JUDGMENT

Daniels, J C - This is a reference by the learned Sessions Judge of Fyzabad in a case in which certain jail officials are charged with various offences in connection with the escape of prisoner from the Sultanpur jail. There had been a previous investigation into the circumstances of the escape conducted by Pandit Sheo Karan Nath Misra, a Magistrate of the first class, resulting in the submission of a report to the Inspector-General of Prisons under para. 900 of the Jail Manual. The accused applied for copies of the statements made in that investigation and also in a more informal enquiry by the Superintendent of the jail. The District Magistrate refused to allow these copies to be given. The applicants then applied that the original record be summoned. The District Magistrate refused to produce it and claimed privilege under Sections 123 and 124 of the Indian Evidence Act. The trying Magistrate thereupon disallowed the application. The learned Sessions Judge is of opinion that Sections 123 and 124 of the Evidence Act do not apply and has referred the case to this Court for orders. Section 124 would not appear to apply but a report submitted to the Inspector-General of Prisons under Section 900 of the Jail Manual is clearly an unpublished official record relating to affairs of State within the meaning of Section 123 of the Evidence Act, and I do not think that it is possible to draw the distinction the learned Judge desires to draw between the actual text of the report and the statements which it incorporates. It was held by the Calcutta High Court in Irwin v. Reid A.I.R. 1921 Cal. 282, following the authority of Baron Pollock in Beatson v. Skene (1860) 5 H. & N. 838, that it is not open to the Court to call for the document in dispute in order to ascertain whether it falls within the description. They say: "It has been contended before us that the papers mentioned did not fall within the description: but it is fairly clear from the language of the section that the Court cannot be invited to discuss the nature of the document. The public officer concerned, and not the Judge, is to decide whether the evidence referred shall be given or withheld. If any other view were taken, the mischief intended to be averted would take place, as the Judge could not determine the question without ascertaining the contents of the document, and such enquiry, if it did take place, must for obvious reasons, take place in public: Beatson v. Skene (1860) 5 H. & N. 838 Hennesy v. Wright (1888) 21 Q.B.D. 509, Jehangir v. Secretary of State (1904) 6 Bom. L.R. 131.

2. The same view was adopted by a Judge of this Court in Lal Tribhuwan Nath Singh v. Deputy Commissioner, Fyzabad (1918) 5 O.L.J. 294. Where the document is an unpublished official record relating to affairs of State the head of the department has absolute discretion to give or withhold permission.

3. It has been suggested that the main ground for refusing disclosure has been that the witnesses at an earlier stage of enquiry expressed ignorance of matters as to which they afterwards gave evidence. If that were so I think the learned District Magistrate might well waive the claim of privilege and leave it to the Court to decide whether the later or the earlier statements should be believed. As a matter of law, however, I hold that the Court is not entitled to question the claim of privilege raised by the District Magistrate. This will not of course prevent the witnesses themselves being cross-examined under Section 145 of the Evidence Act as to whether they had made previous statements at variance with the evidence given by them in Court.