Patna High Court
The State Of Bihar vs V.D. Kumar And Ors. on 9 April, 1974
Equivalent citations: 1975CRILJ1411
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT Nagendra Prasad Singh, J.
1. This is an application in revision on behalf of the State of Bihar against an order, dated the 31st July, 1971, passed by the special Judge, Dhanbad, in special case No. 5 of 1968, rejecting the privilege claimed fry the petitioner-State, under Section 123 of the Evidence Act (hereinafter referred to as the "Act"), that certain documents called for by the accused-opposite party were unpublished official records relating to the affairs of the State and, as such, they could not be produced in court. The members of the opposite party are being prosecuted under Sections 161 and 120-B of the Indian Penal Code and Section 5 (2) of the Prevention of Corruption Act in Chirkunta P. S. Case No. 5 (5) 68 which is pending for trial in the court of the Special Judge.
2. The case of the prosecution, in short, is as follows : The anti-corruption department of the Government of Bihar received information that the officers posted at Chirkunda checkpost were indulging in corrupt practices and were freely taking illegal gratifications from the truck-owners and truck-drivers who passed through the said checkpost. After receipt of such information, officers were deputed to verify the said allegation. Ultimately, a raiding party was organised consisting of several officers, including a Magistrate, and they waited at the District Board Dak Bungalow at Capasora-A Sub-Inspector of Police, Anti-corruption Department, was asked to contact a few truck-owners and truck-drivers, who were asked to inform the raiding party about their grievances. One Shree Lachhmi Prasad of the firm Messrs. Chhotelal Gupta of Dinapore Cantt. appeared before the raiding party and filed a petition before Shree D. C. Sinha, Deputy Superintendent of Police, Anti-corruption Department, stating that the officers of the Chirkunda checkpost always realised illegal gratification at the rate of Rs. 5 to Rs. 10 per truck under threat of harassment. Ultimately, a trap was laid and money illegally demanded by opposite party Nos. 2, 4 and 5 was paid by the aforesaid Shree Lachmi Prasad to accused-opposite party No. 5, which was subsequently recovered from his possession. Opposite party No. 5 Shree Jagdish Ram is said to be a peon of opposite party No. 1 Shree V. D. Kumar.
3. At the trial, a petition was filed on behalf of the accused-opposite party for calling for the following documents from the State:
(i) The secret Service Fund account submitted by Sri D. C, Sinha, D.S.P., Anti-corruption, Bihar, Patna to the Additional Secretary, Anti-Corruption Department, Bihar, Patna dated 7-9-66, together with its enclosures, including T. A. Bills of the watchers and the A.S.I's.
(ii) The secret service fund file of Shri D. C. Sinha, D.S.P., Anti-corruption Department, Bihar, Patna including his buff sheets dated 22-4-.1966.
(iii) The secret service fund file of Sri T. P. Singh, I.P.S., the then Deputy Secretary, Anti-corruption Department, Bihar, Patna, including his requisition dated 20-5-66.
4. An affidavit sworn by Shree S. K. Chatterjee, the then Additional Secretary, Appointment (Anti-corruption) Department, Government of Bihar, was filed on behalf of the State saying that he had seriously applied his mind to the contents of each of the documents aforesaid and had carefully examined the question as to whether their disclosure would injure public interest and that he was satisfied that the disclosure of each of the said documents would lead to public injury since they are unpublished official records and relate to the affairs of the State. On the above ground, privilege under Section 123 of the Act was claimed on behalf of the State.
5. A counter-affidavit sworn by Shree V. C. Kumar, opposite party No. i, was filed in reply to the aforesaid affidavit filed by Shri S. K. Chatterjee saying that those documents did not relate to the affairs of the Stale nor were they likely to injure public interest. It was further stated that from those documents it would appear that the aforesaid Shree Lachhmi Prasad, who claimed to be one of the persons aggrieved by the conduct of the officers posted at Chirkunda check-post and who alleged to be going on a truck with potatoes, was really a hired person of the Anti-corruption Department and had been paid Rs. 125 out of the secret service fund, and that Shree T. P. Singh, Deputy Secretary of the Anti-corruption Department, had purchased, on cash payment, potatoes worth Rs. 6,510 out of the secret service fund and ultimately the potatoes were sold at Asansol for Rs . 5,60,2 resulting in a loss of Rs. 708 to Government. Opposite party No. 1 also produced photostat copies of the said documents and asserted that the documents in question could not be said to be unpublished official records of the State Government.
