1. These are three references made by the Sessions Judge, Indore, in three different cases against the accused-petitioner Brijnath. As the point of law involved is common, this decision will dispose of all the three references.
2. Petitioner Brijnath, an employee in the State Electric Supply Company is being prosecuted under Sections 409 and 465, I. P. C., for different items in these three cases. In his defence, he wanted two letters, both dealing with the sanction for his prosecution, one being from the Inspector General of Police to the Home Secretary and another letter from the Assistant Home Secretary to the Secretary Public Works Department. The accused-petitioner thinks that there is something in his favour in these letters, and, therefore, he wants them to be produced in the trial Court. The Inspector General of Police claimed privilege under Sections 123 and 124 of the Indian Evidence Act. This claim was accepted by the trial Court; but the Sessions Judge comes to the conclusion that these letters cannot be privileged, and he wants an order from this Court to the prosecution of these letters in the Court below.
3. The learned Government Advocate has taken objection to the inspection of these documents by the Sessions Judge. He thinks that these letters when they were claimed to be privileged could not have been inspected by the learned Court.
4. Now, there are three sections of the Indian Evidence Act which are relevant here and are re-produced below:
Section 123 : No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.
'Section 124 : No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.
'Section 162 : A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.
'The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.
Then, there are two-provisions; one in the Criminal Procedure Code and another in the Civil Procedure Code. Section 94 of the Cri. P. C., deals with summons to produce documents, its Sub-clause (3) states that:
nothing in this section shall be deemed to affect the Indian Evidence Act, 1872, Sections 123 and 124.
Order 11, Rule 19(2) of the Civil P. C. runs as follows:
Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the Court to inspect the document for the purpose of deciding as to the validity of the claim of privilege.
The difference between Section 94(3). Cri. P. C. and Order 11, Rule 19(2). Civil P. C., can easily be seen. The provision in the Civil P. C. does not say anything about Sections 123, 124 and 162 of the Indian Evidence Act. It was argued in Governor-General-in-Council v. H. Peer Mohd. AIR 1950 EP 228 (FB) (A) that the Civil P. C. being a later statute O. 11, K. 19(2) had the effect of repealing pro tanto the provisions of Section 162, Indian Evidence Act. The Pull Bench repelled this contention holding that the prohibition with regard to the inspection of a State document arises out of the privilege of the State, and is not a procedural matter with which alone Sub-rule (2), Rule 19, Order 11, C. P. C. deals. Then the matter of State privilege is a matter of constitutional law and is dealt with specifically under Sections 123 and 162 of the Indian Evidence Act. Section 4 of the Civil P. C. lays it down that nothing in the Code would affect any special or local law in force. Sections 123 and 162 of the Indian Evidence Act being a special law, the general provision of law contained in Sub-rule (2) of Rule 19 of Order 11, C. P. C., could not abrogate the special law.
5. The present case is one under the Criminal law, but it was necessary to discuss the provision of the Civil P. C., as a similar provision under Section 31, Rule 14, sub-rule (2) of the south Australian Rules of Court which (like Order 31, Rule 19, Sub-rule (2) of the English Rules) provides that where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the Court or a Judge to inspect it for the purpose of deciding as to the validity of the claim, came for interpretation before the Privy Council in Robinson v. State of South Australia 1931 AC 704 (B).
The observations of their Lordships of the Judicial Committee have been followed in earlier rulings of the High Courts in India, and it is better to understand this case fully. In this case the appellant had brought an action in the Supreme Court of south Australia against the respondent State claiming damages for alleged negligence on the part of the State in the care of wheat placed in the control of the state under the Wheat Harvests Acts, 1915-1917. Upon an order for discovery, the respondent state, by an affidavit made by a civil servant, claimed privilege in respect of 1892 documents tied in three bundles, and stated to be State documents, comprising communications between officers administering the department concerned.
The responsible minister claimed privilege and stated that disclosure of the documents would be contrary to the interest of the State and of the public. The Privy Council repelled this contention and ordered that the Supreme Court should exercise its power under Order 31, Rule 14, Sub-rule (2) to inspect the documents, that course being less likely to cause delay than an order for a further and better affidavit of documents. The Privy Council in this case observed that the privilege claimed is a narrow one, most sparingly to be exercised. Section 939 of Taylor's Law 9f Evidence was quoted with approval that the principle of the rule is concerned for public interest, and the rule should accordingly be applied no further than the attainment of that object requires. Their Lordships further added:
As the protection is claimed on the broad principle of State policy and public convenience, the papers protected, as might have been expected have usually been public official document of political or administrative character. Yet the rule is not limited to these documents. Its foundation is that the information cannot be disclosed without injury to the public interest and not that the documents are confidential or official, which alone is no reason for their non-production.
