Central Information Commission
Mr.Krishan Goenka vs Cbi on 21 April, 2010
CENTRAL INFORMATION COMMISSION
Appeal No. CIC/WB/A/2009/000200 dated 25-2-2009
Right to Information Act 2005 - Section 19
Appellant: Shri Krishan Goenka.
Respondent: Central Bureau of Investigation (CBI)
Decision announced on: 21.4.2010
FACTS
By an application of 25-9-2008 Shri Krishan Goenka of Defence Colony, New Delhi applied to the CPIO, CBI seeking the following information:
"That vide your letter no. DP/CAE/2008/841/RTI/CBI/EOW/-Kol dated 2.9.08 you have provided letter dated 24.7.2002 of Shri Kantibhai Damani having sold the cheated/ disputed consignment to 35 different parties along with their names and full particulars.
In view of the above, the applicant requests that he may be provided information as to how the said letter of Kanti Bhai Damani dated 24.7.2008 was disposed off and also provide the copies of office notings in respect thereof."
To this Shri Krishan Goenka received a response from CPIO, SP, CBI Shri Sanjay Jain dated 23-10-08 informing him as follows:
"Regarding provisions of law, as sought by you, it is stated that under Right to Information, you are having right to such information which is held by/or under the control of any public authority and the same includes the right to:-
(i) inspection of work, documents, records; (ii) taking notes, extracts or certified copies of documents or records. (iii) Taking certified samples of material; (iv) Obtaining information in the form of diskettes, floppies,
tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device.
The provision of law, as sought by you vide your letter dated 22.9.2008 does not come in any of the above noted categories. As such, the undersigned is not duty bound to furnish the same.
Regarding document/ information as sought by you, it is stated that the questioned case i.e. RC.2/E/2000-Kol. Has been charge 1 sheeted before the Court of Ld. Spl. CJM (CBI), Bhubaneshwar and you are a charge sheeted accused person in the said case Section 207 of Cr.P.C. 1973 clearly lays down the detail of report/ documents, which, a charge sheeted accused person is entitled to get. The documents/ report, as has been laid down u/s 207 Cr.P.C. has been supplied to you long back. The undersigned is not duty bound/ authorised to supply/ furnish any information/ documents, other than the documents specified u/s 207 Cr.P.C. in respect of a case which is under trial, to any person without the clear cut direction of the Court trying the questioned case. That apart u/s 8 (1) (h) of Right to Information Act, 2005, the undersigned has been provided with exemption from disclosing such information which has been sought by you vide your letters dated 23.9.2008 and 25.9.2008."
Shri Krishan Goenka then made an appeal before the DIG, CBI (EOW) Delhi Region dated 5-11-08 pleading as follows:
"The applicant submits that he has requested for an information which is in sequel to the information already provided to him and thus the same does not fall u/s 207 Cr. P. C. The appellant also submits that if the said information is provided by the respondent, the same will facilitate the process of law."
Upon this Shri Y.C. Modi, Jt. Director, CBI (EOW-III), New Delhi has decided as follows:
"On receipt of the said letter, due importance was given to the facts and circumstances mentioned in the said letter and after taking the same into consideration as well as evidence collected during the course of investigation, Supplementary Report under the provision of section 173 (8) Cr. P.C. was duly filed in the Court of the Ld. ACJM. CBI Bhubaneshwar, Orissa who was pleased to take cognizance on the same.
It is further to be mentioned that Section 172 of Cr.P.C. deals with Case Diaries and Sub-section (3) of Section 173 Cr.P.C. does not entitle the accused or his agents to call for such diaries. Section 172 (3) lays down 'Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court, but if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872) shall apply."2
Shri Krishan Goenka then approached this Commission in second appeal with the following prayer:
"In the facts and circumstances explained herein above and in the interest of justice, this Hon'ble Commission may be pleased to:-
(a) set aside the Orders dated 23.10.2008 & 22.11.2008 of the respondents No. 1 & 2 respectively.
(b) Issue orders for providing a copy of the Note Sheets with respect to how the said letter dated 24.7.2002 of Shri Kanti Bhai Damani was dealt by the CBI or in the alternative a copy of the comments of the competent authority on the receipted correspondence.
