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S.B. Choudhury and anr. Vs. I.P. Changkakati and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGuwahati High Court
Decided On
Judge
Reported in1960CriLJ1551
AppellantS.B. Choudhury and anr.
Respondenti.P. Changkakati and anr.
Cases ReferredEmperor v. Nanda Singh and Anr.
Excerpt:
- judgementg. mehrotra, j.1. this is a revision under section 439 of the criminal procedure code on behalf of the petitioners who are accused in a trial pending before the sessions judge, lower assam division, gauhati. the case was started against' the petitioners on a complaint had by the complainant opposite party under section 198 b of the cr.pc on the allegation that the petitioners committed the offence of defamation against sri moinul haque choudbury, minister to the government of assam in charge of food, agriculture, veterinary, co operative etc. the petitioners were summoned by the sessions judge under sections 500 and 501, indian penal code. charges were framed against the petitioner on 18th july 1959 after examining a number of witnesses. the petitioners are alleged to have.....
Judgment:
JUDGEMENT

G. Mehrotra, J.

1. This is a revision Under Section 439 of the Criminal Procedure Code on behalf of the petitioners who are accused in a trial pending before the Sessions Judge, Lower Assam Division, Gauhati. The case was started against' the petitioners on a complaint had by the complainant opposite party Under Section 198 B of the Cr.PC on the allegation that the petitioners committed the offence of defamation against Sri Moinul Haque Choudbury, Minister to the Government of Assam in charge of Food, Agriculture, Veterinary, Co operative etc. The petitioners were summoned by the Sessions Judge Under Sections 500 and 501, Indian Penal Code. Charges were framed against the petitioner on 18th July 1959 after examining a number of witnesses. The petitioners are alleged to have published Ext. 2, a sbooklet under the captions 'The Press and Sri Moinul Haque Choudhury' and Ext. 28(1), the editorial under the caption 'To our M. L. As.' published in the 'Shillong Times' dated 3rd August 1958 in respect of the conduct of the Minister in discharge of public functions.

These writings were intended to harm the refutation of tine said Minister. The petitioners pleaded not guilty to the charge. On the 22nd July 1959 the petitioners filed an application before the Sessions Judge praying that certain documents mentioned in the said petition be called for as they were necessary to establish the anti State activities of the Minister concerned. The Sessions Judge ordered the production of the documents but a petition was ?led on 25th August 1959 by the State of Assam through the Advocate for the complainant for the modification of the earlier order passed by the Sessions Judge calling for the documents mentioned in the petition on the ground that some of the documents did not relate to the subject matter of the charges framed and some were public documents in respect of which privilege was claimed. Later m affidavit was filed by the Chief Secretary to the Government of Assam stating that the two documents, namely,

(1) Dossier and personal Folder of Sri M. H. Choudhury maintained by the Special Superintendent of Police, C. 1. D,, Shillong and/or by the Gov emment of Assam,

2. Police or Intelligence Branch reports leadtog to the issue of detention order against Sri M. H. Choudhury in 1950, under the P. D. Act,

were unpublished official records relating to the affairs of the State and that their disclosure will be prejudicial to public interest for the reasons mentioned in the affidavit. These documents were covered by items Nos. 9 and 74 mentioned in the petition filed by the petitioners. The privilege claimed by the State was objected to by the petitioners. The Sessions Judge by his order dated 9th November 1959 accepted the contention of the State and it is against the aforesaid order of the Sessions Judge that the present petition in revision has been filed before this Court.

2. Three points have been urged by the counsel for the petitioners - firstly that the affidavit filed by the Chief Secretary should not have been taken into consideration as it does not conform to the rules of the court, secondly that the documents in respect of which the privilege is claimed do not relate to the affairs of the State and as such no privilege could be claimed in respect of it, and thirdly that the documents having been directed to be produced should have been brought in court before any privilege could be claimed in respect of them.

3. On behalf of the State the Advocate General has raised a preliminary objection. He contends that the petition in revision is not maintainable at the present stage.