It was made clear that a claim to production in the case of documents relating to the trading, commercial or contractual activities of a State can rarely be sustained especially in time of peace. The zealous champion of Crown may frequently be tempted to take the opposite view, particularly in Eases where the claim against the Crown seems to him to be harsh or unfair; but such an opposite view was without justification. 'In truth', the Privy Council observed, 'the fact that the document, if produced, might have any such effect upon the fortunes of the litigation is of itself a compelling reason for their production-one only to be overborne by the gravest considerations of State policy or security'.
These principles have been recognised and followed in a number of Indian rulings though the decision of the Privy Council was confined to the wording of Order 31, Rule 14, Sub-rule (2) of the South Australian Rules of Court which are similar to the wording contained in Sub-rule (2) of Rule 19 of Order 11, Indian Civil P. C. In my opinion, therefore, the decision of the Privy Council will not have any material bearing on the interpretation of Sections 123 and 162 of the Indian Evidence Act, if it is held that these sections have not been repealed by the provision contained in Order 11, Rule 19(2), C. P. C, As I respectfully agree with the opinion expressed by the Full Bench in the East Punjab case, I would have to ingore the Privy Council decision so far as the principles embodied in Sections 123 and 162 are concerned.
6. It was pointed out by Khosla J. in the Pull Bench East Punjab case that the Indian Evidence Act was drawn up in 1870-1871 by Sir James Stephen and was based entirely on the English Law of Evidence as then in force. Sir James Stephen drew a similar code for England which is a text-book founded upon the then existing English law of evidence. Article 112 of this book (A Digest of the Law of Evidence by Stephen) is in terms analogous to the provisions of Sections 123 and 124 of the Indian Evidence Act. It is in the following terms : 'No one can be compelled to give evidence relating to any affairs of State or as to official communications between public officers upon public-affairs, unless the officer at the head of the department concerned permits him to do so,'
It will, therefore, be proper to ascertain from the English decisions what interpretations can be put on Section 123 and Section 162 of the Indian Evidence Act The said Article 112 has been split up under two Sections 123 and 124 in the Indian Evidence Act.
It will be obvious that para two of Section 162 of the Evidence Act is clear on the point that the Court can inspect other documents but cannot inspect a document if it refers to matters of State. Under Section 124 it is for the Court to decide whether a document is a communication made to a public officer in official confidence, and for its decision the Court can surely inspect the document. In the present case, the documents have been inspected by the learned Sessions Judge who comes to the conclusion that they are not communications made to a public officer in official confidence within the meaning of Section 124 of the Evidence Act.
The learned Government Advocate's objection to the inspection of the documents by the Sessions Judge is untenable, if privilege is claimed under Section 124 of the Evidence Act. The Court could have inspected the documents for ascertaining if they fall within the ambit of Section 124, Evidence Act. It is only when the Court decides that the communication was made to a public officer in official confidence, that the officer's view whether its disclosure would or would not be in the public interests would be conclusive.
But the Court can after inspection come to the conclusion that the document is not properly understood by the officer and is not a communication made in official confidence to a public officer. In the present case, the learned Sessions Judge in his order of reference records that it is not a communication made to a public officer in official confidence; and, therefore, Section 124 of the Evidence Act does not apply at all.
7. The question, therefore, remains : whether the documents are 'unpublished official record relating to any affairs of the State'. Now, 'affairs of the State' is a very wide expression. Every communication which proceeds from one officer of the State to another officer of the State is not necessarily relating to the affairs of the State. The matter came up for consideration in a case in the House of Lords in Duncan v. Cammell Laird and Co. Ltd. 1942 AC 624 (C), where the facts were that a submarine 'Thetis' which had been built by the respondents under contract with the Admiralty, was undergoing her submergence tests failed to return to the surface with the result that ninety-nine men lost their lives.
