An order granting privilege under Section 123 of the Evidence Act is an interlocutory order and not a final order. A revision petition against such an order is not maintainable.

1. The petitioner is starting trial in the court of Special Judge, Anti-corruption, Kashmir Province, Srinagar for offences under section 5(2) of the Prevention of Corruption Act and Sec: 161 R. P. C. During the pendency of the trial, the prosecution examined the prima mover Shri M. A. Draboo as a witness. While the witness was being cross examined, an application was filed on behalf of the petitioner for summoning the interrogation report and some other record connected with the detention of the witness under the Defence of India Act. Notice of the application was issued to the Public Prosecutor, who filed his objections thereto. An objection was raised on behalf of the prosecution that the record sought to be summoned was top secret being connected with the security of the State and being an un-published official record, its disclosure was likely to prejudice public interest. An application signed by Shri D. N. Kaul, the Inspector General of Police, stating that the record summoned is an un-published official record relating to the affairs of the State and its production would be prejudicial to the interest of the State was also filed. In the said application the I. G. P. claimed privilege in respect of the production of the record in the court under sec. 123 of the Evidence Act.

2. The learned Special Judge vide the impugned order disposed of the application of the petitioner for summoning the record and the claim of privilege by the I. G. P. by observing :

"I therefore, am of the safe opinion that the privilege claimed by the I. G. P. must be allowed till the court has final opportunity to appreciate the evidence of the P W for whose conduct, the record is being sought to be produced. The court at the instance of the counsel for the accused will call the relevant record for inspection, other than the parties in case same is needed to appreciate the conduct of the P W on the argument stage."

3. The learned Special Judge disposed of the application and summoned the witness for further cross-examination for 30th Dec: 1978, without calling for the summoned record Aggrieved, the petitioner has come up to this court by means of the present revision petition. When the revision petition came up for hearing before Honble the Chief Justice, a preliminary objection was raised, on behalf of the State by the learned Addl. Advocate General to the effect that in view of the provisions of S. 435 (a) (4) of the Amended Code of Cr. Procedure, the impugned order was not revisable, it being merely an interlocutory order. The learned Chief Justice being of the opinion, that the scope of S. 435 (a) (4) of the Amended Code of Cr. Procedure required an authoritative pronouncement, directed that this case and the other connected cases be referred to a Full Bench of this court for its disposal and that is how this revision petition had been put up before us for disposal. In the instant case, however it is not necessary to determine the scope of sec: 435 (a) (4) of the Cr. Procedure Code, as that scope is under consideration of the Full Bench in the connected cases. In the present case we are only called upon to determine whether an order granting privilege under Sec. 123 of the Evidence Act is a final order or an interlocutory order ? We are called upon to adjudicate upon the correctness or otherwise of the order for in the event it is held that the impugned order can be revised by the High Court, the case shall go to the learned single judge for its disposal on merits.

4. According to Mr. K. N. Raina, appearing for the petitioner, the impugned order is a final order because it has finally disposed of a matter of "subordinate enquiry" and therefore, is revisable and the bar of Sec: 435 (a) (4) is not attracted. It is argued that the order effects the right of the petitioner to cross-examine the witness with reference to the record about which privilege had been granted by the learned Special Judge and is final in-as-much-as the right to