L.S. Mehta, J.
1. On May 5, 1964. the petitioner Jetha Nand made a complaint against Kanhaiva Lal and Gidu Mal in the Court of the Additional Munsiff Magistrate. Ajmer City (East) under Sections 381 and 411. Indian Penal Code. The allegations in the complaint were that Kanhaiya Lal was once the complainant's clerk. During the period of his service he stealthily removed certain documents, mentioned in the complaint, from the possession of the complainant and he thus committed a theft. The complainant came to know of this fact when Kanhaiya Lal was examined in a Civil suit (No. 40 of 1961) in the Court of Civil Judge, Aimer. In that case, it is alleged, Kanhaiya Lal admitted of his having removed the petitioner's documents and having deposited the same with other accused Gidu Mal. Thereafter both Kanhaiva Lal and Gidu Mal. with a view to harass the petitioner, conspired and transferred the stolen documents to the Income Tax Department. The two accused requested the Income-tax Department for handsome reward in lieu of the production of the petitioner's documents.
In the Course of trial, Jetha Nand submitted an application on October 15 1965. to the Additional Munsiff-Magis-trate. Ajmer City (East) to ask the Income-tax Officer. Award. Ajmer to produce the documents along with all the letters in original addressed by Kanhaiya Lal and Gidu Mal. This application was allowed on December 15. 1966. On January 10, 1969. the documents in question were produced before the Magistrate in a sealed cover along with a letter from the Commissioner. Income-tax. Jaipur, claiming privilege under Section 124 of the Evidence Act in respect of the documents including the letters addressed to him by Kanhaiya Lal and Gidu Mal, The petitioner opposed the claim of privilege and submitted that there was no occasion for claiming the same in a criminal trial and requested the Court to examine the documents and decide whether the Income-tax Department was entitled to claim the privilege in question. The Court by its truncated order, held that the adjustment journal could only be produced and that the letters addressed to the Commissioner. Income-Tax, Jaipur, by Kanhaiya Lal and Gidu Mal. need not be utilised as they were privileged documents. Against that order a revision-petition was filed in the Court of Sessions Judge, Aimer. The same was dismissed by Mr. Ghanshyam Das Gupta. Sessions Judge. Ajmer, by his order dated October 28, 1971,
2. Against the above order Jetha Nand has filed this revision-petition. The petitioner submits that in a criminal case the production of letters addressed by Kanhaiya Lal and Gidu Mal. connecting the accused with the crime, is essential and in a case like that no privilege under Section 124. Evidence Act. could have been claimed by the Income-Tax Department. Learned counsel for the opposite side submits that as regards the question whether privilege should be claimed or not. the matter has to be decided by the Head of the Department or the officer concerned and he is the sole Judge to take a decision. His opinion is conclusive and the court cannot interfere with it.
3. Section 123 of the Evidence Act relates to the evidence as to the affairs of the State, whereas Section 124 pertains to the disclosure of a communication made to a Public Officer in official confidence. Although both the sections resemble each other in a number of points, the communication, which is made to a Public officer and which may relate to the affairs of the State, would be covered by Section 123 of the Evidence Act. But if the communication is made in the official confidence and where the affairs of the State are not involved, and if Public interest would otherwise suffer by disclosure. Section 124 shall apply. In a case under Section 123. the Court may inspect the documents or take other evidence to enable him to determine on its admissibility. The court cannot substitute its opinion for the opinion of the Head of the Department, in a case under Section 123 of the Evidence Act. If however, the case falls under Section 124. the Court can inspect the documents in question and determine the claim of privilege.
In other words, the duty of the court for determining the question under Section 124 of the Evidence Act is to inspect the document and decide whether the communication was made in the official confidence and whether the Public interest will suffer by the disclosure of the contents of the document. A communication made to a Public officer voluntarily is not one made in official confidence: see B. R. Srinivasan v. B. Parakalaswamy Mutt.AIR 1960 Mys. 186. Thus returns submitted to an Income-Tax Officer and statement made to him cannot be said to be made in official confidence within the meaning of Section 124. Evidence Act vide Bhalchandra v. Chanbasappa. AIR 1939 Bom. 237. It is true that under the Income Tax Act and the rules framed thereunder Public servants are forbidden to make public or disclose any information contained in such documents.
