Venkatasubba Rao, J.
1. The question that arises is, whether the Government's claim of privilege in regard to the documents Nos. 16 and 17 can be upheld under Section 124 of the Indian Evidence Act. That section runs thus:
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 that disclosure.
2. There are two matters involved in this section : first whether a particular document for which the privilege is claimed, falls within it, that is to say, whether the document is a communication made to a public officer in official confidence. On a proper construction of the section, it is for the Court to decide that question. Secondly, should the Court decide that the document is of the nature contemplated by the section, then the public officer himself is the sole Judge as to whether by its disclosure public interests would suffer (that alone being the ground of privilege).
3. This distinction between the two matters involved in the section is pointed out and recognised in Venkatachella Chettiar v. Sampathu Chettiar I.L.R.(1908) 32 Mad. 62 : 19 M.L.J. 263, which case has been treated as having settled the law for the Presidency in the later decision in Nagaraja Pillai v. The Secretary of State I.L.R.(1914) 39 Mad. 304 cited by the lower Court. See also The Collector of Jaunpur v. Jamna Prasad I.L.R.(1922) 44 All. 360 . The learned Judge has overlooked this important distinction and proceeded upon the footing that the decision in regard to both the matters rests with the public officer concerned. This view is clearly wrong and the Civil Revision Petition is allowed and the lower Court's order is set aside; the petition is remanded to the lower Court for disposal in the light of my observations.
4. I must observe that the Government claimed privilege in the lower Court under Section 123 in respect of the document No. 3, but that claim has since been given up.
5. Each party will bear his own costs throughout.