2008 Supreme(P&H) 810

2009 (1) RCR(Cri) 822
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RAJESH BINDAL, J
State of Haryana - Petitioner
Versus
K.C. Bangar & Another - Respondents
Criminal Misc. No. M-867 of 2008
Decided on: April 01, 2008

The Public Service Commission is not entitled to claim privilege under Sections 123 and 124 of the Indian Evidence Act, 1872, for the production of records/ documents related to selections made by it, as it is not a State and the records sought are not related to the affairs of the State.

Headnote:

The Haryana Public Service Commission (HPSC) challenged the issuance of search warrants by the trial court for the production of records related to various selections made by the Commission. The petitioner, the State Vigilance Bureau, argued that the HPSC was not entitled to claim privilege under Sections 123 and 124 of the Indian Evidence Act, 1872, and that the search warrants were necessary for the investigation of corruption allegations against the then Chairman and members of the Commission.

Fact of the Case:

The HPSC had claimed privilege for non-production of the record in its possession and the same having been granted by the Court below, learned counsel for the petitioner submitted that the impugned orders passed by the Courts below rejecting the prayer made by the petitioner for issuance of search warrants are totally arbitrary. The true import of the provisions of the Code has not been appreciated as Courts below have gone on wrong premise while rejecting the prayer.

Finding of the Court:

The Court held that the HPSC was not entitled to claim privilege under Sections 123 and 124 of the Indian Evidence Act, 1872, and that the search warrants were necessary for the investigation of corruption allegations against the then Chairman and members of the Commission. The Court further held that the HPSC was not a State for the purpose of claiming privilege for production of records/ documents under Sections 123 and 124 of the Indian Evidence Act, 1872.

Issues: 1. Whether the Public Service Commission is State entitled to claim privilege under Sections 123 and 124 of the Indian Evidence Act, 1872? 2. Whether Public Service Commission can claim privilege from production of documents/ record regarding selections made by it under Sections 123 and 124 of the Indian Evidence Act, 1872? 3. Scope of Section 93 of Code of Criminal Procedure regarding issuance of search warrants. 4. Maintainability of petition under Section 482 Cr.P.C, once revision filed by the petitioner has already been dismissed by the learned Sessions Judge. 5. Whether vigilance can go into the question of illegality committed in the selections with the allegations of corruption once the selection has already been upheld in writ jurisdiction of this Court?

Ratio Decidendi: 1. The Court held that the HPSC was not entitled to claim privilege under Sections 123 and 124 of the Indian Evidence Act, 1872, because: a. The HPSC was not a State for the purpose of claiming privilege. b. The records sought by the petitioner were not related to the affairs of the State. c. The claim of privilege was not made in accordance with the procedure prescribed in Sections 123 and 124 of the Indian Evidence Act, 1872. 2. The Court held that the HPSC could not claim privilege from production of documents/ record regarding selections made by it under Sections 123 and 124 of the Indian Evidence Act, 1872, because: a. The records sought by the petitioner were not related to the affairs of the State. b. The claim of privilege was not made in accordance with the procedure prescribed in Sections 123 and 124 of the Indian Evidence Act, 1872. 3. The Court held that the scope of Section 93 of the Code of Criminal Procedure regarding issuance of search warrants is that a search warrant may be issued if: a. The Court has reason to believe that a person to whom a summons or order under section 91 or a requisition under sub-section (1) of section 92 has been, or might be, addressed, will not or would not produce the document or thing as required by such summons or requisition, or b. Such document or thing is not known to the Court to be in the possession of any person, or c. The Court considers that the purposes of any inquiry, trial or other proceeding under this Code will be served by a general search or inspection. 4. The Court held that a petition under Section 482 Cr.P.C is maintainable even if a revision filed by the petitioner has already been dismissed by the learned Sessions Judge, if: a. There is serious miscarriage of justice and abuse of process of Court. b. Mandatory provisions of law have not been complied with. c. The legal issues of general importance are raised. d. The Court feels that inherent jurisdiction is to be exercised to correct the mistake committed by the Courts below. 5. The Court held that the vigilance can go into the question of illegality committed in the selections with the allegations of corruption once the selection has already been upheld in writ jurisdiction of this Court, because the allegations of corruption and illegality in the selections made for extraneous reasons can certainly be gone into by the Vigilance in the process of investigation of FIR.

Final Decision: The Court set aside the impugned orders passed by the Courts below and granted liberty to the HPSC to produce the record before the Investigating Officer within a period of three weeks from the date of receipt of the judgment, failing which the petitioner shall be at liberty to carry out search at the office of the Commission to take the relevant records.