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1943 Supreme(Cal) 58
CALCUTTA HIGH COURT
Lodge, J., Das, J.
Ijjatali Talukdar & Anr. - Appellant
Versus
Emperor - Respondent
Decided On : 23-06-1943
The ultimate decision on the validity of the claim of privilege rests with the Court, and the Court jealously guards its powers in such matters.
Headnote:
Bengal Excise Act - Exclusion of Documents under Privilege - Sections 123, 124, 162, Evidence Act
Fact of the Case:
The petitioners were tried for possession of illicit distilled spirit and materials for manufacturing spirit. They claimed the prosecution was engineered due to old enmity. The documents crucial to their defense were claimed to be privileged under Sections 123, 124, Evidence Act. The trial court excluded the documents, leading to their conviction.
Finding of the Court:
The Court found that the trial court's exclusion of the documents on the ground of privilege was erroneous. It held that the ultimate decision on the validity of the claim of privilege rests with the Court, and the Court jealously guards its powers in such matters.
Issues: Exclusion of important documentary evidence on the erroneous ground of privilege u/s 123, Evidence Act
Ratio Decidendi: The Court has the power to decide the validity of the claim of privilege, and the ultimate decision as to whether a claim of privilege is well founded or not rests with the Court.
Final Decision: The Court made the rule absolute, set aside the judgment of the learned Judge, and directed that the appeal be reheard on the ground of exclusion of documents under privilege.
JUDGMENT
Das, J. - The two petitioners before us are husband and wife. They were tried before the Subdivisional Magistrate of Serajganj on a charge u/s 46(a), Bengal Excise Act, for being in possession of illicit distilled spirit in contravention of Section 18 of that Act and also on a further charge u/s 16(f) of the same Act for using, keeping and having in their possession certain materials and apparatus for the purpose of manufacturing spirit in contravention of Section 13 of that Act. One of the defences of the petitioners wag that the prosecution had been engineered at the instance and instigation of one Bazlur Rahaman (a nephew of the first petitioner) who had contrived to plant the offending materials and apparatus in the house of the petitioners out of old enmity towards them. It appears that on 12th May 1912 the petitioners applied to the Subdivisional Magistrate for issuing a summons on the Excise Commissioner, Bengal, for production of the petition alleged to have been made by Bazlur Rahaman against him to the Excise Commissioner and the Report thereon. The Sub-divisional Magistrate who was then trying the case and before whom this petition had been made having been transferred shortly thereafter, the trial was started de novo and no action appears to have been taken on this petition. On or about 14th July 1942, a fresh application was made on behalf of the petitioners for summons, amongst others, on the Excise Commissioner of Bengal, Calcutta for production of that petition of Bazlur Rahaman and the Report thereon which I have mentioned and also an anonymous letter relating to the enquiry in connexion with that petition. In this application the petitioners also prayed for summons on the Excise Superintendent of Pabna for production of several telegrams said to have been sent by the Excise Sub-Inspector to the Excise Superintendent on certain dates therein mentioned and the several telegrams said to have been sent by the Excise Superintendent to the Excise Sub-Inspector on those dates and the two Dak books of the Serajganj Circle Sub-Inspector and the Sub-Inspector in charge of the depot. The Subdivisional Magistrate directed issue of summons as prayed and the summonses were duly served. Both the Superintendent of Excise, Pabna and the Commissioner of Excise, Bengal, sent the documents by their respective clerks but claimed privilege u/s 123, Evidence Act. The Commissioner of Excise claimed privilege in an unsworn memorandum which is in the following terms:
(a) I direct Maulvi K.A. Quddus to appear with the files mentioned in the summons and to claim privilege for them u/s 123, Evidence Act.
(b) I withhold permission to give any evidence derived from the files for which privilege is claimed under this order.
It should be represented to the Court that these flies contain unpublished official records relating to affairs of State for the purpose of Section 123 and that in view of the provisions of Section 162, Evidence Act, the files are not open to the inspection of the Court.
Sd. Illegible,
Head of Department.
Dated 25th July 1942.
2. The privilege claimed by the Superintendent of Excise, Pabna was on the same ground and on practically the same terms. His memorandum was dated 31st July 1942. Apart from a bare assertion that the documents relate to affairs of State, there is no indication as to whether and how their production would injure public interest. Nor was the claim made on affidavit. The documents summoned having been produced in sealed covers a petition was filed on 15th August 1942 on behalf of the petitioners contending that no privilege could be claimed for those documents and praying that the Court should decide whether any such privilege could be claimed and to enable it to do so the Court should open the covers and see the documents. The Sub-Divisional Magistrate took no action on this petition and simply endorsed thereon the following words "Pile with the record." Eventually, on 7th December 1942, both the p