4. On the 22nd July 1959 an application was filed on behalf of the petitioners stating that the documents mentioned in the Schedule be called for from the persons shown therein. Item No. 9 on the application relates to files containing reports leading to the issue of detention order on Sri Moinul Haque Chowdhury in 1950. This document was to be summoned from the Deputy Commissioner Cachar or Chief Secretary to the Government of Assam, Shillong. Item No. 74 is Dossier Personal Folder and all other papers and documents regarding detention of Sri Moinul Haque Chowdhury produced before the Advisory Board under the Preventive Detention Act. These documents were called for from th Chief Secretary to the Government of Assam, Shillong or Special Superintendent of Police, C. I. D,, Shillong.

The Sessions Judge on the 30th July 1959 passed an order granting the prayer of the petitioners to call for the documents mentioned in the application and directing issue of notices to the persons mentioned in the Schedule for sending the documents so as to reach the court on or before the 25th August 1959. On the 25th August 1959 a petition was filed by the State of Assam through the Advocate for the complainant for modification of the court's order of the 30th July 1959 on the ground that some of the documents did not relate to the subject matter of the charges as framed, some of the documents were hit by the provisions of Article 22 of the Constitution and some of the documents were privileged. By an order dated 12th September 1959 the earlier order of the 30th July 1959 was modified. As regards the contention that the documents were privileged documents it was observed in this order by the Sessions Judge that no petition by the heads of departments concerned had yet been filed and no indication was given in the petition what affairs of the State wee involved in the matter and how their disclosure would be prejudicial to the public interest.

The claim therefore, of privilege was in effect rejected at that stage. The Sessions Judge however, has remarked further that - 'in items Nos. 4, 6. 1, ,_ 8, 9, 10, 16, 57, 58, 59, 68 and 74 the entire files' have been called for. The entire files need not be called for but only the document or the documents relating to the purpose of each of these items are to be called for,' In pursuance of the order of the 12th September 1959 the petitioners amended items 9 and 74 and the amended items read as follows:

9. Police or Intelligence Branch reports leading to the issue of detention order against Sri M. H. Choudhury, in 1950, under the P. D. Act.

74. Dossier and Personal Folder of Sri,M.H. Chaudhury, maintained by the Specia Superintendent of Police, C. I. D'., Shillong; and/or by Govt. of Assam.

It will appear that from, item No, 9 the words 'Files containing reports' have been deleted and in their place the words 'Police or Intelligence Branch reports' have been substituted and in item 'No. 74 the words 'and;all other papers and documents regarding detention' have been deleted, Subsequent to the above order it appears that an affidavit was Bled by the Chief Secretary to the Government of Assam claiming privilege in respect of the documents mentioned in items No. 9 and 74. By an order dated 9th November 1959 the privilege claim : ed by the Chief Secretary was upheld by the Sessions Judge. In the affidavit filed by the Chief Secretary, he has stated that after having carefully considered the relevant documents he had come to the conclusion that they were unpublished official records relating to the affair State and that their disclosure will be prejudicial to public interest for the following reasons:

1. That documents called for are secret documents of political and administrative character, compiled for reasons of State and their production will cause disclosure of the secrets of the State, which is against public interest.

2. That while, by their very nature, these documents cannot be used as evidence for or against; any person, their production will expose to public view the method and nature of the working of the State security and intelligence system which is 4 against public interest.

He further stated in the affidavit that he did not give permission Under Section 123 of the Indian Evidence Act to the officers from whom these records were called for, to produce the said documents or to give any evidence derived therefrom,

5. It was contended by Mr., Ghose for the petitioners that Under Section 162 of the Evidence Act, the documents having been called for from the officers concerned and the Sessions Judge having issued notice to these officers to produce the documents, they were bound to bring them to court notwithstanding any objection to their production or to their admissibility. If the documents had been brought the court could have inspected the documents unless they referred to matters of State. Section 162 of the Indian Evidence Act reads as follows :

162. A witness summoned to produce a document shall, if it is in bis possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by the Court.

The Court, if it sees it, may Inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.

If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence: and, if the interpreter disoheyes such direction, he shall be held to have committed an offence Under Section 106.of the Indian Penal Code.