The prohibition, however does not extend to evidence given in courts of justice: see Venkatachella Chettiar v. Sampathu Chettiar. (1909) ILR 32 Mad. 62. In Jadobram Dey v. Bulloram Dey. (1899) ILR 26 Cal 281. it has been observed by Jenkins J. that Section 38 of the Indian Income-Tax Act, 1886. and the rules framed there under appear to have been enacted for the purpose of regulating the conduct of officers coming under its operation and from preventing any disclosure by them in the course of their duties and its object was to secure the interest of those making the returns under the Act and that the rule could not be directed against the production of relevant documents in the court of law, such as is sought in this case. Likewise in Chiragh Din Muhammad Bakhsh v. The Crown (1950) 52 Cri. L.J. 161 (Lah) it has been observed by the Lahore High Court that all communications made to Public officers are not in official confidence. Reports relating to the commission of offence are communications made to Public officers, but they are not in official confidence. It has been Lald down by Morris L.J. in Ellis v. Home Office (1953) 2 All. E. R. 149:
When considering the Public interest and what might be injurious to Public interest ...it seems to me that it is to be remembered that one feature and one facet of the Public interest is that justice should always be done and should be seen to be done.
4. In this case the petitioner made a criminal complaint in a Court of law. In order to substantiate his complaint, it was necessary for him to arrange for the production of the communications which the accused persons addressed to the Income-Tax authorities in order to link them with the crime. The responsibility of the court in a matter like this is great. The court has a right to expect that the Government Department would place all the facts frankly before it or. at any rate, so much of the facts as will enable the Court to reach a positive conclusion on the issues raised. After all, the Public interest is also the interest of every subject of the country, and while in exceptional cases, the private citizen may be denied what is to his immediate advantage, he would suffer if the needs of protecting the interest of the country as a whole were not ranked as a prior obligation. The Income-Tax Department, under the circumstances, was not entitled to claim privilege regarding the production of the letters in question.
5. Before I part with this case it may also be stated that the privilege in this case has not been claimed in accordance with law. In State of Punjab v. S. S. Singh. : 2SCR371 it has been observed by their Lordships of the Supreme Court that since it is not unlikely that extraneous and collateral purposes may operate in the mind of the person claiming the privilege it is necessary that the privilege against the production of a document should be claimed generally by the Minister In charge. who is the political head of the department concerned; if not, the Secretary of the Department who is the departmental head, should make the claim; and the claim should always be made in the form of an affidavit. When the affidavit is made by the Secretary, the Court may. in a proper case, require an affidavit of the Minister himself. The affidavit should show that each document in question has been carefully read and considered, and the person making the affidavit is satisfied, that its disclosure would lead to public injury. The sole and only test which should determine the question regarding privilege is injury to public interest.
The law in England is that in the case of claiming privilege the responsibility is that of the ministerial head of the department. save in exceptional circumstances mentioned by Viscount, Simon, L. C. in Duncan v. Cammell Lalrd & Co. (1942) 1 All. E. R. 587. See also Auten v. Rayner (1958) 3 All. E, R. 566. The ambit of privileges has to be carefully scrutinised and each document has to be carefully examined: vide Ellis v. Home Office (supra). This procedure has not been followed in this case, A mere communication by the Income-tax Commissioner to the court concerned that he wants to claim privilege in respect of the documents in question is not sufficient in law inasmuch as no requisite affidavit has been filed in this case. nor is it clear from the certificate given by the Commissioner of Income-tax as to which of the document has been carefully read and considered and as to why it was apprehended that its disclosure would lead to injury to the public interest. It is true that the scope of inquiry in a case like this is bound to be restricted, but the existence of such a power in the' court to hold an inquiry on the basis of an affidavit acts as a salutary check on the capricious exercise of powers under the relevant provisions of the Evidence Act. Such a power is not merely a matter of theoretical abstraction.
6. In the result. I accept this revision application and set aside the order of Additional Munsiff-Magistrate, Aimer City (East) dated October 1. 1971, as also that of the Sessions Judge, Aimer, dated October 28, 1971. and hold that not only the adjustment journal but also the letters addressed to the Income-tax Commissioner, Jaipur, by accused Kanhaiya Lal and Gidu Mal. be admitted into evidence and the petitioner be allowed to make use of them to prove his case.