Chaturvedi, J

[1] These are three references made by the Sessions Judge, Indore, in three different cases against the accused-petitioner Brijnath. As the point of law involved is common, this decision will dispose of all the three references.

[2] Petitioner Brijnath, an employee in the State Electric Supply Company is being prosecuted under Sections 409 and 465, I. P. C., for different items in these three cases. In his defence, he wanted two letters, both dealing with the sanction for his prosecution, one being from the Inspector General of Police to the Home Secretary and another letter from the Assistant Home Secretary to the Secretary Public Works Department. The accused-petitioner thinks that there is something in his favour in these letters, and, therefore, he wants them to be produced in the trial Court. The Inspector General of Police claimed privilege under Sections 123 and 124 of the Indian Evidence Act. This claim was accepted by the trial Court; but the Sessions Judge comes to the conclusion that these letters cannot be privileged, and he wants an order from this Court to the prosecution of these letters in the Court below.

[3] The learned Government Advocate has taken objection to the inspection of these documents by the Sessions Judge. He thinks that these letters when they were claimed to be privileged could not have been inspected by the learned Court.

[4] Now, there are three sections of the Indian Evidence Act which are relevant here and are re-produced below:

Section 123 : No one shall be permitted to give any evidence derived from unpublished official records relating to any affairs of State, except with the permission of the officer at the head of the department concerned, who shall give or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.

"Section 124 : No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.

"Section 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.

Then, there are two-provisions; one in the Criminal Procedure Code and another in the Civil Procedure Code. Section 94 of the Cri. P. C., deals with summons to produce documents, its Sub-clause (3) states that:

nothing in this section shall be deemed to affect the Indian Evidence Act, 1872, Sections 123 and 124.

Order 11, Rule 19(2) of the Civil P. C. runs as follows:

Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the Court to inspect the document for the purpose of deciding as to the validity of the claim of privilege.

The difference between Section 94(3). Cri. P. C. and Order 11, Rule 19(2). Civil P. C., can easily be seen. The provision in the Civil P. C. does not say anything about Sections 123, 124 and 162 of the Indian Evidence Act. It was argued in Governor-General-in-Council v. H. Peer Mohd. AIR 1950 EP 228 (FB) (A) that the Civil P. C. being a later statute O. 11, K. 19(2) had the effect of repealing pro tanto the provisions of Section 162, Indian Evidence Act. The Pull Bench repelled this contention holding that the prohibition with regard to the inspection of a State document arises out of the privilege of the State, and is not a procedural matter with which alone Sub-rule (2), Rule 19, Order 11, C. P. C. deals. Then the matter of State privilege is a matter of constitutional law and is dealt with specifically under Sections 123 and 162 of the Indian Evidence Act. Section 4 of the Civil P. C. lays it down that nothing in the Code would affect any special or local law in force. Sect