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TMI Blog2010 (1) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... uke, 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. 3. 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 parli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mala fidely 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-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mala fide 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 v. S.C. Agarwal and Ors. in which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itous 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10. 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 v. S.C. Agrawal Anr. [2009 (162) DLT 135 (Del.)] 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/war ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, or superior status of the fiduciary as compared to the one whose affairs he handles. 11. If viewed from this perspective, it is immediately apparent that the CBI cannot be a fiduciary vis-a-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. 12. 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 relatio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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