(c) Pass any other and further Order(s), as this Hon'ble Appellate Authority may deem fit and proper."
The appeal was heard through videoconference on 21-4-2010. The following are present.
Appellant at CIC chambers:
Shri Krishan Goenka Shri S.K. Sharma Respondents at NIC Studio (Kolkata) Ms. Suman Bala Sahu, T. Director, EOW Shri A.R. Botha, S.P. (EOW) In the meantime SP, CBI (EOW) had contacted the Registry to submit that the issue raised by the appellant has been disposed of by this Commission in appeal No. CIC/WB/A/2007/00462. In that case, however, we find that the information sought by Shri Goenka was as follows:
"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 3 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?"
In that case this Commission had decided that the matter is outside the jurisdiction of this Commission, since the issue was an allegedly faulty charge- sheet. In the present case, on the other hand, the request is purely for information.
Shri A.R. Both, SP, CBI (EOW), Kolkata stated that as discussed in the hearing in the earlier case even after the charge-sheet had been submitted investigation had been kept open to take into account Shri Damani's role after which a supplementary charge-sheet had been filed exonerating Shri Damani. On the specific question asked by appellant Shri Goenka in the present case Shri Both submitted that the letter of Shri Damani had been written to the I.O. and not to any senior officer of the EOW, CBI. Hence, there were, in fact, no notings but the issue has been included in the case diary which is before the court and cannot be shared with the appellant under the law.
Shri Both further submitted that a copy of Shri Damani's letter has already been provided to Shri Goenka. Appellant Shri Goenka on the other hand submitted that the letter from Shri Damani is not part of the case diary since he has been given a copy which could not have been done, had it been a part of the case diary. He submitted that the CPIO & Jt. Director have taken different stands
- one taking recourse to the Cr. P.C. and the other to the RTI. This was disputed by respondent Shri Botha contending that even though reference had been made to both Cr. P.C. and RTI there was no contradiction to the stand taken at any level in disposing of the application of Shri Goenka.
DECISION NOTICE The information sought in the present case is comprised of two components 4
(i) the manner of disposal of the letter of Shri Kanti Bhai Damani and
(ii) copies of office notings in respect thereof.
From what has been discussed in the hearing it is quite clear that the answers to the two questions are as follows:
(i) the letter of Shri Kanti Bhai Damani has been disposed of by including a reference to it in the case diary;
(ii) there are no office notings on the subject.
Under the circumstances the questions asked by appellant Shri Krishan Goenka in his application now stand fully answered. On the other hand, it is not understood on what grounds SP, CBI, EOW has in answer to this straightforward question taken the stand that he has in his response of 23-10-08 to the RTI application, which is obfuscatory and seeks to rely on Section 207 of Cr. P.C. to refuse information, which to our mind has no bearing on the subject. He has also sought to take refuge u/s 8 (1) (h) of the RTI Act without in any way clarifying as to how the disclosure of this information was going to impede the investigation or indeed the prosecution of any case.
We can, therefore, only come to the conclusion that both the CPIO and Appellate Authority have in this case taken recourse to obfuscation in a matter that required a simple response, which has now been provided. The appeal is thus allowed and information sought by appellant Shri Krishan Goenka has also been provided. However, because of the obfuscation resorted to by the Economic Offences Wing of CBI in responding to this application, the then CPIO Shri Sanjay Jain, SP, CBI will show cause in writing as to why he should not be held liable for a penalty of Rs. 25,000/- for having malafide denied the request for information by knowingly misquoting the law to obfuscate the answer to the request. Shri Sanjay Jain will send his written explanation within 15 days from the date of receipt of this decision notice to Shri Pankaj K.P. Shreyaskar, Dy.
5Secretary and Jt. Registrar, CIC, failing which this Commission will consider further steps that may be required u/s 20 of the Act.
Announced in the hearing. Notice of this decision be given free of cost to the parties.
(Wajahat Habibullah) Chief Information Commissioner 21-4-2010 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 21-4-2010 6