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Kunjanam Antony C. Kalliath Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 1189 of 1960
Judge
Reported inAIR1964Ker274
ActsEvidence Act, 1872 - Sections 123 and 124
AppellantKunjanam Antony C. Kalliath
RespondentState of Kerala
Appellant Advocate George Vadakkel and; Varghese Kalliath, Advs.
Respondent AdvocateGovernment Pleader
DispositionRevision allowed
Cases ReferredState of Punjab v. Sodhi Sukhdev Singh
Excerpt:
.....passed by subordinate judge set aside. - - if these two conditions are satisfied then the public officer to whom the communication was made cannot be compelled to disclose the same. here again the condition precedent to give rise to a claim of privilege is that the communication bad been made to the public officer in official confidence and he is asked to disclose the same. x xxx xx if, however, the court finds that an over-zealous officer is capriciously putting forward aclaim of privilege the court will decide, as best as it can, by the means available to it whether the claim is well founded. x xxx xx all the above cases indicate that the ultimate decision as to whether a claim of privilege is well founded or not lists with the court and the court jealously guards its..........124 of the evidence act is legally sustain-able. 2. section 124 of the evidence act reads: 'no public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interest would suffer by the disclosure'.the requirements of the section are, therefore: (1) that a communication should have been made to a public officer in official confidence; (2) that the officer in question must consider that public interests would suffer by the disclosure of the communication. if these two conditions are satisfied then the public officer to whom the communication was made cannot be compelled to disclose the same. whether the communication in question was made in official confidence is a matter for the court to decide and should the court.....
Judgment:

Govinda Menon, J.

1. This Civil Revision Petition has been filed by the first respondent in Land Acquisition Case No. 34 of 1959 against the order of the Subordinate Judge of Irinjalakuda declining the order of the Collector to produce the valuation statement and report made by the Revenue Inspector in the above case. On summons being received the Collector claimed privilege and the question for decision is whether the protection claimed under Section 124 of the Evidence Act is legally sustain-able.

2. Section 124 of the Evidence Act reads: 'No Public Officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interest would suffer by the disclosure'.

The requirements of the section are, therefore: (1) that a communication should have been made to a public officer in official confidence; (2) that the officer in question must consider that public interests would suffer by the disclosure of the communication. If these two conditions are satisfied then the public officer to whom the communication was made cannot be compelled to disclose the same. Whether the communication in question was made in official confidence is a matter for the Court to decide and should the Court decide that the document is of the nature contemplated in the section the public officer is the sole Judge as to whether by its disclosure public interests would suffer, that being the only ground of privilege.

3. The words 'Official confidence' used in Section 124 have been the subject-matter of several decisions. The true import of the expression was considered by a Division Bench of the Madras High Court in Nagaraja Pillai v. Secy. of State, AIR 1915 Mad 1113- After an exhaustive review of the case law, Oldfield J., observed as follows:

'the words 'communication in official confidence' import no special degree of secrecy and no pledge or direction for its maintenance, but include generally all matters communicated by one officer to another in the performance of their duties. The question whether such communication was made in the course of such performance is for the Court to decide'.

In Venkatesam Naidu and Sons v. State of Madras, AIR 1959 Mad 335 Rajamannar, C. J., stated:

'A communication made by one Secretary to the Government to another secretary to the Government would certainly be a communication in respect of which privilege can be claimed. Such inter-departmental correspondence cannot be compelled to be produced'.

In Ijjatali Talukdar v. Emperor AIR 1943 Cal 539, Das. J., who delivered the judgment of the Division Bench of the Calcutta High Court, referred to the principles enunciated by the Judicial Committee in Henry Greer Robinson v. State of South Australia, AIR 1931 PC 254 and said:

'the occasion for claiming privilege under this section (Section 123) only arises where it is sought to give any evidence derived from unpublished official records relating to any affairs of state. That is the condition precedent. When the condition precedent is fulfilled and the occasion for claiming of privileges arises, it is then for the officer at the head of the department concerned to waive or claim the privilege. Likewise, Section 124 of the Act provides that 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 disclosures. Here again the condition precedent to give rise to a claim of privilege is that the communication bad been made to the public officer in official confidence and he is asked to disclose the same. When this condition is fulfilled it is for the public officer to decide whether public interest would suffer by the disclosure. Both the sections are, however, silent as to who is to decide whether the condition precedent has been fulfilled, namely, as regards Section 123 whether the document in question is of the nature or kind mentioned in that section and as regards Section 124 whether communication in question was made to the public officer in official confidence. Is it, to be left to the ipse dixit of the head of the department in one case or the public officer in the other or is it to be decided by the Court? Here the provisions of Section 162 of the Act come into play.

