Re: [rti_india] There is a pattern emerging which shows that the Supreme Court is having second thoughts about transparency

Dear Sharad

Let me set you straight. Please understand that SG and I are like
chalk and cheese so you may not like what I say.

1) You cannot file a "complaint" to the Police under CrPC.

2) A "complaint" is information given to a Magistrate.

3) A citizen gives information "disclosing the commission of a
cognisable offence" to the officer in charge of a Police station. [who
may even be a constable] (u/s 154 CrPC).

4) At this stage the said officer is required to reduce the same into
writing in the PRESCRIBED book/register etc. [This book / form varies
from state to state]. In most states it is required to be signed by
the "informant" and a copy is to be given to the informant. A copy is
also to be sent to the "ilaqa" magistrate within 24 hours.

5) The Police however have many tricks to shake off ordinary
informants and decreasing the number of cognisable offences under
their thana. This practice is known as "berking" or "burking".
Usually, they will ask the informant to put his complaint in the form
of a letter addressed to the SHO. And they will simply give a rubber
stamp with date to a copy of the letter and say that this constitutes
an FIR. If the Informant presses further they may enter it in the
"daily diary" and give the D/D number. (In Delhi they have come with
with "FIR under 155 CrpC" for non-cognisable offences). If the
informant gets the D/D number this is adequate for the first stage.
Unfortunately, in my experience, most citizens do not know what a
cognisable offence is let alone know how to put the facts into
writing. Especially so in "cheating cases". It needs to be drafted
with great care since SHOs, IOs and munims are expert haramis in
finding ways not to register cases ESPECIALLY where the accused (like
say a Bank Manager) is not likely to be "wet".

6) After this the informant must send a copy of his letter with the
D/D number BY REGISTERED POST to the area SP (or DCP) stating that he
MET the SHO (name him) on ___ date and lodged his information
disclosing commission of cognisable offences, but the SHO only gave a
D/D number and did not register the information as provided u/s 154
CrPC and neither did the SHO inform the ilaqa Magistrate so that a
supervised inquiry can be carried out on your information. Ask for the
intervention of the SP/DCP to direct the SHO to register the
information u/.s 154 CrPC or else the SHO may be directed to provide
reasons in writing why in his opinion no FIR is made out so that the
information may approach the concerned magistrate u/s 190 CrPC.

7) After waiting 14 (so 21) days file RTI to SP office. At this stage
you place yourself in an adverserial situation vis-a-vis the Police.
In places like Delhi, there are alternate ways - like Public Grievance
Commission - to increase the chances of getting an FIR registered
without having to approach the Magistrate or Court in private
complaint.

So, What did you do. And do you want to provide a copy of your
complaint so that I can point out where an SHO would exploit it.

I am a firm proponent of 2 benches. It would guard against idiotic
decisions of ICs like SG and would double the disposal rate.

If you think HC is any better you are living in a fools paradise. The
entire system is corrupt from top to bottom.

