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PATNA HIGH COURT
A.N.Mukharji and Nagendra Prasad Singh JJ.
State Of Bihar
Versus
V.D.Kumar
Decided On : APRIL 09, 1974
Where the opposite party wanted production of Secret Service fund files or accounts on the ground that they are published records since Photostat copy of these documents were with them and the State c1aimed privilege on the ground of unpublished official records relating to the affairs of the State,
Held, that from a bare reference to sec. 123 it is obvious that evidence shall not be permitted to the given in respect of unpublished official records relating to any affairs of the State, unless the head of the department concerned gives permission in that behalf. The result of the section is that a document which is material & relevant is allowed to be withheld from the Court. In that sense it is a serious departure from the ordinary rule of evidence, i. e. both the parties to the dispute must produce all relevant and material evidence in their possession. Nonetheless, this privilege has been engrafted under the Act and it is justified on the principle of overriding para.
mount character of Public interest and that private interest must give way to public interest in general.
(para 7)
Held further, sec. 162 makes it clear that a witness summoned to produce a document must bring it before the Court and then raise an objection against its production or its admissibility. This power of the Court to inspect document while dealing with the objection, has also been curtailed to some extent, when a privilege is claimed under Sec. 123 from the court. The court is however empowered, to take other evidence and to hold a preliminary enquiry to enable it to determine the validity of the objection, and for achieving that purpose, the Court may direct filing of proper affidavit and may even cross examine the head of the department for finding out as to whether the privilege claimed is a mere pretence for not producing the document which, if produced, would go against the interest of the State in that particular case or really it was against the interest of the public in general.
Held further; that granting of an authorised copy of a cofidential document by the authorities makes it published record but where a. copy or a Photostat copy of a confidential document is taken surreptitiously, the document remains an unpublished records of the State over which State can claim. privilege. This power to withhold documents can be exercised by the Head of the Department concerned or preferably by the minister of the Department.
(Para 9)
Held on facts, that the documents called for were unpublished records relating to the affairs of the slate over which the State can claim privilege.
(Paras 11 & 12)
Nagendra Prasad Singh, J.
1. This is an application in revision on behalf of the State of Bihar against an order, dated the 31st July, 1971, passed by the special Judge, Dhanbad, in special case No. 5 of 1968, rejecting the privilege claimed fry the petitioner-State, under Sec.123 of the Evidence Act (hereinafter referred to as the "Act"), that certain documents called for by the accused-opposite party were unpublished official records relating to the affairs of the State and, as such, they could not be produced in court. The members of the opposite party are being prosecuted under Sections 161 and 120-B of the Indian Penal Code and Section 5 (2) of the Prevention of Corruption Act in Chirkunta P. S. Case No. 5 (5) 68 which is pending for trial in the court of the Special Judge.
2. The case of the prosecution, in short, is as follows : The anti-corruption department of the Government of Bihar received information that the officers posted at Chirkunda checkpost were indulging in corrupt practices and were freely taking illegal gratifications from the truck-owners and truck-drivers who passed through the said checkpost. After receipt of such information, officers were deputed to verify the said allegation. Ultimately, a raiding party was organised consisting of several officers, including a Magistrate, and they waited at the District Board Dak Bungalow at Capasora-A Sub-Inspector of Police, Anti-corruption Department, was asked to contact a few truck-owners and truck-drivers, who were asked to inform the raiding party about their grievances. One Shree Lachhmi Prasad of the firm Messrs. Chhotelal Gupta of Dinapore Cantt. appeared before the raiding party and filed a petition before Shree D. C. Sinha, Deputy Superintendent of Police, Anti-corruption Department, stating that the officers of the Chirkunda checkpost always realised illegal gratification at the rate of Rs. 5 to Rs. 10 per truck under threat of harassment. Ultimately, a trap was laid and money illegally demanded by opposite party Nos. 2, 4 and 5 was paid by the aforesaid Shree Lachmi Prasad to accused-opposite party No. 5, which was subsequently recovered from his possession. Opposite party No. 5 Shree Jagdish Ram is said to be a peon of opposite party No. 1 Shree V. D. Kumar.
3. At the trial, a petition was filed on behalf of the accused-opposite party for calling for the following documents from the State:
(i) The secret Service Fund account submitted by Sri D. C, Sinha, D.S.P., Anti-corruption, Bihar, Patna to the Additional Secretary, Anti-Corruption Department, Bihar, Patna dated 7-9-66, together with its enclosures, including T. A. Bills of the watchers and the A.S.Is.
(ii) The secret service fund file of Shri D. C. Sinha, D.S.P., Anti-corruption Department, Bihar, Patna including his buff sheets dated 22-4-.1966.
(iii) The secret service fund file of Sri T. P. Singh, I.P.S., the then Deputy Secretary, Anti-corruption Department, Bihar, Patna, including his requisition dated 20-5-66.
4. An affidavit sworn by Shree S. K. Chatterjee, the then Additional Secretary, Appointment (Anti-corruption) Department, Government of Bihar, was filed on behalf of the State saying that he had seriously applied his mind to the contents of each of the documents aforesaid and had carefully examined the question as to whether their disclosure would injure public interest and that he was satisfied that the disclosure of each of the said documents would lead to public injury since they are unpublished official records and relate to the affairs of the State. On the above ground, privilege under Sec.123 of the Act was claimed on behalf of the State.
5. A counter-affidavit sworn by Shree V. C. Kumar, opposite party No. i, was filed in reply to the aforesaid affidavit filed by Shri S. K. Chatterjee saying that those documents did not relate to the affairs of the Stale nor were they likely to injure public interest. It was further stated that from those documents it would appear that
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