1. Petition by accused i to 3 in P.R.C. 9 of 1965 on the file of the Special District Magistrate, Coimbatore, to revise the order of the said Magistrate rejecting their applications for grant of copies of statements of witnesses examined before the District Revenue Officer, Salem.
2. Petitioners are being proceeded against for charges of rioting, criminal trespass, mischief, attempt to murder etc., alleged to have been committed by them during the Anti-Hindi agitation on 10.2-1965 at Komarapalayam. There was an enquiry by the District Revenue Officer in respect of the Anti-Hindi agitation and rioting on 10.2.1965, and statements of witnesses were recorded by him. The learned Public Prosecutor raised some doubt, whether the said enquiry was under P. S. O. 145, corresponding to the old P. s. o. 167. But it is clear from the prior order of the Special District Magistrate, which came up in revision before me, that the contention of the Special Public Prosecutor was that the enquiry made by the D. B. O. was one under P. S. O. 145. The D. B. O. filed an affidavit that it was not a judicial or a quasi judicial enquiry, that the enquiry was not conducted under any Statute and that the enquiry was only a fact finding enquiry ordered under the executive instructions of the Government with the object of ascertaining whether the opening of fire by the police was justifiable or not. Originally, privilege was claimed under 3. 123 of the Indian Evidence Act on the strength of the affidavit of the D. B. O. and it was upheld by the Special District Magistrate. In Cri. R.C. 52 of 1966 I set aside the order on the ground that the privilege should be claimed by the Head of the Department, as held by the Supreme Court in State of Punjab v. S.S. Singh : 2SCR371 , But, when the matter went back before the Special District Magistrate, the privilege under Section 123 was not pressed, but privilege was claimed under Section 134 of the Evidence Act.
3. The copy applications filed by the petitioners were not only in respect of prior statements recorded in the enquiry under P.S.C. 145 of persons who were to be examined as witnesses in the P. B. C, cases, but also of reports made by the D. B. 0. But the reports are confidential communications by the D. R. O. to the Government and the privilege claimed in respect of the same cannot be and was not disputed. Hence the only question to be considered in this petition is whether there could be any privilege in respect of the statements of witnesses recorded by the D. R. O.
4. The object of the enquiry under P. S. O. 145 is no doubt different from the object of the investigation of the charges against the petitioners for criminal offences alleged to have been committed by them. It is true that the enquiry under P. S. O.145 against the conduct of police officials, and the investigation of case against the petitioners, are in respect of the same occurrence, namely, the rioting which took place on 10-2-1965 at Komarapalayam. There is conflict of judicial opinion as to the nature of the enquiry under P. S. C. 145. In In re Veerappa : AIR1944Mad37 , it was held by Kupposwami Iyer J. that where a Sub. Divisional Magistrate holds an enquiry and examines a large number of witnesses on oath and passes an order under P. S. 0. 157 (corresponding to the present P. S. O. 145) there is a judicial enquiry by the Sub-Divisional Magistrate, as defined in Section 4 (m) Cri. P. C., and therefore, the order is one revisable under Section 435, Cri. P. C. and that it cannot be said that the enquiry by the Magistrate under P. S. C. 157 is only a departmental one against which no revision lay. But in Rajangam v. State of Madras : AIR1959Mad294 it was held that the view of Kuppuswami Iyer J., in the above decision as to the rights of this Court to interfere in revision in respect of proceedings under P. S. O. 157 is not correct as the magistrate holding the enquiry under P. S. O. 157 though exercising the powers under Section 176 Cri. P. C., is not acting as a court. It was held in that decision that the enquiry under P. S. C. 157, which is in the nature of executive instructions to implement the enquiry under Section 176 Cri. P. C., is only a fact binding enquiry. In State of Andhra Pradesh v. Venugopal : 3SCR742 it was held that P. S. O. 145 has not the force of law as it was not issued under any statutory authority, but is only an executive instruction and that non-compliance with the same would not render the investigation of ft case illegal. But ... if the enquiry is really one under Section 176, Cri P. C., copies of depositions of witnesses taken in such an enquiry should be furnished to the accused as held in In re Venkataramana Rao : AIR1945Mad64 . The fact that the enquiry under P.S.O.145 is not a statutory enquiry would not then really affect the question. It could not however be said that every enquiry under P. S. O., 145 is in respect of an enquiry under Section 176 Cri. P. C., which relates only to cases of suspicious death. The question whether a party would be entitled to copies of documents in the enquiry under P. S. O. 145, would, there, fore, depend on the facts and circumstances of each case.