Sarbajit

On 10/8/12, Sharad Phadke <sharadphadke41@yahoo.in> wrote:
>
>
> Today I had a talk with Mr. Gandhi and he express same views when we were
> talking about RBI and HC stay.
>
> I fully agree. SC may kill RTI. As it is with 2 member bench case disposal
> will come to half and what about retired judge? How many will be available?
>
> I have filed a criminal complaint against Bank of India and I am not getting
> FIR copy. He said this is the problem every where. I have tried all
> available paths in CrPC.
>
> Only HC is left.
>
> Some one commented normal Police has no jurisdiction. You have to approach
> HC or CBI. Can some legal man clarify on this issue?
>
> Sharad Phadke.
>
>
> Sharad Phadke
>
>
> ________________________________
> From: Surendera M. Bhanot <bhanot1952@gmail.com>
> To: help@rtihelp.pn
> Sent: Sunday, 7 October 2012 11:33 PM
> Subject: [rti_india] There is a pattern emerging which shows that the
> Supreme Court is having second thoughts about transparency
>
>
>
> Dear Friend,
>
> Mr. Sailesh Gandhi, former Central Information Commissioner, has sent a
> very analytically researched write-up about the "a pattern emerging which
> shows that the Supreme Court is having second thoughts about transparency"
>
> I would request you to please send your comments. The article is in the
> trailing mail from Mr. Sailesh Gandhi.
>
> Thanks
>
>
>
> ---------- Forwarded message ----------
> From: shailesh gandhi <shaileshgan@gmail.com>
> Date: Sun, Oct 7, 2012 at 12:49 PM
> Subject:
> To:
>
>
>
> The recently retired Chief Justice Mr. Kapadia said that RTI
> had become too much and there should be a limit to it. I think there is a
> pattern
> emerging which shows that the Supreme Court is having second thoughts about
> transparency.
> I. SC Justices Asok
> Kumar Ganguly & Gyan Sudha Misra:
> Civil Appeal nos. 10787-10788 of 2011 No information can be provided when
> dealing
> with a complaint under Section 18
> Contrast with Allahbad HC judgement in AP 3262 (MB) of 2008
> where Justices Pradeep Kant and Narayan Shukla said in their judgement "We
> are also of the view that the Commission while enquiring into the
> complaint under Section 18, can issue necessary directions for
> supply/disclosure
> of the information asked for, in case the Commission is satisfied that the
> information has been wrongly withheld or has not been
> completely given or incorrect information has been given etc.., which
> information otherwise is liable to be supplied under the provisions of the
> Act."
> II. Answersheets SC
> Appeal no. 6454 of 2011
> Justices
> Raveendran and A.K.Patnaik on 9 August 2011:
> Pg.23
> (ii)
> Exemption of the several categories of information enumerated in
> section
> 8(1) of the Act which no public authority is under an
> obligation
> to give to any citizen, notwithstanding anything contained
> in
> the Act [however, in regard to the information exempted under
> clauses
> (d) and (e), the competent authority, and in regard to the
> information
> excluded under clause (j), Central Public Information
> Officer/State
> Public Information Officer/the Appellate Authority, may
> direct
> disclosure of information, if larger public interest warrants or
> justifies
> the disclosure].
> No mention of Section 8 (2) & (3).
>
> Pg. 34
> Similarly,
> if on the request of the employer or official superior or the head of a
> department, an employee furnishes his personal details and information, to
> be
> retained in confidence, the employer, the official superior or departmental
> head is expected to hold such personal information in confidence as a
> fiduciary, to be made use of or disclosed only if the employee's conduct or
> acts are found to be prejudicial to the employer.
>
> Is
> information requested from employees
> of Govt. departments or is it ordered to be given?
> Pg.
> 49
> 33.
> Some High Courts have held that section 8 of RTI Act is in the nature of an
> exception to section 3 which empowers the citizens with the right to
> information, which is a derivative from the freedom of speech; and that
> therefore section 8 should be construed strictly, literally and narrowly.
> This
> may not be the correct approach. The Act seeks to bring about a balance
> between
> two conflicting interests, as harmony between them is essential for
> preserving
> democracy. One is to bring about transparency and accountability by
> providing
> access to information under the control of public authorities. The other is
> to
> ensure that the revelation of information, in actual practice,
> does
> not conflict with other public interests which include efficient operation
> of
> the governments, optimum use of limited fiscal resources and preservation
> of
> confidentiality of sensitive information. The preamble to the Act
> specifically
> states that the object of the Act is to harmonise these two conflicting
> interests. While sections 3 and 4 seek to achieve the first objective,
> sections
> 8, 9, 10 and 11 seek to achieve the second objective.
> Therefore
> when section 8 exempts certain information from being disclosed, it should
> not
> be considered to be a fetter on the right to information, but as The other
> is
> to ensure that the revelation of information, in actual practice, does not
> conflict
> with other public interests which include efficient operation of the
> governments, optimum use of limited fiscal resources and preservation of
> confidentiality of sensitive information. The preamble to the Act
> specifically
> states that the object of the Act is to harmonise these two conflicting
> interests. While sections 3 and 4 seek to achieve the first objective,
> sections
> 8, 9, 10 and 11 seek to achieve the second objective.
> Therefore
> when section 8 exempts certain information from being disclosed, it should
> not
> be considered to be a fetter on the right to information, but as an equally
> important provision protecting other public interests essential for the
> fulfilment and preservation of democratic ideals.
> 34.
> When trying to ensure that the right to information does not conflict with
> several other public interests (which includes efficient operations of the
> governments, preservation of confidentiality of sensitive information,
> optimum
> use of limited fiscal resources, etc.), it is difficult to visualise and
> enumerate all types of information which require to be exempted from
> disclosure
> in public interest. The legislature has however made an attempt to do so.
> The
> enumeration of exemptions is more exhaustive than the enumeration of
> exemptions
> attempted in the earlier Act that is section 8 of Freedom to Information
> Act,
> 2002. The Courts and Information Commissions enforcing the provisions of
> RTI
> Act have to adopt a purposive construction, involving a reasonable and
> balanced
> approach which harmonises the two objects of the Act, while interpreting
> section 8 and the other provisions of the Act.
>
> III. WP 210 of 2012 -
> Appointment of retired judges as 50% of
> Information Commissioners made
> compulsory and two member benches in Commissions ordered by Justices
> Swatanter
> Kumar and A.K.Patnaik on 13 September 2012. Significant part of the
> judgement
> is devoted to protecting privacy and third party interests.
> IV. SLP no. 27734 of
> 2012 Justices K.S.Radhakrishnan and Dipak Misra on 3 October 2012 lays down
> that performance of govt. employees, IT returns, assets of Public servants
> exempt under RTI.
> Compare this with the ADR judgement which said Citizens have a right to
> know about the assets of those who want to be Public servants.
>
> I feel the primacy given to a Citizen's
> fundamental right is being reduced steadily. Citizens need to be vigilant
> about
> safeguarding it.
> --
>
> Love
> shailesh
> All my emails are in Public domain.
> Mera Bharat Mahaan...
> Nahi Hai,
> Per Yeh Dosh Mera Hai.
> Tel: 91 22 26001003; 8976240798
>
>
>
> --
> GREETINGS AND WARM REGARDS
>
> Surendera M. Bhanot
> - Coordinator, RTIFED, Punjab Chandigarh
> - President, RTI Help & Assistance Forum Chandigarh
> - Life Member, Chandigarh Consumers Association
> - Youth for Human Rights International - YHRI - South Asia
> - Jt. Secretary, Amateur Judo Association of Chandigarh
> - Member, SPACE - Society for Promotion and Conservation of Environment,
> Chandigarh
> No. 3758, Sector 22-D, Chandigarh-160022
> Mob: 919-888-810-811
> PHONE: 91-172-5000970
> FAX: 91-172-5000970
> Mail Me
>
>
>


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