6. The learned special Judge examined Shree R. Lal, the then Deputy Inspector-General of Police (Administration), Bihar, and Shree S. K. Chatterjee aforesaid; and, on a consideration of the materials on record, came to the conclusion, by the impugned order, that the aforesaid documents were not unpublished official records of the State Government relating to the affairs of the State and, as such, the privilege under Section 123 of the Act could not be claimed. He further held that Shree S. K. Chatterjee was not the head of the Anti-corruption Department, and, as such, he was not competent to swear the aforesaid affidavit, and the affidavit should have been sworn by the Chief Secretary to the Government of- Bihar, who was the head of the Anti-corruption Department. The legality of the aforesaid order is being challenged by the State of Bihar in this revision application.
7. Section 123 of the Act reads as follows:
123. Evidence as to affairs of State-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.
From a bare reference to Section 123 it is obvious that it provides that evidence shall not be permitted to be given in respect of unpublished official records relating to any affairs of State, unless the head of the department concerned gives permission in that behalf. The result of this section is that a document which is material and relevant is allowed to be withheld from the court. In that sense, it is a serious departure from the ordinary rule of evidence, that is, both parties to the dispute must produce all relevant and material evidence in their possession. Nonetheless, this privilege has been engrafted under the Act and it is justified on the principle of overriding paramount character of public interest and that private interest must give way to the public interest in general. Section 162 of the Act is in these words:
162. Production of documents- 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.
From Section 162 it is clear that a witness summoned to produce a document must bring it before the court and then raise an objection against its production or its admissibility, and the court is enjoined to decide the objection to the production or admissibility. This power of the court to inspect the document, while dealing with the objection, has also been curtailed to some extent, when a privilege is claimed under Section 123 of the Act. The court is, however, empowered to take other evidence and to hold a preliminary inquiry to enable it to determine the validity of the objection, and for achieving that purpose, the court may direct filing of a proper affidavit and may even cross-examine the head of the department for finding out as to whether the privilege claimed is a mere pretence for not producing the document which, if produced, would go against the interest of the State in that particular case, or really it was against the interest of the public in general. Keeping the above principles in view, it has to be examined as to whether the documents in question in the instant case are unpublished official records and relate to the affairs of State and as to whether there is a proper affidavit on behalf of the head of the department asserting the aforesaid facts.
8. At the outset great stress was laid by counsel appearing for the opposite party that, in view of the production of their photostat copies, the documents in question could not be held to be unpublished official records of the State. In this connection it may be mentioned that the accused-opposite party No. 1, who has produced those photostat copies of the documents in question, has not stated in his affidavit as to how he got the photostat copies of the documents. It cannot be denied that the documents, per se, are secret documents of the State and the accused persons are not supposed to have access to those documents in normal course. Unless some satisfactory explanation is furnished by the opposite party, it has to be held that opposite party No. 1 had obtained the said photostat copies in a surreptitious manner. Learned Counsel for the opposite party could not point out any statement made by the accused-opposite party No. 1 before the learned Special Judge in the affidavit or in any other document as to how the photostat copies of the documents in question had been obtained. Learned Counsel simply pointed out a suggestion given to Shree S. K. Chatterjee as to whether he had any knowledge that Shree D. C. Sinha allowed Shree V. D. Kumar to take photo of the contents of the documents, which Shree Chatterjee denied in the following words:
I have no knowledge if Sri D.C. Sinha allowed Sri V. D. Kumar to take photo of the contents of the documents.
9. Now the question is as to whether an unpublished official record of the State becomes a published record merely because a copy thereof, or a photostat copy thereof, has been taken surreptitiously or in some unauthorised manner. Learned Counsel appearing for opposite party Nos. 2 and 3 referred to a decision of the Orissa High Court in Union of India v. Sudhir Kumar Roy . In that case a question arose as to whether granting of plain conies of certain documents and certified copies of certain other documents, regarding which privilege was being claimed under Section 123 of the Act, amounted to publication of the documents in question, and Narasimham, C. J. came to the conclusion that, copies having been taken, the documents ceased to be unpublished official records. His Lordships, in paragraph 14 of the judgment, clearly mentioned that, if the person against whom privilege was being claimed had been permitted lawfully to see those papers and also to take copies of the same, it was "futile for the authorities to claim privilege" under Sections 123 and 124 of the Act. In paragraph 15 of the judgment his Lordship observed:
But here there is no finding, nor was it urged before the lower court, that the opposite party obtained copies of those documents either surreptitiously or by unfair means. On the other hand, his own affidavit was to the effect that the officials in charge of the Department permitted him to see the same and that he took copies. There is no counter-affidavit by any party challenging this statement of fact. So far as certified copies are concerned, these were given by the court after inspection.