The other, relevant Section is Section 123 of the Evidence'. Act which lays down that 'no one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the office or the head of the department concerned, who shall give or withhold such permission as he thinks fit.' Reading these two Sections together it will be clear that when a document is directed to be produced, the head of the department can claim privilege Under Section 123 of the Evidence Act and the court will have to decide the validity of the objection raised by the head of the department. In deciding whether the document can or cannot be directed to be produced or whether the privilege claimed by the head pi the department is justified, the court may have to. investigate into the matter, .: '

But the jurisdiction of the court at that stags is limited to the determination of the question whether the documents refer to matters of State, The power of the court Under Section 162 of the Evidence Act to inspect the document is also available only when the document does not refer to matters of State. The right of the head of the department to claim privilege and to give or to withhold permission for the production is also dependent upon the fact whether the document relates to any affairs of state. It is the court which has got to determine whether the document refers to the affairs of State. If it comes to the conclusion that it is so. the refusal to grant permission by the head of the department will be conclusive and cannot be questioned.

Also Under Section 162 the Court will not be entitled to inspect the record. Mr. Ghose's argument is I that Under Section 162 of the Evidence Act when then power is given to ask for the production of the document and when the witness is bound to produce the document. there is no way to find out if the document relates to affairs of State other than by looking into the document itself and the court therefore is entitled to look into the record to find out for itself whether it relates to matters of State. But this contention is not supported by the language of Section 162. Evidence Act. which clearly lays down that the court has no power to inspect the document if it refers to matters of State. The proper procedure therefore will be for the court to determine from other circumstances without looking into the document and before directing the production of the document if it relates to the matters of State or not.

If it comes to the conclusion that it relates to matters of State from the very nature of the document or other surrounding circumstances, it will neither inspect the record nor can it go into the question as to whether the head of the department has rightly or wrongly withheld permission for its production. No evidence will be permissible with regard to the contents of such document and the certificate of the head of the department to the effect that he is withholding the permission after consideration of the document will be conclusive. It should however, be pointed out that there is nothing in Section 123 or Section 162 of the Evidence Act which takes away the power of the court to determine the fact if the document relates to the affairs of the State. Under Section 162 power has also been given to the court to take other evidence to. enable it to determine on its ad imissibility. But no power has been given to take I evidence to decide the question of its production.

6. At this stage some of die cases referred to at the bar may be; examined. In the case of 'Governor General in Council v. H. Peer Mohd. Khuda.Bux, reported in A.I.R. 1950 EP 228 it was held as follows:

The Court can hold an enquiry into the validity of an objection on the ground that the document relates to affairs of State. It is nevertheless true that once the Court comes to the conclusion that the document relates to affairs of State the decision of the head of the department to give or with Jiold permission to its production must be accepted as final.

Reliance was placed by the counsel for the petitioner on the following passage occurring at page 236 of the

The next question for consideration is in what manner can the Court hold the enquiry when the inspection of the document is barred and further in what form must objection be taken. 0The witness called upon to produce certain documents must appear in Court and bring the documents with him. He can then claim privilege.

After discussing the various English authorities and Indian cases on this point the matter has been summarised thus at page 236 of the report:

The terms of Section 162, Indian Evidence Act, and the English and Indian authorities dealing with the matter thus require that the form in which the objection should be taken is this. The head of the department must examine the documents and consider whether privilege should or should not be claimed in respect of them. He may then either appear in person before the Court to raise the objection or direct one of his subordinates to do so on his behalf with a certificate, signed by him stating that .he. had examined the documents and adding what is necessary. But where the latter course is followed the head of the department will not be absolved from the obligation of appearing in person and satisfying the Court that the objection taken by him is valid. The Court may require him to give an affidavit or make statement on oath and may put any questions to him for satisfying itself that the privilege has been validly claimed. The Court is, however, not entitled to inspect the documents nor put such questions to the head of the department or any other witness as would directly or indirectly reveal its contents.

We are in agreement with these observations. The question really resolves itself as to - (i) who can claim a privilege, (ii) how is that privilege to be claimed and (iii) who is to decide as to whether the privilege has been validly claimed and whether the document relates to the affairs of the State. The question under the third head thus arises as to west is the meaning to be given to the words 'affairs of State'. A similar view was taken in the case of Lakhuram Hariram v. Union of India and Anr. reported in . In the case of Nazir Ahmad v. Emperor reported in A.I.R. 1944 Lah 434 it was held that Section 123 puts a ban on the evidence derived from unpublished official records relating to any affairs of State.

