The central legal point established in the judgment is the criteria for determining the admissibility of privileged documents under S. 123, Evidence Act, emphasizing the narrow scope of privilege and the need for the document to be detrimental to the public interest to be entitled to protection.

FACTS - In the case of Parpia v. Chamarbaghwalla, 50 Bom LR 728 : (AIR (36) 1949 Bom 109) the Collector of Bombay refused to renew the license granted to the applicant B.M.D. Chamarbaghwalla to run a prize competition. In support of the refusal, the Collector stated in his affidavit "I say that Government decided and laid its general policy and confidentially circulated it for the guidance of its officers (p. 729). In that case, the appeal Court (Chagla, C.J. and Gajendragadkar, J.) sent down the case to the trial Judge and ordered Cross-examination of the Collector, stating (p. 743) : "The only question which we want the learned Judge to decide after his cross, examination is over, is whether the discretion exercised by the Collector was an unfettered discretion or whether it was fettered by any order issued by Government in respect of licenses to be issued by him."

When the case reached hearing before the trial Judge (Bhagwati, J.), the Advocate-General raised a preliminary objection that the circular issued by Government was privileged from production under S. 123, Evidence Act, 1872. Bhagwati, J. :- I have heard the parties at length on the question of the admissibility of this document. The objection is really Bought to be sustained by the Advocate-General on the construction of S. 123, Evidence Act. Before, however, I consider the provisions of that section it is necessary for me to define the scope of the enquiry before me as it has been laid down in the judgment of the appeal Court. The learned Chief Justice in the course of his judgment has observed in Parpia v. Chajmarbagwalla, 50 Bom LR 728 at p. 743 : (AIR (36) 1949 Bom 109) :

"Now, the whole question which arises is whether the discretion exercised by the Collector was his own discretion or was it a discretion that was fettered by anything the Government has done or said. In our opinion, it would not be wrong or improper for the Collector in exercising his discretion to give full weight to the general policy of Government, provided that policy is within the ambit of the Act. If the Government takes a particular view with regard to prize competitions in the public interest and the Government enunciates that policy, the Collector would be perfectly justified and entitled to consider that policy. But consideration of policy is one thing; to be dictated to or to ha ordered to do something is entirely a different thing. If, for instance, Government were to issue instructions that all Collectors in the province, should refuse to issue licenses to a particular class of people for particular reasons, then it would be impossible to say that the Collectors acting upon those orders would be exercising a discretion which would be free and unfettered. We must not forget that after all the Collector of Bombay is a servant of the Government of Bombay, and it is a matter for investigation to what extent his mind was dominated by this particular circular which the Government issued. Whether the domination was such as to make his discretion fettered is a matter which can only be decided after more materials are before the Court. The Advocate-General has told us that Government claims privilege for the confidential circular which it has issued. We express no opinion whatever as to whether the privilege claimed by Government is rightly claimed in law."

These observations of the appeal Court prescribe what the nature of the enquiry before me is and it is in the light of these observations that I have to consider the objection which has been put forward by the Advocate-General to the admissibility of this document.

2. Section 123, Evidence Act is as under :

"No one shall be permitted to give any evidence derived from unpublished official records relating to any affair a of State, except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit." There are two things which are involved in this section one