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HIGH COURT OF ANDHRA PRADESH
Krishna Rao, J.
PUBLIC PROSECUTOR
V/S.
DAMERA VENKATA NARASAYYA
Decided On : 08 November, 1956
EVIDENCE ACT - SECTIONS 123 AND 124 - PRIVILEGE - CLAIM OF PRIVILEGE UNDER SECTIONS 123 AND 124 OF THE EVIDENCE ACT - COURT'S POWER TO DECIDE ON THE VALIDITY OF THE CLAIM - HEAD OF THE DEPARTMENT'S AFFIDAVIT NOT CONCLUSIVE - MAGISTRATE'S DUTY TO INSPECT DOCUMENTS BEFORE DECIDING ON PRIVILEGE CLAIM UNDER SECTION 124.
Fact of the Case:
The respondent, the President of a Co-operative Society, was charged with criminal breach of trust. He applied for summoning certain documents, including enquiry reports and audit reports, claiming they were necessary for cross-examining prosecution witnesses. The Deputy Registrar of Co-operative Societies filed an affidavit claiming privilege under Sections 123 and 124 of the Evidence Act, stating that the documents were unpublished official records relating to affairs of State and their disclosure would be prejudicial to public interest. The Magistrate overruled the claim of privilege under both sections.
Finding of the Court:
The court held that the Magistrate was right in overruling the claim of privilege under Section 123 as the affidavit of the Registrar of Co-operative Societies, who claimed to be the head of the department concerned, was not conclusive proof and the Magistrate could consider other evidence on the question. However, the court held that the Magistrate should not have finally decided the question of privilege under Section 124 without inspecting the documents themselves, as there may be portions in the documents which cannot be disclosed without injury to public interest.
Issues: 1. Whether the Magistrate was right in overruling the claim of privilege under Section 123 of the Evidence Act based solely on the affidavit of the Registrar of Co-operative Societies? 2. Whether the Magistrate should have inspected the documents before deciding on the claim of privilege under Section 124 of the Evidence Act?
Ratio Decidendi: 1. The court held that the Magistrate was right in overruling the claim of privilege under Section 123 as the affidavit of the Registrar of Co-operative Societies, who claimed to be the head of the department concerned, was not conclusive proof and the Magistrate could consider other evidence on the question. The court relied on the fact that the statute does not say that the evidence of the head of the department shall be conclusive proof and that the decision on the validity of the claim is that of the Court, which is to be based on the entire evidence available on the question. 2. The court held that the Magistrate should have inspected the documents before deciding on the claim of privilege under Section 124 of the Evidence Act, as there may be portions in the documents which cannot be disclosed without injury to public interest. The court noted that the conduct of the officers in charge of the prosecution before the Magistrate in not bringing the documents before the Court and putting forward their claim of privilege placemat was most objectionable, but public interest cannot be allowed to suffer on account of their conduct.
Final Decision: The court dismissed Criminal Revision Case No. 263 of 1955, which challenged the Magistrate's order overruling the claim of privilege under Section 123. However, the court allowed Criminal Revision Case No. 240 of 1955, which challenged the Magistrate's order overruling the claim of privilege under Section 124, and directed the Magistrate to decide the question of privilege under Section 124 afresh after inspecting the documents and hearing both the parties.
Krishna Rao, J.
[1] Those revision petitions have been filed by the Public Prosecutor against two orders made by the Additional First Class Magistrate, Vijayawoda. in O. C, No. 354 of 1954 on his file, over-ruling a claim of privilege put forward under Sections 123 and 124 of the Evidence Act in respect of certain documents summoned for by the respondent.
[2] The respondent is the accused in the case and was the President of the Co-operative Society, Pulluru from 11th October, 1952, to 4th February, 1954. The Police charge-sheet against him alleges that he committed criminal breach of trust in respect of a sum of Rs. 4,807 and odd belonging to the society and gave statements, admitting his misappropriation, to P. Ws. 23 and 24 in the charge-sheet, the Executive Officer of the Co-operative Central Bank and the Sub-Registrar of Co-operative Societies respectively. The Sub-Registrar of Co-operative Societies was examined as P, W. 7 before the Magistrate
The Deputy Registrar of Co-operative Societies, Vijayawada and the Co-operative Supervisor, Mylavaram, were examined as P. Ws. 9 and 10. The respondent's defence, so far as the alleged confessional statements are concerned, is said to be that they were obtained from him by false inducements in the same manner as similar statements were obtained from Secretaries and Presidents of some other co-operative societies. He, therefore, applied to the Magistrate on 18th January, 1955 and 24th January, 1955, for summoning certain documents as being necessary for cross-examining P. Ws. 7, 9 and 10. The dispute now relates to two sets of documents, which he wanted to be produced, by P. W. 9, the Deputy Registrar.
They were, (i) the records of enquiries under Section 38 of the Madras Co-operative Societies Act VI of 1932 during 1953-54 made by P. W. 7 in respect of Jujjur and Chattanavaram societies and (ii) the audit reports of these, two and seven other societies for the year 1053-54. The Deputy Registrar filed a counter on 24th January, 1S55, stating that these documents had no bearing on the case against the respondent and that the enquiry re-ports submitted by P. W. 7 had been referred to the Police for investigation. However, the Magistrate made an order on the same date for summoning the Deputy Registrar to produce the documents. The Deputy Registrar did not produce the documents at the subsequent hearing on 8th March. 1955. but filed instead an affidavit of the Registrar of Co-operative Societies, who as the Head of the Department of Co-operation stated therein as follows:
I have carefully considered the relevant documents and have come to the conclusion that they are unpublished official records relating to affairs of State and their disclosure will be prejudicial to public interest for the following reasons : (1) Out of the nine societies referred to in the sommons the Co-operative Sub-Registrar (General) Sri T, J. Samuel Raju enquired under Section 38 only two societies, i.e., Jujjur and Chattanavaram societies and their reports are required for the police investigation into cases of misappropriation launched already. The other seven societies were not at all enquired into by him.
2. The Audit reports of the nine societies have no bearing on the case.
The Magistrate after considering this claim of privilege coming under Section 123 of the Evidence Act. passed an order on 9th March, 1955, negativing it on the ground that the documents related to the conduct of co-operative societies and had nothing to do with the affairs of the State in any manner. Crl. R C. No. 263 of 1955 is filed against this order. When the case again came up for hearing before the Magistrate on 30th March, 1.955, the prosecution filed a memo, reiterating that the documents were irrelevant and claiming privilege under Section 124 of the Evidence Act.
This was traversed by the defence on the ground that the documents were relevant and material to show that the respondent, just like a number of Secretaries and
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