Authority she constituted a team to search for the file and was, therefore, successful in recovering it. But after examination it was found that the information sought merited exemption under section 8 (1) (e).
Appellant Shri Reddy on the other hand submitted that the manner of disposal of his application gives grounds for apprehension that the CBI was seeking to shield those guilty of corruption. He submitted that no team was constituted to seek the file. The file was readily available and the information had been denied on false grounds.
DECISION NOTICE Issue No. 1. On this matter since the plea of respondents rests on the argument that the CBI Offices in Mumbai are so structured as to make access to the records difficult a copy of this Decision Notice with the arguments above will be sent to the Director, CBI Shri Ashwani Kumar who will have this authenticated and send us a report within 15 working days of the date of receipt of this decision notice to enable us to decide whether there has in fact have been malafide exercise of authority by CPIO Shri Saluke in refusing information to appellant Shri G.S. Reddy on grounds of the file not being traceable.
Issue No. 2. On the question of application of section 8 (1) (e) we now have a number of decisions including one announced on 12.1.'10 by the High Court of Delhi in LPA No.501/2009 Supreme Court of India vs. S. C. Agarwal and Ors. in which the Bench composed of the Hon'ble Chief Justice A. P. Shah of 3 the Delhi High Court, and Justices Vikramajit Sen & S Muralidhar has come to the following conclusion:
"Fiduciary Relationship
97. As Waker defines it: "A „fiduciary is a person in a position of trust, or occupying a position of power and confidence with respect to another such that he is obliged by various rules of law to act solely in the interest of the other, whose rights he has to protect. He may not make any profit or advantage from the relationship without full disclosure. The category includes trustees, Company promoters and directors, guardians, solicitors and clients and other similarly placed." [Oxford Companion to Law, 1980 p.469]
98. "A fiduciary relationship", as observed by Anantnarayanan, J., "may arise in the context of a jural relationship. Where confidence is reposed by one in another and that leads to a transaction in which there is a conflict of interest and duty in the person in whom such confidence is reposed, fiduciary relationship immediately springs into existence." [see Mrs.Nellie Wapshare v. Pierce Lasha & Co. Ltd. (AIR 1960 Mad 410)]
99. In Lyell v. Kennedy, (1889) 14 AC 437, the Court explained that whenever two persons stand in such a situation that confidence is necessarily reposed by one in the other, there arises a presumption as to fiduciary relationship which grows naturally out of that confidence. Such a confidential situation may arise from a contract or by some gratuitous undertaking, or it may be upon previous request or undertaken without any authority.
100. In Dale & Carrington Invt. (P) Ltd. v. P.K. Prathaphan, (2005) 1 SCC 212 and Needle Industries (India) Ltd. V. Needle Industries Newey (India) Holding Ltd., (1981) 3 SCC 333, the Court held that the directors of the company owe fiduciary duty to its shareholders. In P.V. Sankara Kurup v.
Leelavathy Nambier, (1994) 6 SCC 68, the Court held that an agent and power of attorney can be said to owe a fiduciary relationship to the principal.
101. Section 88 of the Indian Trusts Act requires a fiduciary not to gain an advantage of his position. Section 88 applies to a trustee, executor, partner, agent, director of a company, legal advisor or other persons bound in fiduciary capacity. Kinds of persons bound by fiduciary character are enumerated in Mr.M. Gandhi's book on "Equity, Trusts and Specific Relief" (2nd ed., Eastern Book Company) "(1) Trustee, (2) Director of a company, (3) Partner, (4) Agent, (5) Executor, (6) Legal Adviser, (7) Manager of a joint family, 4 (8) Parent and child, (9) Religious, medical and other advisers, (10) Guardian and Ward, (11) Licensees appointed on remuneration to purchase stocks on behalf of government, (12) Confidential Transactions wherein confidence is reposed, and which are indicated by (a) Undue influence,
(b) Control over property, (c) Cases of unjust enrichment,
(d) Confidential information, (e) Commitment of job, (13) Tenant for life, (14) Co-owner, (15) Mortgagee, (16) Other qualified owners of property, (17) De facto guardian, (18) Receiver, (19) Insurance Company, (20) Trustee de son tort, (21) Co-heir, (22) Benamidar."
102. The CJI cannot be a fiduciary vis-à-vis Judges of the Supreme Court. The Judges of the Supreme Court hold independent office, and there is no hierarchy, in their judicial functions, which places them at a different plane than the CJI. The declarations are not furnished to the CJI in a private relationship or as a trust but in discharge of the constitutional obligation to maintain higher standards and probity of judicial life and are in the larger public interest. In these circumstances, it cannot be held that the asset information shared with the CJI, by the Judges of the Supreme Court, are held by him in the capacity of fiduciary, which if directed to be revealed, would result in breach of such duty.
In summary, and with bearing on the present case, in the Delhi High Court judgment in WP(C) 228/2009, CPIO Supreme Court of India vs. SC Agrawal & Anr. Ravindra Bhat J has discussed the concept of fiduciary relationship in some detail. The HC ruling of 20.9.'09 in the above case is as follows:
The following kinds of relationships may broadly be categorized as "fiduciary":
• Trustee/beneficiary (Section 88, Indian Trusts Act, 1882) • Legal guardians / wards (Section 20, Guardians and Wards Act, 1890) • Lawyer/client;
• Executors and administrators / legatees and heirs • Board of directors / company • Liquidator/company 5 • Receivers, trustees in bankruptcy and assignees in insolvency / creditors • Doctor/patient • Parent/child:
57. The Advanced Law Lexicon, 3rd Edition, 2005, defines fiduciary relationship as "a relationship in which one person is under a duty to act for the benefit of the other on the matters within the scope of the relationship....Fiduciary relationship usually arise in one of the four situations (1) when one person places trust in the faithful integrity of another, who is a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act or give advice to another on matters falling within the scope of the relationship, or (4) when there is specific relationship that has traditionally be recognized as involving fiduciary duties, as with a lawyer and a client, or a stockbroker and a customer"
58. From the above discussion, it may be seen that a fiduciary relationship is one whereby a person places complete confidence in another in regard to a particular transaction or his general affairs or business. The relationship need not be "formally" or "legally" ordained, or established, like in the case of a written trust; but can be one of moral or personal responsibility, due to the better or superior knowledge or training, or superior status of the fiduciary as compared to the one whose affairs he handles. "
If viewed from this perspective, it is immediately apparent that the CBI cannot be a fiduciary vis-à-vis accused in an enquiry. The latter's office is independent of CBI, and there is no hierarchy in their judicial functions, which places him at a different plane than the CBI. Besides, the mere marking of a document, as "confidential", in this case, does not undermine the overbearing nature of Section 22.
Section 8(1) (e) does indeed afford protection to a specific class, i.e. fiduciaries. The content of such provision may also include certain kind of relationships of public officials, such as doctor-patient relations; teacher-pupil relationships, in government schools and colleges; agents of governments; even attorneys and lawyers who appear and advise public authorities covered by the Act. However, it cannot cover investigation of complaints of corruption 6 From the above it will be clear that fiduciary relationship cannot be pleaded in the present case. For this reason the decision of Appellate Authority Ms. Sonali Mishra is set aside. The information sought by Shri G. S. Reddy will now be supplied to him within 15 working days of the date of receipt of this decision notice.
Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 18-1-2010 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 18-1-2010 7