X XXX XX

The first paragraph gives the Court power to decide the validity of the claim of privilege and the second paragraph only provides the method or means by which the Court will be able to decide the question namely, (1) by inspecting the document or (2) by taking other evidence. It is only in case of documents relating to affairs of state that the Court cannot inspect the document. It only means that in cases of such documents one of the method or means by which the Court is to decide the question is not available to it. The duty of deciding the question is still on the Court under the first paragraph of the section. In case of document 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 department, or public officers' are not expected to act capriciously and ordinarily the Court will accept their statement.

X XXX XX

If, however, the Court finds that an over-zealous officer is capriciously putting forward aclaim of privilege the Court will decide, as best as it can, by the means available to it whether the claim is well founded.

X XXX XX

All the above cases indicate that the ultimate decision as to whether a claim of privilege is well founded or not lists with the Court and the Court jealously guards its powers'.

In the above Privy Council case the Judicial Committee explained that the foundation for the privilege is that information cannot be disclosed without injury to the public interest.

4. The reason of the rule has been stated by the House of Lords in Local Govt. Board v. Arlidge, 1915 AC 120. Viscount Hatdane, L. C,, stated:

'It is said that the report of the inspector should have been disclosed. It might or might! not have been useful to disclose this report, but I do not think that the board was bound to do so, any more than it would have been bound to disclose all the minutes made on the papers in the office before' a decision was come to'.

In this Lord Shaw of Dunfermline agreed and said:

'And I feel certain that if it were laid down in Courts of law, that such disclosure could be compelled, a serious impediment might be placed upon that frankness which ought to obtain among a staff accustomed to elaborately detailed and often most delicate and different tasks. The very same argument would lead to the disclosure of the whole file. It may contain and frequently does contain, the views of inspectors, secretaries, assistants and consultants of various degrees of experience, many of whose opinions may differ but all of which form the material for the ultimate decision. To set up any rule that that decision must on demand, and as a matter of right, be accompanied by a disclosure of what went before, so that it may be weakened or strengthened or judged thereby, would be inconsistent, as I say with efficiency, with practice and with true theory of complete parliamentary responsibility for departmental action.'

In Chatterton v. Secy. of State for India in Council, (1895) 2 QB 189 it was held that a communication relating to state matters made by one officer to another in the course of his official duty was absolutely privileged and could not be made the subject of an action for libel.

5. The law on the subject was elaborately reviewed by the House of Lords in Duncan v. Caramell Laird and Co., 1942 AC 624. Their Lordships have clearly laid down the principles which are embodied in Sections 123 and 124 of the Indian Evidence Act;

'A Court of law should uphold an objection taken by a public department called on to produce documents in a suit between private citizens, if on grounds of public policy they ought not to be produced. Documents otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld. The test may be found to be satisfied either (a) by having regard to the contents of the particular documents, or (b) by the fact that the document belongs to a class which, on groundsof public interest must as such be withheld from production. It is essential that the decision to object should be taken by the minister who is the political head of department concerned and that he should have seen and considered the contents of the documents and himself formed the view that on the grounds of public interest they ought not to be produced. If the question arises before trial the objection would ordinarily be taken by affidavit of the minister. If it anses on subpoena the objection may in the first instance be conveyed to the Court by an official of the department, who produces a certificate signed by the minister stating what is necessary, but if the Court is not satisfied it can request the minister's personal attendance.

An objection validly taken to production on the ground that it would be injurious to the public interest is conclusive. The mere fact that the minister or the department does not wish the ' documents to be produced is not an adequate justification for objecting to their production. Production should only be withheld when the public, interest would otherwise be damnified, as 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. In such a case the Court should not require to see the document, for the purpose of ascertaining whether the disclosure would be injurious to the public interest'.

6. The principle enunciated in the above case was quoted with approval and applied in construing Sections 123, 124 and 162 of the Indian Evidence Act in Governor-General in Council v. Peer Mohammed Khuda Bux, AIR 1950 EP 228 (FB) where Kapur, J., has observed:

. 'Ordinarily the privilege is attached to State papers which are of a political or administrative character, but there can be documents relating to trade or commercial or contractual activities of a state with regard to which privilege may be claimed. This privilege is a necessary one and must most sparingly be exercised, and in time of peace the sole object of the privilege being security of the state the occasion to use this privilege may indeed be rare. Privilege is not to be claimed on the mere ground that the documents are state documents or are official or are marked confidential or, if produced, it would result in parlia- ' mentary discussion or public criticism or it will expose a want of efficiency in the administration or tend to lay a particular department of Government open to claim for compensation. Indeed, it is not sufficient that the minister of the department concerned does not want to have the document produced. But the sole object of this privilege is that the disclosures would be injurious to national defence or to Rood diplomatic relations or for the proper functioning of the public service and it is necessary to keep that document or that class of documents secret'.

