Central Information Commission
Shri K. K. Goenka vs Central Bureau Of Investigation (Cbi) on 4 July, 2008
CENTRAL INFORMATION COMMISSION
Appeal No.CIC/WB/A/2007/00462 dated 24.4.2007
Right to Information Act 2005 - Section 19
Appellant - Shri K. K. Goenka
Respondent - Central Bureau of Investigation (CBI)
Facts:
By an application of 15.5.06 Shri K.K. Goenka of Defence Colony, New Delhi applied to Shri T. P. Jha, SP & CPIO, CBI, Kolkatta seeking the following information:
"That in the facts and circumstances as stated above, the applicant herein seeks details/ reasons for not filing supplementary charge sheet against Kanti Bhai Damani and other 35 parties. Because IO Shri Sanjay Sen took the permission from Ld. ACJM to investigate role of Kanti Bhai Damani as also to discover END-USE of disputed consignment which was allowed under section 173 (8) of Cr. PC by Ld. ACJM Strangely after mysterious death of late Ashwini Kumar Goenka Managing Director of Savitri India Ltd. on 15.4.2003, IO Shri Sanjay Sen filed closure/ final report and sought dispensation of further investigation in the matter under Section 173 (8) of Cr. PC granted previously. Further I is on record that not a single statement has been recorded from the buyers of disputed consignment regarding mode of payment also I.O. miserably failed to bring on record statements from buyers or Kanti Bhai Damani or staff of Savitri India Ltd as to how the payment received from disputed consignment was parked or who was the actual beneficiary leaving behind a bigger question that without recovery or name of beneficiary can a criminal trial stand on test of law?"
The above information pertains to notice issued u/s 160 Cr.P.C. to Shri Kanti Bhai Damani by Shri Sanjoy Sen, Investigating Officer to which Shri Kanti Bhai Damani had responded by admitting that the disputed consignment was sold by him to 35 parties, whose names were given in the response. A copy of this letter was appended with the application.
In response to the application Shri T.P. Jha, SP, CBI EOW, Kolkatta in a letter of 9.6.06 stated as follows:
1"On completion of further investigation, based on additional facts and circumstances leading to the fraudulent transaction, supplementary charge-sheet was filed in the competent court at Bhubaneshwar u/s 173 (8) of Cr. PC.
The Ld. ACJM, Bhubaneshwar was pleased to accept the charge sheet/ supplementary charge sheet and take cognizance on the basis of same. The case is presently in the trial stage and therefore, the matter is sub-judice. Hence, it is the prerogative of the Hon'ble Court to decide regarding the fate of K. B. Damani, the broker in the whole fraudulent transaction.
Since the information sought by you would impede the process of prosecution of the offenders, therefore, under the provision of section 8 (1) (h) of the Right to Information Act, 2005, you are not entitled to the said information."
Not satisfied with this response Shri Goenka moved his first appeal before the DIG, CBI EOW, Delhi Region in which after submitting that he had obtained the name of the Appellate Authority with considerable difficulty, asking for reasons why false information was furnished to him. Upon this Shri A. K. Malhotra, DIG CBI New Delhi decided as follows:
"The point in issue involved in the said appeal is that whether the Appellant Shri Krishan Goenka can seek information/ reasons for not incorporating one of the suspect/ accused persons in the Supplementary Charge sheet filed in the court of ACHM, Bhubaneshwar, Orissa. In this connection, I am of the view that the matter is subjudice in the court of Ld. ACJM, Bhubaneshwar, Orissa and, as such, SP, CBI, EOW-Kolkata is not obliged to furnish any information relating to the said matter as the disclosure of such information would impede the process of prosecution of offenders u/s 8 (1) (h) of the Right to Information Act, 2005. However, the appellant Shri Krishan Goenka is at liberty to raise issue of non-prosecution of Kanti Bhai Damani in the concerned court of law which is the proper forum for that. Assuming for the time being that CBI had not included the name of Kanti Bhai Damani in the Supplementary Charge sheet filed in the court of Ld. ACJM, Bhubaneshwar, Orissa, it is within the power and jurisdiction of Ld. ACJM, Bhubaneshwar, Orissa to summon and try him under the provisions of Sec 319 Cr.PC. I am, therefore, of the considered opinion that the appellant had no authority to call for such an information under the provisions of RTI Act, 2005 from SP, CBI, EOW-Kolkata."2
Besides which he has held that no information stating that Shri Kanti Bhai Damani has been included in the accused persons, has infact been provided to appellant, as alleged by Shri Goenka.