No person can give, evidence in respect of any such record'if the head of the department who is in possession of the document decides that the documents are protected from production on the ground of their being related to affairs of the State, the decision is conclusive, But when the document Itself is asked to be produced and it is not merely a question of giving any evidence derived from unpublished official records one must go to Section 162 which indicates that in regard to the production as distinguished from the admissibility of a document;' the Court must stay its hands as soon as a claim is made that the document refers to matters of State. The decision that the document cannot be produced will certainly be a decision of the court. The Advocate General who appears for the opposite party relies on the following observation at page 437 of the report:

I take it, therefore, that in regard to the production, the Court must stay its hands as soon as a claim is made that the document refers to matters of State. The decision that the document cannot be produced will certainly be a decision oi the Court. But the Court can, if it is satisfied that the claim has been made by or under instructions of the person who can put forward such a claim, pronounce no other order in my judgment but to allow the privilege.

We beg respectfully to differ from the above observation. In our opinion it is for the court to decide for itself whether the document relates to the affairs of the State. The power of granting or withholding the permission no doubt conclusively rests with the head of the department, but whether the document itself relates to the affairs of the State is a matter which is examinable by the court though its jurisdiction, as pointed out in the Punjab case, may be very limited. The court may not be entitled to jnspect the record but nonetheless the power rests with the court to determine the question as to whether the document relates to the affairs of the State.

7. In the case of 'Tilka v. State reported in the applicants who were being tried under various Sections of the Indian Penal Code, summoned the records of proceedings Under Section 7 of the Police Act for the purpose of cross examining some witnesses. It was alleged by the applicants that the witnesses had made contradictory statements in the trial Under Section 7 of the Police Act. The records were sent by the Superintendent of Police to the court under a seated cover claiming privilege Under Section 123 of the Evidence Act. The Magistrate accepted the claim of the Superintendent of Police, It was contended by the applicants that no privilege was available to the Superintendent of Police. Dealing with the scope of Sections 123 and 162 of the Indian Evidence Act it was observed as follows:

The question whether the record in question is an unpublished official record relating to any affairs of the State must be decided first before S, 123 can be availed of by the head of the department con cerned. That question cannot be decided by the head of the department himself. It is the Court which must decide whether the record in question is an unpublished record and whether it relates ah' affairs of the State. Under Section 162 of the Evidence Act when the record is required to be produced it must 'be produced. In order to decide the question the Court may inspect the document unless it relates to an affairs of the State; In the latter case it will have to take other evidence relating to the nature of the document. But the privilege of deciding whether the document is an unpublished record of an affairs relating to the State is that of the Court, and it is the Court alone which, can deal with that matter.

We are in agreement with' the observations referred to above. A sirniiSj: view was taken in the case of A Public Prosecutor Vi: Venkata Narasayya' reported iti A.I.R. 1957 Andh Pra 486, The Advocate General referred to the case of 'Duncan v. Gommell Laird and Co. Ltd. reported in (1942) 1 All ER 587. In this case it was held as follows:

An order for production ought to be refused. Documents otherwise relevant and liable to production need not be produced if, owing to their actual contents, or the class of documents to which they belong, the public interest requires that they should be withheld. An objection to the production of documents duly taken by the head of a government department should be treated by the court as conclusive.

After discussing the several authorities Viscount Simon L, J. observed as follows:

Although on objection validly taken to production on the ground that this would be injurious to the public interest is conclusive, it is important to remember that the decision ruling out such documents is the decision of the judge. Thus, in the present case, the objection raised in the respondents' affidavit is properly expressed to be an objection to produce 'except under the order' of this honourable court'. It is the judge who is in control of the trial, not the executive, but the proper ruling for the judge to give is as above expressed.

In this connection I do not think it is out of place to indicate the sort of grounds which would not afford to the minister adequate justification for objecting to production. It is not a sufficient ground that the documents are 'state documents' or 'official' or are marked 'confidential'. It would not be a good , ground that, it they were produced, the consequences might involve the department or the government in Parliamentary discussion or in public criticism, or might necessitate the attendance as witnesses or otherwise of officials who have pressing p duties elsewhere. Neither would it be a good ground that production might tend to expose a want of efficiency in the administration or tend to lay the department open to claim for compensation.

