The court cannot inspect a document to determine the validity of a privilege claim under Section 123 of the Indian Evidence Act without the permission of the head of the department concerned.

1. In this case the petitioner has brought a money suit in the Court of the Munsif, 1st Court, Chapra, against the opposite party for realising a sum of Rs. 2520 and odd, being the value of goods which were not delivered out of a particular consignment. In paragraph 5 of the plaint the petitioner alleged that notices under Section 77 of the Indian Railways Act and Section 80 of the Civil Procedure Code had been sent to the opposite party per registered post on the 5th of June, 1950. The suit was contested by the opposite party on the ground that notices under Section 77 of the Indian Railways Act and Section 80 of the Civil Procedure Code had not been served.

During the trial of the suit the petitioner made an application on the 3rd of November, 1954, praying that the opposite party should be called upon to produce the register in which there were entries regarding receipt of notice and letters. The opposite party filed a rejoinder on the 23rd November, 1954, that no such register was maintained. Later on, on the 6th of January 1956, the petitioner made an application to the trial Court to the effect that they had come to know that a fife No. NCS/338/CPR of 1951 was maintained in the office or the Traffic Manager Gorakhpur, now called the Chief Commercial Superintendent o£ the North Eastern Railway with regard to his case and the petitioner requested that the opposite party should be called upon to produce the aforesaid me. Summons was issued by the Court on the Chief Commercial Superintendent of the North Eastern Railway at Gorakhpur calling upon him to produce the file NCS/338/CPR of 1951 and also the register oi notices kept in the General Managers office, showing receipt of notices for the mouth of June, 1950. On the 16th of March, 1956, a petition was filed in the trial Court by Sri Suraj Prasad Upadhya on behalf of the opposite party in obedience to thq summons sent to the Chief Commercial Superintendent of the North Eastern Railway. It was stated in that petition that the file in question could not be produced in Court because it contained privileged communications under Sec.124 of the Indian Evidence Act.

On the 27th April, 1956, there was an affidavit filed by the Senior law Inspector Sri R.S. Prasad to the effect that privilege was claimed by the Chief Commercial Superintendent under Sec.123 of the Indian Evidence Act. It was also stated in the affidavit that the register could not be traced out though it had been diligently searched for. A rejoinder was filed by the Petitioner on 27-4-1956, contending that the file in question related to commercial transactions and was not in the nature of unpublished official records relating to affairs of State.

It was submitted by the petitioner that the Court should itself inspect the documents and decide the question of privilege. The trial Court held it was satisfied from the affidavit of the Chief Commercial Superintendent that privilege was properly claimed under Sec.123 of the Indian Evidence Act and it was not permissible for the Court to look into the file on the question of privilege. Accordingly, the trial Court allowed the claim of the opposite party that the file in question was a privileged document within the meaning of Sec.123 of the Indian. Evidence Act.

2. In support of this application the point taken on behalf of the petitioner is that the trial Court should have itself looked into the file before deciding the claim of privilege under Sec.123 of the Indian Evidence Act. We do not think that this argument is correct. Sec.123 of the Indian Evidence Act is in the following terms:

"123. 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 officer at the head of the department concerned, who shall give Or withhold such permission as he thinks fit."

Sec.162 is also relevant in this connection and is reproduced below;

"162. A witness summoned to produce a do