In the present case, as the accused-opposite party No. 1 did not assert that he had been permitted lawfully by the authorities concerned to take the photostat copies of the documents concerned, there was no occasion for the State to file any counter-affidavit to the same. As was held in Dinbai Lady Dinshaw v. Dominion of India , if a party either surreptitiously or by unfair means obtains a copy of a confidential document, the claim of privilege made in respect of such a document should not be defeated. Chagla, C. J. at page 84 of the report, observed:
If the original of the document is privileged, surely that privilege cannot be got over by litigants getting hold of copies surreptitiously of the document from the secretariat and asking the court to look at the secondary evidence of the documents.
In my opinion, in absence of any explanation on behalf of opposite party No. 1 as to how he obtained the photostat copies of the documents in question, which are admittedly confidential records of the State Government, it has to be held that, in the eye of law, they still remain unpublished records of State, and the claim of privilege on behalf of the State cannot be defeated on that account.
10. It was next urged on behalf of the petitioner that the finding of the learned Special Judge that Shree S. K. Chatterjee was not the head of the department and as such he was not competent to swear the affidavit on behalf of the State is erroneous in law. Section 123 of the Act says that 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. This part of Section 123 was the subject-matter of several judicial pronouncements and it has been observed in several judgments of the Supreme Court as well as of this Court that this power of withholding material evidence called for by any person, in the interests of the State and the general public should be exercised either by the head of the department concerned or preferably by the Minister of the Department concerned. There cannot be two opinions that this is an exception to the general rule provided in the Code of Civil Procedure and the Code of Criminal Procedure that all materials having bearing on the case should be brought before the court for proper decision of the case, and., as such, it is but natural that ample safeguard has been made in that section so that the 'privilege may not be claimed lightly, only in the interest of a particular case. As was observed in the State of Punjab v. Sodhi Sukhdeo Singh -
It must be clearly realised that the effect of the document on the ultimate course of litigation or its impact on the head of the department or the Minister in charge of the department, or even the Government in power, has no relevance in making a claim for privilege under Section 123. The apprehension that the disclosure may adversely affect the head of the department or the department itself or the Minister or even the Government, or that it may provoke public criticism or censure in the Legislature has also no relevance in the matter and should not weigh in the mind of the head of the department who makes the claim. The sole and the only test which should determine the decision of the head of the department, is injury to public interest and nothing else. Since it is not unlikely that extraneous and collateral purposes may operate in the mind of the person claiming the .privilege it is necessary to lay down certain rules in respect of the manner in which the privilege should be claimed. We think that in such cases the privilege should be claimed generally by the Minister in charge who is the political head of the department concerned; if not, the Secretary of the Department who is the departmental head should make the claim; and the claim should always be made in the form of an affidavit.
Shree S. K. Chatterjee has stated on affidavit that he is the head of the Anti-corruption Department. In paragraph 5 of the affidavit, he has stated as follows:
5. That I, therefore, in exercise of the powers vested in me as a Head of the Department with which the documents are connected and for safeguarding the public interest, claim privilege for each of the documents mentioned herein-above.
Accused-opposite party No. 1, in paragraph 7 of his affidavit has stated:
7. That it was equally necessary to mention the notification number and date of the State Government in the said affidavit of Sri S. K. Chatterjee,, Addl. Secretary, Anti-corruption Department, Bihar under which he assumed himself to be the Head of the Anti-corruption Department, Bihar. Its non-mention in the affidavit vitiates it as a whole and in the eyes of law it cannot be called an affidavit sworn in and filed by the Head of the Department as required by the law....
Shree S. K. Chatterjee, in his evidence in court, to a question put by the accused persons, stated-
It is not a feet that the Chief Secretary is the Head of the Department.
Chief Secretary is the Principal Secretary to the Government for that department. Chief Secretary holds the highest post in this department. I am the head of the Anti-corruption Department.
In reply to a similar suggestion. Shree R. Lal stated:
The Chief Secretary had control over all departments including Anti-corruption.
Thus, the witnesses examined on behalf of the petitioner-State, in answer to the suggestions made on behalf of the accused-opposite party that the Chief Secretary was the head of the Anti-corruption Department, replied in the negative and stated that the Chief Secretary had control over all the Departments, including the Anti-corruption Department. Learned Special Judge has referred to the statement of Shree R. Lal that at the relevant time the Anti-corruption Department was under the Appointment Department and to the statement of Shree S. K. Chatterjee that after 1966 Chief Secretary became the Secretary of the Department of Anti-corruption and since then it is not under the Appointment Department, fop the purpose of holding that Shree S. K. Chatterjee was not the head of the Anti-corruption Department. In my opinion, in view of the clear assertion made in the affidavit as well as in the evidence of the aforesaid witnesses, no such inference could be drawn from the aforesaid two statements referred to by the learned Judge taken in isolation, in my judgment, there is no reason to disbelieve the statements of such responsible officers made on oath that Shree S. K. Chatterjee was the head of the Anti-corruption Department competent to swear the affidavit on behalf of the State claiming privilege in respect of the documents in question.
