M.L. Malik, J.
1. The three Criminal Revisions Nos. 701 of 1977 (R. K. Karanjiya and Ors. v. Sewakram Sobhani), 105 of 1978 (R.K. Karanjiya and Ors. v. Sewakram Sobhani) and 103 of 1978 (R.K. Karanjiya and Ors. v. Sewakram Sobhani) are being disposed of by this common order.
2. To state the facts, the applicant No. 1 is the Editor of Weekly 'BLITZ', which is published from Bombay and the rest of the applicants are connected with the 'BLITZ' publication in one capacity or the other. The 'BLITZ' Weekly is published in three languages viz. English, Hindi and Urdu.
3. During the period of Emergency between June, 1975 and March, 1976. the non-applicant Sewakram Sobhani was a 'MISA' detenu and was lodged in the Bhopal Central Jail. Also were lodged in the same Jail two lady de-tenues viz. Sm. Uma Shukla and Smt. Ramkal Mishra, Advocate. The husband of Smt. Shukla is a practising Advocate at Bhopal but he was not a detenu. It is undisputed that Smt. Uma Shukla became pregnant while she was in the premises of the Central Jail and an abortion was carried out to relieve her of her illegitimate pregnancy in the Zanana Hamidia Hospital in the month of August, 1976. This circumstance created an uproar and an enquiry was held into episode by Shri S. R. Sharma, Deputy Secretary (Home), Government of Madhya Pradesh, Bhopal, and in his report dated 7-10-1976, after making a thorough enquiry into the matter, he came to the following conclusions:
(as per publishers):
(a) There was free mixing of male and femal members in the Bhopal Central Jail.
(b) Shri Sewakram Sobhani had the opportunity and also availed of the opportunity and mixed very freely with Smt. Uma Shukla.
(c) Smt. Uma Shukla became pregnant through Shri Sewakram Sobhani.
4. In the 'BLITZ' Weekly dated 25-12-1976 a summary of the report was published in the Hindi and Urdu Editions. The non-applicant Shri Sobhani, Advocate, took exception to the publication and filed a complaint of defamation against the applicants under Section 500 of the Indian Penal Code upon their appearance in Court, the applicants made an application on 23-8-1977 under Section 91 of the Code of Criminal Procedure requesting that the Court be pleased to send for certain documents before arriving at a conclusion whether the Court should proceed with the matter at all. The learned Magistrate allowed the application and directed that before proceeding any further the following documents should be produced in Court:
(a) The Enquiry report dated 7-10-1976 submitted by Shri Sharma to the Government consisting of his findings regarding the illegal criminal intimacy between Advocate Sobhani and Smt. Uma Shukla, consequent pregnancy of Smt. Uma Shukla and abortion of the illegitimate pregnancy in the Zanana Hamidia Hospital, Bhopal. The learned Magistrate then posted the case for production of the aforesaid record from the Government and recording of the plea of the, accused persons.
(b) The State Government failed to produce the Enquiry report before the learned Magistrate and, therefore, the learned Magistrate has issued a Show Cause Notice to the Government of M.P. as to why proceedings for contempt of Court should not be initiated against it. That matter is pending.
5. The learned Magistrate, however, did not wait for the receipt of the report which he wanted to peruse before recording plea and passed the impugned order on 30-11-1977 that the accused persons should appear in person or through their counsel for explaining to them the substance of the accusation and also for recording their plea.
6. The applicants feeling aggrieved have come to this Court for quashing the complaint since they contend that the publication would squarely fall within exception 9 of Section 499 of the Indian Penal Code. The applicants further contend that the report of the Deputy Secretary (Home) is the document on the basis of which the reporting was done and unless that is got produced and inspected, the defence of exception 9 cannot be made out. The report therefore, deserved to be requisitioned and the matter of defamation deserved to be examined on that basis,
7. This Court ordered production of the report of the Deputy Secretary (Home) and the State Government was pleased to produce it through its Home Department in a sealed confidential cover. The Home Secretary filed two affidavits, one purporting to withhold permission to its inspection it being an unpublished official record relating to affairs of the State, and the other saying that the contents of the report were official communications in confidence, the disclosure of which was against public interest.
8. I examined the report in the light of the dictum laid by the Supreme Court in State of Punjab v. S.S. Singh : 2SCR371 and have reached a conclusion that the report cannot be made available to the parties for their inspection nor can its contents be disclosed. It would be against public interest to do so. The document falls in the category represented by the English case; Home v. Bentinck (1820) 129 ER 907 cited in para 6 of their Lordships' judgment, which may be usefully reproduced:
In Home v. Bentinck the Court was dealing with a claim made by H who had sued the President of the enquiry for a libel alleged to be contained in the report made by him. It appears that H was a commissioned officer in the Army and the Commander-in-Chief of the said Army had directed an assemblage of commissioned military officers to hold an enquiry into the conduct of H. According to H, the said report contained libelous matter and so he had sued the President of the enquiry. At the trial H desired that the report submitted by the Court of enquiry should be produced and this request was resisted by the defendant on the ground that the document in question was a priviledged communication. This plea was upheld. Dallas, C.J. referred to the precedents relevant to the decision of the point and observed that the basis of the said precedents was that the disclosure would cause danger to the public good. He then considered the nature of the enquiry which had been directed against H, and observed that in the course of the enquiry a number of persons may be called before the Court and may give information as witnesses which they would not choose to have disclosed; but if the minutes of the Court of enquiry are to be produced on an action brought by the party, they reveal the name of every witness and the evidence given by each. Not only this but they also reveal what has been said and done by each member of the existing Court of enquiry; and according to the learned Judge, the reception of the said minutes would tend directly to disclose that which is not permitted to be disclosed and so independently of the character of the Court the production of the report was privileged on the broad rule of public policy and convenience that matters like those covered by the report are secret in their nature and involve delicate enquiry and the names of person who ought to stand protected.