In a word, it is not enough that the minister or the department does not want to have the documents produced. The minister, in deciding whether it is his duty to object, should bear these considerations in mind, for he ought not to take the responsibility of withholding production except in cases where the public interest would otherwise be damni ' Bed, e.g., 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.

8. In the case of Ijjatali Talukdar v. Emperor reported in A.I.R. 1943 Cal 539 Das J. after considering both English and Indian authorities and the Privy Council decision in the case of Henry Greer Robinson v. State of South Australia reported in A.I.R. 1931 P. C. 254 held as follows:

The occasion for claiming privilege under this Section (Section 123 Evidence Act) 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 this condition precedent is fulfilled and the occasion for claim of privilege arises it is then for the officer at the head of the department concerned to waive or Claim the privilege.... Both the Sections (Sections 123 and 124 of the Evidence Act) 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 the 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 Evidence Act come into play.

The first paragraph of this Section clearly empowers the Court to decide the validity of the objection....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 methods or means by which the Court is to decide the question is not available to it. the duty of deciding die question is still on the, Court under the first paragraph of the Section. In case of documents 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.

If necessary, the Court will require the officer to claim the privilege in the manner indicated in the judgment of Lord Blanesburgh in (1931) A. C 740 : A.I.R. 1931 PC 254. If however, the Court finds that an overzealous officer is capriciously putting forward a claim of privilege the Court will decide, as best as iii can, by the means available to it whether the claim is well founded. In many cases, the very nature of the documents may be enough to show that it cannot be an unpublished official record relating to any affairs of state.

Das J, further observed at page 544 of the report that 'all the above cases indicate that the ultimate decision as to whether a claim of privilege is well founded or not rests with the Court and the Court jealously guards its powers.'

9. In the case of 'Lady Dinbai Dinshaw Petit V. The Dominion of India' reported in A.I.R. 195U Bom. 72 a similar view has been taken. In this case Chagla C. J. observed as follows:

The principle of the Section is that it is not all records relating to the affairs of State that am privileged, but. only those .the disclosure of would result in an injury being caused to public interests. . The; Section gives effect to the principle the public interest just be paramount and private interests' must give .when these is any on conflict between public and private: interests.

It must be; left pa a responsible; GoVt. offices, either. Minister or a person at the :head of a department, to look at the document, to consider. If and to decide for himself whether the document falls in the category of documents of State referred to in Section 123. If, therefore, having considered the document he tells the court that the document is one relating to affairs of State and that its disclosure will be injurious to public safety, the Court ordinarily would accept his statement if made on oath.. But the statement must not be of a vague or indefinite character. He must not only indicate the nature of the document, but he must also state what injury to public interests he contemplates would, result from the disclosure of the document.

His Lordship has also considered in this case the apparent conflict between. the decision of their Lordships of the Privy Council in the case of 'Henry Greer Robinson v. The State of South Australia reported in A.I.R. 1931 P. C, 254 and the decision, of the House of Lords in the case of 'Duncan v. Camraell Laird and Co. Ltd.' reported in 1942 (1) A. E. Rule 587 and has rightly observed at pages 82 83 of the report as follows:

The disapproval of the P. C. is to be found In the judgment of the learned Lord Chancellor at p. 641, ana, in my opinion, that disapproval is restricted to the conclusion arrived at by the P, C. that in Australia under the relevant rule the Court was competent to inspect a document in respect of which privilege was claimed by the State on the ground that its disclosure would be injurious to public interest; and he gives, with respect, a very good reason why the P. C. decision was erroneous on that point, because he points out that the withholding of documents, on the ground that their publication would be contrary to the public interest is not. properly to be regarded as a branch of the law of privilege connected with discovery. But I do not read the House of Lords' decision as overruling or disagreeing with the other observations made by the P. C. to which I have already referred.