A large number of actions were instituted by those representing, or dependent on, some of the deceased, against the respondents and three other persons, claiming damages for negligence, some documents were required to be produced but the respondents in their affidavit objected to produce them, and the First Lord of Admiralty swore an affidavit referring to these documents and stated that it would be injurious to the public interests that any of the said documents should be disclosed to any person. The documents included the con. tract for the hull and machinery of the 'Thetis', letters written before the disaster relating to the vessel's trim, reports as to the condition of the Thetis when raised, and a large number of plans and specifications relating to various parts of the vessel.
The matter afterwards came before the House of Lords where judgment was delivered by Viscount Simon, Lord Chancellor, who dissented from the view taken by the Privy Council in 1931 AC 704 (B) and held that the document should not be disclosed as they relate to affairs of State and their disclosure would be injurious to the public interests. The whole case-law on the point has been reviewed in this decision and most of the later Indian rulings are based upon the observations made by Viscount Simon in this case. It may be noted here that the incident had taken place to June, 1939 and the judgment of the Court of Appeal was delivered in 1941 and of the House of Lords in 1942 when the Second World War was going on. Considering the importance of the documents which related to a submarine during the period of the World War, it will be obvious that the disclosure of such documents would have been detrimental to the safety of the British Navy and consequently of the British nation.
There is, therefore, no discussion in this decision what documents can be said to be relating to affairs of the State. It was assumed, and rightly so, that the documents to which objection had been taken in that case were related to the affairs of the State; taut it was pointed out that objections to the production of such documents must be taken by a responsible Minister.
The essential matter is', observed the Lord Chancellor, 'that the decision to object should be taken by the Minister who is the political head of the department and that he should have seen and considered the contents of the documents and himself have formed the view that on grounds of public interest they ought not to be produced, either because of their actual contents or because of the class of documents, for example, departmental minutes to which they belong.
Instances may arise where it is not convenient or practical for the political Minister to act, and in such cases it would be reasonable for the objection to be taken', as it has often been taken in the past by the permanent head.
If the objection is taken in that manner, then the question will be : whether the Court should treat such objection as conclusive? It was laid down that such objection must be held to be conclusive. But the Lord Chancellor added:
Although an objection validly taken to production, on the ground that this would be injurious to the public interest, is conclusive, it is import-ant to remember that the decision ruling out Buchi documents is the decision of the Judge... .It is the Judge who is in control of the trial and not the executive, but the proper ruling for the Judge To give is as above expressed. In this connection, I do not think it is out of place to indicate the sort of grounds which would not afford adequate justification for objecting to production.
It is not a sufficient ground that the documents are 'State Documents', or 'official' or are marked 'confidential', it would not be a good ground that, if they were produced, the consequences might involve department or the Government in parliamentary discussion or in public criticism or might necessitate the attendance as witnesses or otherwise of officials who have pressing duties elsewhere. Neither would it be a good ground that production might tend to expose a want of efficiency in the administration or tend to lay the department open : to claims for compensation.
In a word, it is not enough that the Minister of the department does not want to have the documents produced. The Minister, in deciding whether it is his duty to object, should bear these considerations in mind, for he ought not to take' the responsibility of withholding production except In cases where the public interest would otherwise be damnified, for example, where disclosure would be injurious to national defence, or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service.
When these conditions are satisfied and the Minister feels it his duty to deny access to material which would otherwise be available, there is no question but that the public interest must be preferred to any private consideration....After all, the public interest is also the interest of every subject of the realm, and while, in these exceptional cases, the private citizen may seem to be denied what is to his immediate advantage, he, like the rest of us, would suffer if the needs of protecting the interests of the country as a whole were not ranked as a prior obligation.
From these observations, it will be apparent that the Minister of the Government or the Head of the Department should raise objection only where disclosure of documents would be injurious to national defence, or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service. As Bhagwati J. pointed out in Chamarbaghwalla B. M. D. v. Y. R. Parpia AIR 1950 Bom 230 (D) that these are only illustrative of the type of objections which can be taken and not exhaustive, but they give a clue to what should be the guiding considerations in the matter of objections taken to the production of these documents.
It is only such documents which relate to the affairs of the State the disclosure of which would be detrimental to the public interest that come within the category of unpublished official records relating to the affairs of the State entitled to protection under Section 123 of Indian Evidence Act. It is only in case of such documents relating to affairs of State that the Court under Section 162, Evidence Act, cannot inspect the documents. But as S. R. pas J. (as he then was) pointed out, while delivering the judgment of the Division Bench in Ijjat-ali-Talukdar v. Emperor AIR 1943 Cal 539 (E) the duty of deciding the question is still on the Court under para 1 of Section 162, Evidence Act, in case of documents relating to affairs of State.