The appeal was heard on 3.7.08. The following are present:
Appellant Mr. Krishan Kumar Goenka Mr. Harvinder Singh Mr. S. K. Sharma Respondents Mr. A. K. Malhotra, DIG, CBI, EOW, Delhi.
Mr. S. K. Jain, SP, CBI EOW, Kolkatta Ld. Counsel for appellant Shri Harvinder Singh submitted that false information had been provided in response to his application by stating that, "it is the prerogative of the Hon'ble Court to decide regarding the fate of Shri Kanti Bhai Damani, the Broker for the whole fraudulent transaction." He, therefore, contended that if the name of the broker was not mentioned in the Charge sheet, the Court could not be expected to decide his fate as informed by PIO.
He wished to know specifically why no action had been taken against Sh. Damani and 35 persons listed by Shri Damani in his letter to Shri Sanjoy Sen, Investigating Officer. Shri Malhotra, DIG submitted a copy of the supplementary charge sheet, a copy of which has already been provided to appellant Shri Goenka. In this charge sheet it is mentioned as follows:
"In course of investigation it had revealed that on Sri K. B. Damani, an aluminium broker of Delhi in connivance with the Goenka brothers was instrumental in disposing off the aluminium materials to nonexistent purchasers of Delhi/ NOIDA etc against which no payment was made to NALCO. As such further investigation as per the provision of Section 173 (8), Cr. PC was carried out to ascertain the role of K. B. Damani, the broker of aluminium and the purchasers of the cheated aluminium purchased from NALCO.
Investigation was carried out by further interrogating the broker Sri K. B. Damani, and it revealed that the aluminum he had sold to the 3 purchasers of Delhi & NOIDA as per the Daily Cash Book Register maintained by him. The various purchasers (nine out of the sixteen) were located and their Directors/ Proprietors/ Partners were examined, which confirmed that the said firms/ companies had purchased aluminium products like sheet, wire etc from M/s Savitri India Ltd through the broker Sri K. B. Damani, after making payment against the same. As such the allegation regarding irregular sale of the aluminium to fictitious buyers through the broker, did not substantiate as per materials collected during investigation."
DECISION NOTICE In this case the information sought is clear and that is the reason for not filing the charge sheet against Shri K. B. Damani and the other 35 parties. The reasons for filing the supplementary charge sheet have been provided in the supplementary charge sheet itself, of which a copy stands provided to appellant on the basis of his RTI request. The charge sheet was filed on the basis of an FIR by M/s National Aluminium Co. Ltd. (NALCO). The supplementary charge sheet recommends closure of further investigation with the recommendation to incorporate seven individuals as witnesses.
The grievance of appellant Shri K. K. Goenka is, however, why Shri B.K. Damani and the 35 persons mentioned in his letter to Shri Sanjoy Sen have not been included. This is basically an issue faulting the charge sheet and, therefore, prima-facie outside the jurisdiction of this Information Commission. DIG Shri Malhotra has already advised appellant Shri Goenka in disposing of his first appeal to approach the Learned ACJM Bhubaneshwar under the provision of sec. 319 Cr.P.C. Section 319 Cr.P.C. reads as follows:
319. Power to proceed against other persons appearing to be guilty of offence.
(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the court may proceed against such 4 person for the offence which he appears to have committed.
(2) Where such person is not attending the court he may be arrested or summoned, as the circumstances of' the case may require, for the purpose aforesaid.
(3) Any person attending the court although not trader arrest or upon a summon, may be detained by such court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the court proceeds against any person under subsection (1) then-
(a) The proceedings in respect of such person shall be commenced afresh, and witnesses re-heard.
(b) Subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the court took cognizance of the offence upon which the inquiry or trial was commenced.
Under the circumstances above, having examined the records and heard both parties, this Commission is of the view that the matter is well outside the jurisdiction of this Commission, as it concern a prosecution in a case pending before Ld. ACJM Bhubaneshwar for which information could only be used as evidence to convince the court to proceed against such person for the offence which he is alleged to have committed. With information already having been made available, it is open to Shri K. K. Goenka, an accused in this case, to use it in his defence in the manner prescribed under law.
The appeal is, thus, disposed of. Reserved in the hearing, this decision is announced on 4.7.08.
Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 4.7.2008 5 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 Shreyaskar) Joint Registrar 4.7.2008 6