10. The examination of these authorities and Sees; 123 and 162 of the Indian Evidence Act clearly reveals that the final authority to determine the question as to whether the documents relate to the affairs of the State is the court. If the documents are found to relate to affairs of the State, it is for the head of the department to exercise its discretion in the matter and withhold or permit the production of the documents. It cannot therefore be said that in the present case when the Chief Secretary intimated to the court that he has exercised a discretion in the matter and in his opinion the documents should not be produced as they related to the affairs of the State, the court was not right in deciding the question as to whether the documents related to the affairs of the State without insisting linon ( lie production of. the documents in court and without inspecting the records.' ; Moreover when the court came to the conclusion that the privilege ;clairede was available to the head of the .department ,it cannot be said that the order can. be set,, aside on the ground that that Chief Secretary .was bound to, produce the documents before the court could decide the matter. .: (11) The nest point urged, relates to the acceptance of the affidavit filed by te, Chief Secretary. the Chief Secretaryi sent; an affidavit through the counsel for the complainant. In the affidavit a certificate is given to the effect that he refused permission Under Section 123 of the Indian Evidence Act to produce the said documents This averment clearly indicates that the privilege was claimed by him. No particular form is prescribed for claiming any such privilege and if the Sessions Judge acted on the said affidavit and considered it sufficient, it cannot be said that the order of the Sessions Judge is vitiated even if the contention of the petitioners is accepted that the affidavit was not in proper form.

The claim of privilege can be raised in any manner as the head of the department desires, It is for the court to decide whether it will insist upon the examination on oath of the head of the department to ascertain if die documents relate to tha affairs of the state or not. It is for the court to determine as I have already pointed out earlier, from the circumstances and from the nature of the documents, as to whether the documents relate to the affairs of the State or not. No particular mode of proof is prescribed in the Act. There is therefore no substance in the contention raised by tho petitioners that the order should be set aside as the affidavit submitted by the Chief Secretary was not proper.

12. The last point urged was that the document cannot be said to relate to the affairs of the State. The petitioner's counsel referred to the following passage occurring at page 233 in the case reported in A.I.R.. 1950 EP 228: .. , .

It is therefore, sufficiently clear that expression 'affairs of State' as used in Section 123, Evidence Act, has a restricted meaning, and on the weight of authority both in England and in this country, II would define 'affairs of State' as matters of a public nature in which the State is concerned and the disclosure of which will be prejudicial to the public interest or injurious to national defence, or detrimental to good diplomatic relations. Words very similar to these were used by Viscount Simon in 1942 1 All E. Rule 587.

I have already referred to the observations of Viscount Simon in 1942 1 All ER 587 (ibid) and in my opinion the words 'affairs of State' are not confined only to matters which will be prejudicial to the public interest or injurious to national defence or detrimental to good diplomatic relations. It may cover the case of documents in respect of which the practice of keeping them secret is necessary for the proper functioning of the public service. Reliance was placed on the case of 'Teja Singh v. Emperor reported in A.I.R. 1945 Lah 293 wherein the record kept at the police station about the activities of a particular person and the reports about him made by the Sub Inspector to the Inspector from time to time or every by the Inspector to the: Superintendent of Police were held: not. to be documents relating to the affairs of the State. Reliance'was also placed on the case of ''Chiragh 'Dili 'Muhammad Bakshi Crown' reported in 52 Cri L J 181, Lal, wherein it was held that

all communications made to public officer are not in official confidence. Reports relating to the commission of offence are communications made A to public officers, but they are no in official confidence.

This case related to the history sheet and the privilege claimed was denied by the court on two grounds, firstly that it could not be claimed by the witnesses but only by the head of the department and secondly the history sheet was no more privileged than the diary of the police constable relating to the movements of an individual. These cas.es to my mind are distinguishable.

13. In each case the nature of the document and the surrounding circumstances have to be considered. In the present case the two documents which were asked to be produced, have been mentioned earlier in the judgment. In the affidavit mainly two reasons are given as to why the documents are considered to relate to the affairs of the State, namely (1) that the documents are secret documents of political and administrative character compiled for reasons of State and f2) that from their very nature these documents cannot be used as evidence for or against any person, their production will expose to public view the method and nature oi the working of the .State Security and Intelligence system which is against public interest. The contention of the petitioners in the court below was that Sri Mainul Haque Choudhuri who is said to have been defamed, was detained under the Preventive Detention Act on ' account of anti State activities.