5. Mr. S. Govind Swaminathan, appearing for the petitioners, relied on the decision in State of Andhra Pradesh v. Appanna 1962 MLJ . 280 : , in support of his contention that the words 'official confidence' in Section 124 of the Evidence Act indicates that the section applies to communications from one public officer to another public officer in the discharge of their official duties, and not communications to such officers by outsiders. It is true two decisions of our High Court are referred to in support of this view. In Nagaraja Pillai v. Secy. of State ILR Mad 304 : AIR 1915 Mad 1113 a Bench of this Court held that the object of Section 124 of the Evidence Act was to prevent disclosures to the detriment of public interests and that the decision as to such detri-merit rested with the officer to whom the communication was made and did not depend on the Special use of the word 'confidential'. In referring to the words 'communications in official confidence' Old field J. observed that they 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 performance of their duties. It should be noted that the case related to the production of a report by a supervisor to the Sub-Divisional Officer. The decision in Venkatesa Naidu v. State of Madras : AIR1959Mad335 also related to inter-departmental correspondence between the Officers of departments of Government and it was held that the Government could not be compelled to produce them when it claimed privilege. B. 124 of the Evidence Act merely refers to privilege in respect of communications made to a public officer in official confidence, and there is nothing in the section to restrict the scope of the section to communications by public officers. It is not possible to infer from the words 'official confidence' that Section 124 is intended to protect only communications by one official to another. There may be cases in which a private person may make a communication to a public officer in official confidence and it could not be said that the public officer cannot claim privilege in respect of the same.
There are several cases in which such claims in respect of communications by private persons to public officials have been upheld under Section 124 of the Evidence Act. Thus In re Suryanarayana Naidu, 66 Mad L W 927 : : AIR1954Mad278 the privilege claimed was in respect of statements made by the defendants in the suit to the Taluk Supply Officer and it was held that the communications sought to be disclosed were in the nature covered by Section 124 of the Evidence Act, and the privilege claimed was upheld. I am, therefore, unable to accept the wide proposition put forward by the learned advocate for the petitioners that as the statements were made by the witnesses, who are private persons, to the D. B. O., they cannot come within the ambit of Section 124 of the Evidence Act.
6. The learned Public Prosecutor urged that as the enquiry under P. S. O. 145 is of a confidential nature, privilege can be claimed under Section 124 of the Evidence Act in respect of every statement made by every witness in such an enquiry. I am unable to accept even this wide proposition of the learned Public Prosecutor. I have already pointed out that the nature of the enquiry under P. S. O. 145 should first be deter, mined and then the statement of every witness considered individually to find out whether they were made in official confidence. In 1961 ML J 731 : : 2SCR371 at p. 504, Gajendragadkar J., has pointed out as to how the privilege should be claimed in respect of each document, it is pointed out in that decision that the affidavit claiming privilege should show that each document in question had been care-fully read and considered and the person making the affidavit was satisfied that its disclosure would lead to the public injury and that if there are series of documents included in a file, it should appear from the affidavit that each one of the documents, whose disclosure is objected to, had been duly considered by the authority concerned and that the affidavit should also indicate, briefly, within permissible limits, the reason why it was apprehended that their disclosure would lead to injury to public interest.
7. In the present case, the statements made by the witnesses are in respect of an occurrence which took place on 10.2.1965 at Komarapalayam. It is clear from the records in this case that the enquiry was held in open and witnesses were examined in the presence of others. In fact, the petitioners were permitted to inspect the statements, and they were actually furnished with a copy of the statement of one of the witnesses. I gave time to the learned Public Prosecutor to go through the statements given by the witnesses before the D. R. O. to find out whether any communication was made by any of the witnesses in official confidence to the D. R. O. and the learned Public Prosecutor was not able to point out any such statement in the recorded statements of any of the witnesses Having regard to the above facts there could be no question of privilege under Section 124 of the Evidence Act in respect of the statements made lay witnesses to the D. R. O. in respect of the occurrence on 10-2-1965 at Komaraiialayam, which also forms the subject-matter of enquiry in the case against the petitioners. In practice copies of statements of witnesses in the enquiry under P. S. O. 145 are furnished to accused charged with offences arising out of the occurrence which formed the subject of the earlier enquiry. It is true the scope of the enquiry under P. S. O. 145 is different from the scope of the enquiry against the petitioners, and hence there may be difference in the manner of recording of statements of the same persons in the two enquiries, but this is a matter which need be considered only when the statements are actually used and their relevancy or reliability comes into question.
8. For the foregoing reasons, the order of the learned Special District Magistrate is set aside and he is directed to furnish copies of the former statements of such of the witnesses enquired before the D. R. O. as the prosecution wants to examine 'in the enquiry against the petitioners.