The court emphasized that it is for the court to decide whether documents are privileged, and that the privilege regarding production of documents is narrow and their production is likely to prejudice the Crown's case is no reason for their non-production.

Niyogi, A J C—In a suit filed by the applicant against the Secretary of State and two police officers to recover damages for illegal seizure and retention of his gun, he applied for the production of the record of papers relating to the departmental enquiry. The notice to produce -those documents was sent to the Inspector-General of Police who declined to produce them claiming privilege under Ss.123 and 124, Evidence Act. The trial Court rejected the applicant's application, made for production of the documents, for the reason that it could not go behind the certificate. That order is sought to be revised on the ground that the Court failed to exercise jurisdiction vested in it by law. The lower Court's order seems to have been based on the assumption that it is for the public officer and not for the Court to decide whether the documents are privileged. There can be no room for doubt that it is for the Court in the first instance to satisfy itself, that the documents relate to any affair of state or that their production will be detrimental to public interest: see 44 All 360 The Collector of Jaunpur v. Jamna Prasad, 1922 AIR(All) 37 Harbands Sahai v. Emperor,1912 16 CalWN 431 it was held that departmental enquiry papers are not unpublished documents relating to affairs of state. I respectfully agree with the view. In 40 Cal 898 Weston v Peary Mohan Dass, 1913 40 ILR(Cal) 898, the statements made by witnesses in the course of departmental enquiry were produced in the case.

2. It has been pointed out by their Lordships of the Privy Council in Robinson v. State of South Australia, 1931 AIR(PC) 254 that the privilege regarding production of documents is a narrow one and that their production is likely to prejudice the Crown's case is no reason for their non production. The lower Court's order rejecting the application for production of the documents is set aside. The lower Court will call on the Inspector-General or any other Public Officer concerned to produce the documents in the Court (S. 162, Evidence Act) and give reasons for their non-production. The Court will then decide whether they relate to affairs of state (S.123, Evidence Act), or would prejudice public interests (S. 124, Evidence Act).