7. in the case in K. Suryanarayana Naidu, In re, AIR 1954 Mad 278 a suit was filed by a public servant for defamation and recovery of damages. He was summoned for the production of certain statements recorded in confidentialdepartmental enquiry held for the purpose of finding whether there was any truth in the allegations made against the public servant. It was contended that the documents in question were not communications made in official confidence to a public officer. Ramaswami, J., held:

'In regard to this Courts have adopted a basic principle for deciding whether a particular document is a communication made in official confidence to a public officer or not, viz., whether the document produced or the statement made was under the process of law or not. If the former is the case, Courts have held that it would be difficult to say that a document produced or statement made under the process of law is a communication made in official confidence. If on the other hand a document is produced or a statement is made in a confidential departmental enquiry not under process of law but for the gathering of information by the department 'for guiding them in the future action if any they got to take, it would be a case of communication made in official confidence. Once this basic principle is borne in mind it will not be difficult to follow the line of decisions on this point. Thus, returns submitted to an Income-tax Collector, any statement made before him, or any order that may be made by him are not privileged under Sections 123 and 124 of the Indian Evidence Act; Bhalchandra Datta-trya v. Chanbasappa Mallappa, 41 Bom LR 391: (AIR 1939 Bom 237) Venkatachella Chettiar v. Sampathu Chettiar, ILR 32 Mad 62: See also Tadobram Dev v. Bulloram Dev ILR 26 Cal 281. - The privilege cannot be claimed in respect of a statement recorded in the Course of an investigation by a forest range officer: Kaliyappa Udayan v. Emperor, 1937 Mad WN 322: (AIR 1937 Mad 492). Statements made by witnesses in an investigation made by the Circle Inspector under the Code of Criminal Procedure cannot be considered to be statements made in official confidence Ap-parao v. Suryaprakasarao 1951 Mad WN 365: (AIR 1951 Mad 864 (1)), Emperor v. Kistayya, 1935 Mad WN 1282. The basic principle in all these cases is that the enquiry or investigation was under process of law. On the other hand, a confidential report submitted, as a result of a confidential enquiry held under the orders of a railway officer to enable him to take departmental action is a privileged document falling within the purview of Section 124 of the Indian Evidence Act; Emperor v. Mir Mohamed Shah, 153 Ind Cas 651: (AIR 1935 Sind 50)'.

8. In a recent decision of the Supreme Court in State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493 the principle underlying the privilege in Section 123 of the Evidence Act was stated as follows:

'A valid claim for privilege made tinder Section 123 proceeds on the basis of the theory that the production of the document in question would cause injury to public interest, and that, where a conflict arises between public interest and private interest, the latter must yield to the former. Care has however, to be taken to see that interests other than that of the public do not masquerade in the garb of public interest and take undue advantage of the provisions of Section 123. Sub-ject to this reservation the maxim Salus Populiest suprema tex which means that regard for public welfare is the highest law is the basis of the provisions contained in Section 123'.

9. Thus a person who is summoned to produce the document should bring it into Court even if there is any objection to its production or to its being admitted in evidence under Section 123 or Section 124 of the Evidence Act. The Court will decide on the validity of the objection and he is not entitled to withhold the evidence if the objection is over-ruled. In enquiring into the validity of the objection the Court will, of course, bear in mind that it should not exercise its powers in such a way as to occasion the mischief, which the law providing for the objection is designed to guard against. If it is a claim or privilege under Section 124, the Court may inspect the document in its discretion. If the Court comes to the conclusion that the communication in question was made to a public officer in official confidence, it will have to uphold the privilege claimed under Section 124 and leave the public officer concerned to decide whether or not to disclose the communication. The final decision of both the departmental head who had been summoned to produce the document as well as the presiding Judge should be governed by only one consideration, namely, whether the disclosure would result in any injury being caused to the public interest as the section gives effect to the principle that public interest must be paramount and private interest must give way when there is conflict between public and private interests.

10. in the light of the principles enunciated in these cases prima facie it appears to us that the valuation statement given by the Revenue Inspector on the basis of which the award has been passed cannot be said to be a communication made in official confidence. The document has not been produced before the Court below and without seeing the document it will not be possible to decide whether the whole or any portion of the document will be privileged under Section 124 of the Evidence Act.

11. We, therefore, allow the revision petition and set aside the order of the Subordinate Judge. The learned Subordinate Judge is directed to decide the question of privilege claimed under Section 124 of the Evidence Act afrssh in the light of the principles laid down in this decision after inspecting the documents and hearing both parties.


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