It may be difficult for the Court to decide the question, yet it need not be necessarily impossible for the Court to do it. Ordinarily, no difficulty will arise because heads of departments or public officers are not expected to act capriciously and ordinarily the Court will accept their statements. If, however, the Court finds that a over-zealous officer is capriciously putting forward a claim of privilege, the Court will decide, as best as it can, by the means available to it whether the claim is well-founded. In many cases, the very nature of the document may be enough to show that it cannot be an unpublished official record relating to any affairs of the State. The ultimate decision as to whether a claim of privilege is well-founded or not rests with the Court and the Court jelously guards its power.
8. A similar view has been taken in Dinbai v. The Dominion of India AIR 1951 Bom 72 (P) by a Division Bench (Chagla C. J. and Bhagwati J.). It was pointed out in this case that the principle of Section 123, 'Evidence Act, is that it is not all records relating to the affairs of State that are privileged, but only those the disclosure of which would result in an injury being caused to public interests. It must be loft to a responsible Government Officer, either a Minister or a person at the head of a department to look at the document, to consider it and to decide for himself whether the document falls in the category of documents of State referred to in Section 123, Evidence Act.
He must not only indicate the nature of the document, but he must also state what injury to public interests he contemplates would result from the disclosure of the document. If having considered the document, he tells the Court that the document is one relating to affairs of state and that its disclosure will be injurious to public safety, the Court ordinarily would accept the statement If made an oath, but the statement must not be of a vague and indefinite nature. The Court may in a proper case be not satisfied with the oath of the deponent and he may be asked to submit himself to cross-examination at the hands of the party claiming the disclosure of the documents. The ultimate adjudication is always by the Court, but ordinarily the Court accepts the view of the responsible officer as conclusive provided that the conditions referred to above are satisfied.
It was further observed in this case that a privilege of this nature should be rarely claimed and should only be claimed after the responsible Minister or the head of the department has fully satisfied himself that the document whose disclosure is being resisted is really a document relating to affairs of State and whose disclosure would result in injury to public interests. The scales are always weighed against the subject who fights against the Government and Government should be loath to throw against him more weight in the scales by refusing disclosure of documents which are relevant to the issues in the suit. Government should always bear in mind that it is incumbent upon it to see that there is a fair trial between itself and the subject who is fighting the Government.
It should also realise that refusal to disclose material documents makes it difficult and impossible for the subject to make good his allegations against the Government. Government should also bear in mind that the loyalty of its officers to the cause of Government should not prevail to the extent of injustice being done to the subject. These observations, in my opinion, are very important and Government officers should bear them in mind before claiming privilege for unpublished documents. In Goyindrao v. Sardar Krishnarao, Madh-B LR 1956 Civil 648 (G), a Division Bench of this Court (Dixit J. and myself) has followed this Bombay ruling and has laid down that the Court under Section 123, Evidence Act, must first adjudicate that the document in respect of which privilege is claimed is an official record relating to affairs of state.
If the Court finds that it is not such a record then the question of privilege cannot arise. If it Is found that the document is an unpublished record relating to any affairs of State, then it is for the head of the department concerned to decide whether it should be tendered in evidence or should be withheld. The mere fact that the document is confidential or official is no reason for its non-production. Only such documents are privileged the disclosure of which would be detrimental to the public interests.
9. In the present case, the Government officer concerned has not clearly pointed but how these two documents which relate to the sanction of the petitioner's prosecution under Sections 409 and 465, I. P. C., can be said to be unpublished official record relating to any affairs of State, and how their disclosure would be detrimental to the public interests. In fact, one of the two documents has been produced in a previous case though it seems to have been done under protest. But it certainly does not come within the category of unpublished official record. As regards the second document, it appears to be mere routine paper relating to the sanction of prosecution of the petitioner under Section 409 and Section 465, I. P. C. It does not appear probable that public interest would suffer by the disclosure of any of the documents, nor it appears probable that either of the documents relate to any affairs of the State, within the meaning of Section 123, Evidence Act.
10. In this view of the matter, I accept the reference made by the Sessions Judge, set aside the order of the Magistrate and order the prosecution to produce these letters in the trial Court.