11. The next question is as to whether the documents concerned relate to the affairs of State. The three documents which are sought to be called for by the accused opposite party are secret service fund account submitted by Shree D. C. Sinha, Secret service fund file of Shree D. C. Sinha and secret service fund file of Shree T. P. Singh. These documents have been labelled as "Secret Service Fund account or file". Shree S. K-Chatterjee. in his affidavit, has stated that he had seriously applied his mind to the contents of each of the documents and that he was satisfied that the disclosure of each of the said documents would lead to public injury since they are unpublished official records and relate to affairs of the State. He was examined before the learned Special Judge. In answer to a question put by the accused opposite party in relation to the aforesaid documents, he stated that he was unable to answer because "the papers relate to affairs of the State which are of secret nature and hence I say a disclosure will be harmful". Thereafter, a re-question was put to him as to how the disclosure would lead to injury to public works and Shree Chatterjee replied : "Because it relates to secret service account which are maintained for secret expenses undertaken by State". In answer to another question put by the accused persons, he stated - "The documents undoubtedly relate to the security of the State and public policy of the State." To a suggestion that the documents called for relate to the present case only, he said "No, it is not a fact" Shree R. Lal, the then Deputy Inspector-General of Police (Administration), also denied the suggestion given by the accused persons that the documents called for were partly commercial in nature in following words "It is not a fact that the document called for is a partly commercial transaction". On behalf of the accused-opposite party, except a bare assertion that those documents have no bearing on the public interest, but they relate to the affairs of a particular case and that they will reveal that the anti-corruption department, through its deputy secretary, Shree T. P. Singh, had purchased potatoes out of the secret service fund, there is no other material to show that the aforesaid documents do not relate to the affairs of State disentitling the petitioner-State to claim .privilege under Section 123 of the Act. In view of the statements on oath of Shree S. K. Chatterjee and Shree R. Lal and the affidavit of Shree S. K. Chatterjee, I must hold that the documents in question relate to the affairs of State.
12. Once it is held that the documents in question are unpublished records relating to the affairs of State, it has to be held that the State can claim privilege, even if it be assumed that it is likely to affect, to some extent, the interest of the accused persons. As was observed by the Supreme Court in the case of the State of Punjab. (supra), Fair administration of justice between a citizen and a citizen or between a citizen and the State is itself a matter of great public importance; much more so would the administration of justice as a whole be a matter of very high public importance; even so, on principle, if there is a real not imaginary or fictitious, conflict between public interest and the interest of an individual in a pending case, it may reluctantly have to be con-ceded that the interest of the individual cannot prevail over the public interest. If social security and progress which are necessarily included in the concept of public goods are the ideal, then injury to the said ideal must, on principle, be avoided even at the cost of the interest of an individual involved in a particular case.
13. In the aforesaid Bench decision of Bombay High Court. Chafila. C. J. observed:
Parties are sometimes apt so over-look the fact in their, what seems to them, justified indignation that the whole doctrine of privilege is based as I pointed out earlier, upon public interest, and We must assume, unless contrary is shown, that privilege is claimed on that ground. The indignation of the party who may feel that his cause is being lost by the refusal to disclose the document may be understood, but there is no legal basis for it and perhaps the indignation would not be so pronounced if the party took the trouble to understand why the courts are precluded from looking at documents with regard to which the State claims privilege.
14. The same view was reiterated in Amar Chand Butail v. Union of India and it was observed:
the court cannot hold an enquiry into the possible injury to public interest which may result from the disclosure of the document in question, that matter being left for the authority concerned to decide, the court is competent to hold a preliminary enquiry and determine the validity of the objection to its production and that necessarily involves an enquiry into the question as to whether the document relates to affairs of State under Section 123.
15. In my considered judgment, the privilege claimed by the State under Section 123 of the Evidence Act is well founded, and the learned Special Judge should not have directed the prosecution to produce the documents in question in court,
16. In the result, the application. is allowed .and the impugned order of the learned Special Judge, dated the 31st July, 1971 is set aside.
17. The case is pending since the year 1968 and for one reason or the other it has not been disposed of as yet. It is, therefore, proper that the hearing of this case should be concluded as early as possible.
A.N. Mukharji, J.
18. I agree.