ORDER :- In a suit filed by the petitioner against the State of Uttar Pradesh for an injunction restraining it from realising an amount under a forest contract, the petitioner applied for inspection and production of certain documents in the possession of the State Government and its officers. In opposition to the application, the State claimed privilege in respect of the documents and two affidavits were filed before the trial court, one by the Conservator of Forests (Annexure-2 to the counter affidavit) and the other by the Chief Conservator of Forest (Annexure-3 to the counter affidavit). The application was rejected by the trial court by its order of March 17, 1962 (Annexure-K to the writ petition) by the following order :

17-3-62 / 283/C2

Affidavit filed by the defendant, along with this affidavit an application has been made on behalf of the defendant that the plaintiff he not allowed to inspect the file.

A perusal of S. 123 of the Indian Evidence Act makes it clear that it is for the Head of the Department to permit or not to permit giving in evidence any document which are unpublished official record relating to the affairs of the State. The affidavit filed today proves that the documents which sire claimed as secret are unpublished official records relating to the affairs of the State. In view of the affidavit the documents cannot be tendered into evidence 282/C2 is therefore allowed."

2. The petitioner is aggrieved by the order and applies for certiorari.

3. The petitioner contends that the trial court did not apply its mind to the application before it and merely accepted the affidavit in which it was claimed that the documents were unpublished official records relating to the affairs of the State. It is alleged that the trial court should have determined whether in fact upon the material before it the documents were of the class which could be said to relate to the affairs of the State. There is substance in the contention the law on the point was laid down by the Supreme Court in State of Punjab v. Sodhi Sukhdev Singh, AIR 1961 SC 493.

The Supreme Court, after analysing S. 123 of the Evidence Act declared that while it was not open to the Court to hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question and that that was a matter for the authority concerned to decide, the Court was competent, and indeed was bound, to hold a preliminary enquiry and determine the validity of the objection to its production and that that necessarily involved an enquiry into the question as to whether the evidence related to an affair of the State under S. 123. It is clear that the trial court was bound to consider objectively whether the material before it justified the inference that the documents in question related to the affairs of the State. That was a matter into which the trial court was bound to enter and to arrive at its own decision. What documents can be said to relate to the affairs of the State was also discussed by the Supreme Court in the aforesaid case and after observing that the affairs of the State would ordinarily refer to matters of political or administrative character whose disclosure would affect the national defence or public security or good neighbourly relations, it further remarked :

"There may be another class of documents, which could claim the said privilege not by reason of their contents as such but by reason of the fact that, if the said documents were disclosed, they would materially affect the freedom and candour of expression of opinion in the determination and execution of public policies. In this class may legitimately be included notes and minutes made by the respective officers on the relevant files, opinions, expressed, or reports made, and gist of official decisions reached in the course of the determination of the said questions of policy.

" It would, therefore seem that if the documents related to questions of public policy, they

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