9. Where the Government, as a matter of State policy and in order to encourage people to come forward and give information to a Special Enquiry Agency set up by it promises secrecy as to the identity of persons as well as the information, the records of the Agency that contain those statements and the report on that basis must be taken as relating to the affairs of the State, the disclosure of which would be injurious to State policy. The enquiry conducted by the Deputy Secretary in the present case was on a very delicate matter concerning a matrimonial offence, apart from misconduct of the servants who had shown laxity in the prison discipline.
10. The Court is now faced with a vexed problem. The primary evidence, that is, the original report of the Deputy Secretary is shut out. The Court has to assume judicial blindness to it and proceed as if the report was never read. In the very nature of things, if the original cannot be looked at, no secondary evidence can be allowable. The applicants might be holding a copy of the report, surreptitiously or honourably obtained but they cannot be permitted to produce it in Court. If the original is privileged, so would be its copy. It would be against public interest to permit reading of the copy and disclosing its contents.
11. All that could be said is that the offending publication is the summary of a confidential report submitted by an officer of the State to the Head of the Department. Would an action in defamation lie where the report gets published The English Law confers absolute privilege to such a report. To quote from 'Gatley on Libel and Slander', 7th Edn., Chap. 12, Section 5 at pages 177 and 178:
'Para 413: The general rule. No action will lie against a military or naval officer for any defamatory statement in a report made by him in the course of duty to his superior officer, or against any officer of State for any defamatory statement contained in an official report made by him to the head of his department, even though such statement be published maliciously and without reasonable or probable cause.
Para 414: The reason for the privilege. The mere fact that the report relates to a commercial matter as opposed to a political or State matter will not of itself render it unprivileged. It is not competent to a Civil Court to entertain a suit in respect of the action of an official of State in making a communication to another official in the course of his official duty, or to inquire whether or not he acted maliciously in making it...The reason ...is that it would be injurious to the public interest that such an inquiry should be allowed, because it would tend to take from an officer of State his freedom of action in a matter concerning the public weal. If an officer of State were liable to an action of libel in respect of such a communication, actual malice could be alleged to rebut a plea of privilege, and it would be necessary that he should be called as a witness to deny that he had acted maliciously. That he should be placed in such a position and that his conduct should be so questioned before a jury, would clearly be against the public interest, and prejudicial to the independence necessary for the performance of his functions as an official of State. Therefore, the law confers upon him an absolute privilege in such a case - 'whether an action be brought against him in his official capacity or in his personal character.'
Para 415: The public interest: Moreover it may be that the public interest requires that a document be not disclosed and that 'that public interest is so strong as to override the ordinary right and interest of a litigant that he shall be able to lay before a Court of justice all relevant evidence.' If so, it cannot be produced, nor can secondary evidence of its contents be given. Similarly, it may be contrary to the public interest to disclose information as to what was said on a particular occasion. In such cases, the evidence cannot in any circumstances be admitted. 'It is not a privilege which may be waived by the Crown or by anyone else.
12. It would be pertinent to note that where immunity is absolute for a communication between an officer and the Head of the Department, it is so even if the communication is published maliciously and without reasonable and probable cause. That is what the author says in para 413. To say, therefore, that the officer who made the communication and the Head of the Department who received it are alone protected and none else, is not the correct exposition of law. The immunity extends to the communication as such. If the communication is privileged, no action in defamation would lie for its publication even though the communication contains some defamatory matter.
13. In Abdur Razak v. Gaurinath (1910) 11 Cri LJ 205 (Lah) their Lordships of the Punjab Chief Court said that when the complaint was based on some official communication falling within the scope of Sections 123 and 124 of the Evidence Act and there was no likelihood of proving the communication by primary or direct evidence, the Magistrate would be justified in dismissing the complaint under Section 203 of the Cr. P.C. No secondary evidence regarding the contents of the communication made in official confidence was admissible.
14. The proposition, in my view, should be true in the converse as well. If the accused cannot get the confidential report produced and proved, he must of necessity claim a benefit in the sense that if the person giving the report containing defamatory matter, being the principal offender, is immune from prosecution, so should the person who in good faith and in public interest or for public good publishes it.
15. The real question to ask is, did the applicants publish the report for public good, in public interest and in good faith My answer is in the affirmative. It was a publication of a report for the welfare of the society. A public institution like prison had to be maintained in rigid discipline; the rules did not permit mixing of male prisoners with female prisoners and yet the report said, the prison authorities connived at such a thing, a matter which was bound to arouse resentment and condemnation. The balance of public benefit lay in its publicity rather than in hushing up the whole episode. Further, there was an element of good faith in the publication. The source on which the publishers acted was the proper source on which they were entitled to act and they did so with care and circumspection. The report further shows that the publication had been honestly made in the belief of its truth and also upon reasonable ground for such a belief, after the exercise of such means to verify its truth as would be taken by a man of ordinary prudence under like circumstances.
16. The applicants' case clearly falls within the ambit of exception 9 of Section 499 of the Indian Penal Code. It would be abuse of the process of the Court if the trial is allowed to proceed which ultimately would turn out to be a vexatious proceeding. The complaint is accordingly quashed.