The report made against him which led to his detention will thus according to the petitioners, disclose his anti State activities. On this admission itself it is clear that the reports contain an account of the anti State activities of the detenu. Such documents on the face of it, will relate to the affairs of the State. Power has been given under the Preventive Detention Act to detain Persons without trial on account of their certain activities. Such a power has been given to the State in the interest of the preservation of the law and order and maintenance of peace and security in the State and in the public interest. Under clause (3) (b) of Article 22 of the Constitution the prohibition contained under clauses (1) and (2) oi Article 22 will not apply to any person who is arrested or detained under any law providing for preventive detention. Clause (7) (a) of the said Article authorises Parliament to make law prescribing the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4).

Clause (4)(a) provides for the constitution of an Advisory Board. The constitutional provisions embodied in Article 22 of the Constitution clearly point out that a proper balance has been struck by the framers of the Constitution between the maintenance of the individual's liberty and the State's right to maintain law and order and preserve the peace of the country. I have pointed out these provisions to show that the records kept with the State Government with a view to its taking action against its citizen depriving him of his liberty 6tand on a different footing from a history sheet or reports of offences made against an individual. Any record containing official reports kept by the State in order to ascertain whether a citizen should Or should not be deprived, of his liberty, from its very nature, is such that its secrecy is necessary for the proper functioning of the State and on the grounds of public policy.

What are the grounds which will induce the State authorities to deprive a citizen of his liberty In my opinion, relate to the affairs of the State. As I have said earlier, the affairs of the State do not mean only the affairs the disclosure of which will be injurious to the national defence or to good diplomatic relations but also to the matters the disclosure of which may be prejudicial to the public service. In my opinion it will include any matter I of a public nature with which the state is con cerned.

If certain activity of a citizen is reported to the Government by its secret department with ai view to enable it to take action under the Preventive Detention Act, the disclosure of such a report, to my mind, is likely to affect the proper function Ing of the machinery of the Government and although the report relates to the activity of an individual citizen, it does relate to the affairs with, which the State is concerned.

When a report is made against an individual pointing out the offence committed by him, the report only relates to the affairs of the individual who may be prosecuted for the offence. But when a report is made regarding his activities with a view to enable the State to take action against him under the Preventive Detention Act, such a report docs not only relate to the affairs of the individual, but it also relates to the affairs of the individual so far as they affect the affairs of the State.

14. As I have pointed out earlier, the affairs of the state are nnt confined to documents of political character. 'The 'protection of documents from discovery upon the broad ground of State policy and public convenience is not limited to public official documents of a political or administrative character.' The foundation of the rule is that the information cannot be disclosed without injury to the public interest, and not that the documents are confidential or official, which alone is no reason for their non production', (Asiatic Petroleum Go. Ltd. v. Anglo Persian Oil Co. Ltd., (1916) 1 K. B. 822. In the case of 'Emperor v. Nanda Singh and Anr. reported in 89 Ind Cas 387 : A.I.R. 1925 Oudh 540 a report submitted to the Inspector General of Prisons was regarded as a privileged1 document. The privilege, as observed in this case, does not extend merely to the actual text of the report but also to the statements of witnesses which it incorporates. In the case of 'In re Manlubhai Mehta' reported in A.I.R. 1945 Bom. 122 it was observed as follows :

The Act (the Evidence Act) does not say what documents are to be regarded as unpublished official records relating to affairs of State, or communications made to an officer in his official capacity, It is not every official record or register or every official communication which can be regarded as privileged. The principle to be applied in every case is that documents otherwise relevant and liable to production must not be produced it the public interest requires that they should be withheld. This test may be found to be satisfied either (a) by having regard to the contents of the particular document, or (b) by the fact that the document belongs to a class which on grounds of public interest, must as a class be withheld from production.

15. The principles discussed above apply with equal force to the document directed to be produced under item 74 of the petition, namely Dossier and Personal Folder of Sri M. H. Choudhury mentioned by the Special Superintendent of Police, C. I. D., Shillong or by the Government of As sam. It has not been pointed out in what connection this 'dossier and personal folder is maintained. Presumably this is done by the Government to keep a record of the activities of the individual relating to the affairs of the State. The application does not specify the period of which the copy is required.

16. In my judgment therefore, the documents summoned have rightly been held to relate to the affairs of the State and the privilege has been rightly held to be available to the head of the department. In view of the fact that we have considered the matter on merits, it is not necessary to examine the preliminary objection raised by the Advocate General that the revision is not maintainable at this stage. In the result therefore, we reject this revision.

Deka, J.

17. I agree.


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