1. This Rule was issued at the instance of an accused in a criminal case under Section 500 or the Indian Penal Code which is being tried by Sri H. N. Sen, Presidency Magistrate, Calcutta. When the accused was called upon to enter into-his defence, he asked the court to call for a document called the 'Reviewer's Report' which he considered necessary for the purpose of his defence-of justification and 'bona fides'. It appears that the learned Magistrate took no objection to summoning the document and issued a summons onthe Secretary of the Board of Secondary Education, West Bengal, to produce the document. It appears that at first the Secretary seemed to have claimed privilege by verbally speaking to the Magistrate but I need not go into tile matter at length for the very simple reason that the learned Magistrate had not given this contention about privilege as his reason for subsequent action. If privilege is claimed for any document, it has got to be claimed in accordance with the Indian Evidence Act and even a most cursory perusal of that enactment will show that the Secretary had no power to claim privilege.
It now appears that the Secretary on a subsequent date filed a portion of the 'Reviewer's Report'. This fact that a portion had been filed, the learned Magistrate says, was not known to him. The defence pointed out that there could be no privilege as a portion of the same document was filed by the Secretary. Whether that is correct or not, I need not decide. The Secretary put forward, as a ground for non-production of the rest of the document, that the same was with the President. It does not appear why the Secretary did not ask the President about the matter and, if the President had no objection to production, produce' the same. Anyway, the Secretary merely wrote out that explanation and submitted it to the Court. When the attention of the court was drawn to it by the defence they wanted fresh summons to be addressed to the President. Then it seemed that the learned Magistrate changed his mind. I have not been at all able to understand nor has Mr. Prasun Chandra Ghose, appearing on behalf of the opposite party, been able to explain to me why there was this sudden change in the Magistrate's mind. However, I have already stated, that the learned Magistrate had previously allowed this document to be called fur.
The learned Magistrate says that he considered that the document was not relevant and asked the defence to show how it was relevant. The defence pointed out that it was relevant for the purpose of cross-examination to establish 'bona fides' which was their defence. Whether the document would have that value or not, cannot be decided by anyone till the document is in court and further evidence necessitated by it is given. The learned Magistrate has further written that the defence was 'fishing' for evidence. If that was the learned Magistrate's opinion, that is, if the learned Magistrate thought that there was not in the document any matter helpful to the defence, as was stated by the defence, the proper course for him would have been to look at the document when it was produced and to see whether what the defence stated to be the contents of the document, according to its information, was correct. If he found that the defence was not correct as regards the contents of the document, he might only then have considered whether it was fishing for evidence. Without knowing what the contents are, and as the document is with the President of the Board, it is obvious that the learned Magistrate can have no actual knowledge of the contents, it is idle to talk of fishing for evidence as the learned Magistrate has done. The document was with the President and therefore the defence could only tell the Magistrate what their information was. If the information was incorrect the learned Magistrate on going through the document might have refused the prayer of the defence to look into it but if the information was correct I do not see any reason that can lead the Magistrate to change his mind after he had once decided to allow that piece of evidence to be called for.
2. Under the circumstance, the order of the learned Magistrate is set aside. He will call for this document from the President of the Board of Secondary Education, and then act according to law.
3. The Rule is thus made absolute.