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Allahbad High Court
K.N.SRIVASTAVA
Raj Narain - Appellant
Versus
Indira Nehru Gandhi - Respondent
Decided On : 03/20/1974
ELECTION PETITION - PRIVILEGE - CLAIMED REGARDING THREE SETS OF DOCUMENTS - BLUE BOOK - RULES AND INSTRUCTIONS FOR THE PROTECTION OF PRIME MINISTER WHEN ON TOUR OR IN TRAVEL - SUMMONED FROM SUPERINTENDENT OF POLICE, RAE-BARELI - TOUR PROGRAMME OF SMT. INDIRA NEHRU GANDHI AT RAE-BARELI DURING ELECTION PERIOD - SUMMONED FROM SRI K.P. SOOD - DOCUMENTS RELATING TO PAY AND EMOLUMENTS PAID TO SRI Y.P.R. KAPOOR - COURT'S POWER TO INSPECT DOCUMENTS - INTERPRETATION OF SECTIONS 123, 162 OF EVIDENCE ACT - CLAIM OF PRIVILEGE - STAGE AND MANNER - PROCEDURE - COURT'S FUNCTION - DUTY OF MINISTER OR HEAD OF DEPARTMENT - INSPECTION OF DOCUMENTS - ENGLISH DECISIONS - UNPUBLISHED RECORD - PUBLISHED - MEANING - AFFAIR OF STATE - CONSTITUTIONAL PROVISIONS - LEGISLATIVE ENACTMENT - REPRESENTATION OF THE PEOPLE ACT - SECTION 87 - COURT'S DISCRETION - BALANCE OF CONVENIENCE - PRIVILEGE CLAIMED REJECTED.
Fact of the Case:
In an election petition, privilege was claimed regarding three sets of documents. Sri S.S. Saxena, an agent and representative of Sri R.K. Kaul, Home Secretary, Uttar Pradesh Government, claimed privilege regarding four papers, including a copy of a blue book with the title as "Rules and Instructions for the Protection of Prime Minister when on Tour or in Travel". Privilege was claimed by the Superintendent of Police, Rae-Bareli, regarding two papers which relate to the Tour Programme of Smt. Indira Nehru Gandhi at Rae-Bareli during the election period. Sri K.P. Sood claimed privilege regarding two documents. Sri Sood is an officer of the Accountant General's Office, Central Revenue, New Delhi. Sri Saxena is alleged to have claimed privilege orally as an agent and representative of Sri R.K. Kaul, Home Secretary, Uttar Pradesh Government. This privilege was claimed by Sri Saxena on 10-9-1973, but an affidavit was filed by Sri Kaul claiming that privilege on 20-9-1973.
Finding of the Court:
The court held that no privilege could be claimed in respect of any of the three sets of papers and they are allowed to be produced. The court found that the blue book was not an unpublished record, as defined in Section 123 of the Evidence Act. The court also found that the documents summoned from the Superintendent of Police, Rae-Bareli, and the documents summoned from Sri K.P. Sood were not privileged documents. The court further held that the claim of privilege regarding the blue book and other papers which are correlated with the blue book be rejected.
Issues: 1. Whether the blue book is an unpublished record, as defined in Section 123 of the Evidence Act? 2. Whether the documents summoned from the Superintendent of Police, Rae-Bareli, are privileged documents? 3. Whether the documents summoned from Sri K.P. Sood are privileged documents?
Ratio Decidendi: 1. The court held that the blue book was not an unpublished record, as defined in Section 123 of the Evidence Act, because a portion of the book was quoted in the Lok Sabha Debate on Wednesday, April 18, 1973, and the Union Government itself disclosed a part of this blue book, on the top of which the word 'Secret' is printed. 2. The court held that the documents summoned from the Superintendent of Police, Rae-Bareli, were not privileged documents because they were derived from the blue book, which itself was not a privileged document. 3. The court held that the documents summoned from Sri K.P. Sood were not privileged documents because no privilege under Section 123 had been claimed regarding these papers.
Final Decision: The court held that no privilege could be claimed in respect of any of the three sets of papers and they are allowed to be produced.
ORDER :- In this election petition privilege has been claimed regarding three sets of documents. Sri S.S. Saxena is alleged to have claimed privilege regarding four papers, including copy of a blue book with the title as "Rules and Instructions for the Protection of Prime Minister when on Tour or in Travel". Privilege was claimed by the Superintendent of Police, Rae-Bareli, regarding two papers which relate to the Tour Programme of Smt. Indira Nehru Gandhi at Rae-Bareli during the election period. Sri K.P. Sood claimed privilege regarding two documents. Sri Sood is an officer of the Accountant General's Office, Central Revenue, New Delhi. Sri Saxena is alleged to have claimed privilege orally as an agent and representative of Sri R.K. Kaul, Home Secretary, Uttar Pradesh Government. This privilege was claimed by Sri Saxena on 10-9-1973, but an affidavit was filed by Sri Kaul claiming that privilege on 20-9-1973. Much stress was laid by the parties' counsel in support of their
respective contentions regarding the production of the blue book with the title "Rules and Instructions for the Protection of Prime Minister when on Tour or in Travel". It shall hereinafter be called as the 'blue book'.
2. According to the petitioner, firstly, privilege under Section 123 of the Evidence Act could not be claimed orally. Secondly, Sri Saxena did not claim privilege. The third contention of the petitioner's counsel was that after a lapse of ten days the affidavit of Sri Kaul should not be considered as Sri Kaul knew full well that Sri Saxena was bringing that book to Court for production and, as such, if he had to claim any privilege he should have armed Sri Saxena with the necessary affidavit. The fourth contention was that requisite conditions of Section 123, Evidence Act, were not fulfilled.
3. Section 123 of the Evidence Act reads as below :-
"S. 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."
4. In this connection, reference to Section 162 will also be relevant because it lays down the procedure which should be adopted while deciding the question of privilege. Section 162 of the Evidence Act reads as below :
"S. 162. A witness summoned to produce a document shall, if it is in his possession or power, bring it to Court, notwithstanding any objection which there may be to its production or to its admissibility. The validity of any such objection shall be decided on by' the Court.
The Court, if it sees fit, may inspect the document, unless it refers to matters of State, or take other evidence to enable it to determine on its admissibility.
If for such a purpose it is necessary to cause any document to be translated, the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence; and if the interpreter disobeys such direction, he shall be held to have committed an offence under Section 166 of the Indian Penal Code."
5. A reading of bare Section 123 of the Evidence Act clearly indicates that in order to claim privilege there must be. certain prerequisite conditions; (1) the document must be an unpublished official record, (2) it should relate to the affairs of State, and (3) it can be admitted in evidence with the permission of the head of the department concerned who shall give or withhold such a permission.
6. Under Section 162 of the Evidence Act, the Court has power to inspect the document for the purpose of deciding the question of its admissibility or to get it translated if such a course be required. But, the words "Unless it refers to matters of State" dearly indicate that documents relating to matters of State cannot even be inspected by the Court for determining the question of its admissibility.
7. Before taking up the question involved in this c
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